FILLING THE GAP

1. FILLING THE GAP ADULT SUPPORT AND PROTECTION IN SCOTLAND 2012

2. PRIOR LEGISLATION • ADULTS WITH INCAPACITY [SCOTLAND] ACT 2000 -PROTECT THOSE WITH CAPACITY • MENTAL HEALTH [CARE AND TREATMENT] SCOTLAND ACT 2003 - PROTECTS THOSE WITH A MENTAL DISORDER • But those who are frail, older but with capacity, or those unable to protect them selves from harm/abuse or subject to exploitation/neglect still not covered.

3. ADULT SUPPORT AND PROTECTION ACT • PASSED BY THE SCOTTISH PARLIAMENT IN FEBRUARY 2007 • RECEIVED ROYAL ASSENT IN MARCH 2007 • ENACTED OCTOBER 2008

4. GENERAL PRINCIPLES THE SCOTTISH GOVERNMENT INSIST THAT ANY NEW LEGISLATION HAS TO BE BASED ON SOUND ETHICAL UNDERPINNING • SECTION 1 - INTERVENTION MUST PROVIDEBENEFITTO THE ADULT • ACTIONS SHOULD BE MOST SUPPORTIVE AND LEAST RESTRICTIVE

5. GENERAL PRINCIPLES • SECTION 2 - MUST HAVE REGARD TO: • WISHES OF THE ADULT, NEAREST RELATIVE, CARER GUARDIAN • IMPORTANCE OF ADULT’S PARTICIPATION • NOT TREATING THE ADULT LESS FAVOURABLY • ADULT’S ABILITIES, BACKGROUND AND CHARACTERISTICS

6. ADULT PROTECTION MEASURES THE ACT PROVIDES POWERS TO • INVESTIGATE SUSPECTED HARM • CARRY OUT ASSESSMENTS OF THE ADULT AND THEIR CIRCUMSTANCES [ASSESSMENT ORDERS] • INTERVENE TO REMOVE THE ADULT OR MANAGE THE RISK OF HARM [REMOVAL ORDERS] • IF NECESSARY AND AS A LAST RESORT, TO EXCLUDE THE PERPETRATOR [BANNING ORDERS] • IF NECESSARY AND AS A LAST RESORT, TO FORCE ENTRY TO PERFORM THE ABOVE FUNCTIONS

7. KEY DEFINITIONS ‘HARM’INCLUDES ALL HARMFUL CONDUCT AND, IN PARTICULAR INCLUDES: • Conduct which causes physical harm, • Conduct which causes psychological harm [e.g. by causing fear, alarm or distress] • Unlawful conduct which appropriates or adversely affects property, rights or interests [e.g. theft, fraud, embezzlement or extortion] • Conduct which causes self harm

8. CONSENT OF THE ADULT • PROTECTION ORDERS SHOULD NOT BE GRANTED WITHOUT THE CONSENT OF ADULT - SECTION 32 • BUT REFUSAL TO CONSENT CAN BE IGNORED WHERE IT IS BELIEVED THAT THE ADULT HAS BEEN UNDULY PRESSURISEDTO REFUSE CONSENT, AND • NO OTHER STEPS COULD REASONABLY BE TAKEN WITH THE ADULT’S CONSENT TO PROTECT • THIS HAS TO BE BALANCED BY GUIDING PRINCIPLES

9. UNDUE PRESSURE ADULT AT RISK MAY BE CONSIDERED TO HAVE BEEN UNDULY PRESSURISEDTO REFUSE TO CONSENT….IF IT APPEARS: • THAT HARM WHICH THE ORDER OR ACTION IS INTENDED TO PREVENT IS BEING, OR IS LIKELY TO BE, INFLICTED BY A PERSON IN WHOM THE ADULT AT RISK HAS CONFIDENCE AND TRUST, AND • THAT THE ADULT AT RISK WOULD CONSENT IF THE ADULT DID NOT HAVE CONFIDENCE AND TRUST IN THAT PERSON.

10. NATIONAL TRAINING MATERIAL TRAINING MATERIAL PRODUCED CENTRALLY TO ENSURE CONSISTENT APPLICATION ACROSS SCOTLAND • LEVEL 1 - MEMBERS OF GOVERNANCE COMMITTEES OR BOARDS - 20 MINS • LEVEL 2 - GENERAL STAFF BRIEFING - 1 HOUR • LEVEL 3 - TWO DAY TRAINING COURSE FOR OPERATIONAL STAFF ON AN INTER-AGENCY BASIS

11. CHALLENGE • TO BALANCE APPROPRIATE INTERVENTION AGAINST THREE ELEMENTS - CAPACITY, RIGHTS AND CHOICE - AND ACHIEVE APPROPRIATE PROTECTION • WE WILL NOT ALWAYS GET IT RIGHT • ORGANIC PROCESS WHICH WILL CHANGE OVER TIME

12. RESULT OF THE LEGISLATION SINCE 2008 • GREATER EMPHASIS ON PUBLIC PROTECTION • PUBLIC AWARENESS CAMPAIGN • INCREMENTAL RISE IN REFERRALS • MULTI-AGENCY INVOLVEMENT IN DECISION MAKING • ADULT PROTECTION ON A SIMILAR FOOTING TO CHILD PROTECTION • STATUTORY REQUIREMENT FOR APCs • SYSTEMATIC TRAINING AND DEVELOPMENT FOLLOWING NATIONAL TRAINING PROGRAMME

13. NATIONAL DATA SURVEY ADULT PROTECTION REFERRALS: 1ST APRIL 2008 - 28 OCTOBER 2008: 1,680 [PRIOR TO ACT] 29THOCTOBER 2008 - 31 MARCH 2009: 3,332 1 APRIL 2009 - 30 NOVEMBER 2009: 7,375 OVER THE FIRST 6 MONTHS OF NEW ACT APPROX 100% INCREASE REFERRALS

14. REFERRALS, ENQUIRIES, INVESTIGATIONS, PROTECTION ORDERS FROM APRIL 2008 - NOVEMBER 2009 • REFERRALS 12,387 • INQUIRIES 9,769 • INVESTIGATIONS 2,485 • PROTECTION ORDERS OCTOBER 2008 - SEPTEMBER 2010 ASSESSMENT REMOVAL BANNING 1 4 42