Adult Support and Protection (Scotland) Act 2007

1. A S P Adult Support and Protection (Scotland) Act 2007 0 7 The Roles and Responsibilities of Council Officers and Other Specialists Level 3 training

2. Adult Protection Training Framework A S P 0 7

3. National Training Material A S P 0 7 * Requires to be supplemented by full awareness training ** Requires to be supplemented by specific skills training

4. Two-day training course level 3 • Designed for: Council Officers & Specialists; • Intended for: Multiagency and Multidisciplinary use; • Covers: Legislation and its operational implementation; • Developed by: Staff from Scottish Borders, West Lothian, Midlothian, and Perth & Kinross, with staff from the Scottish Government’s Adult Support and Protection Team and Legal Services; • Use and Delivery: Local discretion; • Customisation: Can be customised as necessary with reference to local protocols and procedures; • Trainer notes: Accessed via menu bar by clicking on ‘View’ and then ‘ Notes Page’. A S P 0 7

5. Fire exits and alarms Breaks Refreshments Toilet facilities

6. Please switch off mobile phones

7. Group exercises The course is designed to promote multi-professional consideration of the practice issues arising from the implementation of the legislation. The discussion groups may want to identify someone within the group to chair the group discussion session, and will need to identify a note taker to report back. Flipcharts are available to each group to record main points made. It will be important to respect the contribution of all participants, and to ensure that everyone within the group is encouraged and allowed opportunities to contribute. A S P 0 7

8. We will be discussing harm of adults during this training. This can be an emotive and difficult subject. It is therefore essential to create a safe learning environment for all participants. Everyone’s comments will be respected. All personal information shared within the room is confidential unless it raises concerns about an adult at risk. Session rules

10. A S P Aims of training 0 7 This two day training course is intended to provide: detailed knowledge of the Adult Support and Protection (Scotland) Act the requirements of implementation; and an understanding of its practice implications. The course is intended to complement other training dealing with issues such as: awareness of abuse indicators and responses; skills in communication and interviewing; and risk assessment and protection planning.

11. Existing legislation A S P • The Adults with Incapacity (Scotland) Act 2000 provided means to protect those with incapacity, for example through part 6 of financial and welfare guardianship. • The Mental Health (Care & Treatment) (Scotland) Act 2003 set out powers and duties in relation to people with mental disorder including those who are subject to ill-treatment or neglect. • The Adult Support and Protection (Scotland) Act (ASP) was passed by the Scottish Parliament in February 2007, with Part 1 implementation due in October 2008. • The ASP Act was designed to fill in gaps in previous legislation related to the protection of certain adults and concerns both adults with capacity and adults without capacity, including adults with a mental disorder 0 7

12. This two day training session will focus on Part 1 of the Act: A S P 0 7 Protection of adults at risk of harm

13. What does the ASP Act do? The ASP Act introduces new adult protection duties and powers, including: • Councils duty to inquire and investigate • Duty to co-operate • Duty to consider support services such as independent advocacy • Other duties and powers - visits, interviews, examinations • Protection Orders: assessment, removal, banning and temporary banning • Warrants for Entry, Powers of Arrest and Offences • Duty to establish Adult Protection Committees across Scotland A S P 0 7

14. Code of Practice • Section 48 • Those having a duty under section 48(5) to have regard to the Code Of Practice: • Councils and Council Officers; • Health Professionals. • Other organisations performing functions under Part 1 should have regard to the code: • The Police; • The Care Commission; • The Mental Welfare Commission; • The Office of The Public Guardian. • It is also relevant to those working in the voluntary and private sectors. A S P 0 7

15. Definition and interpretation This course draws extensively and in detail from the ASP Act and the Code of Practice. Where the Act provides a definition then that should be the interpretation.  Otherwise, the dictionary definition or common usage should be used. Local staff will often require to reach professional views, and should also seek legal advice as appropriate.  This course will not therefore provide definitive answers about how to interpret the legislation. In their practice, local staff will require to consider each case on an individual basis, using professional judgement and following local procedures, often involving multidisciplinary discussion. A S P 0 7

16. Course content Day 1 Morning – Principles, Definitions and Inquiries Afternoon –Investigations and the interface between ASP, AWI and MHCT Day 2 Protection Orders Morning – Assessment Orders and Removal Orders Afternoon – Banning Orders and Offences A S P 0 7

17. Day 1 – Course content 09.45 Principles Section 1. General principle on intervention in an adult’s affairs S2. Principles for performing Part 1 functions 10.00 Definitions S3. Adults at risk S53. Harm 10.15 Group Exercise 10.45 Feedback 11. 00 BREAK 11.15 Inquiries S4. Council’s duty to make inquiries S5. Co-operation S6. Duty to consider importance of providing advocacy and other services 12.00 Group Exercise 12.30 Feedback 12.45 LUNCH 13.30 Investigations 1 S52-53. Definition of Council Officer S7. and S36. Visits S37, 38 and 40. Warrants for Entry S8. Interviews 14.15 Group Exercise 14.45 Feedback 15.00 BREAK 15.15 Investigations 2 S9/52. Medical examinations S10. Examination of records 15.30 Group Exercise 16.00 Feedback 16.15 ASP – AWI – MHCTA 16.30 Learning Outcomes 16.45 CLOSE A S P 0 7

18. Principles Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Sections 1 & 2

19. Principles of the Act Sections 1 & 2 The ASP principles apply to ANY public body or office holder performing a function. Any person or body taking a decision must be able to demonstrate that the principles have been applied to their decision making and their interventions. The following persons are NOT bound by the principles: • the adult; • the adult’s nearest relative; • the adult’s primary carer; • independent advocate; • the adult’s legal representative; • and any guardian or attorney of the adult. A S P 0 7

20. Section 1: Overarching principles A public body or office holdermust be satisfied that an intervention: • will provide benefit to the adult which could not reasonably be provided without intervening in the adult’s affairs; and • is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom. A S P 0 7

21. Section 2: Guiding principles In addition public bodies or office holders must also have regard to: a) the adult’s ascertainable wishes and feelings (past and present); b) any views of • the adult’s nearest relative, • any primary carer, guardian or attorney of the adult, and • any other person who has an interest in the adult’s well-being or property; and c) the importance of • the adult participating as fully as possible in the performance of the function, and • providing the adult with such information and support as is necessary to enable the adult to participate. A S P 0 7

22. Section 2: Guiding principles Public bodies or office holders must also have regard to: a) the importance of the adult not being, without justification, treated less favourably than the way in which a person who is not an adult at risk of harm would be treated in a comparable situation; b) the adult’s abilities, background and characteristics. A S P 0 7

23. Definitions Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Section 3

24. Section 53: Harm Harm includes all harmful conduct and, in particular, includes: a) conduct which causes physical harm; b) conduct which causes psychological harm (for example: by causing fear, alarm or distress); c) unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and d) conduct which causes self-harm. A S P 0 7

25. Section 3(2): Risk of harm An adult is at risk of harm if: • another person’s conduct is causing (or is likely to cause) the adult to be harmed, or • the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm N.B “conduct” includes neglect and other failures to act (Section 53) A S P 0 7

26. ASP Section 3(1): Adults at risk The three point test: “Adults at risk” are adults who – a) are unable to safeguard their own well-being, property, rights or other interests; b) are at risk of harm; and c) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected. In terms of Section 53 of the Act, “adult” means a person age 16 or over. A S P 0 7

27. Considerations - Adults at risk The presence of a particular condition does not automatically mean an adult is an “adult at risk”. A person could have a disability, physical and/or mental health problem and be able to safeguard his/her well-being etc. All three elements of the definition must be met. (unable to safeguard/at risk of harm/because they are affected by) It is the whole of an adult’s particular circumstances which can combine to make her/him more vulnerable to harm than others and this could be very different from individual to individual. A S P 0 7

28. Considerations - harm Types of Harm: The Act sets out the main broad categories. The list is not exhaustive and no category of harm is excluded. Serious Harm: What constitutes serious harm will be different for different persons. A sheriff must be satisfied that an adult is at risk of serious harm before granting any Protection Order. Individual Assessment: The definition of “adults at risk” requires an assessment to be made about the “risk of harm” to the individual at the outset. A S P 0 7

29. Group Exercise 1 Group members should introduce themselves and say what agency they come from and what their post title is. The group should identify a chair, and a person to write the flipchart list and to report back in the plenary feedback session. The group task is to consider: What are the implications, challenges and dilemmas in professional practice from the definitions of ‘adult at risk' and 'harm'? Use post-its on an individual basis to note words and phrases about the definition of ' an adult at risk' and the definition of 'harm' and then share these within the group to create a group list on the flipchart. Identify cases on an anonymous basis, which illustrate the dilemmas and challenges. Please flipchart your examples and comments. A S P 0 7

30. A S P 0 7 Feedback from group exercise

31. A S P 0 7 BREAK

32. Inquiries Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Section 4

33. Section 4: Inquiries A council must make inquiries about a person’s well-being, property or financial affairs if it knows or believes: • that the person is an adult at risk, and • that it might need to intervene (by performing functions under Part 1 of ASP or otherwise) in order to protect the person’s well-being, property or financial affairs. A S P 0 7

34. Inquiry process Initial inquiries - duty to inquire • Information passed on under local adult protection guidelines; • Inquiries are made under section 4 of the Act by the council; • May consult with other agencies and conduct preliminary inquiries; • Others, e.g. police or health professionals, may be asked to assist; • Where an inquiry indicates that a criminal offence may have been committed, the role of the police should not be undermined; • Next steps could involve a wide range of interventions. A S P 0 7

35. Informal intervention Intervention should be informal wherever possible and allow: • Information to enable support to be put in place for adult or a carer; • Assistance to be provided with suitable advice and support. A S P 0 7

36. Intervention – other legislation Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003, or under the Social Work (Scotland) Act 1968. Criminal offence: • Requires consultation, assistance and co-operation with the police; • Council responsibility to take any immediate protective action. A S P 0 7

37. No further action decisions If, based on range of inquiries carried out, there is a decision that no further action is required these actions need to be taken: • a report needed on the circumstances, actions taken and NFA decision; • report added to the person's case file; and • where no case file, a record made of the referral. A S P 0 7

38. Inquiries - practice implications Take any adult at risk of harm report, including anonymous referrals seriously. Consider cases with an open mind - don’t make assumptions. Consider all referrals carefully - make measured responses. Be professional and flexible, e.g. arrange an initial discussion with a familiar worker. If the allegation involves unpaid carer, the investigation should assess the carer’s situation. Keep adult fully informed at every stage of the process, unless this might prejudice investigations. A S P 0 7

39. Cooperation Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Section 5

40. Section 5: Co-operation This section applies to: • the Mental Welfare Commission for Scotland, • the Care Commission, • the Public Guardian, • all councils, • chief constables of police forces, • the relevant Health Board, and • any other public body or office-holder as the Scottish Ministers may by order specify. A S P 0 7

41. Duty of co-operation ASP Act (Section 5) - statutory duties for those public bodies and office-holders: • They must co-operate with a council making inquiries and with each other where that would assist the council; s.5(2) • Where they know or believe that a person is an adult at risk, and that protective action is needed they must report the facts and circumstances of the case to the council. S.5(3) A S P 0 7

42. Voluntary & private organisations Factors relevant to voluntary and private organisations, including providers: • no specific legal duties or powers under the Act • legal duty to comply with requests for examination of records; • may be source of advice and expertise for statutory agencies; • good practice that all relevant stakeholders co-operate with assisting inquiries; • have a responsibility to involve themselves where appropriate by contributing to investigations. A S P 0 7

43. Co-operation - practice implications Duty of confidentiality, but if ASP s. 5(3) conditions met (person is an adult at risk, and protective action is needed), then facts and circumstances must be reported to the council. All relevant stakeholders should co-operate with inquiries. A multi-agency and multi-disciplinary approach to inquiries and training is appropriate. Staff should also be clear who they have a duty to report to within their own organisations. Co-operation and information sharing required in Adult Protection Case Conferences and risk management. A S P 0 7

44. Support and Advocacy Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Section 6

45. Section 6: Duty to consider advocacy and other services The ASP Act places as much of an emphasis on support as it does protection of an adult at risk. Section 6 applies where, after making inquiries under section 4, a council considers that it needs to intervene in order to protect an adult at risk of harm. It places a duty on the council to consider the provision of appropriate services, including independent advocacy services, to the adult concerned. A S P 0 7

46. Advocacy Independent advocacy aims to support people: • to express their own needs; • to gain access to information; • to explore and understand the options available; • to make informed decisions. ASP definition -- independent advocacy is not provided by a local authority, or NHS Board or a member of the local authority or NHS Board. Potential conflict of interest with organisations providing (non-independent) advocacy and housing, financial advice and support services. The adult should not be expected to pay for advocacy services. A S P 0 7

47. Communication support Enabling adults to make their views and wishes known may require: • Assistance or material appropriate to their needs; • Adult’s preferred format for communication such as large print, audio tape, Braille and computer disc; • Technical aids to support communication or information; • Material which is interpreted, translated or adapted; • ‘Human aids to communication' such as British Sign Language interpreters, lip speakers, Makaton, and deaf-blind communicators; • Consideration given to the surrounding environment, e.g. noise levels, provision of loop systems or lighting. A S P 0 7

48. Other services Support services that may help an adult include: • Victim Support Scotland - emotional support, practical help and essential information to victims, witnesses and others affected by crime; • Support through the Vulnerable Witnesses (Scotland) Act 2004 - appropriate support when they give their evidence to reduce any anxiety and pressure (final decision on special measures rests with the sheriff in court); • Appropriate adult schemes - to facilitate communication between a mentally disordered person and the police and, as far as is possible, ensure understanding by both parties; • Carers’ support services - to enable them to continue to support the adult. A S P 0 7

49. Advocacy and support - practice implications Assistance or intervention must be well planned with the right kind of support. Adults must feel that their perspective is being actively considered. Good practice to inform carers, providing a substantial amount of care, of their right to an assessment. Other services should be considered: • practical and emotional support provided by statutory/other providers; • mainstream health and social care and housing services. A S P 0 7

50. Group exercise 2 Case Example: Agnes Agnes lives with her husband Ian in a ground floor flat. She has multiple sclerosis and anxiety states. A couple of years ago her health deteriorated and now she cannot walk very far. The only time Agnes goes out is when she attends a luncheon club twice a week. Both an OT and a home care worker have been involved for some time. There have been concerns in the past when Agnes has said he has not got any money left. She has never said where the money has gone. Service staff see very little of Ian, who seems to spend a lot of his time out of the house. There are often empty bottles of spirits in the house -- Agnes does not drink alcohol -- and old betting slips left lying around. During an assessment visit, Ian did say he did what he could for Agnes, but he had worked all his life and paid his taxes and it was up to services to provide what support she needed. Agnes has never been critical of him, and always seems highly anxious to keep things in order in case he gets angry with her. Agnes's doctor has been called out by a neighbour, who had heard Agnes shouting for help through the wall. When the neighbour went in she found Agnes crying and saying she was starving. She had not eaten for three days. She seemed to be extremely dehydrated and cried out when the neighbour touched her arm. Her neighbour helped her to the toilet, and Agnes said it was painful to pass urine. The neighbour phoned the health centre, but by the time the doctor visited Ian had returned home, said his wife was fine and they did not need any help. The doctor was only able to see Agnes very briefly, when she said she was fine and did not need any help or want anyone else involved. A S P 0 7