Measures
5.1 The 2007 Act introduces measures to identify support and protect adults who may be at risk of harm whether as a result of their own or someone else's conduct. These measures include:
- a requirement that specified public bodies must inform and co-operate with councils and each other about Adult Protection
- clarifying the roles and responsibilities of the public bodies in relation to Adult Protection
- placing a duty on councils to consider advocacy or other services, as appropriate to an adult at risk. However, it is good practice that advocacy be considered in all circumstances. • placing a duty on councils to make the necessary Inquiries and
- Investigations to establish whether or not further intervention is required to protect the adult
- the establishment of Adult Protection Committees
- a range of Protection Orders
Definitions
5.2 The Adult Support and Protection (Scotland) Act 2007 provides the following definitions:
5.3 Adults at Risk - Persons aged 16 or over who:
- are unable to safeguard their own wellbeing, property, rights, or other interests
- are at ‘risk of harm
- and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults not so affected
5.4 All three of the elements of the definition must be met and are known as the 3-point criteria.
5.5 A person cannot be classed as an adult at risk simply by virtue of the fact that they meet one element of the definition. An example of this is that of a person who has a disability. It is not intended that the definition of an “adult at risk” is so wide that it covers a disproportionately large part of the population.
5.6 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 or neglect
- a person is seen to be attempting or threatening suicide; their personal wellbeing and safety is paramount
5.7 Harm includes all harmful conduct and in particular includes:
- conduct which causes physical harm - for example, physical assault of punching, pushing, slapping, tying down, giving food or medication forcibly, denial of medication
- use of medication other than as prescribed
- conduct which causes psychological harm (for example by causing fear, alarm, or distress)
- a change in behaviour which may indicate that the person is acting out of character and places themselves at risk by their own actions such as attempted suicide
- unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion) conduct which causes self-harm
5.8 Harm can take many forms. These forms, in practice, may not exist in isolation but may overlap.
5.9 Emotional/ psychological – resulting in mental distress to the adult at risk - for example:
- excessive shouting, bullying, humiliation
- manipulation or the prevention of access to services that would enhance life experience
- isolation or sensory deprivation
- denigration of culture or religion
5.10 Financial or Material – involving the exploitation of resources and belongings of the adult at risk for example, theft or fraud, misuse of money, property, or resources.
5.11 Sexual – involving activity of a sexual nature where the adult at risk cannot or does not give consent - for example:
- incest
- rape
- acts of gross indecency
- inappropriate touching
5.12 Neglect and Acts of Omission – including ignoring medical or physical care needs, failure to provide access to appropriate health, social care or educational services, the withholding of the necessities of life such as nutrition, appropriate heating etc.
5.13 Self-Neglect - types of self-neglect include:
- Lack of self-care to an extent that it threatens personal health and safety
- Neglecting to care for one’s personal hygiene, health or surroundings
- Inability to avoid self-harm
- Failure to seek help or access services to meet health and social care needs
- Inability or unwillingness to manage one’s personal affairs
5.14 Also see: Self-neglect at a glance for signs and indicators.
5.15 Multiple forms of harm may occur in an ongoing relationship or service setting or to more than one person at any time. It is important therefore to look beyond single incidents and to consider underlying dynamics and patterns of harm.
- Are children involved who could be at risk of harm? If so, referral should be made to Children and Families via the Single Access Point.
- Are there other adults involved who may be at risk? If so, their needs may need to be considered
- Is medical intervention required?
5.16 Random Violence i.e., an attack by a stranger or strangers on an adult defined, as at risk is an assault, a criminal matter, and should be reported to the Police. However, where there is the possibility that the violence may be part of a pattern of victimisation in a community or neighbourhood, Adult Protection Procedures may apply in respect of effective multi-agency intervention.
5.17 Domestic Abuse – behaviours including physical abuse, sexual abuse, isolating the survivor from family and friends, monitoring and regulating the survivor’s activities, controlling their money and/ or activities, depriving them from their freedom of action, frightening, humiliating or degrading them, among other things. Domestic abuse occurs between partners or ex-partners and can be committed anywhere including the home, any public space or private property or online, including social media.
5.18 The similarity between the above and acts of harm in relation to Adult Protection is recognised. However, the key factor in relation to activating Adult Protection procedures in such situations is dependent on assessment of “adults at risk” as defined earlier.
5.19 Trafficking – the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation for example, forced labour or prostitution.
5.20 Modern Day Slavery – the trading of adults and children for personal gain or profit, holding them against their will to provide forced or compulsory labour.
5.21 Prostitution – engaging in sex acts for money or other payment (this may not be through choice).
5.22 Forced Marriage and Honour Based Abuse – a marriage conducted without the full and free consent of both parties, and where “force” is a factor. Force can be coercion by physical, verbal or psychological means, threatening conduct, harassment or other means. Honour based abuse is a collection of practices used to control behaviour within families, communities, or other social groups, to protect perceived cultural and religious beliefs and/ or “honour”.
5.23 Online Abuse – abuse that happens through the internet via phones, computers, and tablets. Examples of online abuse include:
- Cyberbullying – a type of bullying that happens online
- Cyberstalking – persistent unwanted contact from another person online
- Domestic online abuse – when someone stalks, harasses, threatens or controls their partner or ex-partner online
- Image-based abuse – when an intimate image or video is coerced or shared without consent of the person in that image or video, for example revenge porn
5.24 Covert Medication – when a person is given medicines without their knowledge or consent without appropriate professional assessment and safeguarding processes.
5.25 Suspicions of acts of harm, resultant harm or neglect can come to light in a number of ways. The clearest indicator is a statement or comment by the adult themselves, by their regular carer or by others, disclosing or suggesting abuse or neglect. Such statements invariably warrant further action, whether they relate to a specific incident, and a pattern of events or a more general situation.
5.26 There are, of course, many other factors that may indicate abuse, harm, or neglect. These may include:
- unusual, unexplained, or suspicious injury
- failure to report illness, injury, deterioration in health or harm
- dubious or inconsistent explanations or injuries or bruises
- history of unexplained falls or injuries
- prolonged interval between illness/ injury and presentation for medical care
- the adult found alone at home or in a care setting in a situation of serious but avoidable risk
- the adult lives with another member of the household who is known to Police, Social Work, or Health agencies as likely to present a risk to the adult
- signs of misuse of medication, non-administration, or over/ under medicating
- unexplained physical deterioration in the adult for example, loss of weight
- sudden increases in confusion for example, dehydration, toxic confusion
- demonstration of fear by the adult to another person within the home or if returning home
- difficulty in interviewing the adult at risk of harm due to the insistence or presence of another
- anxious or distressed behaviour on the part of the adult
- hostile or rejecting behaviour by the carer towards the adult or professional
- indicators of financial abuse for example, unexplained debts, reduction in assets, unusual interest in adult by family members, pressure from others to admit adult into care, refusal to consider appropriate care due to financial cost, misappropriation of benefits, fraud, or intimidation in connection with wills or assets.
5.27 Adults may be at risk of harm from a wide range of people. Agencies not only have responsibility to all adults at risk of harm and subject to harm but also may have responsibility e.g., towards agencies or people with whom the perpetrator is employed or works as a volunteer. There is particular concern when abuse is perpetrated by someone in a position of power or trust who uses his or her position to the detriment of the health, safety, welfare, and general wellbeing of an adult at risk. The roles, powers, and duties of the various agencies in relation to the perpetrator will vary depending on whether the latter is:
- a member of staff or proprietor
- a member of a recognised professional group
- a volunteer
- another person using the same service
- a spouse, relative or member of the adult’s social network
- a paid or unpaid Carer
- a neighbour, member of the public or stranger
- a person who deliberately targets vulnerable people to exploit them
5.28 Harm can occur in any context or setting, including:
- where the adult lives alone or with a relative
- within a residential or day care setting
- hospital
- custodial settings
- support services into people’s homes
5.29 Assessment of the environment or context is vital because exploitation, deception, misuse of authority or coercion may render the adult unable to make his or her own decisions or disclosing abuse even though they are deemed to have “capacity” or have not been assessed as lacking capacity.
5.30 Harm within institutional settings may feature one or more of the following:
- poor care standards, lack of positive responses to complex needs, rigid routines, inadequate staffing, and insufficient knowledge base within the service
- unacceptable “treatments” or programmes which include sanctions or punishment such as withholding food or drink, seclusion, unauthorised use of control and restraint, and over-medication
- failure of agencies to ensure that staff receive appropriate guidance on anti-discriminatory practice
- failure to access key services such as health care, dentistry, prostheses
5.31 The Council - Section 53 of the Act states “that references to a council in relation to any person known or believed to be an adult at risk are references to the council for the area which the person is for the time being in”.
5.32 The Council Officer – the 2007 Act defines a “Council Officer” as a person who is an employee of the Council and who is appointed by a Council under Section 64 of the Local Government (Scotland) Act 1973. Within Dumfries and Galloway Council, Council Officers will be professionally qualified and registered Social Workers who have the knowledge, skills, and experience necessary to undertake the functions set out in the 2007 Act.
5.33 A Council Officer will have at least 12 months experience and will undertake formal investigations and progress any application for protection measures as set out in the Act. A Council Officer must have specific training for this role, which is provided by Dumfries and Galloway Council. This is available for Social Workers who are qualified for a year and will provide the training for the role and function of a Council Officer. Refresher training is also available for Council Officers on a 3 yearly basis. A Social Worker must have this training to undertake Council Officer functions.
5.34 In order to make inquiries, Council Officers may carry out visits, conduct interviews, and can request relevant records to be produced in respect of an adult at risk. They may undertake this activity along with an appropriate colleague or worker from a relevant agency.
5.35 An Adult Support and Protection Inquiry is the process undertaken by Social Work, with or without investigatory powers, to gather information in respect of establishing an adult’s welfare and circumstances. It may involve contact with other agencies and initial contact with the adult in question. An Inquiry may determine that an adult is or is not at risk of harm or whether further actions are required to establish this.
Adult Support and Protection Cross Boundary Cases
5.36 Regardless of where harm occurred, an adult at risk should be provided with the same level of support and protection. In relation to cross boundary cases best practice guidance has been developed and subsequently ratified by Social Work Scotland.
5.37 In respect of local arrangements for the management of cross boundary cases Section 53(1) of the Adult Support and Protection (Scotland) Act 2007 states that Adult Protection duties are held by the council in which the Adult at Risk of Harm ‘is for the time being in’.
5.38 Where there are resource implications reference should be made to Scottish Government Ordinary Residence Guidance.
Investigations in Host Authorities
5.39 If an Adult Protection referral is received regarding a person who is residing in a care setting in another local authority but who is ordinarily resident in, and funded by Dumfries and Galloway, it is the responsibility of the ‘host’ authority to lead the Inquiry and subsequent Investigation, where required. It is the ‘host’ authority’s responsibility to inform us of the Adult Protection referral at the earliest opportunity. Respective roles should then be discussed and clarified but it is expected that Dumfries and Galloway staff will be actively involved in any formal Adult Protection Investigation, case discussion/ Case Conference if required and protective care planning to ensure the adult’s safety and wellbeing. Whilst Dumfries and Galloway will not normally lead on the investigation, the participation of staff at the level of Council Officer or above would be considered best practice. Ensure that the Care Inspectorate has been informed of the referral and that its involvement in the investigative process is recorded.
Investigations Within Care Settings in Dumfries and Galloway
5.40 When an Adult Protection referral is received from a care setting within Dumfries and Galloway, checks should immediately be made regarding the funding arrangements for the resident. Should the resident be funded by Dumfries and Galloway Council, Council Officers should proceed with Inquiries, and if required, subsequent Investigation. Council Officers should advise the Care Inspectorate of the referral and negotiate appropriate involvement by Care Inspectorate staff.
5.41 Should the resident be funded by another council, contact should be made with the funding authority to advise of the referral. Dumfries and Galloway Council will remain the ‘host’ authority and Council Officers from Dumfries and Galloway should normally lead any Investigation unless the funding authority negotiates transfer of this responsibility. Any agreement reached regarding which authority leads an Investigation must be taken at the level of an Operational Manager or above.
The Importance of Advocacy
5.42 The Council has a duty to have regard to the importance of the provision of appropriate services such as independent advocacy to the adult concerned, including uninstructed advocacy for adults who lack mental capacity, which may assist a clearer understanding of the adult’s wishes and feelings, particularly in relation to the gathering of information at the Inquiry/ Investigation stage and to support at the Conference stage if required.
5.43 Advocacy services can also assist if there is a need for the services of a solicitor for the adult and that the adult has a difficulty in accessing local legal advice. The Scottish Law Commission can be contacted to advise of the difficulty and if required, can identify a named solicitor/ legal firm to assist the adult.
Legal Orders
5.44 If Protection Orders are being considered a solicitor from the Council’s Legal Services must be informed and actively involved in the process, if possible, via attendance at an ASP Case Conference. If Protection Orders are not being applied for on an emergency basis, the need for application to the Sheriff should be evidenced and minuted within the multi-agency ASP Case Conference with a solicitor from the Council’s Legal Services being informed and actively involved in the process.
5.45 Pursuit of any legal orders set out in the Act led by the Council must meet the legal test, there must be enough detail in the court application and that detail must come from the case notes and the caseworker.
- Banning Orders
- Assessment Order
- Removal Order
5.46 Please note that the Assessment Order, Removal Order and Protection Order do not have the power of detention.