When Should a Council Make Inquiries?
2.1 Section 4 of the Act places a duty on Dumfries and Galloway Council to make inquiries about a person's wellbeing, property or financial affairs if it knows or believes:
- that the person is an adult at risk; and
- that it might need to intervene (under the Act or otherwise) in order to protect the person's wellbeing, property or financial affairs.
2.2 Inquiries under Section 4 of the Act will be carried out by Social Work Services and should follow Adult Protection procedures. The council may consult and/ or work in partnership with other agencies to conduct inquiries. Other professionals, such as the Police, the Care Inspectorate or health professionals may be asked to assist.
Council’s Duty to Inquire Under 2007 Act (Section 4)
2.3 On receipt of a phone call or Adult Protection Referral Social Work Services are required to make inquiries under the Act. A Duty to Inquire should be started within 2 working days of the receipt of the referral and completed within 7 working days. If there is an allegation of physical or sexual harm, or there are major concerns regarding the harm issues being raised, inquiries must commence immediately. The Police must be contacted in the first instance if staff know or believe a crime may have been committed and agreement made on how best to proceed. Given that the adult must be visited, and if possible, seen alone within 24 hours, it is important that this forms part of Police discussions from the outset.
Adult Support and Protection Inquiries
2.4 Inquiries should begin within 2 working days of the referral being received and completed within seven working days.
2.5 The responsible Social Work Manager will review the referral to decide if:
- Immediate action is required in relation to the adult deemed to be at risk to make them safe. And/ or
- If the case needs to progress to an Investigation
2.6 As part of this process Social Work Services should:
- acknowledge receipt of referral. (This will be an automated return email receipt)
- decide if medical intervention is required
- maintain multi-disciplinary liaison during inquiries
- inform other external agencies of the referral - for example, Care Inspectorate, Police etc. if appropriate
- offer appropriate support to the external agency/ referrer
- consideration must be given to other relevant legislation, where appropriate for example, Adults with Incapacity or Mental Health Care and Treatment Act
Duty to Inquire
2.7 If the outcome of screening is that further inquiries need to be made, to establish if the 3-point criteria are met, then a Duty to Inquire will be opened. This is led by Social Work ASP Team who will gather all available information and will complete the DTI. These are considered inquires without the use of investigatory powers. Use of powers within Section 7–10 of the Act is referred to as inquiries with use of investigatory powers.
Capacity
2.8 Capacity and referrals have already been considered. A thorough assessment of capacity, whatever the outcome, can be crucial and may add to the complexities of an assessment. An adult may have capacity in one area of daily life and lack the capacity to make safe decisions in another. The worker would be looking at whether someone has the cognitive ability to understand the decisions they are making (not taking action is also classed as a ‘decision’) and risks they may be taking in relation to keeping themselves safe from ‘harm’ as defined within the Act. Capacity applies both to decision making and the implementation of decisions (Code of Practice).
2.9 The Code of Practice suggests that the following factors should be considered in relation to Interviews under ASP - where there is doubt about the adult’s capacity:
- does the adult understand the nature of what is being asked and why?
- is the adult capable of expressing his or her wishes/ choices?
- does the adult have an awareness of the risks /benefits involved?
- can the adult be made aware of his/ her right to refuse to answer questions as well as the possible consequences of doing so?
2.10 A lack of capacity to consent to being interviewed is not an automatic bar on the adult participating in the interview process. The principle of the adult participating ‘as fully as possible’ through supported decision-making should be considered. In addition, if the adult is thought to have been influenced to refuse consent, consideration should be given to whether there has been “undue pressure” applied and therefore a need to consider application for an Assessment Order.
2.11 Where capacity to consent to interview is uncertain and direct intervention is deemed necessary to protect an adult, medical advice should be sought.
2.12 Should the adult lack capacity, intervention under the Adults with Incapacity Act 2000 should be considered. Should there be a diagnosable mental illness present affecting an adult’s ability to keep him/ herself safe from harm, consideration should be given to intervention under the terms of the Mental Health (Care and Treatment) (Scotland) Act 2003. As stated above any intervention should be of benefit to the adult and the least restrictive to the adult’s freedom. However, it should also be noted that even if an adult lacks capacity, Protection Orders under the terms of the ASP Act can be applied for. There may also be circumstances where intervention is required utilising, concurrently, more than one piece of mental health legislation.
Duty of Care
2.13 There are circumstances where an adult at risk declines to participate, an adult may appear to meet the criteria of an 'adult at risk' under the terms of the Act but indicates that he/ she does not want support and/ or protection. In effect, the adult refuses to cooperate with inquiries being undertaken (Code of Practice).
2.14 Such a refusal to cooperate does not absolve the council and its partners of responsibilities to make inquiries about the adult’s circumstances and the degree of risk. Any inquiries should consider the adult’s capacity to understand the risks they are exposed to and the possible consequences of their refusal to cooperate; 'undue pressure' might have contributed to their decision to refuse cooperation, or the adult may not have had opportunities to see any changes to their situation.
2.15 Even if there are no concerns in relation to incapacity or undue pressure, the adult’s refusal to cooperate in an Adult Protection Inquiry does not automatically signal the end of an Inquiry, assessment, or intervention.
2.16 Whilst the adult has a right not to engage in any such process, the council and its partners should still work together to share information, offer any advice, assistance, and support to help manage any identified significant risks. It is recognised the success of any intervention where an adult does not wish to cooperate may, by its nature, be limited in scope and effectiveness. Any assistance should be proportionate to the risk identified and any need to support carers’ needs should be considered. It is the Council Officer’s role to gather information to record within the ASP, but it is a multi-agency role to offer advice and assistance and support.
2.17 Section 8(2) of the ASP Act states that any person who is to be interviewed in relation to Adult Protection concerns must give consent to being interviewed and to answering questions, and that this should be made explicit by the Council Officer throughout the ASP process.
2.18 The Code of Practice states: ‘seeking the consent of the adult to be interviewed is a more proactive approach than simply advising the adult that he/ she is not obliged to answer questions. The point is to ensure that the adult is given reasonable opportunity and encouragement to answer their questions whilst respecting their right not to’. The clear implication of this statement is that Council Officers should be able to use interpersonal skills, engagement skills, listening skills and analytical skills to reassure and enable the adult to discuss expressed concerns.
2.19 Where the adult withholds consent, a judgement must be made regarding undue influence by another person. If the view is taken that an adult has refused to give consent through fear and/ or intimidation and there is evidence to suggest that an adult is at risk of, or subject to harm, an application for a Protection Order can be considered, either on the basis of urgency to protect an adult or an outcome from an ASP Case Conference. Consideration may be given to the use of a Protection Order as defined within the legislation: Assessment Order; Removal Order or Banning Order.
Trauma
2.20 Consider the impact of trauma exposure on an individual’s biological, psychological and social development and may impact on their ability keep themselves safe and develop trusting relationships with professionals. Practitioners should retain a trauma informed approach when considering reason for an adult not engaging and remain alert to possibility of undue pressure. Sign up to the TURAS platform for more training material.
Where There is Subsequent Police Involvement
2.21 Where it is decided that a criminal investigation is required, the Police will undertake this. The Police will decide if a referral to the Procurator Fiscal is appropriate. Social Work Services and the Police should liaise over action necessary to protect the adult at risk during a Police investigation. However, Social Work Services will continue to support the adult at risk and any relevant others in coordinating and monitoring any agreed protection planning.
Are There Any Children Involved?
2.22 All agencies have a responsibility to consider the needs of any child who may reside or have contact with an adult(s) involved in any form of harm. The responsible Social Work Manager will inform Children and Families Social Work Services and a decision made if Child Protection procedures should also be initiated. Agencies with concerns that relate both to children and adults should state this at the point of referral to the SAP.
2.23 During the conduct of an Adult Protection Inquiry or Investigation where any Child Protection concerns arise, action must be taken under Dumfries and Galloway Social Work Services Child Protection Procedures to ensure the immediate and future safety and wellbeing of the child/ children.
Transition from Child Care to Adult Care
2.24 The Dumfries and Galloway Child Protection Single and Multi-Agency Procedures offer staff a procedural framework within which to meet the needs of children, to be responsive and to involve children and their carers at all times in the process. The procedures allow for the exercise of professional judgement, to ensure that the protection and welfare of children is paramount.
2.25 The 2007 Act makes provision for adults aged 16 and over. However, the legal boundaries of childhood and adulthood are variously defined (Scottish Government 2021, The National Guidance for Child Protection, p8). The National Guidance states that Child Protection procedures may be considered for a person up to the age of 18. Whenever a child aged 16 or over is subject to legislation under the Children (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011, then discussion between the relevant Children and Adult Social Work teams will identify the most appropriate service route.
2.26 The priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection.
2.27 In Dumfries and Galloway, all protection issues for 16 and 17-year-olds are considered within Child MASH (Multi-Agency Safeguarding Hub). Services will need to consider which legal framework best fits each person’s needs and circumstances.
2.28 In the exceptional circumstances of a 16–17-year-old already working with adult services, the referral should still be routed through Children and Families Social Work, who will liaise with relevant Adult Services colleagues. Any 16- 17-year-old needing a safeguarding response will be discussed at Child MASH.
2.29 If a Child MASH discussion is taking place and it is felt the discussion would benefit from some Adult Care expertise, Adult MASH colleagues can be invited to join the discussion. Consideration of a joint child and adult IRD will be made by MASH where appropriate.
2.30 When a child is approaching adulthood and remains under Child Protection, circumstances should be assessed on an individual basis between Children and Families, and Adult Care Managers. For all children approaching 18, contact should be made between the Senior Social Workers who will have the responsibility to identify the appropriate member of the team to attend the Child Protection Planning Meetings and any subsequent Child Protection Planning Meeting. It is acknowledged that there will be overlap between Child and Adult Protection. Assessment and planning processes may need to be aligned and some investigations and assessments may be best undertaken jointly, for example when Child and Adult Protection issues are identified within the same family.
Support for Unpaid Carers
2.31 It may be that the adult's carer requires support to enable them to continue to support the adult. The Community Care and Health (Scotland) Act 2002 amends the Social Work (Scotland) Act 1968 to give carers a right to have their carer needs assessed by the council. The Carers (Scotland) Act 2016 gives carers the right to an Adult Carer Plan or Young Carer Statement. It would be good practice to bring this assessment right to the notice of any carer providing a substantial amount of care where the carer appears to have unmet caring needs.