Adult's Rights During an Interview
3.1 Section 8(2) provides that the adult is not required to answer any questions, and that the adult must be informed of that fact before the interview commences. The adult can choose to answer any question put to them, but the purpose of this section is to ensure that they are not forced to answer any question that they choose not to answer.
3.2 However, seeking the consent of the adult to be interviewed should not be a matter of simply advising that they are not obliged to answer. Good practice would be to ensure that the adult is clear regarding the purpose of the interview and is given reasonable opportunity and support to answer questions whilst respecting their right not to.
3.3 A lack of capacity to consent to being interviewed is not an automatic barrier to them participating in an interview. The principal of participating ‘as fully as possible’ should be adhered to. Where it is identified that the adult can contribute but may not fully comprehend the purpose of the interview and some or all of the possible consequences, the planning process needs to ensure that the adult can contribute - whilst protecting their rights. This would include consideration of support services such as independent advocacy or other appropriate representation.
Presence of Others at Interviews
3.4 It is good practice to ask the adult if they would wish another person to be present during an interview to support them. However, section 8 allows a Council Officer and any person accompanying the officer, to interview the adult in private. Whether or not the adult should be interviewed in private will be decided based on whether this would assist in achieving the objectives of the Investigation. The Council Officer or persons accompanying them may decide to request a private interview with the adult where:
- a person present is thought to have caused harm or poses a risk of harm to the adult
- the adult indicates that they do not wish the person to be present
- it is believed that the adult will communicate more freely if interviewed alone, or
- there is a concern of undue influence from others
Interviews With Others
3.5 Section 8 allows a Council Officer to interview any adult found in a place being visited under Section 7. For example, another person who shares their home with the adult or a paid carer in a regulated care setting if not implicated in the harm. Section 8(2) provides that persons interviewed on this basis have the same rights as the adult at risk.
3.6 As with the adult at risk, the consent of the person to be interviewed should not be a matter of simply advising that they are not obliged to answer. Good practice would be to ensure that the person is clear regarding the purpose of the interview and is given reasonable opportunity and support to answer questions whilst respecting their right not to.
Access to Records
3.7 Council Officers must take into account the principles of the Act and records should be accessed and information shared only where disclosure would provide benefit to the adult and can only be accessed using Section 10. Where possible and practicable the adult’s consent should be obtained. This may not be possible where the:
- adult lacks mental capacity
- person acting as proxy lacks capacity, is unavailable or unwilling to give consent; or
- situation is urgent and obtaining consent would cause undue delay
- consent would put someone at serious risk of harm
- purpose of disclosure would be undermined - for example, preventing or detecting of a crime
3.8 If you are unable to access records through the consent of the adult then section 10 gives authorised Council Officers a statutory right to seek and obtain records including medical records from any source including other local authorities/ councils and council departments, NHS, public, voluntary, private, commercial during the time of a visit to the person holding the records or at any other time. The Council Officer must provide evidence of their identity and documentary evidence that they are authorised to access records. The Council Officer can inspect the records or arrange for any other appropriate person to inspect records - for example, someone with financial expertise. In the case of health records, only a registered health professional - for example, a Doctor, Nurse, Midwife can be given the authority to inspect records or copies of records. The appropriate information from the health records can then be shared with the Council Officer by the health professional.
3.9 Dumfries and Galloway Council, as lead agency, have a robust records retention policy and confidentiality agreements to ensure appropriate access and proper disposal of records.
3.10 If a request for records is made at a time other than during a visit, it must be made in writing; electronic requests are acceptable as long as they can be used for subsequent reference. Usually, only the relevant parts of a record should be copied for access by the Council Officer and the use of original records is discouraged. Copy records should be treated with the same degree of confidentiality as the original records.
3.11 Section 49 provides that it is an offence for a person to fail to comply with a requirement to provide information under Section 10, unless that person has a reasonable excuse for failing to do so.
3.12 Councils should make reasonable efforts to resolve disagreements when record holders refuse to disclose them. Informal or independent conciliation might be considered, depending on the circumstances and reasons given for refusal.
3.13 For additional details on access to records please refer to Adult Support and Protection (Scotland) Act 2007 Code of Practice 2022.
Medical Intervention and Examination
3.14 In most instances health professionals will respond to any request for medical examination under the auspices of their general duty of care towards their patient particularly where they have a current involvement with the adult at risk and are fulfilling their duty to cooperate with inquiries and investigation in respect of that adult. This is most likely to be where the adult requires medical treatment for a physical illness or mental disorder or assessment of their physical or mental health.
3.15 In some situations, a formal request for a medical examination under Section 9 of the Adult Support and Protection (Scotland) Act 2007 may be viewed as necessary by the Council Officer or the health professional to which the request is being made.
3.16 Section 9 states a medical examination may only be carried out by a health professional as defined under Section 52(2) as a Doctor, Nurse or Midwife.
3.17 It is normally the case that Doctors would carry out a medical examination, Nurses and Midwives would carry out an assessment of current health status.
3.18 Medical examination may be required as part of an Investigation for a number of reasons including:
- the adult’s need of immediate medical treatment for a physical illness or mental disorder
- to assess the adult’s physical or mental health needs
- to assess the adult’s mental capacity
- to provide insight into the adult’s ability to safeguard themself
- to provide evidence of harm to inform a criminal prosecution under Police direction or application for an order to safeguard the adult
3.19 The circumstances where medical examination should be considered include:
- sexual harm and where there may be physical evidence
- physical injury which the adult states was inflicted by another person
- explanation is inconsistent with injuries
- neglect and self-neglect, ill or injured or where there are concerns around self-harm and no previous assessment or treatment has been sought
3.20 Where a crime has been committed or where criminality is suspected, the Police should be contacted immediately to discuss how best to progress the Investigation of suspected criminality. If the adult concerned has been injured, the priority must be their immediate health and welfare. The Police may arrange for a Forensic Medical Examination to be carried out. This will be undertaken in a sensitive and professional manner with due consideration given to the needs or requirements of the complainer. This is essential to ensure no evidence is lost and to allow a criminal investigation to begin.
3.21 If medical intervention is required, wherever possible, all courses of action must first be agreed with the adult. In situations of extreme risk or urgency the Council Officer may need to take immediate action, i.e. involve emergency services without prior consent.
Consent to Medical Examination
3.22 Section 9 states the adult must give consent to medical examination and treatment unless he/ she lacks capacity, or it is an emergency situation and consent cannot be obtained.
3.23 Where the situation is not an emergency and it is not possible to obtain the adult’s informed consent due to lack of capacity or they have difficulty communicating in order to provide consent, the council should contact the Office of the Public Guardian via Legal Services to ascertain whether a guardian or attorney has such powers. If not, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) Act 2003.
3.24 If the adult has been subjected to sexual harm, a medical examination may be necessary. This should be arranged by the responsible Social Work Manager in consultation with Police.
3.25 Where an emergency and where consent cannot be obtained, doctors can provide medical treatment to anyone who needs it, provided that the treatment is necessary to save life or avoid significant deterioration in a patient’s health.
3.26 For fuller details on medical examinations please refer to Section 9 of the Adult Support and Protection (Scotland) Act 2007 or Adult Support and Protection Code of Practice 2022 (Chapter 9).