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Adult Support and Protection (Scotland) Act 2007

Adult Support and Protection (Scotland) Act 2007

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Adult Support and Protection (Scotland) Act 2007

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  1. A S P Adult Support and Protection (Scotland) Act 2007 0 7 The Duties, Roles and Responsibilities of Services and Staff under the Act

  2. Detailed Course Programme 09.30 Aims of the Day 09.45 Principles, Definitions, Inquiries Section 1. General principle on intervention in an adult’s affairs S2. Principles for performing Part 1 functions S3. Adults at risk S53. Harm S4. Council’s duty to make inquiries S5. Co-operation S6. Duty to consider providing advocacy and other services 10.15 Group Exercise 10.45 Feedback 11. 00 BREAK 11.15 Investigations S52-53. Definition of Council Officer S7. and S36. Visits S37, 38 and 40. Warrants for Entry S8. Interviews S9/52. Medical examinations S10. Examination of records S49-50. Offences 12.00 Group Exercise 12.30 Feedback 12.45 LUNCH 13.30 Protection Orders ASP – AWI – MHCTA Overview of ASP Protection Orders S12/15/20 Serious Harm S35. Consent and Undue pressure 13.45 Group Exercise 14.15 Feedback 14.30 Assessment and Removal orders S11-12-13. Assessment orders S14-15-16-17. Removal orders S40. Urgent cases S18. Protection of moved person’s property S37, 38, 39, 40, 41. Warrants for entry 15.00 BREAK 15.15 Banning orders S19>27, 51. Banning and Temporary Banning Orders S25-28 to 34. Powers of arrest, Arrest and Detention 16.00 Group Exercise 16.30 Feedback Learning Outcomes 16.30 CLOSE A S P 0 7

  3. Fire exits and alarms Breaks Refreshments Toilet facilities

  4. Please switch off mobile phones

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

  6. One-day training course • Designed for: certain groups of general staff at Level 2 • 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

  7. Group exercises The course is designed to promote multi-professional consideration of the practice issues arising from the implementation of the legislation. It is important to respect the contribution of all participants, and to ensure that everyone within the group is encouraged and has an opportunity to contribute. All personal information shared within the room is confidential unless it raises concerns about an adult at risk. A S P 0 7

  8. A S P Aims of training 0 7 This one day training course is intended to provide: 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.

  9. Course Content Morning Session One – Principles, Definitions and Inquiries Session Two – Investigations Afternoon Protection Orders Session Three – ASP/AWI/MHCTA Serious Harm, Consent and Undue Pressure Offences Session Four – Assessment, Removal and Banning Orders A S P 0 7

  10. This one-day session will focus on Part 1 of the Act Protection of adults at risk of harm A S P 0 7

  11. Existing legislation • 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 2007 (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. A S P 0 7

  12. 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

  13. Code of Practice • Section 48 • Certain groups have a duty under ASP section 48(5) to have regard to the Code of Practice: • Councils and Council Officers; • Health Professionals. • The Code of Practice identifies other organisations performing functions under Part 1, which 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

  14. 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

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

  16. 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

  17. Section 2: Guiding principles In addition to the overarching principles, public bodies or office holders must have regard to: a) the adult’s ascertainable wishes and feelings (past and present); b) any views of the adult’s nearest relatives, primary carers, guardian or attorneys and any other person who has an interest in the adult’s well-being or property; 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 d) 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; and e) the adult’s abilities, background and characteristics. A S P 0 7

  18. Principles of the Act Sections 1 and 2 The ASP principles apply to ANY public body or office holder performing a function under the Act. 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. Certain people are NOT bound by the principles: • the adult; • the adult’s nearest relative; • the adult’s primary carer; • an independent advocate; • the adult’s legal representative; • and any guardian or attorney of the adult. A S P 0 7

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

  20. Section 3 (1): Adults at risk The Act defines adults at risk as: Adults (aged 16 or over) who: • are unable to safeguard their own well-being, 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 who are not so affected. All three of these criteria must be met before any action can be taken under the ASP Act. A S P 0 7

  21. Section 3 (2): Adults at risk of harm Section 3 (2) of the Act says that 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. Section 53 of the Act states that harm includes all harmful conduct and, in particular, includes: • conduct which causes physical harm; • conduct which causes psychological harm (for example: by causing fear, alarm or distress); • unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and • conduct which causes self-harm. A sheriff must be satisfied that an adult is at risk of serious harm before granting any protection order. A S P 0 7

  22. 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 i.e. 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

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

  24. 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

  25. 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 • Next steps could involve a wide range of interventions, including under ASP and/or AWI 2000, MHCTA 2003, SWSA 1968 • Intervention should be informal wherever possible and allow information, advice and support for the adult or a carer • No further action decisions should be fully recorded and justified • Where an inquiry indicates that a criminal offence may have been committed, the role of the police should not be undermined • Council responsibility to take any immediate protective action A S P 0 7

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

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

  28. Section 5: Duty of 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 • Any other public body or office-holder as the Scottish Ministers may by order specify. They have the following statutory duties: • 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

  29. Voluntary and 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

  30. 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

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

  32. 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

  33. Advocacy and support Independent Advocacy issues: • ASP definition - independent advocacy is not provided by a local authority, or NHS Board or a member of the local authority or NHS Board. • There may be a conflict of interest within certain organisations providing (non-independent) advocacy and also housing, financial advice and support services. • The adult should not be expected to pay for advocacy services. Communication support considerations: • Adult’s preferred format for communication; technical aids; interpreted and translation; human aids to communication; the surrounding environment. Other support services identified by the Code of Practice include: • Victim Support Scotland • Support through the Vulnerable Witnesses (Scotland) Act 2004 • Appropriate Adult Scheme • Carers’ support services. A S P 0 7

  34. Advocacy and support - practice implications Assistance or intervention must be well planned with the right support, to enable people to express needs, consider options and make informed decisions. 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

  35. Group exercise Group members should introduce themselves and say which organisation they come from and what their job is. They should agree a chair and identify group members to record on the flip chart and report back at the plenary feedback session. In every session the group should identify the three most important points it wishes to report back. A S P 0 7

  36. Group exercise 1 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

  37. Group exercise 1 The group task is to agree a group view of the case study on the flipchart What are the implications of the definitions of ‘adult at risk' and 'harm'? In this case is there a duty to inquire, and what might be the issues, dilemmas and challenges in relation to the duty of cooperation, and the duty to consider advocacy and other services? How should staff and agencies deal with the dilemmas concerning self-determination and reporting concerns raised in operational practice? Please flipchart your comments, and identify three key points to feed back. A S P 0 7

  38. A S P 0 7 Feedback from group exercise

  39. A S P 0 7 BREAK

  40. Adult Support and Protection (Scotland) Act 2007 Section 3: Definitions: “adults at risk” “risk of harm” Section 41 Applications procedure Section 1 & 2: Principles Benefit Least restrictive Adult’s past & present wishes Views of relevant others Adult’s participation Non-discrimination & Equality Respect for the adult’s diversity Sections 37-40 Warrants for entry Section 4: Duty to inquire Section 35 Consent of adult at risk Section 5 Duty to co-operate Section 19-34: Banning & Temporary Banning orders Section 14-18: Removal orders Section 6 Duty to consider providing advocacy & other services Section 11-13: Assessment orders Section 7: Visits Section 8: Interviews Section 9: Medical examinations Section 10: Examination of records etc

  41. Council Officer Adult Support and Protection (Scotland) Act 2007 A S P 0 7

  42. Council Officer – draft definition • Council officers will be council employees (appointed under Local Government (Scotland) Act 1973 S. 64.) • Council officers working under sections 7-11, 14, 16, and 18 of the Act will need, as a minimum, to be registered as: • social workers (SSSC); or occupational therapists (HPC); or nurses (NMC); and • have at least 12 months post qualification experience identifying, assessing and managing adults at risk • Additional flexibility will be provided in terms of council officers working under sections 7-10 of the Act. As a minimum they will need to be registered: • social service workers (SSSC); and • have at least 12 months post qualification experience identifying, assessing and managing adults at risk. • The assumption is that: • registration standards for continuous professional development will assure the necessary competence to identify, assess and manage adults at risk; and • local authorities will ensure the competence of their council officers. A S P 0 7

  43. Definition of responsibilities

  44. A S P 0 7 Risk Assessment Support and Protection Planning

  45. Risk assessment/protection plans The requirements of the ASP Act and the terms of the Code of Practice have implications for risk assessment and protection planning, including: • taking account of the principles and definitions; • involving the adults at risk and others at all stages; • responding to their communication needs and capacity; • multidisciplinary and multiagency co-operation at all stages; • multidisciplinary and multiagency communication at all stages; • considering support as well as protection needs; • assessing and planning in a comprehensive holistic fashion; • reaching conclusions about immediate and longer-term needs; • weighing up the advantages/disadvantages, gains/losses to the adult’s quality of life, or freedom, or independence which might result from actions; and • defining comprehensive plans for support and actions, with clearly defined Roles, Responsibilities, Timescales/Deadlines, Intended Outcomes. The JIT/Glasgow/Tayside Risk Assessment And Protection Plan Formats take account of all of these issues. A S P 0 7

  46. Visits Adult Support and Protection (Scotland) Act 2007 A S P 0 7 ASP Section 7

  47. Section 7: Visits Powers A council officer may enter any place to enable or assist an inquiry. s.7(1) There is a right to enter any adjacent place for the same purpose. s.7(2) Purpose The purpose of a visit - s.7(1) - is to assist the council: • to decide whether the adult is an adult at risk of harm; and • to establish whether the council needs to take any action in order to protect the adult at risk from harm. Identity and authorisation A council officer must under s.36(2): • produce evidence of the officer’s authorisation to visit the place; and • state the object of the visit. A S P 0 7

  48. Considerations - prior to visit Before a visit, consideration should be given to the implications of: • the principles of the Act; • providing appropriate services to the adult, e.g. independent advocacy or services to assist an adult, or other person in the household, to communicate; • other legislation, e.g. AWI, MHCT or other; • local inter-agency protocols and procedures; and • ensuring staff are protected and supported (consider local procedures – working in pairs – liaising with the police); • the likelihood of barred entry and any need to apply for a warrant for entry. Interdisciplinary discussion whenever possible of who, when and how. A S P 0 7

  49. Visits - Who? Where? When? Who? A council officer, making a visit, may be accompanied by another person. This could help inquiries by enabling a joint investigation with e.g. key worker, police officer, health professional, Care Commission officer or member of the Office of the Public Guardian (OPG); improved assessment of the risk to the adult; or better communication with the adult. Where? Section 7 allows a council officer to enter any place i.e.: • the place where the adult normally resides such as their own home or care home; or • a place where the adult is there temporarily or spends part of their time there such as a day centre; hospital or commercial premises. When? Section 36 (1) states that visits should only be at ‘reasonable times’. There is a need to consider timeous investigation; fully involving the adult and others; speaking to the adult in private; urgency of assessing risk and, if necessary, taking protective action, giving notice/possible prejudice to safety of giving notice. A S P 0 7