Chapter 11: Assessment orders
1. This chapter provides guidance on Section 11 of the Act which allows a council to apply to a sheriff for an assessment order. This allows a council officer to take a person from a place being visited under section 7 in order to allow a council officer, or any council nominee, to conduct a private interview, or a health professional to conduct a medical examination in private. This order would be necessary only if it were not possible to carry out the interview or examination at the place of the visit. An assessment order will be granted only where there is reasonable cause to suspect that the subject of the order is an adult at risk of serious harm, and that the action specified is necessary to establish this and to identify what further action may be required.
What is an assessment order?
2. The purpose of an assessment order is to determine whether the adult is an adult at risk; and whether there is reasonable cause to suspect that the adult at risk is being, or is likely to be, seriously harmed; and whether any action should be taken to protect the adult from serious harm.
3. There is no requirement under the Act for the council to have previously arranged a visit under Section 7, an interview under Section 8, or medical examination under Section 9 prior to applying for an assessment order. Protection orders may be applied for at any time in the process, depending on the individual circumstances of a case. Any proposed action must be judged on a case by case basis, including the use of other legislation, and be of benefit to the individual.
4. The council may make an application to a sheriff for an assessment order to help the council to decide whether the person is an adult at risk and to take an adult at risk of serious harm to a more suitable place in order to allow a council officer or council nominee to conduct a private interview. The order also provides that a health professional may carry out a medical examination in private.
5. When an assessment order is granted, the sheriff must also grant a warrant for entry under Section 37 in relation to a visit under section 7. The warrant for entry to accompany an assessment order will detail a specified place and only that place can be entered using the warrant. The warrant permits a constable to accompany a council officer and to do anything, including the use of reasonable force, where necessary which the constable considers to be required in order to fulfill the object of the visit. Only the constable has a right to use reasonable force.
What to consider before applying for an assessment order?
6. Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the principles of the Act. (Refer to Chapter 3).
8. The affected adult can be taken to the place specified on the order but whilst there, the adult still retains the right to refuse to answer all or some of the questions when interviewed. The adult may similarly refuse a medical examination. The affected adult must be informed of these rights before an interview or a medical examination takes place.
9. The protection element of the assessment order allows the council to conduct an assessment in private. This could also be beneficial to the adult where the adult may be under undue pressure to refuse consent.
10. If it is considered that the adult will refuse consent to the granting of the assessment order the council should re-consider the merit of the application. If the council decides to pursue an application where the affected adult has capacity to consent and their refusal to consent is known, then the council must prove that the adult has been "unduly pressurised" to refuse to consent to the granting of an order. (For further information, see paragraphs 20 to 25).
11. Where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. However evidence of lack of capacity will be required by the Sheriff. Where the adult is incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney may consent on their behalf. Where no guardian or attorney has such powers, 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) (Scotland) Act 2003.
12. The information gathered from the assessment order may point to further action being required, for example by providing the adult with support, advice or other services, or by taking further action under this Act or other legislation.
13. Wherever practicable, the adult must be kept fully informed at every stage of the process, for example, whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, or what other options are available. It is also good practice to ensure that carers' providing care and support are kept up-to-date with the proceedings. This is also important where a carer is a Guardian or has power of attorney.
14. An assessment order does not have the power to detain the adult in the place they are taken to. The adult may choose to leave at any time.
Who can apply for an assessment order?
15. An application for an assessment order will be made by the council's legal department. Evidence must be made on oath with both the council's solicitor and the authorised council officer appearing before the sheriff to present evidence.
What are the criteria for granting an assessment order?
16. Section 12 sets out the circumstances in which a sheriff may grant an assessment order. The sheriff must be satisfied that:
- the council has reasonable cause to suspect the subject of the order is an adult at risk who is being, or is likely to be, seriously harmed;
- the order is required to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed; and
- the place at which the person is to be interviewed and examined is available and suitable.
17. The council must therefore be able to satisfy the sheriff that a suitable place will be available to take the adult. This may in some circumstances require written confirmation from the person who owns or manages this place that they are willing to receive the adult for assessment purposes. For example, the place could be a friend's or relative's house or a care home. The suitability of the place to conduct a private examination could also be confirmed in writing. This would be desirable but it may not always be practicable in potentially urgent or emergency situations.
18. Under Section 13, an order should only be sought where it is not practicable during a visit under Section 7 (due to a lack of privacy or otherwise) to:
- interview the person under Section 8; or
- conduct a medical examination of the person under Section 9.
19. It may be that the adult needs to be taken from a threatening environment with the prospect the adult may then relax and agree to an interview and/or medical examination. Given that the adult is to be taken to a place where they may be interviewed and medically examined, it would be good practice for the council to provide full details of the actions to be undertaken under the order and the estimated length of time that the assessment and interview may take. This approach would support the application in demonstrating that the council is taking into account the principle of least restriction.
Can an order be granted or enforced without an adult's consent?
20. It must be borne in mind that the principles emphasise the importance of striking a balance between an individual's right to freedom of choice and the risk of harm to that individual, with the principles in sections 1 and 2 of the Act taken into account. Where the adult at risk has refused to consent, section 35 provides that the sheriff in considering making an order, or a person taking action under an order, may ignore the refusal where the sheriff, or that person, reasonably believes:
- that the affected adult at risk has been unduly pressurised to refuse consent; and
- that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.
21. There are essentially three stages that require that the issue of consent be considered. Firstly, a council (or other person) must believe that there are no steps, which could reasonably be taken with the adult's consent before proceeding to apply for an order. For example, the council may have previously tried an informal approach to move the adult to another place for interview and a medical examination. If the informal approach was unsuccessful, the option to formally apply to the court for an assessment order is available. Secondly, if an application is made and consent to the granting of the order is refused by the adult at risk, then the sheriff must consider the test referred to in paragraph 20 above and the onus will be on the applicant for the order to satisfy the sheriff in that regard. Thirdly, if an order is granted, a person must not take action to carry out or enforce that order without separately considering the test referred to in paragraph 20 above.
22. Section 35(4) gives an example of what may be considered to be undue pressure. This states that an adult at risk may be considered to have been unduly pressurised to refuse to consent if it appears that:
- harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and
- that the adult at risk would consent if the adult did not have confidence and trust in that person.
23. In this scenario, the sheriff or the council officer pursuing the application must reasonably believe that there is a relationship of confidence and trust between the affected adult and the person allegedly subjecting the adult to undue pressure, and that the adult would otherwise consent if the adult did not have that confidence and trust. The most obvious relationships to assume confidence and trust would be between parent-child, siblings, partnerships and friendships. The assessment of undue pressure may include the development of the relationship and how the suspected harmful circumstances may have resulted in the affected adult's refusal to consent.
24. However Section 35(5) makes it clear that this is not the only type of behaviour that would constitute undue pressure. Undue pressure can also be applied by an individual who may or may not be the person suspected of harming the adult, such as a neighbour, carer or other person. For example, a relative who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order may place undue pressure on the affected adult to refuse consent. Undue pressure may also be applied by a person that the adult is afraid of or who is threatening them and that the adult does not trust.
26. Under Section 41(3) and (5), the Act provides that the applicant for an order must notify the affected adult in writing of the application and should advise them of their right to be heard or represented before the sheriff and to be accompanied by a friend, relative or any other representative chosen by the adult.
27. Under Section 41(4), the affected adult may be heard or represented before granting an assessment order. Under section 41(5) the affected adult may be accompanied in court by a friend, a relative or any other representative (including legal) chosen by the adult.
28. Section 41(2) provides that the sheriff may disapply the above requirements where the sheriff is satisfied that by doing so this will protect the adult from serious harm or will not prejudice any other person affected by the disapplication.
29. In cases where the council becomes aware that the person suspected of harming the adult may also attend a hearing, for example where the adult wishes to be accompanied by that person, it would be good practice for the council to inform the sheriff prior to the hearing being held. The sheriff will then be able to decide whether to apply the provisions available under the Vulnerable Witnesses (Scotland) Act 2004.
30. Where the adult concerned has indicated that they do not wish to have legal representation, or it appears that they do not understand the process, this should be recorded and indicated to the court by the council. The court retains a common law power to appoint a Curator ad Litem where a person is party to a case, but does not have full mental capacity.
31. Under Section 41(6), the sheriff has discretion to appoint a safeguarder before deciding on the order. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The sheriff may instruct the safeguarder to report on the issue of consent.
Timescales within which an order must be carried out
32. The date specified in the order may be different from the date the order is granted. The assessment order is valid for 7 days after the date specified in the order. For example, an order with a specified date of 13 November would expire at midnight on 20 November.
33. The purpose of the assessment order is to take the adult to a more suitable place to enable the adult to be interviewed or medically examined. The adult must only be taken to the place specified on the order. There may be circumstances where, before the order is executed, the adult consents to being taken to another place. This does not invalidate the original terms of the order.
34. The key focus should be on carrying out an assessment given the suspicion of serious harm. It should be explained to the adult that the application for an assessment order was made due to concern for the adult. The adult has the right to refuse consent to the interview or the medical examination. After the interview or examination has been conducted or where the adult has refused to give their consent, the adult is free to leave.
35. The assessment must be undertaken in the shortest time practicable to minimise any possible distress or confusion to the adult. For example, a medical examination may only require an adult to be removed to the GP's surgery for an hour while an examination is carried out. However it may be that the adult would be happy to consent to remaining in a place overnight.
36. Once the order has been executed, it cannot be used again i.e. it does not provide for the adult to be taken from a place more than once to be interviewed or for a further medical examination.
37. The adult should be informed that an assessment order does not permit detention or allow a refusal to participate in an interview or medical examination to be over-ridden.
38. An assessment order cannot be appealed.
Warrant for entry
39. In granting an assessment order, the sheriff must also grant a warrant for entry that authorises a police constable to use reasonable force. It must be borne in mind that the use of force is an absolute last resort, to be used in very exceptional circumstances, and only when all other options have been exhausted.
40. It is important that a multi-disciplinary plan be prepared in advance on how to carry out the assessment order. In order to minimise distress and risk to the adult, the procedure should be carefully planned and co-ordinated with all those involved in the process. The plan should include contingencies in case the adult does not respond as expected. Where it is anticipated that there may be a risk of violence, a multidisciplinary assessment of the risk should be undertaken. It may be that the management of the process should be passed on to the police to enable them to address the issue of the safety of all parties concerned. However, all parties involved should bear in mind the principle of "least restrictive alternative" at all times.
41. Once a warrant has been executed, it cannot be used again.
What can be done in cases of urgency?
42. Section 40 makes provision for cases of urgency. An application can be made to a justice of the peace for a warrant to enter premises in cases of urgency where it is not practicable to make application to a sheriff. (For further information on warrants for entry, please refer to chapter 7).
43. An application may be made to a justice of the peace where:
- it is not practical to apply to the sheriff; and
- the adult at risk is likely to be harmed if there is a delay in granting the warrant.
What happens after the order expires or the adult wishes to leave?
44. Although the Act does not make explicit what happens after an assessment order expires or the adult chooses to leave, the council continues to have a duty of care to return the adult safely to the place from which they were removed or to a place of their choice, within reason. To this end, the council may consider discussing some form of support plan with the adult at risk or, where appropriate, convene a multidisciplinary meeting to discuss further care and protection issues.
45. The information gathered may point to further action being required, for example by providing the adult with support, advice or other services, or by taking further action under this Act or other legislation.
Email: Stephanie Robin