Chapter 12: Removal orders
1. This chapter provides guidance on Section 14 of the Act which allows a council to apply to the sheriff for a removal order, which, if granted, allows the council to remove the adult at risk to a specified place. The purpose of a removal order is to assess the adult's situation and to support and protect them. This is a short-term order and, although effective for a maximum of seven days, it is envisaged that it will not be required to last that long in the majority of cases. A removal order will be granted only where the sheriff is satisfied that the adult is likely to be seriously harmed if not moved to another place and that there is a suitable place available to remove the adult to. The council must protect any property owned or controlled by an adult who is removed from a place under a removal order.
What is a removal order?
2. A removal order is primarily for protection and not for a council interview or a medical examination. It permits the person named in the order to be moved from any place to protect them from harm. For example, the place the adult at risk actually lives may however be a contributory factor in the harm and the move may provide "breathing space" for the specified person.
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 or to have applied for an assessment order. Protection orders may be applied for at any time in the process, depending on the individual case. Any proposed action must be judged on a case by case basis, including the use of other legislation, and be necessary to provide benefit to the individual.
4. Section 14 provides that a council may apply to the sheriff for a removal order which authorises:
- a council officer, or any council nominee, to move a specified person to a specified place within 72 hours of the order being made; and
- the council to take such reasonable steps as it thinks fit for the purpose of protecting the moved person from harm.
5. The adult at risk must however, be removed to a "specified place" which has been assessed as being both available and suitable for the purpose. The council must also protect any property owned or controlled by an adult who is removed from a place under a removal order.
Expiry of a removal order
6. There is a 72 hour period in which to execute the removal order. It expires 7 days (or such shorter period as may be specified in the order) after the day on which the person specified in the order is moved in pursuance of the order.
What to consider before applying for a removal order
7. Action can only be considered where the person is an adult at risk who is likely to be seriously harmed if not moved and suitable accommodation is available to which that person can be moved. (For further information on what constitutes an adult at risk, please refer to Chapter3).
8. 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. In particular, any action should be the least restrictive and should be necessary to provide a benefit to the adult. The adult's wishes and needs must always be considered. (Further information on the principles of the Act is provided in Chapter 3).
9. The use of other legislation may also be considered, for example, social work, child protection, mental health, civil law or criminal justice legislation.
10. Consideration must also be given as to whether the adult should be referred to independent advocacy. (For further information on adult support please refer to Chapter 5).
11. It is good practice to ensure that wherever practicable the adult is kept fully informed at every stage of the process. For example, they should be made aware of what the order means for them, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available. The council may also consider discussing with the adult at risk the need for some form of support plan. Another option would be to convene a multi-disciplinary meeting to discuss further care and protection issues.
12. 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.
13. Removal will need careful consideration by all practitioners. If it is considered that the adult will refuse consent to the granting of the removal order, the council should re-consider the merit of the application. This may be in the form of a multidisciplinary multi-agency meeting. Protection orders should be only used when all other options have been explored and exhausted.
14. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, 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 on undue pressure, please refer to paragraphs 23 to 27).
15. 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 has powers to 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 Mental Health (Care and Treatment) (Scotland) Act 2003.
Who can apply for a removal order?
16. Only the council can apply for a removal order.
17. An application for such an order must be made to a sheriff, or in urgent cases a justice of the peace.
18. Although the application for the order must be made by the council, the council may choose to nominate another person, for example, someone from one of the co-operating bodies to actually move the adult at risk. This may be important if, for example, the nominated person is more familiar to the adult at risk than the council officer. It may be more reassuring for the person being removed if this was done by someone who they already know rather than a stranger. However, only the council officer and police constable have the right to enter the premises where the adult is located to remove the adult.
19. The removal order will specify where the adult is to be removed to. Good practice suggests a protection plan could be submitted by the council with the application.
What are the criteria for granting a removal order?
20. Under Section 15, the sheriff may grant a removal order only if satisfied:
- that the person in respect of whom the order is sought is an adult at risk who is likely to be seriously harmed if not moved to another place; and
- as to the availability and suitability of the place to which the adult at risk is to be moved.
21. The place where the adult at risk is removed from may not necessarily be their own home. They could be in public, private or commercial premises. The adult can be removed from any place in pursuance of a removal order. The adult is to be removed to the place specified in the order.
22. Good practice would be that the council provides a suitability report of both the place and the person willing to care for the adult at risk. The council should also obtain a written agreement from the owner of the proposed specified place where it is for example, a private home or independent care provider to confirm the owner's willingness to receive the adult at risk for up to 7 days. The place to which the adult should be taken will be specified in the order.
Can an order be granted or enforced without an adult's consent?
23. 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. Any intervention must be reasonable and proportionate, 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.
24. 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. If the informal approach was unsuccessful, the option to formally apply to the court for a removal order is available. Secondly, if an application is made and consent to the granting of the order is refused, then the sheriff must consider the test referred to in paragraph 23 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 23 above. 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.
25. 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.
26. 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.
27. 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 a person that the adult does not trust.
Notifications and hearing
28. Under Section 41(3), the applicant for an order should notify the affected adult in writing of the application and advise them of their right to be heard or represented before the sheriff and to be accompanied by a friend, relative, carer or any other representative of their choice in accordance with section 41(4) and (5).
29. Under Section 41(4) and (5), the affected adult may be heard or represented before the granting of a removal order and has the right to be accompanied in court by a friend, a relative or any other representative (including legal) chosen by the adult.
30. The council should, if appropriate, advise any other persons who are known to have an interest in the person's well-being or property that the application is to be made. This would enable any such person to enter the proceedings.
- protect the adult from serious harm; or
- not prejudice any other person affected by the disapplication.
32. Section 15(2) provides that the sheriff may require the council to allow a specified person to have contact with the adult at risk subject to specified conditions. Before doing so the sheriff must under section 15(3) have regard to:
- representations of the council as to whether persons should be allowed to have contact with the adult at risk; and
- any relevant representations made by:
- the adult at risk
- any person who wishes to be able to have contact with the adult at risk; and
- any other person who has an interest in the adult at risk's well-being or property.
33. There may also be times when a person who is concerned for the adult's welfare would wish to enter the proceedings and be heard by the sheriff, for example, to ask that the adult be taken to a place other than that chosen by the council as the "suitable place".
34. Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, this should be indicated to the court.
35. Under Section 41(6), the sheriff also has discretion to appoint a safeguarder to safeguard the interests of the affected adult at risk before deciding the application. 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.
36. In cases where the council becomes aware that the person suspected of harming the adult may also attend, 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.
37. Where the council considers that it would be prejudicial to the adult's welfare for the adult to attend a hearing, then the council may ask the sheriff to dispense with intimation to the adult who is the subject of the application and other parties (see also paragraphs 28 to 36).
38. The council should provide the sheriff with their reasons to assist the sheriff in reaching a decision.
Can conditions be attached to a removal order?
39. Section 15(2) provides that the sheriff may attach a requirement to the grant of a removal order. This may require a council to allow any specified person to have contact with the adult at risk to whom the order relates:
- at any specified time during which the order has effect; and
- in accordance with any specified conditions.
40. Whether the sheriff attaches such a requirement to an order will depend on the circumstances in each application. The purpose of such a requirement may be to permit certain persons to have contact with the moved person to help maintain family or social relationships. The conditions specified in relation to the requirement may also stipulate that this conduct takes place under supervision arrangements where there is concern that harm may continue if contact was unsupervised. It should be borne in mind that representations may be made to the sheriff by any of the parties, either orally or in writing, for contact to be granted.
41. It may be inappropriate to have the adult at risk exposed to the alleged during the period of the removal order, but contact with other persons may be beneficial, for example, relatives or friends. This issue could be addressed in advance with the adult.
42. Where conditions for contact have been specified by the sheriff, good practice would be for the council to prepare some form of access plan. This would include dates/times and may, for example, provide that any contact takes place in an alternative location from where the adult has been moved to.
Warrant for entry
43. The sheriff (or justice of the peace) must grant a warrant that authorises a police constable to use reasonable force to achieve the purpose of the visit. Wherever possible, entry to premises should first be attempted without force. 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.
44. In order to minimise distress and risk to the adult at risk, the procedure should be carefully planned and co-ordinated with all those involved in the process. Ideally, a multi-disciplinary plan would be prepared in advance on how to carry out the entry and removal of the person. The plan should include contingencies in case the adult or a person present does not respond as expected. Where it is anticipated that the use of force may be necessary to execute the order, a multi-disciplinary assessment of the risk should similarly be undertaken. In such circumstances, management of the process should be passed on to the police to enable them to address the issue of safety of all parties concerned. However, all parties involved should bear in mind the general principles in Sections 1 and 2 of the Act.
45. Once a warrant has been executed, it cannot be used again.
Timescales within which an order must be carried out
46. Given the purpose of the order, the adult must be removed within 72 hours. The order will expire up to seven days after the day the adult is moved, not counting the day the adult is moved, and it expires at midnight on the final day. The order can be specified by the sheriff to expire in a shorter period. The adult at risk cannot be returned home and then removed again within this period.
47. A further application for a removal order must not be made with a view to extending the order. This is to avoid the unintended consequence of an adult being out of their home for longer than is necessary. For example, if someone has been harmed it may be necessary to take them to another place temporarily so that they can be given food and rehydrated. The intention as far as is practically possible would be to return them to their own environment as soon as possible.
48. The council should always consider as short a removal period as possible in line with the general principles of benefit, least restriction and the adult's wishes. This removal period is a very short time interval so may only be used for very specific purposes. It may be that the removal order can be used to resolve any issues between the affected adult and the person suspected of harming the adult. In some cases this could be due to carer stress. However, the removal must be for the purpose of preventing serious harm.
What if the adult at risk has moved location before the removal order can be carried out?
49. It may be that the adult at risk has either left the premises or been moved by another person to avoid the consequences of the removal order.
50. The removal order may not always specify the place from which the adult must be removed, however the warrant for entry always does. This means that if a person is moved to a second place in the period between the removal order and warrant being actioned, and it is anticipated that entry by warrant will be necessary, then a fresh application for a warrant must be made. Where the original removal order specified the place from where the adult must be removed, a fresh application will also be needed for a new removal order.
Can a removal order be varied or recalled?
51. Section 17 provides that an application may be made to the sheriff to recall or vary a removal order. Application may be made by:
- the adult at risk;
- any person who has an interest in the adult at risk's well-being or property; or
- the council.
52. The sheriff may vary or recall the removal order if satisfied that the variation or recall is justified. The sheriff would have to be satisfied that there has been a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.
53. The removal order may not be varied so as to authorise the council to do anything seven days after the day on which the adult at risk is moved in pursuance of the order.
54. Where the sheriff has recalled the removal order, the sheriff may direct the council to:
- return the adult to the place from which the adult was removed; or
- take the adult to any other place which the sheriff, having regard to the adult's wishes, may specify.
55. As with the initial application, the sheriff has the discretion to disapply the notification and other requirements where the sheriff considers that by doing so it will protect the adult at risk from serious harm or will not prejudice any person affected by the disapplication. (See also paragraphs 29-31).
Who has responsibility for caring for the adult's property?
56. Section 18 deals with protecting the adult at risk's property, whether this is owned or controlled by the adult, from being lost or damaged. The Act (section 18(1)) provides that the council must take reasonable steps to prevent any property owned or controlled by person moved in pursuance of a removal order from being lost or damaged because:
- the moved person is unable to protect, care or otherwise deal with the property; and
- no other suitable arrangements for the property have been or are being made.
57. A council officer has a right to enter any place, or adjacent place, which the council knows or believes to contain any property which it has a duty under the Act to protect on order to enable or assist the council in performing that duty (sections 18(2) and (3). If the council officer finds such property, the officer may do anything reasonably necessary to prevent the property from being lost or damaged. In particular the officer may move the property to another place (section 18(4)).
58. Property could include the contents of a house, vehicles, animals, livestock, cash, credit cards and clothing.
59. The council is not entitled to recover any expenses it incurs in relation to property owned or controlled by the adult removed. The council has to return the property to the adult at risk as soon as is reasonably practicable. This could be agreed in advance with the adult at risk in the form of a Protection Plan.
What happens after the order expires or the adult wishes to leave?
60. Although the Act does not make explicit what happens after the 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 agreeing some form of support plan with the adult, or where appropriate, convene a multi-disciplinary meeting to discuss further care and protection issues.
61. 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.
What can be done in cases of urgency?
62. Section 40 provides that a council can apply to a justice of the peace of the commission area in which the adult is located, where:
- it is not practicable to make application to the sheriff; and
- an adult at risk is likely to be harmed if there is any delay in granting the order.
63. The justice of the peace must be satisfied that the person is an adult at risk who is likely to be seriously harmed if not moved to another place and that the adult is to be removed to a place that is suitable and available.
64. The adult at risk must be removed within 12 hours of the grant of the removal order and the order expires after 24 hours.
65. Good practice would be that the council should advise any person with an interest in the adult's welfare that the adult has been removed.
Email: Stephanie Robin