Chapter 2: Introduction to the Act
1. The Act makes provision intended to protect those adults who are unable to safeguard their own interests and are at risk of harm because they are affected by disability, mental disorder, illness or physical or mental infirmity. Harm means all harm including self-harm and neglect.
2. Section 1 details the fundamental principles underpinning Part 1 of the Act; namely that any intervention must provide benefit to the adult, that this benefit could not be reasonably achieved without intervention and that any intervention is the least restrictive option with regard to the adult's freedom.
What does Part 1 of the Act do?
3. Part 1 provides new measures to identify, and to provide support and protection for those individuals who are vulnerable to being harmed whether as a result of their own or someone else's conduct. These measures include:
- a set of principles which must be taken into account when performing functions under Part 1 of the Act;
- placing a duty on Councils to make the necessary inquiries and investigations to establish whether or not an adult is at risk from harm and further action is required to protect the adult's well-being, property, or financial affairs;
- clarifying the roles and responsibilities of those involved in adult protection;
- a duty to consider the provision of advocacy or other services after a decision has been made to intervene;
- permitting practitioners to investigate circumstances where individuals may have capacity to choose but not the ability to exercise that choice because of undue pressure;
- requiring specified public bodies and office holders to co-operate with local councils and each other about adult protection investigations;
- a range of protection orders which are defined in the Act to include:
- assessment orders;
- removal orders; and
- banning orders.
- the establishment of multi-agency Adult Protection Committees.
How does Part 1 safeguard the adult?
4. There are a number of safeguards in place:
- 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. It is recognised that, at times, there will be a need to carefully weigh and consider the various principles, particularly where the adult at risk does not wish support or they themselves are the source of the risk.
- Statements expressed in advance about an individual's preferred care or treatment must be taken into account in line with the guiding principles.
- The principles must always be taken into account when an intervention under Part 1 of the Act is being considered.
- Protection orders cannot be made if the court knows that the affected adult at risk has refused to consent to the granting of such an order. The only exception to this is where the adult at risk is found to have been unduly pressurised to refuse to consent and there is no other protective action, which the adult would consent to, which could be taken.
- The adult at risk may refuse to be medically examined or answer questions during an interview.
- Applications for all protection orders (except in emergency situations in relation to removal orders) will be heard before a sheriff, where there will be an opportunity to make representations to the sheriff. However the sheriff may decide not to hold a hearing where they are satisfied that this will protect an adult a risk from serious harm or not prejudice any persons affected.
- The adult at risk or someone on their behalf may apply for a banning order to ban a person from a specified place (e.g. the home of the adult at risk).
- An appeals mechanism allows relevant parties to appeal against the granting of, or refusal to grant, a banning or temporary banning order.
Email: Stephanie Robin