Chapter 3: Principles and definition of adult at risk
1. This chapter provides a description of the principles of the legislation as set out in sections 1 and 2 of the Act and the definition of "Adults at risk" and "harm" (Sections 3 and 53 of the Act).
Taking account of the principles of the Act
2. Sections 1 and 2 set out the general principles of the Act. These apply to any public body or office holder authorising any intervention or carrying out a function under Part 1 of the Act in relation to an adult. For example, they apply to any social worker, care provider or health professional intervening or performing a Part 1 function under the Act.
3. This means that the following persons are not bound by these principles: the adult; the adult's nearest relative; the adult's primary carer; independent advocate; the adult's legal representative; and any guardian or attorney of the adult. (These latter groups will, however, be bound either by their own codes of conduct and principles, or the principles of the legislation that resulted in their appointment).
4. The Act requires the principles to be applied when deciding which measure will be most suitable for meeting the needs of the individual. Any person or body taking a decision or action under the Act must be able to demonstrate that the principles in sections 1 and 2 have been applied.
5. The principles in section 1 require that any intervention in an adult's affairs under Part 1 of the Act should:
provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs; and
be the option that is least restrictive to the adult's freedom.
Principles for performing functions
6. The principles in section 2 require that any public body or office holder performing a function under Part 1 of the Act must have regard to the following:
the general principle in section 1.
the wishes of the adult - any public body or office holder performing a function or making a decision must have regard to the present and past wishes and feelings of the adult, where they are relevant to the exercise of the function, and in so far as they can be ascertained. Efforts should be made to assist and facilitate communication using whatever method is appropriate to the needs of the individual. Also, where the adult has an Advance Statement made under Section 275 of the Mental Health (Care and Treatment) (Scotland) Act 2003 then this should be given due consideration.
the views of others - the views of the adult's nearest relative, primary carer, a guardian or attorney, and any other person who has an interest in the adult's well-being or property, must be taken into account if such views are relevant.
It is important that the adult has the choice to maintain existing family and social contacts. What the Act seeks to provide is support additional to the networks that may already be in place. Thus a person who may be an adult at risk may have neighbours or friends who have an interest in his/her well-being and are willing to give support. Every effort should be made to ensure that any action taken under the Act does not have an adverse effect on this.
the importance of the adult participating as fully as possible (refer to Chapter 5) - the adult should participate as fully as possible in any decisions being made. It is therefore essential that the adult is also provided with support and information to help that participation (in a way that is most likely to be understood by the adult). Any needs the adult may have for help with communication (for example, translation services or signing) should be met. Any unmet need should be recorded. Wherever practicable the adult should be kept fully informed at every stage of the process. This includes information about their right to refuse to participate.
that the adult is not treated less favourably - there is a need to ensure that the adult is not treated, without justification, any less favourably than the way in which a person who is not an "adult at risk" would be treated in a comparable situation.
the adults abilities, background and characteristics - including the adult's age, sex, sexual orientation, religious persuasion, racial origin, ethnic group, and cultural and linguistic heritage
7. These principles should always be considered when decisions are required about action that may be taken to protect an adult. However, there will be situations where their consideration produces conflicting drivers, such as occasions when the adult at risk refuses any form of intervention but the professionals involved believe that adult protection intervention would provide a benefit to them. In such circumstances, decision-making should while taking into account the principles do so on a multi-agency basis. This is to enable full and complete discussion of potential protective actions and the application of the principles set out above. Professionals have to balance the rights of the adult with their own legislative duties.
8. In all cases, it is important to be clear about the adult's capacity. All adults who have capacity have the right to make their own choices about their lives and these choices should be respected if they are made freely. Any self-determination can involve risk, and staff working with the adult need robust risk assessment, management and risk enablement strategies to ensure that such risk is recognised and understood by all concerned and minimised whenever possible. Professionals should be aware of the risks of undue pressure being applied by a relative, carer or other professional. Further information on capacity and consent which is a complex area can be found in Chapter 8 and Annex A no 2-4, 12&21 (human rights) and 25 (Mental welfare commission - refer in particular to the publication 'Working with the Adults with incapacity Act'). Further information on advocacy is provided in Chapter 5 and undue pressure in Chapters 12-14.
9. For the purposes of these principles, making a decision not to act is still considered as taking a decision and the reasons for taking this course of action should be recorded as a matter of good practice.
Who is an adult at risk?
10. The Act refers throughout to an "adult". In terms of Section 53 of the Act, "adult" means a person aged 16 or over.
Adult at risk - Section 3(1) defines 'adults at risk' as those 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.
11. The first element of the above three-point criteria relates to whether the adult is unable to safeguard their own well-being, property, rights and other interests. 'Unable' is not further defined in the Act or guidance, but is defined in the Oxford English Dictionary as 'Lacking the skill, means or opportunity to do something'. A distinction should therefore be drawn between an adult who lacks these skills and is unable to safeguard themselves, and one who is deemed to have the skill, means or opportunity to keep themselves safe, but chooses not to do so. An inability to safeguard oneself is not the same as an adult not having capacity. An adult may be considered unwilling rather than unable to safeguard themselves and so may not be considered an adult at risk.
12. The presence of a particular condition does not automatically mean an adult is an "adult at risk". Someone could have a disability but be able to safeguard their well-being. It is important to stress that all three elements of this definition must be met. It is the whole of an adult's particular circumstances, which can combine to make them more vulnerable to harm than others. This is helpful when considering what is meant by infirmity for example. Also there should not normally be a 'once and for all' categorisation of people as an adult at risk. An individual's vulnerabilities, medical conditions and abilities can fluctuate and change over time.
Problematic alcohol and drug use
13. Similarly, vulnerability or a lack of ability to safeguard, which is due to temporary problematic alcohol or drug use, would not by itself result in an individual being considered an "adult at risk". Adults have the right to make choices and decisions about their lives, including the use of alcohol and drugs, even if that means they choose to remain in situations or indulge in behaviour which others consider inappropriate. Without any additional vulnerability, such as an illness or disability, adult protection intervention would not normally be appropriate. Young people aged 16-18 can be particularly easily influenced and legislation places limits on children not in place for adults such as access to alcohol.
14. However, the ongoing problematic use of drugs or alcohol may take place alongside (and on occasions contribute to) a physical or mental illness, mental disorder or a condition such as alcohol related brain damage. If this is the case an adult may be considered an "adult at risk". It must be stressed, however, that it is the co-existing illness, disability or frailty, which would trigger adult protection considerations, rather than the substance use itself.
15. A number of diagnoses are problematic when alcohol or drug use are regular features of an adult's presentation, but in each case multi-agency inquiries should be made to gather as much information as possible about an adult's condition. In addition, because an adult's underlying condition may deteriorate with ongoing alcohol or drug use, inquiries should be made each time an adult protection referral is made and no assumption should be made about the adult's condition on the information gathered during a previous inquiry.
16. An assessment that intervention under the Act is not necessary or appropriate taking into account local eligibility criteria, does not absolve authorities of responsibility to consider intervention under other legislation, such as the NHS and Community Care (Scotland) Act 1990, or to offer other services. Actions taken or reason for no action should be recorded. Consideration should be given to practical and emotional support provided by social work, health, independent and third sector and private sector providers. For example the provision of mainstream health and social care services such as housing, independent living, financial, occupational therapy, counselling, support for carers, and Community Health Partnership services.
Young people in transition
17. The definition of an adult at risk includes people aged 16 and over with disabilities and or mental disorders, illness, or physical or mental infirmity and who are at risk of harm from themselves or others. Adult Protection practitioners should pay particular attention to the needs and risks experienced by young people in transition from youth to adulthood, who are more vulnerable to harm than others. As other legislation and provisions exist which include persons up to 18 (and sometimes up to age 25), support under these other provisions may be more appropriate for some young persons. Further the responsibilities of the council and other agencies for persons aged 16-18 will extend beyond adult protection legislation. (Refer Annex A no 8).
18. Young people may already be receiving services from a range of children's services, or as 'looked after' children. This is not to say that they will or will not become 'adults at risk' in terms of the act simply because they have reached a particular age. Each case will need to be considered individually.
19. Adult Protection Committees, in conjunction with Child Protection Committees, and similar partnerships or authorities, should ensure that young people who are considered at risk of harm are identified at the earliest possible stage and appropriate support and protection put in place during and after the transition to adult services. There will need to be robust systems in place for the sharing of information and any necessary transfer of responsibilities between agencies and services.
Harm - Section 53 states 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); or
- conduct which causes self-harm.
20. The definition of "harm" in the Act sets out the main broad categories of harm that are included. The list in the definition is not exhaustive and no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute 'harm' to a person can be physical, sexual, psychological, financial, or a combination of these. The harm can be accidental or intentional, as a result of self-neglect or neglect by a carer or caused by self-harm and/or attempted suicide (refer Annex A for references). Domestic abuse, gender based violence, forced marriage, human trafficking, stalking, hate crime and' mate crime' will generally also be harm.
21. The assessment of "harm" and the "risk of harm" are important elements under Part 1 of the Act. The definition of "adults at risk" requires an assessment to be made about the "risk of harm" to the individual at the outset.
Risk of harm - Section 3(2) makes clear that an adult is at risk of harm if:
- another person's conduct is causing (or is likely to cause) the adult harm; or
- the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.
22. Adults can be at risk of harm in various settings - their own home, in the wider community, through services provided, such as the NHS, day care, residential or nursing care. The risk of harm can also arise through services provided by self-directed support.
23. The Social Care (Self-directed Support) Scotland Act 2013 establishes a duty on local authorities to provide adults, children and families with choice over their care and support arrangements through the general principles of involvement, informed choice, collaboration, participation and dignity. The Scottish Government, local authorities and providers are committed to significant expansion of opportunities for adults to take greater control over their support, either through a direct payment, individual service fund (or similar 'notional budget' option), directly provided services or any combination of these.
24. Local authorities are subject to the same duties and powers under the 2007 Act where a person chooses to direct their support, or elects to ask the council to arrange support on their behalf. The responsibility to assess risk, inquire, investigate or, where necessary, intervene to protect remains the same. The statutory guidance accompanying the 2013 Act includes a section on the development of links between adult protection and social care assessment arrangements. It reinforces the point that enablement through self-directed support rests on a return to the core principles of social care and social work practice. It emphasises the need to support adults to identify their personal outcomes as part of the assessment process and to decide how they wish to meet those outcomes. Effective self-directed support arrangements rest on good quality assessment, support, planning and review. They depend on the individual and where appropriate, their circles of support and any children living in the household, being fully involved in identifying, assessing and managing risks. In some instances, the subsequent choices made by an individual may increase risk but by providing the individual with greater control over their support and supporting them to make informed choices regarding potential risk, an individual can also develop and improve their ability to protect themselves.
25. Adult Protection Committees should review their procedures (in particular, those for risk assessment and management) and training programmes with partners to ensure an effective, positive and supportive link is established between arrangements for adult protection, social care assessment and review and self-directed support.
Assessing and managing the risk of harm
26. For some adults, the investigation process will reveal they are at ongoing risk of harm and will need continuing assistance with their support and protection. For those adults there will often be a need for multi-agency support. The range of measures to support an adult will vary depending upon the unique circumstances of the adult. All forms of ongoing intervention must follow the Act's principles and involve multi-agency working and cooperation to maximise the assistance that can be provided.
27. When risk of harm to an adult is identified, each Adult Protection Committee should ensure local multi-agency procedures to guide staff on how to respond are in place and should review them. These should include guidance to assist staff in carrying out assessments of risk, manage situations of ongoing risk (refer paragraph 23 below). Procedures should also include or reflect:
- the principles of this Act (see above)
- protection of the rights of people who lack capacity in decision making processes;
- guidance on the purpose of convening meetings of agencies with the adult and good practice in holding these meetings (refer Chapter 5)
- enabling and ensuring effective and proportionate responses (including continuing community care support, and at adequate levels, where it is needed);
- the increasing prominence of self-directed support; and
- good cross-agency training for investigating staff and those delegated such powers.
28. Working Together to Improve Adult Protection - Risk Assessment and Protection Plan (2007) provides guidance on the completing of risk assessments and the development of adult support and protection plans to provide ongoing support and protection. The aim is to ensure risk assessment and management plans are both rigorous and comprehensive. The guidance within this document should be considered for incorporation into local multi-agency procedures and guidance to staff.
Email: Stephanie Robin