Chapter 4: Duties and powers of the council and other agencies, the role of the council officer and the independent and third sectors, and cooperation across organisations and professionals.
1. This chapter sets out the duties and powers of councils, and of a range of other agencies and professionals. It sets out who may act as 'council officers' undertaking investigations and other duties under Part 1 of the Act. The chapter provides information about the duty of other bodies to co-operate with the council and a short overview on the role of GPs, and independent providers.
2. Sections 1 and 2 of the Act set out the principles and other matters which need to be considered for those who propose to perform functions under the Part 1 of Act. The general principle on intervention is set out in section 1 of the Act and provides that it is only permissible where it is reasonably required to provide a benefit to the adult concerned and is, from the options available, the least restrictive to the adult's freedom. (For further information on the principles, please refer to Chapter 3).
What are a council's duties under the Act?
3. The Act places duties on the council to:
- make inquiries to establish whether action is required, where it is known or believed that an adult is at risk of harm and that intervention may be necessary to support and protect the adult (Section 4);
- undertake investigations when inquiries suggest an adult is at risk of harm and is (or is believed to be) in need of support and protection;
- co-operate with other councils and other listed (or prescribed) bodies and office holders (Section 5);
- have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services), where the council considers that it needs to intervene in order to protect an adult at risk of harm (Section 6);
- inform any adult interviewed that they may refuse to answer any question put to them (Section 8);
- inform an adult believed to be at risk that they may refuse to consent to a medical examination (Section 9);
- protect property owned or controlled by an adult who is removed from a place under a removal order. This may include moving property belonging to the adult from that place, where this is considered reasonably necessary in order to prevent the property from being lost or damaged. The council must ensure the property is returned to the adult concerned as soon as reasonably practicable after the relevant removal order ceases to have effect (Section 18);
- visit a place at reasonable times only, to state the object of the visit and produce evidence of authorisation to visit. Council officers may not use force to facilitate, or during, a visit. However, a sheriff or justice of the peace may authorise the police to use force (Sections 36 to 40); and
- set up an Adult Protection Committee to carry out various functions in relation to adult protection in its area, and to review procedures under the Act (Section 42). (Note that the Adult Protection Committee may cover more than one council area).
What are a council's powers under the Act?
4. Where it is known or believed that an adult is at risk from harm and the council might need to intervene, the Act places a duty on the council to make the necessary inquiries to establish whether or not action is required to stop or prevent harm occurring.
5. The Act enables a council to:
- visit any place necessary to assist with inquiries under section 4 and investigations under section 7. Council officers may interview, in private, any adult found at the place being visited, and may arrange for a medical examination of an adult known or believed to be at risk to be carried out by a health professional. Health, financial and other records relating to an adult at risk may be requested and examined. Only a health professional may inspect health records (Sections 7-10); and
- apply to the sheriff for the grant of a protection order.
6. Council officers have rights of entry to places where adults are known or believed to be at risk of harm. If, following inquiries or investigations, a council officer believes that action is required, the council can apply to the sheriff for a protection order. The range of protection orders include assessment orders (which may be to carry out an interview or medical examination of a person), removal orders (removal of an adult at risk) and banning orders or temporary banning orders (banning of the person causing, or likely to cause, the harm from being in a specified place) (Sections 11-22).
Who can act as a council officer for the purposes of the Act?
7. Given the need to act with sensitivity and professionalism in situations where interventions must be carried out, it is important that those authorised to intervene are suitably qualified and trained to do so.
8. Section 53 (1) of the Act defines a council officer as an individual appointed by a council under Section 64 of the Local Government (Scotland) Act 1973. Section 52(1) of the Act enables Ministers to restrict the type of individual who may be authorised by a council to perform council officer functions under Part 1 of the Act. .
9. Scottish Ministers subsequently made an order that prescribed that a council must not authorise a person to perform the functions of a council officer under sections 7 to 10 of the Act (investigative functions) unless the person:
- is registered in the part of the SSSC register maintained in respect of social workers or social service workers or is the subject of an equivalent registration;
- is registered as an occupational therapist in the register maintained under article 5(1) (establishment and maintenance of register) of the Health Professions Order 2001; or
- is a nurse ; and
- the person has at least 12 months' post qualifying experience of identifying, assessing and managing adults at risk.
10. The Order also provides that authorisation to perform the functions of a council officer under section 11 (assessment orders), 14 (removal orders), 16 (right to remove adult at risk) or 18 (protection of moved person's property) is restricted to registered social workers, occupational therapists and nurses who have at least 12 months relevant experience. A council may withdraw the authority of a person to perform the functions of a council officer if the person no longer meets the relevant requirements.
11. The Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012 provides that where a council and Health Board have made arrangements for joint working in relation to social care and health under the Community Care and Health (Scotland) Act 2002, the term "council officer" can apply to a person employed by the Health Board. The public Bodies (Joint Working) (Scotland) Act 2014 will place a new requirement on all Health Boards and councils to make arrangements for adult health and social care services to be provided in an integrated way within each local authority area. Section 23 of the 2014 Act will allow Ministers to make regulation to allow suitably qualified individuals who are employed by a Health Board to exercise the functions of a council officer.
Duty to co-operate
12. While councils have the lead role in adult protection, effective intervention will only come about as a result of productive cooperation and communication between a range of agencies and professionals. What one person or public body may know may only be part of a wider picture. The multi-agency nature of adult support and protection work is crucial and much of the work concerning individual adults will overlap with the work of for example registration and inspection bodies. Good practice should be that all relevant stakeholders would cooperate with assisting inquiries and investigations, not only those who have a duty to do so under the Act. Adult Protection Committees will wish to consider how best they can engage with this broader group of agencies in order to ensure that they are aware of the provisions of the Act, and that they have appropriate procedures in place.
13. Section 5 provides that certain bodies and office holders must, so far as is consistent with the proper exercise of their functions, co-operate with a council making inquiries under Section 4 and with each other where this is likely to enable or assist the council making the inquiries. A proper exercise of a public body's functions may include being bound by a duty of confidentiality. Cooperation with each other is consistent with the duties that some of these bodies have under other legislation such as the improvement function of the scrutiny bodies under the Pubic Services Reform (Scotland) Act 2010.
14. Specifically, it should be noted that under Section 5(3), if the public body or office holder knows or believes that a person is an adult at risk of harm and that action needs to be taken to protect them from harm then the facts and circumstances of the case must be reported to the council for the area in which the public body or office holder considers the person to be located. The public body or office-holder who knows or believes an adult is at risk of harm has a legal duty to make a referral to the council, taking into account the principles of the Act. Even in doubt the referral should be made and should be counted as a referral by the council. The council must then make inquiries and may take such investigative steps as considered necessary to establish whether the adult is an adult at risk of harm and what action should be taken.
15. The bodies and office holders listed in Section 5 are:
- Mental Welfare Commission for Scotland;
- Care Inspectorate;
- Healthcare Improvement Scotland
- Public Guardian;
- all councils;
- Chief Constable of the Police Service of Scotland;
- the relevant Health Board; and
- any other public body or office-holder as the Scottish Ministers may by order specify.
- (As at April 2014, Scottish Ministers have not specified any other bodies)
16. Where staff have to report within their own organisations they should be clear to whom they have a duty to report. Staff also have a duty to cooperate with those working in the wider services within councils, including services for adults, children and families, criminal justice, housing, education, trading standards and consumer protection, and a range of services provided by health and specialist health boards, including acute and psychiatric hospitals and community health services.
17. While it is not specified, a wide range of other services also contribute to the protection of adults at risk. These include:
- fire and rescue;
- the prison service; and
- independent health practitioners, including allied health professionals and GPs, who are not directly employed by health boards.
- there will be a range of service providers and service user and carer organisations in the independent and third sectors who will have a direct service provision role in relation to adults who may be at risk of harm; and
- adults who may be at risk of financial harm may have dealings with a range of agencies including financial institutions such as banks, building societies, credit unions, post offices, Royal mail and the Department of Work and Pensions.
18. The above services and agencies may all become involved with adults whom they know or believe as being at risk, and may therefore have cause to refer people to the council, and as such have a direct part to play in protecting people from risk of harm. Such services and agencies should be expected to cooperate with assisting inquiries and to provide services to assist adults at risk of harm.
19. Some agencies, which have a UK-wide jurisdiction or remit, may not be bound by the Adult Support and Protection (Scotland) Act 2007. However they are likely to be bound by the requirements of the Data Protection Act 1998, other legislation or specific protocols agreed with the Scottish Government (for example, the protocols recently agreed between Scottish Government and the Department of Work and Pensions).
20. The Scottish Government published Guidance on the involvement of GPs in multi-agency protection arrangements (2013). This is intended to support the involvement of GPs in fulfilling their roles which arise from the Act and in making a broader contribution to adult protection beyond that required by statute.
21. It notes that GPs may be the first professionals to see signs of potential harm, and confirms that a collaborative approach is vital as GP involvement is invaluable when developing or refining local adult protection policy, procedure and strategy. The new guidance recommends that GPs should be represented on Adult Protection Committees or, where this is not possible, expects that committees will ensure that there are clear lines of communication established with local GPs.
Independent and third sector providers
22. While independent organisations do not have specific legal duties or powers under the Act, care providers have a responsibility to involve themselves with the Act where appropriate by making referrals, assisting inquiries and through the provision of services to assist people at risk of harm. These organisations should discuss and share with relevant statutory agencies information they may have about adults who may be at risk of harm. These providers and other service provider and user and carer groups may also be a source of advice and expertise for statutory agencies working with adults with disabilities, communication difficulties or other needs. Organisations will have a legal duty to comply with requests for examination of records.
23. Councils may wish to review their contract agreements with the independent and third sector providers to ensure that their services are consistent with the principles of this Act. (For further information about information sharing and confidentiality, please refer to Chapter 10).
A multi-agency approach to decision making
24. 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 usually be a need for coordinated multi-agency support and in the case of young adults there may be specific considerations. (Refer to Chapter 3). This multi-agency support may be required from agencies who do not have duties defined in the Act such as those in 3rd sector and independent sector. The range of measures to support an adult will vary depending upon the unique circumstances of the adult, their views and wishes. All forms of ongoing intervention must follow the Act's principles and so involve multi-agency working and cooperation, to maximise the assistance that can be provided.
25. Multi-agency adult protection procedures should give guidance on the convening of meetings of agencies with the adult as the best approach to managing risk by agreeing a protection plan. Such meetings should be as inclusive as possible, wherever practicable involving the adult at risk, their representatives and all those people with a relevant contribution to make (refer to Chapter 5).
26. The purpose of such meetings will be defined by local procedures, but should include the sharing of information relating to possible harm, the joint assessment of current and ongoing risk and the need to agree a specific detailed protection plan with timescales for addressing risks and providing services to support and protect the adult and any children living in the household.
27. If the meetings of the agencies with the adult are to be effective it is essential:
- that the chairperson is well trained in the skills necessary for that role including training on communication support and the ability to take account of the wishes and feeling of the adult at risk and the outcomes which matter to them (the chair could be the person taking the lead role in relation to the individual adult at risk or independent or even the adult at risk if appropriate)
- that the meeting is correctly minuted and clearly sets out who has been invited and who is present (for audit purposes those who have not responded should also be noted);
- to record whether the adult at risk has not been invited, has chosen not to attend and reasons; and
- to identify who is responsible for which aspects of the protection plan, the anticipated timetable, reporting arrangements and review date(s)
28. Different methods, approaches and levels of staff will be involved at each stage, but for every stage the multi-agency discussion and decision should be fully recorded, information exchanged quickly and safely, and decisions implemented. It is important that individual staff and agency responsibilities to undertake particular tasks are clear and accepted within a system of shared accountability to reduce any possible conflict. Decisions should be made on a multi-agency basis. It would be recommended that 3rd and independent sector agencies (providers and service user and carer groups) also include good practice guidance or procedures for their staff on multi-agency working on adult support and protection.
29. The adult's views and wishes are central to adult support and protection, and every effort should be made at each stage of the process to ensure that barriers to the adult's participation are minimized. (See Chapters 3 and 5 for more detail).
Email: Stephanie Robin