Chapter 6: Inquiries
1. This chapter covers Section 4 of the Act that places a duty on councils to make inquiries about an adult at risk's well-being, property or financial affairs where the council knows or believes intervention may be necessary to protect the adult.
When should a council make inquiries?
2. Section 4 of the Act places a duty on councils to make inquiries about a person's well-being, property or financial affairs if it knows or believes that:
- that the person is an adult at risk; and
- that it might need to intervene (under the Act or otherwise) in order to protect the person's well-being, property or financial affairs.
3. A council may be assisted in its duty to inquire through various sources, for example, independent and third sector providers and statutory bodies.
4. A council's knowledge or belief, which triggers their duty under section 4, may arise from a referral. Any referral that an adult may be at risk of harm, including anonymous referrals, should be considered with an open mind without assuming that harm has, or has not, occurred. All referrals warrant a carefully considered and measured response, and acted upon as a source of information that may or may not be presented as evidence at a later stage.
5. It would be good practice to ensure that staff and office-holders, in any public body or agency, who may be a first point of contact with the public is aware of the main provisions of the Act and that they must make appropriate referrals to the relevant council social work services, and in some cases the police in line with local arrangements as detailed in the local adult protection guidelines.
6. Inquiries under Section 4 of the Act will be carried out by the council's social work services and should follow local adult support and protection procedures. The council should consult and/or work in partnership with other agencies and conduct inquiries to establish where there is a need for further investigation and intervention. Other professionals, such as the police, the Care Inspectorate, third or independent sector care providers or health professionals may be asked to assist. In addition it may be beneficial to ask families and/or carers to assist by explaining to them their role, rights and how they could contribute. The system must be both flexible and professional in its approach. Any inquiry must be person centred and based on an individual's personal circumstances.
7. For some individuals, the process of inquiry, collating and considering all relevant and available information will determine that they are not an adult at risk as defined by the Act (2007). However, this decision does not preclude considering other relevant legislation, local procedures or alternative services to respond to the individual's needs. Other services are not specifically defined in the Act, but consideration should be given to practical and emotional support provided by social work, health, and independent 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.
8. If the risk of harm is thought to arise from a carer particularly an unpaid carer, the inquiry should also try to gain an accurate picture of the carer's situation. Workers should be aware that unpaid carers may also experience disabilities or ill health which may impact on their caring role. It is well evidenced that caring, particularly without appropriate support, can have a significant impact on carers' health, wellbeing and quality of life. It will therefore be important to recognise and acknowledge these strains on the carer and explore what support could be provided to them or to the adult which may alleviate these.
9. Similarly, the possibility that a Guardian or similar proxy might present some form of risk will need to be considered. This may bring additional complexity, particularly in relation to consent and undue pressure.
Where an adult at risk declines to participate
10. An adult may appear to meet the criteria of an 'adult at risk' under the terms of the Act, but indicates that he/she does not want support and/or protection. In effect the adult refuses to cooperate with inquiries being undertaken.
11. Such a refusal to cooperate does not absolve the council and its partners of responsibilities to make inquiries about the adult's circumstances and the degree of risk. Also, any inquiries should consider the adult's capacity to understand the risks they are exposed to and the possible consequences of their refusal to cooperate; 'undue pressure' might have contributed to their decision to refuse cooperation.
12. Even if there are no concerns in relation to incapacity or undue pressure, the adult's refusal to cooperate in an adult protection inquiry should not automatically signal the end of any inquiry, assessment or intervention. Whilst the adult has a right not to engage in any such process, the council and its' partners should still work together to offer any advice, assistance and support to help manage any identified significant risks. It is recognised the success of any intervention where an adult does not wish to cooperate may, by its nature, be limited in scope and effectiveness. Any assistance should be proportionate to the risk identified and any need to support carers' needs should be considered.
Possible intervention outwith or in conjunction with the Act
13. The next steps resulting from the duty to inquire could involve a wide range of statutory or non- statutory interventions. The "need to intervene" may also be met by using appropriate provisions contained in other legislation or by taking action on a non-statutory basis.
14. Where the person has a mental disorder, action under the Mental Health (Care and Treatment) (Scotland) Act 2003 may be appropriate. Where a person has impaired capacity, an order for the appointment of a proxy under the Adults with Incapacity (Scotland) Act 2000 may be appropriate. It may also be appropriate to provide care and support under the Social Work (Scotland) Act 1968. In some cases, particularly where the adult has capacity, assistance may be provided to the adult by ensuring that they have access to suitable advice and support, should they wish to access it. Where the person is between age 16 - 25 years the Children (Scotland) Act 1995, Children and Sexual Offences Act 2005, Sexual offence Act 2009 and the Children and Young persons (Scotland) Act 2014 may be appropriate. (Refer to Annex A no 8).
15. Practitioners will need to be aware of associated legislation, including the Public Health etc. (Scotland) Act 2008 and the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011. Such legislation offers additional mechanisms by which support and assistance can be provided and, as mentioned previously, other services and support should be considered (see Chapters 2 and 6).
16. Where inquiries under Section 4 have indicated that a criminal offence has been committed against the adult known or suspected to be at risk, this should be reported to the police at the earliest opportunity. The role of the police in investigating crime should not be undermined. Particularly important in this respect is ensuring that evidence is not destroyed or contaminated before they arrive at the scene. It would be good practice to seek assistance and co-operation from the police as the police may wish to carry out a criminal investigation. This does not remove the responsibility on the council to take any immediate action to protect the adult at risk in such cases but any proposed action would be taken in consultation with the Police.
17. The adult should be kept fully informed at every stage of the process in a manner or format which best suits their needs, unless in doing so there is a risk of prejudicing investigations.
Where no action is required
18. The council may decide that nothing further needs to be done. It would be expected that this conclusion would only be arrived at once inquiries have been carried out and all people with a relevant contribution have been consulted.
19. Where it is decided that no further action is required, it would be expected that the council would record this decision, the circumstances which gave rise to the inquiries, the actions taken and why they believed that action was not required under adult protection or other legislation. The record or report should then be added to the person's case file or in line with their standard procedures for recording actions on referrals.
Email: Stephanie Robin