Chapter 7: Adult protection investigations
1. An adult protection investigation will generally be necessary where the information gathered as part of an adult protection inquiry suggests that the adult is at risk of harm and the council may need to take action to protect them. This and the following chapters provide guidance on sections 7 to 10 and the powers that council officers have when conducting adult protection investigations. This includes guidance on making visits, undertaking interviews, arranging medical examinations and examining records.
2. Generally, an adult protection investigation will be a carefully planned and managed process to ensure that:
a. all available information is gathered and considered;
b. the adult is fully supported to contribute; and
c. any medical evidence and medical intervention are provided.
3. If, at any stage of the investigation, it appears that a crime may have been committed, the relevant information should be passed to the Police at the earliest opportunity.
A visit as part of an adult protection investigation
4. It is likely that a visit to the adult and the interview with them will be central to the investigation. It is also likely to require the most careful planning and sensitive approach. The rest of this chapter provides details on the planning of the visit and the powers that a council officer has when making a visit under the Act.
What is the purpose of a visit?
5. Section 7 of the Act allows a council officer to enter any place and adjacent place to make the necessary investigations to:
- enable or assist the council in conducting inquiries under Section 4 to decide whether the adult is an adult at risk of harm; and
- establish whether the council needs to take any action in order to protect the adult at risk from harm.
What should be considered prior to a visit?
6. Any person performing a function under the Act must have regard to the principles. These include whether the action is the least restrictive option necessary whilst providing benefit to the adult. The views of the adult, the adult's nearest relative, primary carer and others so far as relevant must also be taken into account.
7. If the council considers intervention is necessary it must also have regard to the importance of providing appropriate services to the adult, for example independent advocacy or services to assist an adult, or other person in the household, to communicate.
8. Consideration may have to be given to the use of the appropriate provisions contained in other legislation, for example the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, or other social work, police, health, housing or regulation of care legislation. Consideration should be given to local inter-agency protocols and procedures.
9. Practitioners will also 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 protection, support and assistance can be provided.
Who may undertake the visit?
10. A council officer, as defined in Section 53 of the Act and who meets the requirements of the Order described at Chapter 4 above, may undertake the visit. The council officer may be accompanied by another person. A joint visit with another person could assist the investigation in a number of ways, for example by:
- allowing the council officer to jointly investigate concerns with, for example, a key worker, a police officer, health professional or representative from the Care Inspectorate or Office of the Public Guardian;
- assisting an assessment of the risk to the adult, such as with a general practitioner, community nurse, key worker or other person already known to the adult and any other members of the household; or
- assisting communication with the adult (or any other member of the household) by being accompanied by an interpreter in British Sign Language, lip speakers, Makaton communicator, deaf-blind communications interpreter or a language interpreter where English is not the visited person's first language.
11. Local multi-agency procedures should specify when it is appropriate for the council officer to be assisted in the investigation by appropriately qualified and trained staff from either within the council or from other identified bodies or agencies.
12. In circumstances where there is indication that the council officer carrying out the visit may encounter resistance from the person believed to be at risk of harm or from others at the premises, including the threat of verbal or physical violence, steps should be taken to ensure that staff are protected and supported in planning and executing the visit. Reference should be made to the council's violence to staff or lone working procedures to assess any potential risks and measures, such as staff visiting in pairs or liaising closely with the police, where necessary.
What places may be visited?
13. Section 7 permits a council officer to enter any place. In many cases this will mean visiting the place where the adult normally resides, for example:
- · the adult's rented or owner-occupied accommodation;
- · the home of relatives, friends or others with whom the person resides;
- · supported or sheltered accommodation staffed by paid carers;
- · temporary or homeless accommodation; or
- · a care home or other residential accommodation.
14. A place could also include entering premises where the person is residing temporarily or spends part of their time, for example:
- · a day centre;
- · a place of education, employment or other activity;
- · 'respite' residential accommodation; or
- · a hospital or other medical facility.
15. The council is allowed access to all parts of the place visited which might have a bearing on the investigation into the welfare, care and safety of the adult at risk. This right also includes access to any adjacent places, such as sheds, garages and outbuildings.
16. In the case of the visited adult's place of residence, this could include all areas used by or on behalf of the adult such as sleeping accommodation, facilities for hygiene, meal preparation areas and general living space.
When can a council officer visit?
17. Section 36 makes supplementary provision for visits carried out under Part 1 of the Act. Section 36(1) states that a council officer may only visit a place at 'reasonable times'. The Act recognises that a balance needs to be struck between the investigation of allegations of harm and the requirement, where practicable, to fully involve the visited adult and any other individuals in the process of investigation and assessment.
18. It may be that the visit is timed to take into account the likelihood of being able to speak to the adult in private. However good practice would be to give notice of the proposed visit, and of the purpose of the visit, to the individual(s) concerned where this would not be prejudicial to the safety or welfare of the adult at risk. In some cases visiting during the evening, at night or at the weekend may be the only way to make contact with the adult at risk, the primary carer or other individual.
19. Professional judgement will be required as to the level and nature of the suspected risk to the visited adult and whether the adult is at risk of imminent significant harm. It is recognised that there may be times when the concern is such that an immediate visit at a time that might not otherwise be regarded as reasonable may be reasonable in particular circumstances in order to assess the risk and, if necessary, take action to protect the individual.
What evidence must a council officer produce?
20. A council officer must:
- · produce evidence of their own identity and that of any person accompanying them;
- · state the object of the visit, and
- · produce evidence of the officer's authorisation to visit the place.
21. There is an obligation to be clear that the purpose of the visit is to investigate a suspected risk of harm. Wherever possible, other people in the household should also be offered an explanation as to what is happening and why, without breaching the adult's right to confidentiality.
22. Every effort should be made to ensure that any information provided is in an appropriate form that the adult, or other person present, can understand.
What if entry is refused?
23. There may be times where the council officer is refused entry to the premises. Where this happens, the council officer should initially consider how entry may be achieved without resorting to seeking a warrant authorising entry as a first course of action. Provided delay would not increase the risk to the adult, it would be good practice to have a multi-disciplinary discussion and plan to co-ordinate action by those involved before deciding whether to apply for a warrant. Particular regard should be given to minimising distress and risk to the adult. The views of any other persons who may be concerned for the welfare of the adult should be taken into account. Where a warrant authorising entry to premises is sought and provided, this will allow a constable to accompany the council officer and to use reasonable force to fulfill the object of the visit.
Who can apply for a warrant?
24. Section 37 of the Act makes provision for warrants of entry. Only the council can apply for a warrant for entry.
Granting of a warrant
25. The sheriff may only grant a warrant for entry where they are satisfied that:
- a council officer has been, or reasonably expects to be refused entry or otherwise will be unable to enter; or
- any attempt by a council officer to visit the place without such a warrant would defeat the object of the visit.
A warrant for entry granted by a sheriff expires 72 hours after it has been granted. Once a warrant has expired, the council officer must not re-enter or remain in that place.
What can be done in cases of urgency?
26. Section 40 of the Act provides that application for a warrant for entry can be made to a justice of the peace only if it is impracticable to make the application to the sheriff and that an adult at risk is likely to be harmed if there is any delay in granting the warrant. An application must be made to the sheriff wherever possible.
27. A warrant for entry granted by a justice of the peace expires 12 hours after it has been granted. Once a warrant has been executed, it cannot be used again.
What does a warrant allow?
28. A warrant authorises a council officer to visit (under section 7) any place specified in the warrant, accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfill the object of the visit. This may include the constable opening places which are secured by a lock, therefore it would be expected that the council would take all reasonable steps to ensure the security of the person's premises and belongings if force has been required to enter the premises.
29. Wherever possible, entry to premises should first be attempted without force. It must be borne in mind that 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.
30. A warrant for entry does not entitle any person to remain in the place entered in pursuance of the warrant after the warrant has expired.
31. A large scale investigation may be required where an adult who is a resident of a care home, supported accommodation, a NHS hospital ward or other facility, or receives services in their own home has been referred as at risk of harm and where investigation indicates that the risk of harm could be due to another resident, a member of staff or some failing or deficit in the management regime, or environment of the establishment or service.
32. The following should be alerted and be involved in the investigation with due regard given to sensitivities and conflicts of interest where staff are involved or commissioning or scrutiny processes are deficient:
- Care Inspectorate or Health Improvement Scotland (HIS) staff,
- contracting and commissioning staff within purchasing authorities,
- care management for the local authority in which the establishment is sited or the service is delivered.
- the police - where there is the possibility that a crime has been committed.
33. It will be important to establish who should lead any investigation, the responsibilities of partner agencies, and which statutes are the basis for effective proportionate and timely protective action. There may be cross boundary issues to consider.
34. It will be necessary to share information, collate intelligence and carefully consider the need for widening any investigation as evidence emerges of risk to the resident, patient or service group.
35. The investigation, and subsequent protection planning and action must remain proportionate and reflect the individual needs of all the residents for continuity of care. The adults at risk and other residents according to their best interests should be kept informed
36. The public should be kept informed that appropriate action is being taken to ensure that the users of the service remain safe.
37. Local multi-agency adult protection procedures should include a procedure for large-scale Investigations.
Email: Stephanie Robin