Chapter 1: Introduction to the Act and the Code of Practice
1. The Adult Support and Protection (Scotland) Act 2007 (referred to as the Act) was passed by the Scottish Parliament in spring 2007. The Act introduces provisions intended to protect those adults who are unable to safeguard their own interests and who are at risk of harm because they are affected by disability, mental disorder, illness or physical or mental infirmity.
The review of Scottish Mental Health Legislation which was commissioned in 2019 will be considering the Mental Health (Care and Treatment) (Scotland) Act 2003, the Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection Act 2007. There are strong links between the three Acts, and the provisions of each Act are often considered when considering the needs of a particular individual.
2. The principal aim of this review is to ensure a person-centred rights-based approach to the protection of persons who may be subject to the existing provisions of mental health, incapacity or adult support and protection legislation.
3. The Act is in five parts, and all the aspects relevant to Adult Support and Protection are contained in Part 1 of the Act. In this Code of Practice references to the Act therefore refer to part 1 of the Act.
4. The Act 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 the Act;
- placing a duty on Councils to make the necessary inquiries to establish whether or not an adult is at risk from harm and whether further action is required to protect the adult's well-being, property, or financial affairs;
- placing a duty on certain public bodies and office holders to cooperate in inquiries;
- introducing a duty to consider the provision of advocacy or other services after a decision has been made to intervene;
- permitting, in certain circumstances, for a medical examination of a person known or believed to be at harm;
- requiring access to records held by agencies in pursuance of an inquiry;
- introducing a range of protection orders which are defined in the Act, namely
- assessment orders;
- removal orders;
- banning orders
- requiring the establishment of multi-agency Adult Protection Committees.
The European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities
5. All Acts of the Scottish Parliament under the terms of the Scotland Act 1998 are required to comply with the requirements of the European Convention on Human Rights (ECHR). All bodies and practitioners must also ensure that they conduct their duties in a way, which would be ECHR compliant. The Scottish Government is currently looking to incorporate the principles of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) into Scots law. While the UNCRPD does not expressly call for the abolition of substitute decision making regimes, there is an implicit requirement for their replacement with supported decision making regimes.
The Code of Practice
6. The Act was passed by the Scottish Parliament in spring 2007 and implemented in 2008. Section 48 of the Act imposed a duty on Scottish Ministers to prepare a code of practice containing guidance about the performance of functions under the Act by councils, their officers and health professionals, and placed a duty on them to have regard to the Code of Practice, if relevant. The Scottish Government published an Adult Support and Protection Code of Practice in 2008. The Act also placed Scottish Ministers under a duty to review the Code from time to time and provided a power following such review to revise it, and a revised Code of Practice was published in 2014.
7. The Act provides the legislative framework for Adult Support and Protection in Scotland. This code of practice (referred to as the Code) provides guidance about the performance of functions by councils, their officers, and other professionals under the Act. It provides information and guidance on the principles of the Act, and about the measures contained within the Act including when and where it would be appropriate to use such powers.
8. It is for local partnerships to develop their own inter agency procedures for Adult Support and Protection, either for themselves or in conjunction with other partnerships. In so doing they should, as above, have regard to this Code of Practice, if relevant.
9. This Code must be used in conjunction with other relevant codes of practice as appropriate, such as those developed to support the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000, and any other relevant professional codes of practice.
Who is this Code for?
10. This Code is addressed to councils, their officers and health professionals who perform any of the functions under the Act. There are a range of other statutory bodies identified later in this Code, including the Police, who will have an interest in the contents of the Code. It should also be considered by those working in the independent and third sector.
Note: The Act, which places particular duties on Councils and makes frequent references to Councils and their officers, was passed and enacted prior to Health and Social Care integration. In the Code references to Councils should therefore be taken to include bodies and partnerships that have delegated social work functions.