Adult Support and Protection (Scotland) Act 2007: code of practice

Chapter 2: Principles and definition of adult at risk

This chapter provides a description of the principles of the legislation as set out in sections 1 and 2 of the Act and the outlines the definitions of 'Adults at risk' and 'harm' (Sections 3 and 53 of the Act).

Taking account of the principles of the Act

1. 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 the Act in relation to an adult. For example, they apply to any social worker, care provider or health professional intervening or performing functions under the Act.

2. This means that the following persons are not bound by these principles: the adult; the adult's nearest relative; the adult's primary carer; an 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).

3. 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.

4. The principles in section 1 require that any intervention in an adult's affairs under 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.

5. The principles in section 2 require that any public body or office holder performing a function under the Act must have regard to the following:

The general principles 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. Advance Statements should be considered as part of any care plan.

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 their wellbeing 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 (also refer to Chapter 4) – the adult should be enabled to 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, and 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 adult's abilities, background and characteristics – including the adult's age, sex, sexual orientation, religious persuasion, racial origin, ethnic group, and cultural and linguistic heritage. The full list of protected characteristics in the Equality Act 2010 is available online.

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 potential conflicts, such as occasions when the adult at risk refuses any form of intervention but the professionals involved believe that adult protection interventions would provide a benefit to them. In such circumstances, the expectation is that decision-making should take place on a multi-agency basis to enable full and complete discussion of potential protective actions and the application of the principles set out above.

8. 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?

9. The Act refers throughout to an 'adult'. In terms of Section 53 of the Act, 'adult' means a person aged 16* or over.

Section 3(1) defines an 'adult at risk' as someone who meets all of the following three criteria (commonly known as the three-point test):

• that they are unable to safeguard their own well-being, property, rights or other interests;
• that they are at risk of harm; and
• that because they are affected by disability, mental disorder, illness or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected.

It should be noted and strongly emphasised that the three criteria above make no reference to capacity. Capacity is not, and never should be, a consideration in the three-point test.

It should be noted that the Scottish Government is currently progressing plans to implement the UNCRC (Incorporation) (Scotland) Bill. The Bill incorporates into Scots law rights and obligations set out in the United Nations Convention on the Rights of the Child. This includes defining a child as a human being below the age of eighteen years. [This will be updated in due course]

Unable to safeguard

10. The first point of the three-point test relates to whether the adult is unable to safeguard their own well-being, property, rights and other interests. Most people will be able to safeguard themselves through being able to take clear and well thought through decisions about matters to do with their health and safety, and as such could not be regarded as adults at risk of harm within the terms of the Act. However this will not be the case for all people, and when a person is deemed unable to safeguard themselves they will meet the first point of the three point test.

11. 'Unable' is not further defined in the Act, but is defined in the Oxford English Dictionary as 'lacking the skill, means or opportunity to do something'. A distinction may therefore be drawn between an adult who lacks these skills and is therefore unable to safeguard themselves, and one who is deemed to have the skill, means or opportunity to keep themselves safe, but who may still then place themselves in unsafe situations.

12. This distinction requires careful consideration. 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. However, for many people the effects of trauma and adverse childhood experiences can introduce levels of complexity into the circumstances within which adults are taking decisions, and which decisions they find themselves taking. In this context it is reasonable to envisage situations in which these experiences and the cumulative impact of them through life may very well have rendered some people effectively unable to safeguard themselves to the extent that some will repeatedly take decisions that place them at risk.

13. It is therefore important as part of the assessment to understand the person's decision-making processes. This should include an understanding of any factors which may have impacted upon them with the effect of impinging on, or detracting from, their ability to make free and informed decisions to safeguard themselves. This could therefore mean that in these circumstances they should be regarded as unable to safeguard themselves.

14. Similar considerations apply to coercive control or undue pressure. In such situations the control exercised over a vulnerable person may also effectively render them unable to take decisions that would protect them from harm.

15. Other circumstances can impact on the extent to which a person is meaningfully able to safeguard themselves. Refusing to give a random stranger money is very far removed from the situation where it is the person's grandson who is making such a request and when the adult is dependent on the grandson for support and may feel fearful of refusing the request.

16. It is also important to bear in mind that an inability to safeguard oneself is not the same as an adult lacking mental capacity. For example a person may have relevant mental capacity, but also have physical limitations that restrict their ability to implement actions to safeguard themselves.

17. The considerations above require that practitioners should take a person's overall circumstances into account, and take great care before determining whether or not an adult is genuinely able to take decisions about safeguarding themselves.

Risk of harm and harm

18. To meet the second point of the three-point test the adult must be assessed as being at risk of harm. Section 3(2) defines an adult as being 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.

19. Adults can be at risk of harm in various settings be it in their own home, or in the wider community. They also may be being placed at risk through inappropriate arrangements for their care in a range of social or health care settings. Perpetrators of harm can include families and friends, informal and formal carers, fellow users of residential and day care services, fraudsters and members of the public.

20. Section 53 states that "harm" includes all harmful conduct and, gives the following examples:

• 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);
• conduct which causes self-harm.

21. The list 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. Other forms of harm can include domestic abuse, gender-based violence, forced marriage, female genital mutilation (FGM), human trafficking, stalking, scam trading and hate crime. Some such cases will result in adults being identified as at risk of harm under the terms of the Act, but this will not always be the case.

22. Some forms of harm may result in criminal charges being brought against the person perpetrating the harm under appropriate legislation, including the provisions of the Health (Tobacco, Nicotine etc., and Care) (Scotland) Act 2016 as it relates to the ill -treatment of wilful neglect of a mentally disordered person. If, in dealing with a person under the terms of the Act, there is reason to suspect that a crime has been committed then the police should be advised without delay. The Counter-Terrorism and Security Act 2015 places a duty on specified authorities in Scotland such as local authorities to have due regard to the need to prevent people from being drawn into terrorism. It also places an obligation on local authorities to ensure that a panel of persons is in place for its area to assess the extent to which identified individuals are vulnerable to being drawn into terrorism and, where appropriate, arrange for support to be provided. Guidance on Prevent Multi-Agency panels is now available. When assessing referrals to such panels, local authorities and their partners should consider how best to align such assessments with child protection legislation and guidance.

Being more vulnerable to harm

The third point requires that because the adult is affected by disability, mental disorder, illness, or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected. Physical or mental infirmity are distinct from disability and disorder and are not defined in the Act. The Oxford English Dictionary defines infirmity as, 'weakness (or want of strength), inability or lack of power to do something'. Infirmity does not therefore necessarily rely upon a medical diagnosis in the way that disorder or illness do.

It is recognised that "infirmity" is a term that is no longer favoured when describing disability.

23. Having a particular condition or being a disabled person does not mean automatically mean someone is unable to safe-guard their own wellbeing.

Use of the three-point test

24. It is important to stress that all of the three criteria 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.

25. It should be recognised that an individual's vulnerabilities, medical conditions and abilities can fluctuate and change over time, and practitioners should be alert to the need for re-assessment or for re-evaluation of an individual's circumstances against the three-point test.

26. Equally a person's capacity can vary over time and in respect of different types of decision making. While not relevant to the three-point test, capacity is relevant in relation to the ability to consent to, for example, a medical examination or to take decisions relating to care arrangements or financial dealings.

27. The three-point test should be used to determine whether an adult is at risk of harm, and from this will follow decisions regarding what steps can be taken to protect that adult from harm. The three-point test is not, and should not be used as, an eligibility test for access to services.

28. An assessment that intervention under the Act is not necessary or appropriate does not absolve authorities of responsibility to consider intervention under any other legislation, including the general provisions in section 12 of the Social Work (Scotland) Act 1968, or to offer any other services in order to provide care and support. Consideration should be given to support provided by social work, health, independent and third sector providers.

29. In particular where a person has been assessed as at risk of harm but does not meet either or both of the other two elements of the three-point test, then partnerships would still be expected to pursue all avenues in order to protect that person from harm.

Particular circumstances

Trauma

30. The majority of adults who are, or are believed to be, at risk of harm will be people for whom the application of the three-point test will be relatively straightforward. This in turn will lead to consideration of options for intervention whether under the provisions of the Act or otherwise.

31. There are however a significant number of people where this is not always the case and some of these people may remain in situations which continue to compromise their health, wellbeing and safety. This has in the past been particularly linked to the use of alcohol or drugs.

32. A trauma informed approach would understand the range of adaptations and survival strategies that people have made to cope with or survive trauma, for example maintaining contact with an abuser, use of drugs or alcohol, hoarding or non-engagement with services. This relates directly to the earlier suggestion that in these circumstances some people's ability to take decisions about safeguarding themselves may have effectively been compromised.

33. Practitioners should be trauma aware in their work in adult support and protection and alert to the impact trauma can have on people's lifestyles and their ability to make decisions regarding their own health and safety.

Addictions, homelessness and hoarding

34. Not all people with addictions, or who are homeless or who hoard, will be considered as at risk of harm under the Act. However many such people will find themselves leading difficult and at times chaotic lives. The long term and cumulative nature of these problems can include periods when the person would not be regarded as being able to take decisions affecting their health and wellbeing and this can have serious consequences for own health and safety. They will certainly be likely to be more vulnerable to harm than others.

35. The 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 under the Act. It may also be that the impact of a person's addiction may render them subject to physical or mental infirmity, and place them at risk of harm.

36. People who are homeless are increasingly being recognised as likely to be considered as adults at risk under the terms of the Act, as many homeless people will be affected by disability, mental or physical illness of infirmity including addiction problems.

37. Since the inception of the Act hoarding has been recognised as a classified disorder in its own right, often alongside other conditions. In extreme cases, it can lead to some people living in dangerous and unhealthy conditions and at risk of harm.

38. It is not appropriate to use the existence of any of the circumstances outlined above to conclude that a person would not fall within the scope of the Act. All the circumstances in a person's life must be considered when applying the three-point test.

Financial harm

39. Financial harm takes many forms including theft, fraud – including being scammed at the doorstep - by post, over the phone, online or through a combination of these methods, pressure to hand over or sign over property or money, misuse of property or welfare benefits, stopping someone getting their money or possessions. Not all people subject to financial harm will be regarded as adults at risk but the Act can be used to protect those people who are so regarded. In such cases the potential for coercive control will be a likely factor for consideration for agencies

40. In cases where there is thought there may be a misuse of formal powers (Power of Attorney or Financial Guardianship), in addition to any immediate matters that they may be addressing practitioners should be alert to the need to refer matters to the Office of the Public Guardian (Scotland) for investigation.

41. Many Adult Protection Committees have instituted Financial Harm sub groups and developed local Financial Harm Strategies with the strong support and assistance of the police and local Trading Standards officers.

Young people

42. 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 26 or even beyond), support under these other provisions may be more appropriate for some young persons. The responsibilities of the council and other agencies for persons aged 16-18 will extend beyond adult protection legislation.

43. 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.

44. 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.

45. Local partnerships may wish to develop guidance for staff in relation to transitions between children and adult services where there are protection issues to be considered, which focuses upon the child's needs in relation to their transition to adulthood as opposed to their transition between services.

46. Local partnerships should also ensure that practitioners are alert to all forms of harm when dealing with particular cases. An adult may be deemed at risk of harm and may also be placing their children at risk of harm. Children may live in homes where there is an adult at risk of harm. When making inquiries as a result of either adult or child protection referrals, consideration should also be given to the potential vulnerability of other members of the household.

More information on the relevant legislation that supports planning around good transitions for young people with additional support needs is available online.