Chapter 3: Duties and powers of the council and other agencies, the role of the council officer and the independent and third sectors, and cooperation and information sharing across organisations and professionals.
What are a council's duties under the Act?
1. The Act places duties upon the council that relate to, or flow from, the duties to:
- make inquiries if it knows or believes that a person is an adult at risk of harm and that it might need to intervene under the Act or otherwise to protect the person's wellbeing, property or financial affairs (Section 4);
- undertake investigations, as part of its inquiries, involving council officers who have certain powers under the Act (Sections 7-10);
- 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);
- make visits, with right of entry, for the purpose of conducting interviews and arranging medical examinations (sections 7, 8, 9 & 36 - 40);
- protect property owned or controlled by an adult who is removed from a place under a removal order (Section 18);
- 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).
What are a council's powers under the Act?
2. 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.
3. The Act makes frequent reference to actions that can be taken where a council 'knows or believes' that an adult is at risk of harm. It is clear that 'know' and 'believe' are not intended to be used interchangeably, and that the intention is to allow for engagement with people where it has yet to be determined whether they are an adult at risk. Partnerships should ensure that their procedures are clear that inquiries will often take place before a determination has been made that the adult is at risk of harm.
4. The Act enables a council to:
- through the offices of a council officer, visit any place necessary to assist with inquiries under section 4. 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. Note that the Council Officer is empowered by the Act to identify, take or copy medical records held by a service but having obtained them must ensure they are interpreted by a health professional.; and
- apply to the sheriff for the granting of a protection order.
5. Council officers have rights of entry to places where adults are known or believed to be at risk of harm. If, following inquiries 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?
6.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 the Act.
7. 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.
8. 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.
9. The Public Bodies (Joint Working) (Scotland) Act 2014 placed 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 refer and co-operate
10. While councils have the lead role in adult protection, effective intervention will only come about as a result of productive co-operation and communication between a range of agencies and professionals. What one person or public body knows may only be part of a wider picture. The multi-agency nature of adult support and protection work is crucial to the work of protecting adults from harm.
11. Section 5(3) of the Act places a duty on public bodies or office holders who know or believe that a person is an adult at risk of harm and that action needs to be taken to protect them from harm, to make a referral by reporting the facts and circumstances of the case to the council for the area in which the person is considered to be located. Public bodies should ensure that their staff are aware of the duty to refer and co-operate, and to encourage vigilance in relation to adults who may be at risk of harm.
12. Good practice would dictate that even if 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.
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 of the Act 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.
14. The bodies listed in Section 5 are:
- The Mental Welfare Commission for Scotland;
- The Care Inspectorate;
- Healthcare Improvement Scotland;
- The Office of the Public Guardian;
- All councils;
- The Chief Constable of Police Scotland;
- All Health Boards; and
- any other public body or office-holder as the Scottish Ministers may by order specify.
(As at December 2020, Scottish Ministers have not specified any other bodies)
As outlined above all these bodies have a duty to refer where they know or believe an adult to be at risk of harm, and to co-operate with councils in their inquiries.
15. Where staff in named bodies have to report suspected cases of adults at risk of harm within their own organisations, they should be clear to whom they have a duty to report. Staff also have a duty to co-operate 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.
16. Good practice should be that all relevant stakeholders will co-operate with making referrals and assisting with inquiries, 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.
17. While it is not specified in the Act, a wide range of other services also contribute to the protection of adults at risk. These include:
- Independent health practitioners, including GPs and some allied health professionals, who are not directly employed by health boards.
- Scottish Fire and Rescue;
- The Scottish Ambulance Service;
- The Scottish Prison Service.
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 are expected to co-operate 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 Act. However they are likely to be bound by other legislation or specific protocols agreed with the Scottish Government.
21. The Scottish Government is currently revising Adult Support and Protection Guidance on the involvement of GPs and Primary Care teams in multi-agency protection arrangements. This is intended to support the involvement of GPs Primary Care teams in fulfilling their roles which arise from the Act and in making a broader contribution to adult protection beyond that required by statute. [a link will be provided when available]
22. It is expected it will provide advice on how to make referrals and to note that
- GPs and Primary Care Staff are well placed to identify adults at risk of harm and are a vital component in the multiagency arrangements to support and protect where it is necessary
- Adult Support and Protection applies to those with and without mental capacity
- As with other referrers, GPs do not need to have evidence that all elements of the three-point test are met in order to make a referral. Their information may form part of a larger picture. In this regard, it is ultimately the responsibility of the council or delegated agency to decide whether an adult meets the definition of an adult at risk of harm
- GPs and Primary Health Care staff will be expected to co-operate with inquiries including with the examination of records. This cooperation will based upon the Council's knowledge or belief that that the person is at risk of harm. The purpose of providing the information will assist the Council in determining whether or not the person is at risk, or later in the process to understand how to support and protect them from those risks.
Scottish Fire and Rescue, the Scottish Ambulance Service and the Scottish Prisons Service
23. Scottish Fire and Rescue have a key role to play in keeping people safe from harm particularly in relation to fire safety. They are an important source of referrals in regard to adults as a result of their fire safety advice activity and can identify some people who may be at risk of harm for other reasons. Scottish Fire and Rescue is represented on many Adult Protection Committees across Scotland.
24. The Scottish Ambulance Service is designated a special health board which is therefore included in the Section 5 duties as outlined above. It operates as an emergency service, and has contact with a wide range of people many of whom will likely be adults at risk. They are therefore a source of information about some people, potential referrers in relation to other people and, as with Fire and Rescue, can often act as early warning system for some people at risk of harm. There is scope for greater understanding of the role they can play and for greater engagement between the Scottish Ambulance Service and Adult Support and Protection at both local and national levels.
25. The Prison Service will be aware of many adults who may be at risk of harm both as new and existing inmates and also as some people are being readied for release. As such they should remain alert to the potential for links to be made with Adult Protection services at a local level, and local services should have protocols in place for advising the Prison Service of any new prisoners who are regarded as being at risk of harm.
Independent and third-sector providers and other organisations
26. Additionally, and importantly:
- 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.
27. 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.
28. 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.
29. Councils will wish to keep under constant review their contract agreements with the independent and third sector providers to ensure that their services are consistent with the principles of this Act.
30. Chapter 10 of the Code provides further guidance on the examination of records and refers to Social Work Scotland's Protocol for Requesting Information under Section 10 of the Act, which is for use by local partnerships as a template for their own procedures.
31. The protection of adults at risk of harm is everyone's responsibility and everyone's job. This cuts across all aspects of private life and professional business. We all have a responsibility duty, individually and collectively, to protect vulnerable people in our communities.
32. Whilst confidentiality is important, it is not an absolute right. Co-operation in sharing information is necessary to enable a council to undertake the required inquiries and investigations.
33. Where there is concern about an adult at risk of harm, or an awareness of such a concern, there is a responsibility to share and exchange relevant information with other professionals. This should be done without delay and with confidence, following local agency or service procedures.
34. Information should be shared only when:
- it will provide benefit to the adult which could not reasonably be provided without such an intervention, and
- the amount of information shared should be proportionate to addressing the concerns relating to protecting the adult from harm.
35. Existing legislation, including the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018, does not prevent sharing and/or exchanging relevant information where there is belief or concern about the protection of adults at risk. In addition, an individual is lawfully able to process confidential information where disclosure is necessary to protect the individual or another third party in order to facilitate a 'public task'. This extends to all practitioners working with adults who may be at risk of harm. The Act provides a legal gateway for information sharing. Wherever possible, the adult who may be at risk should be informed of the sharing of the information and the reasons why. The information sharing must be necessary (i.e. proportionate and targeted) for the purpose of carrying out the task. Local Authorities may use a Section 10 request to facilitate the gathering of information to support their inquiry, to determine if further action is required to protect the adult of concern. It is worth noting here that section 49(2) of the ASP Act makes refusal or failure to comply with a section 10 requirement, without reasonable excuse, an offence.
36. Where information contains special categories of personal data, having firstly identified a lawful basis for processing data , an additional condition (under Article 9 (2) of GDPR) must also be met in order to share data lawfully. Special Category data includes: Racial or ethnic origin; Political opinions; Religious or philosophical beliefs; Trade Union Membership; Genetic data; Biometric data (when used for ID purposes); Health (physical or mental); and, Sexual life or orientation. In the context of special category data, an individual should consider Article 9(2) UK GDPR together with paragraph 6 of Schedule 1 of the Data Protection Act 2018. These conditions do not replace or override the usual lawful basis for processing, they act as an additional layer of conditions on top of the usual rules.
37. The vires to share information should be considered carefully and UK GDPR/DPA 2018 applied, with particular regard to "special category data" (The principles set out at Article 5(1) UK GDPR). One potential lawful basis is Public Task, and the ICO state that when considering Public Task as the lawful basis for sharing information this applies to "any organisation who is exercising official authority or carrying out a specific task in the public interest. The focus is on the nature of the function, not the nature of the organisation"
38. The Act specifically allows for disclosure of information with or without consent where a person knows or believes an adult is at risk of harm. This information should be shared only with those who need to know, be proportionate to the harm it will prevent, and be relevant to the concern. Each case should be considered individually.
39. When considering whether to share concerns, if possible, the individual's consent should be attained prior to sharing information but, for the avoidance of doubt, where disclosing information to the appropriate authorities seeks to address a perceived risk of harm to that individual, it is in the public interest to do so and a referral should be made. This legal duty applies to all employees and officers of the relevant public bodies and overrides any general duty of confidentiality.
40. Many partnerships have circulated letters, signed by the Chief Officers, to staff of the main relevant public bodies locally (i.e. the Council, the Health Board and Police Scotland) affirming the position stated above, and advising their staff that their own agency will support them if they have shared personal information in these circumstances using their professional judgement. All partnerships should consider circulating such letters to their staff, confirming this position and the expectation as outlined in the section of the Code.
41. This section of the Code has already referenced a range of other agencies and services not specifically named as public bodies. These 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 are expected to co-operate with assisting inquiries and to provide services to assist adults at risk of harm.
42. If in any doubt as to the expectation that they are permitted to share information in regard to adults at risk of harm, these agencies and services should refer to their own Data Protection Officer for advice. The presumption and expectation is that there should be no reason not to share information under the terms of the Act.
43. Adult Support and Protection guidance for General Practitioners and Primary Care teams includes guidance for information sharing as it relates to primary care settings. It is important that GPs are aware of their local protocols for making adult protection referrals.
44. Local procedures should provide guidance to council officers on how to deal with emergencies including access to court officials and Justices of the Peace.
45. The Law Society of Scotland has advised that issues around client confidentiality exempt solicitors from the expectation that they will share information.