Publication - Advice and guidance

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

Published: 5 Jul 2021

The purpose of the refresh is to ensure adult support and protection guidance takes account of policy and practice developments since the Act was introduced in

2007, and thus bring the guidance up to date with current legislation and relevant changes in policy and legislation.

Adult Support and Protection (Scotland) Act 2007: code of practice
Chapter 5: Inquiries

Chapter 5: Inquiries

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?

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 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.

1. A council may be assisted in its duty to inquire through various sources, for example statutory bodies and independent and third sector providers.

2. Where inquiries under Section 4 have indicated that a criminal offence may have been committed against the adult, this should be reported to the police at the earliest opportunity. The role of the police in investigating crime should not be compromised. Particularly important is ensuring that evidence is not destroyed or contaminated before the police arrive at the scene. 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 should be taken in consultation with the police.

3. The adult should be kept fully informed at every stage of the process in a manner or format which best suits their needs. Any reason why this does not happen should be recorded.

Referrals

4. A council's knowledge or belief that an adult may be at risk of harm, and which then triggers their duty under to inquire under section 4 of the Act, may arise from a referral. Any referral suggesting that an adult may be at risk of harm, including anonymous referrals, should be considered without assuming that harm has, or has not, occurred. All referrals warrant a carefully considered and measured response, and should be acted upon as a source of information that may or may not be presented as evidence at a later stage.

5. A referral may be made to a council in a number of ways, but most usually will be either:

  • by a referrer who uses an ASP notification process or referral form, or otherwise specifies that they are referring an adult they think may be in need of support or protection under the Act; or
  • by a referrer who is raising a more general concern.

6. The adult's consent is not required for a referral to be made.

7. For the first category, the council will be expected to initiate an inquiry under the Act, as they will have grounds for believing that the person referred may be an adult at risk of harm. In the second category some initial consideration may be needed in order for the council to determine whether they have grounds for believing that the person referred may be an adult at risk of harm.

8. Councils should publish information that provides details of how an adult protection referral can be made, and this will vary from area to area. They should be flexible in how they deal with referrals. For example it should not be necessary for referrals from members of the public to be submitted in writing. Whist this will usually be the expectation from other agencies, it should not be an absolute requirement. Equally, there will be circumstances where it would be appropriate for a referral to be submitted by phone, and to be than converted into a written referral by the officer of the council taking the referral.

9. Staff and office-holders, in any public body or agency, who may be a first point of contact with the public should be made aware of the main provisions of the Act and 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. Similarly, councils must ensure that staff who will be receiving referrals from the public and other sources must be aware of the main provisions of the Act in order that they can process referrals appropriately for further action.

Welfare concerns

10. Since 2014 referrals relating to welfare concerns may now be submitted to councils from Police Scotland. These arise where the police are aware of a person about whom they have concerns, but who they think will not fall within the provisions of the Act. Many partnerships now also accept welfare concern referrals from a range of other agencies including Scottish Fire & Rescue, the NHS, and provider organisations. All welfare concern referrals should be screened and a decision made about further action and can be escalated to be dealt with as adult support and protection if appropriate.

11. Where a determination is made that the referral relates to a person that the council knows or believes to be an adult at risk then an inquiry should be instituted under Section 4 of the Act.

12. In all cases the Council should endeavour to inform referring individuals or agencies of the outcome of the inquiry. This will be at a level of detail appropriate to the circumstances, and consistent with the need to maintain confidentiality in relation to the adult. This will also be influenced by the level of involvement of the referrer in the inquiry, and the interest they have in the outcome of the inquiry in terms of their responsibilities towards the individual. For example, should a member of the public ask for the outcome regarding a referral they had made, they would not be told any specific details that compromised confidentiality without the adult's consent.

13. It would be particularly helpful if where an inquiry is undertaken and where there the alleged harmer has Power of Attorney or is a Financial Guardian, that the Office of the Public Guardian is notified of the outcome of the inquiry.

Inquiries

14. Inquiries under Section 4 of the Act will be carried out by the council's social work service and should follow local adult support and protection procedures. An inquiry must be instituted once it is clear that the council knows or believes the adult to be at risk of harm and, as outlined at 5.8 above, this would be the case if a referral has been received using an ASP notification process or referral form, or a referrer otherwise specifies that they are referring an adult they think may be in need of support or protection under the Act

15. The council should consult and 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.

16. The initial stages of an inquiry do not need to be (but can be) undertaken by a council officer. Only when specific actions need to be taken is there a requirement for a council officer to be involved. These actions relate to when there is a need for a visit and direct contact with the adult for interview or medical examination, or for the examination of records.

17. The initial stage of the inquiry insofar as it does not relate to any of these actions will not need to be undertaken by a council officer, and can include the collation and consideration of relevant material, including consideration of previous records relating to the individual, and seeking the views of other agencies and professionals.

18. For some people, this process will allow a determination to be made as to whether or not the adult is at risk as defined by the Act. If it is determined that the adult is at risk then in practice there will be extremely few further interventions that will not require to be undertaken by a council officer, and the inquiry will progress to the investigation stage.

19. If it is determined that the adult does not meet the three-point test, this decision does not preclude considering other relevant legislation, local procedures or alternative services to respond to the individual's needs. This would include practical and emotional support provided by social work, health, and independent providers.

20. If initial inquiries do not provide sufficient information to determine whether or not the adult is at risk, then further steps should be taken to allow for such a determination to be made. If this involves a visit and direct contact with the adult for interview or medical examination, or for the examination of records then the inquiry will progress to the investigation stage, and the Act requires that a council officer must to be involved.

21. If the risk of harm is thought to arise from a carer, and particularly an unpaid carer, the inquiry should also try to gain a 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.

22. 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.

Inter-agency Referral Discussions

23. Some areas in Scotland have procedures that involve Inter-agency Referral Discussions (sometimes also called Initial Referral Discussions). An IRD is a professional discussion held with relevant representatives from social work, health, police and any other agency with knowledge of the adult at risk of harm. The sharing of information and planning of approaches can be conducted by phone or in person. IRDs provide a forum for inter-agency discussion and decision-making about the next steps in protecting an individual. As such they will broadly address the same matters as outlined above in the initial stage of an inquiry but build in an expectation of inter-agency engagement and discussion to the process. It is for local partnerships to decide if they include IRDs in their processes.

24. It should be noted that, in the case of 16-17 year olds who may be considered as children and therefore treated according to child protection processes, the range of consideration within an IRD for a 16-17 year old who may be at risk of significant harm may be broader and less optional to those indicated above. More information is available here (Adult Support and Protection (Scotland) Act 2007 Part 1 : Guidance For Adult Protection Committees).

Where an adult at risk declines to participate

An adult may appear to meet the criteria of an adult at risk under the terms of the Act, but may indicate that they do not want support and/or protection. This can mean that in effect the adult decides not to co-operate with inquiries or other actions being undertaken.

25. Such a decision not to co-operate 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 co-operate. Practitioners should remain alert to the possibility that 'undue pressure' might have contributed to a decision to refuse co-operation.

26. Even if there are no concerns in relation to capacity or undue pressure, the adult's refusal to co-operate 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. Any assistance should be proportionate to the risk identified and any need to support carers' needs should be considered.

Where no further action is required

27. The council may decide that nothing further needs to be done, either under the terms of the Act or otherwise. This conclusion would only be arrived at once inquiries have been carried out and all people with a relevant contribution have been consulted.

28. Where it is decided that no further action is required, the council should 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. Good practice would assume that written consideration was given to the three elements of the three-point test. 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.


Contact

Email: Heather.Gibson@gov.scot