Adult Support and Protection (Scotland) Act 2007: Code of Practice
This revised Code of Practice aims to reflect the developments in policy, practice and legislation both in the overall context of adult support and protection and in day-to-day activity. It provides information and detail to support practical application of the 2007 Act.
Chapter 10: Examination of records
This chapter provides guidance on Section 10 of the Act which provides that a council officer may require any person holding health, financial or other records relating to an adult known or believed to be at risk, to give the records, or copies of them, to the officer, if this is required to establish whether further action is needed to protect that adult from harm. This therefore applies to any adult from the point at which an inquiry has been initiated until such times as it has been determined that they are not an adult at risk of harm. In the case of health records, nothing in the Act authorises someone who is not a health professional to inspect health records.
Information sharing and confidentiality
The purpose of accessing records is to enable or assist the council to decide whether it needs to do anything in order to protect an adult at risk of harm.
Under Section 10 of the Act a council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk, to give the records, or copies of them to the officer. This includes records held in audio, visual or other formats.
The type of records to be inspected will depend on the type of harm suspected and will need to be judged on an individual basis. Any information requested must be relevant.
Records should be accessed and information shared only where disclosure will provide benefit to the adult which could not reasonably be provided without such an intervention.
This Code makes clear that it is permissible for agencies to share information when the request arises from a Section 4 inquiry.
When a person is considering the information to be shared, it is important to consider the adult's right to confidentiality in relation to their personal healthcare information (including medical details, treatment options, and wishes) before information is supplied.
Does an adult have to consent to access to records?
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. This legal duty applies to all employees and officers of the relevant public bodies and overrides any general duty of confidentiality.
Where the adult is incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney may consent on their behalf. Where no guardian or attorney has such powers, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or Section 34 of the Mental Health (Care and Treatment) (Scotland) Act 2003 .
Who may access and inspect records?
Section 10 (4) allows for records given to the council officer to be inspected by the officer and any other person whom the officer considers appropriate in relation to the content of the records.
Section 10(7) defines health records as records relating to an individual's physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual. The council officer, or any other person whom the officer considers appropriate, may inspect health records only for the purpose of determining whether they are health records.
In the case of health records, the council officer is empowered by the Act to identify, take, or take copies of, medical records held by a service but, having obtained them, must ensure they are interpreted by a health professional.
Section 10 refers to existing records held by a professional or organisation rather than information created specifically to meet a request.
Good practice would be for each council to nominate persons of a suitable seniority to have authority to make decisions regarding accessing records on behalf of the council. This decision should be made in discussion with relevant bodies responsible for keeping records such as general practitioners.
How may records be accessed?
A requirement to provide records may be made by the council officer during the time of a visit to the person holding the records or at any other time. The council officer should be able to demonstrate to the record holder that they require records to be given under section 10. The council should have procedures in place, agreed with relevant bodies which hold records, for obtaining and verifying authorisation.
If a request for information is made at a time other than during a visit, it must be made in writing. If the requirement is transmitted electronically it will be treated as having been made in writing if it is received in a legible form and is capable of being used for subsequent reference.
Usually only the relevant parts of a record will be copied to be given to the council officer. It is essential that copies of records are treated with the same degree of confidentiality as the original records. Good practice would be to discourage the use of original records except in circumstances where verifying the wording as it appears on the original source document (and is therefore verifiably unaltered) is pertinent to the investigation (for example if neglect has been alleged in a registered care setting).
It would be good practice for agreement to be reached with the record holder when records are obtained on how their records are to be treated. For example, whether copies of records should be kept for the minimum length of time necessary and then returned to the original record keeper or whether they should be destroyed.
A Protocol for Requesting Information under Section 10 was circulated by Social Work Scotland to partnerships in December 2020 for use as a template for local procedures. This includes a pro forma that should be used for all requests to a particular agency under Section 10, outlining details of the adult at risk, the nature of the information requested and the reason why this is being sought. It also includes guidance notes for council officers, and an information sheet for agencies/companies/organisations about the provisions of the Act.
Must the record keeper comply with a request for access?
Section 49 (2) of the Act provides that it is an offence for a person to refuse or otherwise fail to comply with a requirement to provide information under Section 10 , unless that person has a reasonable excuse for failing to do so.
Councils should make reasonable efforts to resolve disagreements when record holders refuse to disclose them. Informal or independent conciliation might be considered, depending on the circumstances and reasons given for refusal.
Chapter 15 provides detail of the disposals available if a person or body is found guilty of obstruction or failure to comply with a request for information.
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