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 11: Protection orders
General considerations for all protection orders
This chapter provides guidance on the sections of the Act which allow a council to apply to a sheriff for a protection order. Protection orders (a term used in section 35 of the Act) cover:
- assessment orders (which involve taking a person from a place in order to carry out an interview or medical examination),
- removal orders (removal of an adult at risk)
- banning orders or temporary banning orders (banning of the person causing, or likely to cause, the harm from being in a specified place and/ or preserving property) (the Act , Sections 11-34).
Applications for protection orders must be made by the council, save for banning orders where the application may also be made by or on behalf of the adult whose well-being or property would be safeguarded by the order or any other person who is entitled to occupy the place concerned. This section of the Code will apply to applications made by the council.
There is no requirement under the Act for the council to have previously arranged a visit under Section 7, an interview under Section 8, or medical examination under Section 9 prior to applying for a protection order. Protection orders may be applied for at any time in the process, depending on the individual circumstances of a case.
The decision to apply for a protection order will normally be taken at an Adult Support and Protection case conference. As such it will be a multi-agency decision, informed by a report from the council officer. The council will then arrange for the submission of the application. Evidence must then be given on oath to the sheriff, as per section 38(2).
Attention must be paid to timescales where an application for a further order is being considered. Timely discussions with the sheriff clerk, explaining the concerns and seeking an agreement regards timing of requirements will assist in ensuring continuity of protection orders.
What to consider before applying for a protection order?
Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the general principles set out in sections 1 & 2 of the Act, and as outlined in Chapter 3 of the Code.
The use of other legislation may also be considered, for example, social work, child protection, mental health, civil law or criminal justice legislation.
Consideration must also be given to whether the adult should be referred to an independent advocacy organisation (see Section 6 of the Act) or provided with other services. The rationale for referring or not referring to advocacy must be clearly recorded and specifically referred to in any reports.
A sheriff must not make a protection order if the affected adult at risk refuses to consent to its grant. If it is considered that the adult will refuse consent to the granting of a protection order the council should re-consider the merit of the application. If the council decides to pursue an application where the affected adult has capacity to consent and their refusal to consent is known, then the council must prove that the adult has been "unduly pressurised" to refuse to consent to the granting of an order.
Where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. Evidence of lack of capacity will be required by the Sheriff. 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.
Wherever practicable, the adult must be kept fully informed at every stage of the process, for example, whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, or what other options are available. It is also good practice to ensure that carers' providing care and support are kept up-to-date with the proceedings. This is also important where a carer is a Guardian or has power of attorney.
Can an order be granted or enforced without an adult's consent?
It must be borne in mind that the principles emphasise the importance of striking a balance between an individual's right to freedom of choice and the risk of harm to that individual. Where the adult at risk has refused to consent, Section 35 provides that the sheriff in considering making an order, or a person taking action under an order, may ignore the refusal where the sheriff, or that person, reasonably believes:
- that the affected adult at risk has been unduly pressurised to refuse consent; and
- that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.
There are essentially three stages that require that the issue of consent be considered. Firstly, a council (or other person) must believe that there are no other steps available to protect the adult from harm, which could reasonably be taken with the adult's consent before proceeding to apply for an order. For example, the council may have previously tried an informal approach to move the adult to another place for interview and a medical examination. If the informal approach was unsuccessful, the option to formally apply to the court for an assessment order is available. Secondly, if an application is made and consent to the granting of the order is refused by the adult at risk, then the sheriff must consider the undue pressure test referred to above, and the onus will be on the applicant for the order to satisfy the sheriff in that regard. If the adult at risk refuses to consent to the granting of the order, the sheriff may only make the order if they reasonably believe the adult at risk has been unduly pressurised to refuse consent, and that there are no other steps it would be reasonable to take to protect the adult from harm, and to which the adult would consent. Thirdly, if an order is granted, a person must not take action to carry out or enforce that order without separately considering the same test. That person may only proceed if they reasonably believe the adult at risk has been unduly pressurised to refuse consent, and there are no other steps it would be reasonably to take to protect the adult from harm, and to which they would consent.
Section 35(4) of the Act gives an example of what may be considered to be undue pressure. This states that an adult at risk may be considered to have been unduly pressurised to refuse to consent if it appears that:
- harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and
- that the adult at risk would consent if the adult did not have confidence and trust in that person.
In this scenario, the sheriff or the council officer pursuing the application must reasonably believe that there is a relationship of confidence and trust between the affected adult at risk and the person allegedly subjecting the adult to undue pressure, and that the adult would otherwise consent if the adult did not have that confidence and trust. The most obvious relationships to assume confidence and trust would be between parent and child, siblings, partnerships and friendships. The assessment of undue pressure may include the development of the relationship and how the suspected harmful circumstances may have resulted in the affected adult's refusal to consent.
Section 35 (5) makes it clear that this is not the only type of behaviour that would constitute undue pressure. Undue pressure can also be applied by an individual who may or may not be the person suspected of harming the adult, such as a neighbour, carer or other person. For example, a relative who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order may place undue pressure on the affected adult to refuse consent. Undue pressure may also be applied by a person that the adult is afraid of or who is threatening them and whom the adult does not trust.
As noted above, where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. Evidence of lack of capacity will be required by the sheriff. 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 the adult demonstrates a preference not to consent, but where s/he is believed not to have the capacity to make that decision, next steps must be considered. Similarly, where an adult may be unable to express an opinion, or unable physically to resist an order, that inaction is not necessarily acquiescence.
If an adult with incapacity does not or will not comply with a protection order, and where an adult does not have capacity in that context, it may be better practice to take action under other legislation, rather than under this Act, e.g. under the Adults with Incapacity (Scotland) Act 2000, to pursue the appointment of a guardian with the power to take whatever action is necessary to protect or support the adult. Alternatively, if the adult with incapacity has a mental disorder, it may be more appropriate to consider the Mental Health (Care and Treatment) (S) Act 2003, which can permit an assessment, medical examination and, if necessary, the removal of the person at risk to a place of safety without her/ his consent.
While simultaneously using measures in other legislation, it may be appropriate to consider an application for a protection order under this Act; protection orders can be in effect concurrently with orders granted from other legislation.
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