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 12: Assessment orders
This chapter provides guidance on Section 11 of the Act which allows a council to apply to a sheriff for an assessment order. This allows a council officer to take a person from a place being visited under section 7 in order to allow a council officer, or any council nominee, to conduct a private interview, or a health professional to conduct a medical examination in private. This order would be necessary only if it were not possible to carry out the interview or examination at the place of the visit. An assessment order will be granted only where there is reasonable cause to suspect that the subject of the order is an adult at risk of serious harm, and that the action specified is necessary to establish this and to identify what further action may be required.
What is an assessment order?
The purpose of an assessment order is to determine whether the adult is an adult at risk; and whether any action should be taken to protect the adult from harm.
The council may make an application to a sheriff for an assessment order to help the council to decide whether the person is an adult at risk and to take an adult at risk of serious harm to a more suitable place in order to allow a council officer or council nominee to conduct a private interview. The order also provides that a health professional may carry out a medical examination in private.
When an assessment order is granted, the sheriff must also grant a warrant for entry under Section 37 in relation to a visit under Section 7. The warrant for entry to accompany an assessment order will detail a specified place and only that place can be entered using the warrant. The warrant permits a constable to accompany a council officer and take any action which the constable considers to be reasonably required, in order to fulfil the object of the visit. Only the constable has a right to use reasonable force and only when deemed necessary.
The affected adult can be taken to the place specified on the order but whilst there, the adult still retains the right to refuse to answer all or some of the questions when interviewed. The adult may similarly refuse a medical examination. The affected adult must be informed of these rights before an interview or a medical examination takes place.
The protection element of the assessment order allows the council to conduct an assessment in private. This could also be beneficial to the adult where the adult may be under undue pressure to refuse consent.
An assessment order does not have the power to detain the adult in the place they are taken to. The adult may choose to leave at any time.
What are the criteria for granting an assessment order?
Section 12 sets out the circumstances in which a sheriff may grant an assessment order. The sheriff must be satisfied that:
- the council has reasonable cause to suspect the subject of the order is an adult at risk who is being, or is likely to be, seriously harmed;
- the order is required to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed; and
- the place at which the person is to be interviewed and examined is
available and suitable.
The council must therefore be able to satisfy the sheriff that a suitable place will be available to take the adult. This may in some circumstances require written confirmation from the person who owns or manages this place that they are willing to receive the adult for assessment purposes. For example, the place could be a friend's or relative's house or a care home. The suitability of the place to conduct a private examination could also be confirmed in writing. This would be desirable but it may not always be practicable in potentially urgent or emergency situations.
Under Section 13 , an order should only be sought where it is not practicable during a visit under Section 7 (due to a lack of privacy or otherwise) to:
- interview the person under Section 8 ; or
- conduct a medical examination of the person under Section 9 .
It may be that the adult needs to be taken from a threatening environment with the prospect the adult may then relax and agree to an interview and/or medical examination. Given that the adult is to be taken to a place where they may be interviewed and medically examined, it would be good practice for the council to provide full details of the actions to be undertaken under the order and the estimated length of time that the assessment and interview may take. This approach would support the application in demonstrating that the council is taking into account the principle of least restriction.
Under Section 41(3), the Act provides that the applicant for an order "must give notice of an application to the subject of the application, and the affected adult at risk (where that person is neither the applicant nor the subject of the application)"
Under Section 41(4), the sheriff must, before determining an application, invite the subject of the application, and the affected adult at risk (where that person is neither the applicant nor the subject of the application) to be heard by, or represented before, the sheriff. The affected adult may be accompanied in court by a friend, a relative or any other representative (including legal) chosen by the adult.
Section 41(2) provides that the sheriff may disapply the above requirements where the sheriff is satisfied that by doing so this will protect the adult from serious harm or will not prejudice any other person affected by the disapplication.
In cases where the council becomes aware that the person suspected of harming the adult may also attend a hearing, for example where the adult wishes to be accompanied by that person, it would be good practice for the council to inform the sheriff prior to the hearing being held. The sheriff will then be able to decide whether to apply any relevant provisions available under the Vulnerable Witnesses (Scotland) Act 2004.
Where the adult concerned has indicated that they do not wish to have legal representation, or it appears that they do not understand the process, this should be recorded and indicated to the court by the council. The court retains a common law power to appoint a Curator ad Litem where a person is party to a case, but does not have full mental capacity.
Under Section 41(6), the sheriff has discretion to appoint a safeguarder before deciding on the order. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The person may be appointed on such terms as the sheriff thinks fit.
Timescales within which an order must be carried out
The date specified in the order may be different from the date the order is granted. The assessment order is valid for 7 days after the date specified in the order. For example, an order with a specified date of 13 November would expire at 23:59 on 20 November.
The assessment order authorises the council officer to take the adult to a more suitable place to enable the adult to be interviewed or medically examined. The adult must only be taken to the place specified on the order. There may be circumstances where, before the order is executed, the adult consents to being taken to another place. This does not invalidate the original terms of the order.
The key focus should be on carrying out an assessment given the suspicion of serious harm. It should be explained to the adult that the application for an assessment order was made due to concern for the adult. The adult has the right to refuse consent to the interview or the medical examination. After the interview or examination has been conducted or where the adult has refused to give their consent, the adult is free to leave.
The assessment must be undertaken in the shortest time practicable to minimise any possible distress or confusion to the adult. For example, a medical examination may only require an adult to be removed to the General Practice surgery for an hour while an examination is carried out. However it may be that the adult would be happy to consent to remaining in a place overnight.
Once the order has been executed, it cannot be used again i.e. it does not provide for the adult to be taken from a place more than once to be interviewed or for a further medical examination.
The adult should be informed that an assessment order does not permit detention or allow a refusal to participate in an interview or medical examination to be over-ridden.
To note: An assessment order cannot be appealed.
Warrant for entry
In granting an assessment order, the sheriff must also grant a warrant for entry that authorises a police constable to use reasonable force where necessary. It must be borne in mind that the use of force is an absolute last resort, to be used in very exceptional circumstances, and only when all other options have been exhausted.
It is important that a multi-disciplinary plan be prepared in advance on how to carry out the assessment order. In order to minimise distress and risk to the adult, the procedure should be carefully planned and co-ordinated with all those involved in the process. The plan should include contingencies in case the adult does not respond as expected. Where it is anticipated that there may be a risk of violence, a multidisciplinary assessment of the risk should be undertaken. It may be that the management of the process should be passed on to the police to enable them to address the issue of the safety of all parties concerned. However, all parties involved should bear in mind the principle of "least restrictive alternative" at all times.
To note: Once a warrant has been executed, it cannot be used again.
What can be done in cases of urgency?
Section 40 makes provision for cases of urgency. An application can be made to a justice of the peace for a warrant to enter premises in cases of urgency where it is not practicable to make application to a sheriff. (For further information on warrants for entry, please refer to chapter 7).
An application may be made to a justice of the peace where:
- it is not practical to apply to the sheriff; and;
- the adult at risk is likely to be harmed if there is a delay in granting the warrant.
Local procedures should provide guidance to council officers on how to deal with emergencies including access to court officials and Justices of the Peace.
What happens after the order expires or the adult wishes to leave?
Although the Act does not make explicit what happens after an assessment order expires or the adult chooses to leave, the council continues to have a duty of care to return the adult safely to the place from which they were removed or to a place of their choice, within reason. To this end, the council may consider discussing some form of support plan with the adult at risk or, where appropriate, convene a multidisciplinary meeting to discuss further care and protection issues.
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