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 13: Removal orders
This chapter provides guidance on Section 14 of the Act which allows a council to apply to the sheriff for a removal order, which, if granted, allows the council to remove the adult at risk to a specified place. The purpose of a removal order is to assess the adult's situation and to support and protect them. This is a short-term order and, although effective for a maximum of seven days, it is envisaged that it will not be required to last that long in the majority of cases. A removal order will be granted only where the sheriff is satisfied that the adult is likely to be seriously harmed if not moved to another place and that there is a suitable place available to remove the adult to. The council must protect any property owned or controlled by an adult who is removed from a place under a removal order.
What is a removal order?
A removal order can only be granted in respect of an adult at risk of harm and is primarily for protection purposes and not for a council interview or a medical examination. It permits the person named in the order to be moved from any place to protect them from harm. For example, the place in which the adult at risk actually lives may be a contributory factor in the harm and the move may provide "breathing space" for that specified person.
Action can only be considered where the person is an adult at risk who is likely to be seriously harmed if not moved and suitable accommodation is available to which that person can be moved. (For further information on what constitutes an adult at risk, please refer to Chapter 3).
Section 14 provides that a council may apply to the sheriff for a removal order which authorises:
- a council officer, or any council nominee, to move a specified person to a specified place within 72 hours of the order being made; and
- the council to take such reasonable steps as it thinks fit for the purpose of protecting the moved person from harm.
There is a 72 hour period in which to execute the removal order. It expires 7 days (or such shorter period as may be specified in the order) after the day on which the person specified in the order is moved in pursuance of the order.
Who can apply for a removal order?
Although the application for the order must be made by the council, the council may choose to nominate another person, for example, someone from one of the co-operating bodies to actually move the adult at risk. This may be important if, for example, the nominated person is more familiar to the adult at risk than the council officer. It may be more reassuring for the person being removed if this was done by someone who they already know rather than a stranger. However, only the council officer and police constable have the right to enter the premises where the adult is located to remove the adult (see Sections 37 and 39 of the Act).
The removal order will specify where the adult is to be removed to. Good practice suggests a protection plan could be submitted by the council with the application.
What are the criteria for granting a removal order?
Under Section 15 , the sheriff may grant a removal order only if satisfied:
- that the person in respect of whom the order is sought is an adult at risk who is likely to be seriously harmed if not moved to another place; and
- as to the availability and suitability of the place to which the adult at risk is to be moved.
The place from which the adult at risk is removed may not necessarily be their own home. They could be in public, private or commercial premises. The adult can be removed from any place in pursuance of a removal order. The adult is to be removed to the place specified in the order.
Good practice would be that the council provides a suitability report of both the place and the person willing to care for the adult at risk. The council should also obtain a written agreement from the owner of the proposed specified place where it is, for example, a private home or independent care provider to confirm the owner's willingness to receive the adult at risk for up to 7 days. The place to which the adult should be taken will be specified in the order.
Notifications and hearing
As stated previously, under Section 41(3), "the applicant 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) and (5), the affected adult may be heard or represented before the granting of a removal order and has the right to be accompanied in court by a friend, a relative or any other representative (including legal) chosen by the adult.
The council should, if appropriate, advise any other persons who are known to have an interest in the person's well-being or property that the application is to be made. This would enable any such person to enter the proceedings.
Under Section 41(2), the sheriff may disapply the requirement to invite participation in a hearing, or representation at one, and the right to be accompanied at a hearing where the sheriff is satisfied that, by doing so, this will:
- protect the adult from serious harm; or
- not prejudice any other person affected by the disapplication.
Section 15(2) provides that the sheriff may require the council to allow a specified person to have contact with the adult at risk subject to specified conditions. Before doing so the sheriff must under section 15(3) have regard to:
- representations of the council as to whether persons should be allowed contact with the adult at risk; and
- any relevant representations made by:
- the adult at risk;
- any person who wishes to be able to have contact with the adult at risk; and
- any other person who has an interest in the adult at risk's well-being or property.
There may also be times when a person who is concerned for the adult's welfare would wish to enter the proceedings and be heard by the sheriff, for example, to ask that the adult be taken to a place other than that chosen by the council as the "suitable place".
Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, this should be indicated to the court.
Under Section 41(6), the sheriff also has discretion to appoint a safeguarder to safeguard the interests of the affected adult at risk before deciding the application. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The sheriff may instruct the safeguarder to report on the issue of consent.
In cases where the council becomes aware that the person suspected of harming the adult may also attend, 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 council considers that it would protect an adult at risk from serious harm, or will not prejudice any person affected by the disapplication, then the council may ask the sheriff to dispense with intimation to the adult who is the subject of the application and other parties.
Can conditions be attached to a removal order?
Section 15(2) provides that the sheriff may attach a requirement to the granting of a removal order. A council can be required to allow any specified person to have contact with the adult at risk to whom the order relates:
- at any specified time during which the order has effect; and
- in accordance with any specified conditions.
Whether the sheriff attaches such a requirement to an order will depend on the circumstances of each application. The purpose of such a requirement may be to permit certain persons to have contact with the moved person to help maintain family or social relationships. The conditions specified in relation to the requirement may also stipulate that this conduct takes place under supervision arrangements where there is concern that harm may continue if contact was unsupervised. It should be borne in mind that representations may be made to the sheriff by any of the parties, either orally or in writing, for contact to be granted.
It may be inappropriate to have the adult at risk exposed to the alleged perpetrator during the period of the removal order, but contact with other persons may be beneficial, for example, relatives or friends. This issue could be addressed in advance with the adult.
Where conditions for contact have been specified by the sheriff, good practice would be for the council to prepare some form of access plan. This would include dates/times and may, for example, provide that any contact takes place in an alternative location from that to which the adult has been moved.
Warrant for entry
The sheriff (or justice of the peace) must grant a warrant that authorises a police constable to use reasonable force where necessary to achieve the purpose of the visit. Wherever possible, entry to premises should first be attempted without force. 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.
In order to minimise distress and risk to the adult at risk, the procedure should be carefully planned and co-ordinated with all those involved in the process. Ideally, a multi-disciplinary plan would be prepared in advance on how to carry out the entry and removal of the person. The plan should include contingencies in case the adult or a person present does not respond as expected. Where it is anticipated that the use of force may be necessary to execute the order, a multi-disciplinary assessment of the risk should similarly be undertaken. In such circumstances, management of the process should be passed on to the police to enable them to address the issue of safety of all parties concerned. However, all parties involved should bear in mind the principles in Sections 1 and 2 of the Act.
To note: Once a warrant has been executed, it cannot be used again.
Timescales within which an order must be carried out
Given the purpose of the order, the adult must be removed within 72 hours of the order being made. The order will expire up to seven days after the day on which the adult is moved, not counting the day the adult is moved, and it expires at 23:59 at the end of the final day. The order can be specified by the sheriff to expire in a shorter period than 7 days. The adult at risk cannot be returned home and then removed again within this period.
A further application for a removal order must not be made with a view to extending the order. This is to avoid the unintended consequence of an adult being out of their home for longer than is necessary.
The council should always consider as short a removal period as possible in line with the general principles of benefit, least restriction and the adult's wishes.
What if the adult at risk moves before the removal order can be carried out?
It may be that the adult at risk has either left the premises or been moved by another person to avoid the consequences of the removal order.
The removal order may not always specify the place from which the adult must be removed, however the warrant for entry always does. This means that if a person is moved to a second place in the period between the removal order and warrant being actioned, and it is anticipated that entry by warrant will be necessary, then a fresh application for a warrant must be made. Where the original removal order specified the place from which the adult must be removed, a fresh application can be made for a new removal order or a variation of the existing order can be applied for (under Section 17).
Can a removal order be varied or recalled?
Section 17 provides that an application may be made to the sheriff to recall or vary a removal order. An application may be made by:
- the adult at risk;
- any person who has an interest in the adult at risk's
well-being or property; or
- the council.
The sheriff may vary or recall the removal order if satisfied that the variation or recall is justified. The sheriff would have to be satisfied that there has been a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.
Where the sheriff has recalled the removal order, and the adult at risk has already been moved under that order, the sheriff may direct the council to:
- return the adult to the place from which the adult was removed; or
- take the adult to any other place which the sheriff, having regard to the adult's wishes, may specify.
As with the initial application, in an application for the variation or recall of a removal order, the sheriff has the discretion to disapply the notification and other requirements where the sheriff considers that by doing so it will protect the adult at risk from serious harm or will not prejudice any person affected by the disapplication.
Who has responsibility for caring for the adult's property?
Section 18 deals with protecting the adult at risk's property, whether this is owned or controlled by the adult, from being lost or damaged. The Act (section 18(1)) provides that the council must take reasonable steps to prevent any property owned or controlled by person moved in pursuance of a removal order from being lost or damaged because:
- the moved person is unable to protect, care or otherwise deal with the property; and
- no other suitable arrangements for the property have been or are being made.
A council officer has a right to enter any place, or adjacent place, which the council knows or believes to contain any property which it has a duty under the Act to protect in order to enable or assist the council in performing that duty (sections 18(2) and (3)). If the council officer finds such property, the officer may do anything reasonably necessary to prevent the property from being lost or damaged. In particular the officer may move the property to another place (section 18(4)).
Property could include the contents of a house, vehicles, animals, livestock, cash, credit cards and clothing.
The council is not entitled to recover any expenses it incurs in relation to property owned or controlled by the adult removed. The council must return the property to the adult at risk as soon as is reasonably practicable after the removal order ceases to have effect. This could be agreed in advance with the adult at risk and included within the protection plan.
What happens after the order expires or the adult wishes to leave?
Although the Act does not make explicit what happens after the 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 agreeing some form of support plan with the adult, or where appropriate, convene a multi-disciplinary meeting to discuss further care and protection issues.
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. If the person has moved from their original location, this does not necessarily invalidate the Removal Order and the person can be removed from this "new" place to go to the safe place specified in the order. If the Removal Order is no longer required, application to recall it can be made. If the "new" place, where the person has agreed to go, is assessed as safe, the order may no longer be necessary.
What can be done in cases of urgency?
Section 40 provides that, for a removal order, a council can apply to a justice of the peace of the area in which the adult is located, where:
- it is not practicable to make an application to the sheriff; and
- an adult at risk is likely to be harmed if there is any delay in granting the order.
The justice of the peace must be satisfied that the person is an adult at risk who is likely to be seriously harmed if not moved to another place and that the adult is to be removed to a place that is suitable and available.
The adult at risk must be removed within 12 hours of the grant of this type of removal order and such an order expires after 24 hours.
Good practice would be that the council should advise any person with an interest in the adult's welfare that the adult has been removed.
Local procedures should provide guidance to council officers on how to deal with emergencies including access to court officials and justices of the peace.
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