Chapter 1: Introduction to the Act and the Code of Practice
The Adult Support and Protection (Scotland) Act 2007 (referred to as the Act) was passed by the Scottish Parliament in spring 2007. The Act introduced provisions intended to protect those adults who are unable to safeguard their own interests, who are at risk of harm and, because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to harm than those who are not so affected.
The review of Scottish Mental Health Legislation which was commissioned in 2019 will be considering the Mental Health (Care and Treatment) (Scotland) Act 2003, the Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007. There are strong links between the three Acts, and the provisions of each Act are often considered when establishing or reviewing the needs of a particular individual.
The principal aim of this review is to ensure a person-centred rights-based approach to the protection of persons who may be subject to the existing provisions of mental health, incapacity or adult support and protection legislation.
The Act is in five parts, and all the aspects relevant to Adult Support and Protection are contained in Part 1 of the Act. In this Code of Practice references to the Act therefore refer to Part 1 of the Act.
The Act provides measures to identify, and to provide support and protection for, those individuals who are vulnerable to being harmed whether as a result of their own or someone else's conduct. These measures include:
- a set of principles which must be taken into account when performing functions under the Act;
- placing a duty on Councils to make the necessary inquiries to establish whether or not an adult is at risk of harm and whether further action is required to protect the adult's well-being, property, or financial affairs;
- placing a duty on certain public bodies and office holders to cooperate in inquiries;
- introducing a duty to consider the provision of advocacy or other services after a decision has been made to intervene;
- permitting, in certain circumstances, the medical examination of a person known or believed to be at risk of harm;
- requiring access to records held by agencies in pursuance of an inquiry;
- introducing a range of protection orders which are defined in the Act, namely:
- assessment orders;
- removal orders;
- banning orders
- requiring the establishment of multi-agency Adult Protection Committees.
The European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities
Human rights in Scotland are the subject of important legal safeguards, in particular as a result of the Human Rights Act 1998 and the Scotland Act 1998. These give domestic legal effect to internationally-recognised rights and freedoms found in the European Convention on Human Rights (ECHR). For example, legislation passed by the Scottish Parliament is not law if it is incompatible with these "Convention rights". The powers of Scottish Ministers are also subject to important limitations. More generally, it is unlawful for any public authority (including both central and local government) to act in a way that is incompatible with the Convention rights. It is therefore important that all public bodies and practitioners ensure that they carry out their functions in a way that is ECHR-compatible.
Additionally, the Scottish Government has committed to incorporate four United Nations treaties into Scots law, as far as possible within devolved competence, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This Convention promotes non-discriminatory, inclusive participation for all, with respect for the individual's dignity and differences, reinforcing equal rights of people with disabilities. Incorporation of UNCRPD will place greater impetus on public bodies to remove barriers and support disabled people to fully participate in society.
These domestic and international legal requirements are further reflected in Scotland's National Performance Framework, including in an overarching human rights National Outcome. This establishes a shared vision for a Scotland in which "we respect, protect and fulfil human rights and live free from discrimination".
The Code of Practice
The Act was passed by the Scottish Parliament in Spring 2007 and implemented in 2008. Section 48 of the Act imposed a duty on Scottish Ministers to prepare a code of practice containing guidance about the performance of functions under the Act by councils, their officers and health professionals, and placed a duty on these individuals to have regard to the Code of Practice, if relevant. The Scottish Government published an Adult Support and Protection Code of Practice in 2008. The Act also places Scottish Ministers under a duty to review the Code from time to time and provides a power following such review to revise it, and a revised Code of Practice was published in 2014.
The Act provides the legislative framework for Adult Support and Protection in Scotland. This code of practice (referred to as the Code) provides guidance about the performance of functions by councils, their officers, public bodies, and other professionals under the Act. It provides information and guidance on the principles of the Act, and about the measures contained within the Act including when and where it would be appropriate to use such powers. Those using this Code are advised to check the relevant measures themselves and to seek their own legal advice as required, when referring to the relevant provisions of the Act.
It is for local partnerships* to develop their own inter agency procedures for Adult Support and Protection, either for themselves or in conjunction with other partnerships. In so doing they should, as above, have regard to this Code of Practice, if relevant.
*By "partnerships" we mean the group of partners who work together – operationally and strategically—to:
- receive all intimations of adult protect concerns;
- determine which concerns require investigative activity and investigate them;
- determine actions required to make sure that adults at risk of harm are safe, protected, supported, involved, and consulted;
- and are responsible and accountable for the implementation of these actions.
This Code must be used in conjunction with other relevant codes of practice as appropriate, such as those developed to support the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000, and any other relevant professional codes of practice.
Who is this Code for?
This Code is addressed to councils, their officers and health professionals who perform any of the functions under theAct. There are a range of other statutory bodies identified later in this Code, including the Police, who will have an interest in the contents of the Code. It should also be considered by those working in the independent and third sector.
Note: The Act, which places particular duties on Councils and makes frequent references to Councils and their officers, was passed and enacted prior to Health and Social Care integration. In the Code references to Councils should therefore be taken to include bodies and partnerships that have delegated social work functions.
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