Chapter 2: Principles and definition of adult at risk
This chapter provides a description of the principles of the legislation as set out in sections 1 and 2 of the Act and outlines the definitions of 'adults at risk' and 'harm' (Sections 3 and 53 of the Act).
Taking account of the principles of the Act
Sections 1 and 2 set out the general principles of the Act. These apply to any public body or office holder authorising any intervention in an adult's affairs or carrying out a function under the Actin relation to an adult. For example, they apply to any social worker, care provider or health professional intervening or performing functions under the Act.
This means that the following persons are not bound by these principles: the adult; the adult's nearest relative; the adult's primary carer; an independent advocate; the adult's legal representative; and any guardian or attorney of the adult. (These latter groups will, however, be bound either by their own codes of conduct and principles, or the principles of the legislation that resulted in their appointment).
The Act requires the principles to be applied when deciding which measure will be most suitable for meeting the needs of the individual. Any person or body taking a decision or action under the Act must be able to demonstrate that the principles in sections 1 and 2 have been applied.
The principles in section 1 require that any intervention in an adult's affairs under the Act should:
- provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs; and be theoption that is least restrictive to the adult's freedom.
The principles in section 2 require that any public body or office holder performing a function under the Act must have regard to the following:
- The general principles in Section 1;
- the wishes of the adult - any public body or office holder performing a function or making a decision must have regard to the present and past wishes and feelings of the adult, where they are relevant to the exercise of the function, and in so far as they can be ascertained. Efforts should be made to assist and facilitate communication using whatever method is appropriate to the needs of the individual. Where this communication support is not provided, reasons for this should be recorded clearly. Also, where the adult has an Advance Statement made under Section 275 of the Mental Health (Care and Treatment) (Scotland) Act 2003 then this should be given due consideration. Advance Statements should be considered as part of any care plan. Further, regard should always be had to wishes, feelings and directions recorded in powers of attorney (particularly where these follow some recommended styles in having a schedule that records wishes and feelings) and advance directives.
- the views of others – the views of the adult's nearest relative, primary carer, a guardian or attorney, and any other person who has an interest in the adult's well-being or property, must be taken into account if such views are relevant. Cognisance, when weighing the merits of such views, must be taken of any possibility of undue pressure, or increase of risk, if the views of others are sought. It is important that the adult has the option to maintain existing family and social contacts, should they wish to do so.
- The Act seeks to provide support additional to that of existent networks. Thus, a person, who may be an adult at risk, might have neighbours, friends or other contacts who have an interest in their wellbeing and are willing to give support (noting the caveat that consideration should be given to whether undue pressure from those contacts is a suspected or known risk factor). Every effort should be made to ensure that action taken under the Act does not have an adverse effect on the adult's relationships.
- the importance of the adult participating as fully as possible (also refer to Chapter 4)– the adult should be enabled to participate as fully as possible in any decisions being made. It is therefore essential that the adult is also provided with support and information to aid that participation, and in a way that is most likely to be understood by the adult. Any needs the adult may have for help with communication (for example, translation services or signing) should be met. Any unmet need should be recorded. Wherever practicable the adult should be kept fully informed at every stage of the process. This includes information about their right to refuse to participate.
- that the adult is not treated less favourably – there is a need to ensure that the adult is not treated, without justification, any less favourably than the way in which a person who is not an 'adult at risk' would be treated in a comparable situation.
- the adult's abilities, background and characteristics – including the adult's age, sex, sexual orientation, religious persuasion, racial origin, ethnic group, and cultural and linguistic heritage. So as to more fully assess the abilities, background and characteristics of the adult, users of this Code may find it helpful to consider the wider protected characteristics list and definitions set out in the Equality Act 2010 for the purposes of that Act.
These principles should always be considered when decisions are required about action that may be taken to protect an adult. However, there will be situations where their consideration produces potential conflicts, such as occasions when the adult at risk expresses a preference not to engage with any form of intervention, but the professionals involved believe that adult protection interventions would provide a benefit to them. In such circumstances, the expectation is that decision-making should take place on a multi-agency basis to enable full and complete discussion of potential protective actions, and the application of the principles set out above.
For the purposes of these principles, making a decision not to act is still considered as taking a decision. The reasons for taking this course of action should be recorded as a matter of good practice.
Who is an adult at risk?
The Act refers throughout to an 'adult'. In terms of Section 53 of the Act, 'adult' means a person aged 16 years or over.
Section 3(1) defines an 'adult at risk' as someone who meets all of the following three-point criteria:
- they are unable to safeguard their own well-being, property,rights or other interests;
- they are at risk of harm; and
- because they are affected by disability, mental disorder, illness or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected.
It should be noted and strongly emphasised that the three-point criteria above make no reference to capacity. For the purposes of the Act, capacity should be considered on a contextual basis around a specific decision, and not restricted to an overall clinical judgement. It is recognised that, due to many factors in an individual's life, capacity to make an authentic decision is a fluctuating concept. Thus, even if deemed to possess general capacity, attention must be paid to whether a person has clear decisional and executional ability (i.e. to both make and action decisions) to safeguard themselves in the specific context arising.
Unable to safeguard or unwilling to safeguard?
The first point of the three-point criteria set out in section 3(1) of the Act relates to whether the adult is unable to safeguard their own well-being, property, rights or other interests. Most people will be able to safeguard themselves through the ability to take clear and well thought through decisions about matters to do with their health and safety, and as such could not be regarded as adults at risk of harm within the terms of the Act.
However, this will not be the case for all people, and when a person is deemed unable to safeguard themselves they will meet the first point of the three-point criteria.
- 'Unable' is not further defined in the Act, but is defined in the Collins English Dictionary as "lacking the necessary power, ability, or authority (to do something); not able".
- 'Unwilling' is defined in the Collins English Dictionary as "unfavourably inclined; reluctant", and may thus describe someone who is aware of the potential consequences but still makes a deliberate choice.
A distinction may therefore be drawn between an adult who lacks these skills and is therefore unable to safeguard themselves, and one who is deemed to have the power, ability or authority to safeguard themselves, but who is apparently unwilling to do so.
Note: An adult who is considered unwilling to safeguard themselves, rather than unable to safeguard themselves, may not be considered an adult at risk.
This distinction requires careful consideration. All adults who have capacity have the right to make their own choices about their lives and these choices should be respected if they are made freely. However, for many people the effects of trauma and/or adverse childhood experiences may impact upon both their ability to make and action decisions, and the type of choices they appear to make. In this context it is reasonable to envisage situations in which these experiences, and the cumulative impact of them through life, may very well have rendered some people effectively unable, through reliable decision making or action, to safeguard themselves.
Similar considerations apply to coercive control or undue pressure. In such situations the control exercised over a vulnerable person may also effectively render them unable to take or action decisions that would protect them from harm.
It is therefore important, as part of the assessment, to understand the person's decision-making processes. This should include an understanding of any factors which may have impacted upon them with the effect of impinging on, or detracting from, their ability to make and action free and informed decisions to safeguard themselves. This could therefore mean that in these circumstances they should be regarded as unable to safeguard themselves.
Other circumstances can impact on the extent to which a person is meaningfully able to safeguard themselves. Refusing to give a random stranger money is, for example, very far removed from the situation where it is the person's relative who is making such a request, and where the adult is dependent upon that relative for support. For fear of repercussions or removal of support, they may feel afraid of refusing the request.
It is also important to bear in mind that an inability to safeguard oneself is not the same as an adult lacking mental capacity. For example a person may have relevant mental capacity, but also have physical limitations that restrict their ability to implement actions to safeguard themselves. Capacity applies to both decision making and the implementation of decisions. A person can have the capacity to make a particular decision but through illness or infirmity may not have the physical capacity to implement that decision.
Thus, in all circumstances, one should consider that even where a person can make a decision, are they able to action that decision to safeguard themselves?
The examples offered above demonstrate that practitioners must take a person's overall circumstances into account, and take great care, before determining whether or not an adult is genuinelyable to take and implement decisions about safeguarding themselves.
Where an individual is deemed not to meet the three-point criteria or there exist factors or complexities that may be relevant to legislation other than the Act, thought should be given to other legislation which may provide alternative or additional pathways, e.g. the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003.
Regard should also be given to the possible relevance of the Social Work (Scotland) Act 1968, to ensure that assessments of need and promotion of social welfare are considered, where appropriate. If domestic abuse is a factor, consideration may also be given to the relevance of a Multi-agency Risk Assessment Conference ('MARAC'), in which information about domestic abuse victims at risk of the most serious levels of harm is shared on a multi-agency basis to inform a coordinated action plan.
What is "harm" and who may be considered "at risk"?
To meet the second point of the three-point criteria the adult must be assessed as being at risk of harm. Section 3(2) of the Act defines an adult as being at risk of harm if:
- another person's conduct is causing (or is likely to cause) the adult harm; or
- the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.
Adults can be at risk of harm in various settings, be it in their own home, in the wider community, or in a hospital setting. They also may be placed at risk through inappropriate arrangements for their care in a range of social or health care settings. Perpetrators of harm can include families and friends, informal and formal carers, fellow users of residential and day care services, fraudsters and members of the public.
Section 53 states that "harm" includes all harmful conduct and gives the following examples:
- conduct which causes physical harm;
- conduct which causes psychological harm (for example by causing fear, alarm or distress);
- unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion);
- conduct which causes self-harm.
The list is not exhaustive and no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute harm to a person can be physical, sexual, psychological, financial, or a combination of these. The harm can be accidental or intentional, as a result of self-neglect, neglect by a carer or caused by self-harm and/or attempted suicide. Other forms of harm can include domestic abuse, gender-based violence, forced marriage, female genital mutilation (FGM), human trafficking, stalking, scam trading and hate crime. Some such cases will result in adults being identified as at risk of harm under the terms of the Act, but this will not always be the case.
Types of Harm
The Act defines harm as "all harmful conduct". The Social Care Institute for Excellence ("SCIE") has a comprehensive downloadable resource illustrating types of harm in detail: Types of abuse: Safeguarding adults.
Evidence of any one indicator should not be taken on its own as proof that abuse is occurring. Conversely, practitioners must remember that individuals may well be subject to more than one type of abuse at a time, and the way that these types of abuse interact and compound should be taken into account. With this in mind, practitioners should consider making further assessments, consider other associated factors, and ascertain which referral(s) may be the most appropriate for that individual.
The SCIE identify some commonly recognised types of 'harm', but note this list is not exhaustive. More information is provided on each harm, via the link:
NHS inform: Self-harm
Some forms of harm may result in criminal charges being brought, under appropriate legislation, against the person perpetrating the harm. If, in dealing with a person under the terms of the Act, there is reason to suspect that a crime has been committed then the police should be advised without delay. Such legislation may include, for example, Section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
The Counter-Terrorism and Security Act 2015 places a duty on those listed under specified authorities in Scotland, such as councils, to have due regard to the need to prevent people from being drawn into terrorism. It also places an obligation on councils to ensure that a panel of persons is in place for its area to assess the extent to which identified individuals are vulnerable to being drawn into terrorism and, where appropriate, arrange for support to be provided.
Guidance on Prevent Multi-Agency panels (PMAP) is now available. When assessing referrals to such panels, councils and their partners should consider how best to align such assessments with adult protection legislation and guidance. It should be borne in mind that Counter-Terrorism vulnerabilities must be dealt with by PMAP and cannot be managed by other safeguarding processes: if need be, separate processes can run parallel to each other.
Where Domestic Abuse is a factor, the Domestic Abuse (Scotland) Act 2018 should be consulted. This legislation relates to partners or ex-partners and defines abusive behaviour as that which a reasonable person would consider likely to cause physical or psychological harm. Psychological harm includes fear, distress, or alarm.
Being more vulnerable to harm
The third criteria point requires that because the adult is affected by disability, mental disorder, illness, or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected. Physical or mental infirmity are distinct from disability and mental disorder, and are not defined in the Act. Infirmity is defined as a "physical or mental weakness". Infirmity does not, therefore, necessarily rely upon a medical diagnosis in the way that mental disorder or illness do.
To note: It is recognised that "infirmity" is a term that is no longer favoured when describing disability.
Having a particular condition or being a disabled person does not automatically mean someone is unable to safeguard their own wellbeing.
"Illness" can apply to physical or mental health. The impact of illness on an individual's ability to safeguard themselves, and the extent to which it makes them more vulnerable to harm, must be considered. Depending upon the nature and trajectory of an illness, the assessment of this criterion of the three-point criteria may change over time.
Use of the three-point criteria
Each of the three criteria must be met to enable intervention under the Act.
It should be recognised that an individual's vulnerabilities, health conditions and abilities can fluctuate and evolve over time. Practitioners should be alert to the need for re-assessment or for re-evaluation of an individual's circumstances against the three-point criteria.
While someone who lacks capacity may be unable to safeguard their own well-being, property, rights and other interests, it should never be assumed that an adult who has capacity is able to do so, nor should any decision made, regarding whether an adult is an adult at risk, ever be delayed for an assessment of capacity to be undertaken. Capacity assessments may, however, be of benefit as means of identifying other legislative options available to support the individual.
Further guidance related to capacity in the context of adult support and protection activity can be found in Chapter 7.
The three-point criteria should be used to determine whether an adult is at risk of harm, and from this will follow decisions regarding what steps can be taken to protect that adult from harm. The three-point criteria is not, and should not be used as, an eligibility test for access to services.
An assessment that intervention under the Act is not necessary or appropriate does not absolve authorities of responsibility to consider intervention under any other legislation, including the general provisions in Section 12 of the Social Work (Scotland) Act 1968 (general social work services of local authorities), or to offer any other services in order to provide care and support. Consideration should be given to support provided by social work, health, independent and third sector providers.
In particular, where a person has been assessed as at risk of harm but does not meet either or both of the other two criteria of the three-point criteria, then partnerships – on a multi-agency basis - would still be expected to pursue all avenues in order to protect that person from harm. The individual should be a part of the decision-making process regarding next steps to be taken to address the risks identified.
The majority of adults who are, or are believed to be, at risk of harm will be people for whom the application of the three-point criteria will be relatively straightforward. This will lead to consideration of options for intervention whether under the provisions of the Act and/or other relevant legislation.
As mentioned in the "unable or unwilling" section above there are, however, a number of people for whom straightforward application of the three-point criteria is not possible, and some may remain in situations which continue to compromise their health, wellbeing and safety. All adults who have capacity have the right to make their own choices about their lives, and these choices should be respected if they are made freely. Many people affected by trauma and adverse childhood experiences remain able to safeguard their own wellbeing. However, for some, the complexity, severity and persistence of post traumatic reactions may impact to the extent that these individuals repeatedly take decisions that place them at risk of harm.
Equally, issues with their sense of self and interpersonal relationships, seriously affecting all or many of their relationships across many areas of life, can severely compromise their ability to safeguard. These safeguarding challenges can be associated with patterns of chronic difficulties in experience of emotions, emotional expression and/or regulation, and associated coping strategies such as self-harm, care-seeking and use/misuse of alcohol and drugs.
As part of an assessment – which may require significant time to undertake - it is crucial to understand the person's decision-making processes. Consideration should be given to any factors that may have impacted upon the adult with the effect of impinging on, or detracting from, their ability to make free and informed decisions to safeguard themselves. This could therefore mean that, in some circumstances, they should be regarded as unable to safeguard themselves.
Trauma informed practice is an approach to care provision that considers the impact of trauma exposure on an individual's biological, psychological and social development. Delivering services in a trauma informed way means understanding that individuals may have a history of traumatic experiences which may impact on their ability to feel safe and develop trusting relationships with services and professionals.
Trauma informed practice is not intended to treat trauma-related issues. It seeks to reduce the barriers to service access for individuals affected by trauma, and to promote understanding of the impact of trauma on individuals.
Key principles of a trauma informed approach are:
Taking a trauma informed approach to adult support and protection practice enables all those who perform any of the functions under the Act to better understand the range of adaptations and survival strategies that people may make to cope with the impacts of trauma. Practitioners should be alert to the need to view behaviours that compromise health, wellbeing and safety as adaptations that may have played a useful role in the individual's life in helping them to survive, and cope with, their experiences of trauma. Examples of such adaptations can include: maintaining contact with an alleged harmer; use of drugs or alcohol; self-harm; hoarding, and avoidance of places and people, including professional relationships and services, which may trigger reminders of prior traumatic experiences. As above, in these circumstances, some people's ability to take and action decisions about safeguarding themselves may effectively be compromised.
The 2017 Transforming Psychological Trauma: A Knowledge and Skills Framework for the Scottish Workforce details the specific range of knowledge and skills required across the workforce, depending on their and their organisation's role and remit in relation to people who have experienced trauma. Those with direct and frequent contact with people who may be affected by trauma should be equipped to 'trauma skilled' level of practice. Those professionals with regular and intense contact with people affected by trauma and who have a specific remit to respond by providing support, advocacy or specific psychological interventions, should have adequate training and experience to practice at 'trauma enhanced' level. Practitioners with responsibilities under the Act should be trained to the appropriate levels, as noted in The Scottish psychological trauma training plan (page 22). This is to ensure their adult support and protection practice reflects the in-depth knowledge and understanding required to intervene in the lives of those affected by trauma.
Taking a trauma informed approach can result in better outcomes for people affected by trauma and seek to address the barriers that those affected by trauma can experience when accessing support. Adopting a trauma informed approach to adult support and protection work is good practice, even when applied to individuals who have not experienced, or been significantly impacted by, psychological trauma.
Professionals involved in the identification, support and protection of adults at risk of harm may wish to make use of the resources provided by the National Trauma Training Programme. For more information on trauma-informed practice, practitioners can also access the trauma-informed practice toolkit produced by The Rivers Centre.
A new suicide prevention strategy is being developed for Scotland, and is due to be published soon.
As outlined already, adults who are – or may be - at risk of harm can present in complex circumstances. In some cases this may result in an individual seeking to cause potential or actual harm to themselves, and showing suicidal ideation. Acute and immediate intervention may be required to keep the individual safe at the time of crisis. Suicide prevention training courses and resource information, are widely available in order to teach participants how to recognise when someone may be at risk of suicide and how to effectively work with them to create a plan that will support their immediate safety, until further appropriate intervention is available.
A range of NHS Education for Scotland Ask Tell Respond resources, which include responding to those with suicidal ideation (Mental health and suicide prevention information), are also available. These resources support practitioners to provide a trauma informed response to those in distress, whether that is from suicidal thoughts or as part of post-intervention support.
Substance dependency, homelessness and hoarding
Not all people with substance dependencies, or who are homeless, or who hoard, will be considered at risk of harm under the Act. However, many such people will find themselves leading difficult and at times chaotic lives. The long-term and cumulative nature of these problems can include periods when the person would not be regarded as being able to take authentic decisions affecting their health and wellbeing, and this can have serious consequences for their health and safety. They may then be more vulnerable to harm than others without such issues.
The concept of "executive capacity" is relevant where the individual has addictive or compulsive behaviours. This highlights the importance of considering the individual's ability to put a decision to safeguard themselves into effect (executive capacity) in addition to their ability to make a decision (decisional capacity). Thus, for such a person an assessment of mental capacity would rarely be as simple as "yes" or "no."
The problematic use of drugs or alcohol may take place alongside (and on occasions contribute to) a physical or mental illness, mental disorder or a condition such as alcohol related brain damage. If this is the case, an adult may be considered an adult at risk under the Act. It may also be that the impact of a person's dependency renders them subject to physical or mental infirmity, and places them at risk of harm.
It is essential to move from a position of looking at substance dependency in isolation and, instead, to see it in terms of relational causation and connection, i.e. a shift from the view that dependency causes self-neglect, to one that understands such dependency as an outward symptom or sign of deeper challenges and of self-neglect itself. As above, considerations of the impact of trauma on the individual's ability to safeguard should be a thread throughout ASP activity.
People who are homeless are increasingly being recognised as likely to be considered as adults at risk under the terms of the Act, as many homeless people will be affected by disability, mental and/or physical illness or infirmity, or may have substance dependency issues.
In the years since the inception of the Act, hoarding has been recognised as a classified disorder in its own right, often alongside other conditions. In extreme cases, it can lead to some people living in dangerous and/or unhealthy conditions, resulting in a risk of harm.
It is not appropriate to use the existence of any of the circumstances outlined above to conclude that a person would not fall within the scope of the Act. All the circumstances in a person's life must be considered together when applying the three-point criteria.
Financial harm takes many forms including theft, fraud (e.g. doorstep scammers, scamming by post, over the phone, online or through a combination of these methods), pressure to hand or sign over property or money, misuse of property or welfare benefits, stopping someone getting their money or possessions, etc. When considering whether financial harm is occurring, it is helpful to consider a person's past behaviours and views as this may offer insight to their current behaviours, and highlight changes. Not all people subject to financial harm will be regarded as adults at risk, but the Act can be used to protect those people who are so regarded. In such cases, the potential for coercive control should be considered by practitioners.
In cases where there may be a misuse of proxy powers (Power of Attorney or Financial Guardianship), in addition to any immediate matters that they may be addressing, practitioners should be alert to the need to refer matters with a financial element to the Office of the Public Guardian (Scotland) - (information and resources) ("OPG") for investigation. The OPG should be notified even if harm by the proxy was unintentional, and the risk was mitigated through actions taken by the proxy and/or via adult protection processes or intervention. This expectation applies to cases of financial guardianship and intervention, due to the OPG's supervisory role over financial guardians and interveners.
If an alleged harmer has financial decision-making powers for more than one person, consideration should be given to possible financial harm risks to others. This could be in the alleged harmer's role as attorney, guardian, intervener, Department of Work and Pensions appointee, or withdrawer as per the Access to Funds scheme within the Adults with Incapacity (Scotland) Act 2000.
Many Adult Protection Committees have instituted Financial Harm sub groups and developed local Financial Harm Strategies with the strong support and assistance of the police, local Trading Standards officers, and other partners including third sector organisations and/or financial institutions.
The definition of an adult at risk includes people aged 16 years and over with disabilities, mental disorders, illness, or physical or mental infirmity and who are at risk of harm from themselves or others. Adult Protection practitioners should pay particular attention to the needs and risks experienced by young people in transition from youth to adulthood, who are more vulnerable to harm than others. As other legislation and provisions exist which include persons up to 18 years (and sometimes up to age 26 years or even beyond), support under these other provisions may be more appropriate for some young persons. The responsibilities of the council and other agencies for persons aged 16 -18 years will extend beyond adult protection legislation. Situations may arise, particularly for 16 and 17 year old people, where there are legitimate interests and engagement from services for both children and adults. Where a young person under 18 is at risk of harm, The National Guidance for Child Protection in Scotland (2021) is relevant for reference, alongside local procedures for sharing information across children's and adult services. Children also have rights under the United Nations Convention on the Rights of the Child (UNCRC). Additional information as relates to children's rights and the UNCRC in Scotland can be found in the UNCRC advice and guidance information pages.
Young people may already be receiving services from a range of children's services, or as looked after children. This is not to say that they will or will not become adults at risk in terms of the Act simply because they have reached a particular age. Each case will need to be considered individually.
Adult Protection Committees, in conjunction with Child Protection Committees, and similar partnerships or authorities, should ensure that young people who are considered at risk of harm are identified at the earliest possible stage and that appropriate support and protection is put in place during and after the transition to adult services. There will need to be robust systems in place for the sharing of information and any necessary transfer of responsibilities between agencies and services.
Local partnerships may wish to develop guidance for staff in relation to transitions between children and adult services where there are protection issues to be considered, which focuses upon the child's needs in relation to their transition to adulthood as opposed to their transition between services.
Local partnerships should also ensure that practitioners are alert to all forms of harm when dealing with particular cases. An adult may be deemed at risk of harm and may also be placing their children at risk of harm. Children may live in homes where there is an adult at risk of harm. When making inquiries as a result of either adult or child protection referrals, consideration should also be given to the potential vulnerability of other members of the household.
Guidance and further information on transitions - supporting disabled children, young people and their families, and the relevant legislation assisting with planning good transitions for young people with additional support needs forms a helpful guide.
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