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 4: Adult Participation
This chapter discusses the principle of ensuring that full regard is given to the wishes and feelings of the adult, and the principle of the adult participating as fully as possible in all aspects of the adult protection process. It also covers the importance of providing advocacy and other services. This chapter is relevant for all aspects of ASP activity, including an adult's participation in inquiries, investigative processes, risk assessment, case conferences, protection planning and implementation.
The adult's views and wishes are central to adult support and protection, and every effort should be made at each stage of the process to ensure that barriers to the adult's participation are minimised. Undue pressure on the adult from another party is one barrier which can occur. It is good practice to consider the best ways to check at various stages with the adult how included they feel and ensure they have the opportunity to highlight if they feel excluded at any point. All decisions must be clearly recorded and explained to the adult.
When considering an intervention under the Act, use of supported decision-making processes and principles may help determine the necessity and type of action to be taken, assisting the individual to participate in such decisions. The Mental Welfare Commission for Scotland has published guidance on supported decision making, which may be of assistance.
The adult should be provided with assistance or material appropriate to their needs to enable them to make their views and wishes known. Reasonable adjustments should be made to support the adult's needs wherever identified. The communication needs of the adult should be considered and the adult should be asked what support, if any, they wish. It may be that they wish assistance from a relative or primary carer, or would prefer someone impartial.
The offer of a professional interpreter should be made to all of those who experience language barriers. The use of family members or friends as interpreters should be avoided as there is a risk of misinterpretation; concealed or minimised information sharing; and possible exacerbation of risk. Friends and family may not have the skills to accurately interpret health, care or risk related information, are less likely to maintain impartiality, and should be given the opportunity to provide support without the added pressure of needing to interpret.
It is inappropriate to use children as interpreters. Children are not likely to have the language competency to discuss complex risk concerns. They may also experience vicarious trauma through listening to and relaying sensitive and distressing information concerning their family member. Therefore a suitable adult should always be sought.
The adult may wish a particular format for communication. This could be technical aides to support communication or information to be interpreted, translated or adapted. It could be translation for persons whose first language is not English such as British Sign Language or other interpreters. The Royal Society of Speech and Language Therapists has developed a set of principles, standards and practical guidance for ensuring that an individual is enabled to understand and communicate effectively. . The Disability Unit of the Cabinet Office has guidance around accessible communication formats , whilst Inclusion Scotland offer further advice in their Making Communication Accessible Guide. Consideration should be given to the training and support needs of staff in order for the adult to make meaningful use of any communication aids provided.
Other aids and adaptations that can support and enable communication include lip speakers, Makaton, and deaf-blind communicators. Where possible, materials should also be available in alternative formats such as large print, audio tape, Braille and computer software. Consideration should also be given to the surrounding environment. This can greatly affect communication due to, for example, noise levels, provision of loop systems or lighting. These are just some examples of areas that should be taken into consideration.
In addition to making generic materials accessible to the adult, individualised documents and/or reports should also be made available in an accessible format. For example, consideration should be given to how risk assessments, support and protection plans, minutes and decisions from meetings, or other written materials can be made accessible for the person concerned.
If the fullest possible participation of the adult at risk in decision-making, supporting, and protecting them from harm is to be achieved, they should be included in ways that take into account their needs and ability to participate. Good practice in adult protection is no different from good practice in other areas such as care and treatment of mental illness, self-directed support, or commissioning of services to meet assessed individual needs.
Any unmet need relating to the individual's participation should be clearly recorded.
Independent advocacy services
Section 6 of the Act places a duty on the council, if it considers that it needs to intervene to protect an adult at risk of harm, after making inquiries under Section 4 of the Act, to have "regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services) to the adult concerned". Independent advocacy aims to ensure that a person's voice is listened to and their views taken into account; to support access to information; and to assist people to navigate systems.
The adult should be asked if they know about and would like advocacy support. Where advocacy is offered, declined by the adult, or not deemed appropriate, the reasons for this should be clearly recorded, as should the reasons for not referring to any other 'appropriate' services. This decision should be re-visited and recorded at each formal review e.g. multi-agency meetings, reviews or professional meetings.
The definition and principles of independent advocacy services used in the Act is that given in Section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003 , which states that:
'Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of –
- each local authority, in collaboration with the (or each) relevant Health
- each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services'.
The dutyin mental health legislation to provide access to independent advocacy therefore only extends to persons with a mental disorder. The duty in section 5 of the Act, as above, is to have regard to the importance of independent advocacy services. However, the section 2 principles need to also be considered. In particular, the principles to have regard to the ascertainable wishes and feelings of the adult, to enable the adult's participation, and of providing such information and support as is necessary to enable them to participate. It may be that independent advocacy in a particular case will be appropriate even where a person does not have a mental disorder as defined in the 2003 Act.
In sections 259 (4) and (5) of the 2003 Act it states (and these expectations should apply to all advocacy services in relation to adults at risk of harm irrespective of whether they fall within the ambit of the 2003 Act) that :
- "advocacy services" are services of support and representation made available for the purpose of enabling the person to whom they are available to have as much control of, or capacity to influence, that person's care and welfare as is, in the circumstances, appropriate;
- advocacy services are "independent" if they are to be provided by a person who is not mentioned in the list at Section 259(5) which includes, among other persons, a local authority; a Health Board; a National Health Service trust; a member of (i) the local authority; (ii) the Health Board; (iii) a National Health Service trust, in the area of which the person to whom those services are made available is to be provided with them;
- The advocacy service is also only "independent" if it is not a person who is contracted to give medical treatment, or care or other services to the adult.
For further information about advocacy, please refer to the Scottish Independent Advocacy alliance .
Under Section 41(6) of the Act, the sheriff has discretion to appoint a person to safeguard the interests of the affected adult at risk in any proceedings relating to an application for an assessment order, a removal order, a banning order, a temporary banning order, or the variation or recall of any such order under the Act. Such an appointment may be made on such terms as the sheriff thinks fit.
Appropriate Adults provide communication support to vulnerable victims, witnesses, suspects and accused persons, aged 16 and over, during police investigations. The role of the Appropriate Adult is to facilitate communication between a person with mental disorder and the police and, as far as is possible, ensure understanding by the individual. It is recognised that not all individuals who may require Appropriate Adult support will have a formal diagnosis, nor may they be able or willing to share any diagnosis with the police. In circumstances where a diagnosis cannot be confirmed but it is clear that the individual cannot understand procedures or communicate effectively with the police, and that the cause of such difficulty is not solely because of substance use/intoxication, then Appropriate Adult support should be requested.
Section 42 of the Criminal Justice (Scotland) Act 2016 places a duty on the police to ensure this type of support is provided during custody procedures, while the Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019 place a duty on local authorities to provide an Appropriate Adult when such a request is made by the police. The duty on the local authorities extends to requests made for support in relation to victims and witnesses, as well as to those made for support for suspects and accused persons. In addition to custody processes, Appropriate Adults can be used in any number of police procedures, including interviews, the taking of witness statements, identification procedures, medical examinations and property searches.
Appropriate Adults are selected for their experience of working with adults who have a mental disorder and/or experience of assisting vulnerable adults with communication. The Appropriate Adult is not providing advocacy or speaking on behalf of a person with a mental disorder, but is an independent third party checking that effective communication is taking place and that the person being interviewed is not disadvantaged in any way due to their mental disorder. The appropriate adult's role is to provide support to help the individual to understand what is happening, and facilitate effective communication between the vulnerable person and the police.
If an Appropriate Adult has any concerns relating to the general wellbeing of the person they are supporting, separate from the police investigation and police procedures, they should make the concerns known to both the police and the Appropriate Adult Service Coordinator (or equivalent). Every local authority must ensure that persons involved in Appropriate Adult services have an understanding of how the 2007 Act and its Code of Practice relate to the Appropriate Adult function.
Further information is provided for local authorities can be obtained on the role and remit of appropriate adults.
Meetings of agencies with the adult at risk
There should be a basic assumption that the adult will be involved in all meetings that are about them. There will be times when this will not be appropriate but, in all cases, reasons should be recorded in the minute of the meetings explaining why the adult was not present.
The adult at risk should (unless it is considered not to be of benefit to them) be invited to and involved in setting up of meetings to consider risks to which they are exposed and how best they can be protected or enabled to make informed decisions concerning potential risks. If they are not invited, the reason should be recorded and communicated to the person in a format they can understand, along with a method for the person to appeal the decision provided.
It should be the responsibility of the relevant adult protection practitioners and of those chairing case conferences to ensure that the adult has been invited to meetings and that they are involved to maximise the likelihood of their attendance. This can include the provision of information, by asking them about the date, time and venue, discussing the number of other attendees, video conference options, and travel arrangements. Pre-meetings with the adult (and advocate, if appropriate) to fully explain the purpose of the meeting will assist in this, and can cover the agenda, discuss concerns regarding confidentiality or any other matters, consider language and communication needs, advocacy or other representation. The main aim is toassist the adult to understandthe purpose of the meeting, their role within it and their participation.
There will be occasions and circumstances where it is not of benefit to the adult to attend meetings, or they may not wish to attend, due to illness or incapacity. It may be that such a meeting would be intimidating or distressing for an already distressed or traumatised adult. Support and information should be offered to the adult and, as appropriate, their carer or family, to assist with the options.
The adult also has the right to refuse to attend. It is important that the adult does not feel pressurised, however, and the possibility of undue influence affecting the adult's hesitancy to participate should be considered. In all cases where the adult is not attending, the views and preferences of the adult should be sought and recorded in advance of the meeting, and another individual should represent those views on their behalf, such as an advocacy worker or other designated person. The reason for the adult not being present needs to be recorded as part of the minute of the meeting, and alternative methods identified for explaining fully to the adult what options were considered, what decisions were taken, and why.
Local procedures should stipulate that the allocated adult support practitioner should offer to visit the adult (and carer if appropriate) after any meeting to explain the discussions and decisions, and to ascertain whether any issues remain unaddressed or new issues have arisen.
Section 2(c) of the Act outlines the importance of having regard to the views of the adult's nearest relative, primary carer and any guardian or attorney, and any other person known to have an interest in the adult's wellbeing or property. The steps described above will help to meet this standard.
However, it will always be important to distinguish between the needs and perspectives of each person. There may be conflict between the needs of the adult and the carer due to differing perspectives and needs which will both require to be taken into account by workers throughout the adult support and protection process.
It may be that someone in a caring role or a guardian may cause harm either intentionally or unintentionally, and they might themselves also be at risk of harm. There can be significant complexity in a relationship, creating the potential for both parties to be both victim and harmer at different times.
In such situations information and assessments, for both the carer and adult at risk of harm, will need to be carefully considered. Some carers may have needs for support in communication and/or may benefit from independent advocacy support which must be independent of any advocacy worker for the adult.
Caring can have a significant impact on a carer's health and wellbeing. It may be that the adult's carer requires support with their caring responsibilities. The Carers (Scotland) Act 2016 , and associated guidance, provides information on the rights of carers to an adult carer support plan (or for young carers, a young carer statement) and associated matters.
Audit of adult participation
Adult Protection Committees should consider regular audits of the extent to which adults are enabled to participate fully in decision making, for example monitoring the number of meetings to which adults at risk are invited but do not attend, auditing the recording of reasons for non-attendance and including questions about this issue in regular audits of the experience of being protected. The uptake of advocacy services should also be included in audits.
Any audit of adult participation should seek to ensure contributions from adults themselves including their own comments on the process and outcomes.
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