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 5: The information gathering process
This chapter covers Section 4 of the Act, which places a duty on councils to make inquiries about an adult at risk's well-being, property or financial affairs where the council knows or believes that it may need to intervene to protect the adult's wellbeing, property or financial affairs. Good practice would ensure that a council officer is involved in overseeing or supervising all activity relating to the Act.
The Act does not formalise a distinction between inquiries and investigations. Rather, an inquiry is the overarching process within which the investigatory powers set out in the Act (for instance the examination of records under section 10 of the Act) may be utilised to enable the council to fulfil its obligation to conduct inquiries. Initial information gathering may determine whether further action is required under ASP processes. If the determination is that the adult does not meet the 3-point criteria and/or that additional action under ASP is not required, inquiries would cease (with the caveat that other support or intervention activity may still be required, including onward referrals and involvement of services new or existent to the adult ). All decision making and reasoning should be recorded. Initial information gathering may conclude that the adult meets the Act's three-point criteria and that intervention will be required to safeguard that individual under ASP processes. Further exploration, including risk assessment, will be needed (utilising investigatory powers e.g. use of Sections 7-10 of the Act) to determine the nature of the intervention(s) and safeguarding activity to be progressed. Investigatory powers may also be required to determine whether the adult is at risk, prior to determination of the interventions required. Investigative activity seeks to elicit more detailed, in depth information to contribute to decision making, risk assessment, and intervention planning without the use of Sections 7-10 of the Act.
Thus, where ASP intervention is, or may be, required to safeguard an adult at risk of harm after initial inquiries (information gathering), the exploration may need to utilise more investigative processes, some of which are defined by powers in the Act .
A council's knowledge or belief that an adult may be at risk of harm, and which then triggers their duty under to inquire under section 4 of the Act, may arise from a referral. Any referral suggesting that an adult may be at risk of harm, including anonymous referrals, should be considered without assuming that harm has, or has not, occurred. All referrals warrant a carefully considered and measured response, and should be acted upon as a source of information that may or may not be presented as evidence at a later stage.
A referral may be made to a council in a number of ways, but most usually will be either:
- by a referrer who uses an ASP notification process or referral form, or otherwise specifies that they are referring an adult they think may be in need of support or protection under the Act; or
- by a referrer who is raising a more general concern, which is then escalated on receipt to be treated under adult support and protection procedures.
The adult's consent is not required for a referral to be made.
Councils should publish information that provides details of how an adult protection referral can be made, and this will vary from area to area. They should be flexible in how they deal with referrals. For example it should not be necessary for referrals from members of the public to be submitted in writing. Whist this will usually be the expectation from other agencies, it should not be an absolute requirement. Equally, there will be circumstances where it would be appropriate for a referral to be submitted by phone, and to be then converted into a written referral by the officer of the council taking the referral.
Staff and office-holders, in any public body or agency, who may be a first point of contact with the public should be made aware of the main provisions of the Act and must make appropriate referrals to the relevant council social work services, and in some cases the police, in line with local arrangements as detailed in the local adult protection guidelines. Similarly, councils must ensure that staff who will be receiving referrals from the public and other sources are aware of the main provisions of the Act in order that they can process referrals appropriately for further action.
Welfare concerns may now be submitted to councils. While these submissions were originally only from Police Scotland, many partnerships now also accept welfare concerns from a range of other agencies including the Scottish Fire & Rescue Service, the NHS, and provider organisations. These arise where the police or others are aware of a person about whom they have concerns, but who they think will not fall within the provisions of the Act. Welfare concern submissions can be a valuable way to share information and can contribute to chronology and risk assessment development.
All welfare concerns should be screened and a decision made about further action. Welfare concerns can be escalated to be dealt with as adult support and protection, if appropriate. Where a determination is made that the referral relates to a person that the council knows or believes to be an adult at risk then an inquiry should be initiated under Section 4 of the Act.
In cases where the referral relates to a person under 18 years of age, child protection processes may be appropriate. Welfare concerns allow for review and update to chronologies; and review of previous contacts, allowing practitioners to track changes, look at patterns and undertake contextual analysis.
Welfare concerns may be dealt with as per the Social Work (Scotland) Act 1968; as noted in Chapter 2, they may trigger involvement of other agencies and/or the use of other legislation.
A council may be assisted in its duty to inquire through various sources, for example statutory bodies and independent and third sector providers.
Where inquiries under Section 4 have indicated that a criminal offence may have been committed against the adult, this should be reported to the police at the earliest opportunity. The role of the police in investigating crime should not be compromised. Particularly important is ensuring that evidence is not destroyed or contaminated before the police arrive at the scene. This does not remove the responsibility on the council to take any immediate action to protect the adult at risk in such cases but any proposed action should be taken in consultation with the police.
The adult should be kept fully informed at every stage of the process in a manner or format which best suits their needs. Any reason why this does not happen should be recorded.
Inquiries under Section 4 of the Act will be carried out by the council's social work service and should follow local adult support and protection procedures. An inquiry is used to gather information to determine if the person meets the three-point criteria and if any action is required to intervene. Inquiries may be triggered by an ASP notification process or referral form, or a referrer who otherwise specifies that they are referring an adult they think may be in need of support or protection under the Act.
The council should consult and work in partnership with other agencies and conduct inquiries to establish where there is a need for further investigation and intervention. Other professionals, such as the police, the Care Inspectorate, third or independent sector care providers or health professionals may be asked to assist.
It is best practice that the adult who is subject to the inquiry should be informed that they are subject to an ASP inquiry and that their views will be sought. It is recommended that these initial conversations – in any format - are undertaken by a Council Officer.
An inquiry does not need to be (but can be) undertaken by a council officer. Only when specific actions need to be taken is there a requirement for a council officer; these actions relate to when there is a need for a visit and direct contact with the adult for interview or medical examination, or for the examination of records. Good practice would ensure that a council officer is involved in overseeing or supervising all activity relating to the Act.
An inquiry, insofar as it does not relate to any of these actions, will not need to be undertaken by a council officer, and can include the collation and consideration of relevant material, including consideration of previous records relating to the individual, and seeking the views of other agencies and professionals.
For some people, this process will allow a determination to be made as to whether or not the adult is at risk as defined by the Act. If it is determined that the adult is at risk it is likely that further adult support and protection activity requires to be undertaken by a council officer, including visits to and interviews with the adult at risk of harm.
If desktop inquiries do not provide sufficient information to determine whether or not the adult is at risk, then further steps should be taken to allow for such a determination to be made. If this involves a visit and direct contact with the adult for interview or medical examination, or for the examination of records, the Act requires that a council officer must be involved.
If the risk of harm is thought to arise from a carer, and particularly an unpaid carer, the inquiry should also try to gain a picture of the carer's situation. Workers should be aware that unpaid carers may also experience disabilities or ill health which may impact on their caring role. It is well evidenced that caring, particularly without appropriate support, can have a significant impact on carers' health, wellbeing and quality of life. It will therefore be important to recognise and acknowledge these strains on the carer and explore what support could be provided to them or to the adult which may alleviate these.
Similarly, the possibility that a Guardian or similar proxy might present some form of risk will need to be considered. This may bring additional complexity, particularly in relation to consent and undue pressure.
The Council should endeavour to inform referring individuals or agencies of the outcome of the inquiry, though this may vary by local arrangement for some referral sources, including Police Scotland, who may not be contacted following all referrals. This will be at a level of detail appropriate to the circumstances, and consistent with the need to maintain confidentiality in relation to the adult. This will also be influenced by the level of involvement of the referrer in the inquiry, and the interest they have in the outcome of the inquiry in terms of their responsibilities towards the individual. For example, should a member of the public ask for the outcome regarding a referral they had made, they would not be told any specific details that compromised confidentiality without the adult's consent.
It is best practice if, where an inquiry is commenced and the alleged harmer has Power of Attorney or is a Financial Guardian, that the Office of the Public Guardian is notified both of a potential issue and of the outcome of the inquiry.
Inter-agency Referral Discussions
Some areas in Scotland have procedures that involve Inter-agency Referral Discussions (sometimes also called Initial Referral Discussions). An IRD is a professional discussion held with relevant representatives from social work, health, police and any other agency with knowledge of the adult at risk of harm; IRD processes, including criteria for convening them, vary. The sharing of information and planning of approaches can be conducted by phone, electronically, or in person. IRDs provide a forum for inter-agency discussion and decision-making about the next steps in protecting an individual. As such, they will broadly address the same matters as outlined above in the initial stage of an inquiry but build in an expectation of inter-agency engagement and discussion to the process. It is for local partnerships to decide if they include IRDs in their processes.
It should be noted that, in the case of 16-17 year olds who may be considered as children and therefore treated according to child protection processes, the range of consideration within an IRD for a 16-17 year old who may be at risk of significant harm may be broader and less optional to those indicated above. More information is available in the Child Protection guidance.
Where an adult at risk declines to participate
An adult may appear to meet the criteria of an adult at risk under the terms of the Act, but may indicate that they do not want support and/or protection. This can mean that, in effect, the adult decides not to co-operate with inquiries or other actions being undertaken.
Such a decision not to co-operate does not absolve the council and its partners of responsibilities to make inquiries about the adult's circumstances and the degree of risk. Also, any inquiries should consider the adult's capacity to understand the risks they are exposed to and the possible consequences of not engaging with inquiries, risk assessment, or protective intervention. Practitioners should retain a trauma informed approach when considering reasons for an adult not engaging and remain alert to the possibility that undue pressure might have contributed to a decision to refuse co-operation.
Even if there are no concerns in relation to capacity or undue pressure, the adult's refusal to co-operate in an adult protection inquiry should not automatically signal the end of any inquiry, assessment or intervention. Whilst the adult has a right not to engage in any such process, the council and its partners should still work together to offer any advice, assistance and support to help manage any identified significant risks. Any assistance should be proportionate to the risk identified and any need to support carers' needs should be considered.
Where no further adult support and protection action is required
If it is determined that the adult does not meet the three-point criteria, this decision does not preclude considering other relevant legislation, local procedures or alternative services to respond to the individual's needs. This could include practical support, health, social work or social care support provided on a single or multi-agency basis.
The council may decide that nothing further needs to be done, either under the terms of the Act or otherwise. This conclusion would only be arrived at once inquiries have been carried out and all people with a relevant contribution have been consulted.
Where it is decided that no further action is required, the council should record this decision, the circumstances which gave rise to the inquiries, the actions taken and why they believed that action was not required under adult protection or other legislation. Good practice would assume that written consideration was given to the three elements of the three-point criteria. The record or report should then be added to the person's case file or in line with their standard procedures for recording actions on referrals.
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