Main provisions of the Act
Part 1 of the Act introduces new measures to identify and protect adults at risk of harm which include:
- placing a duty on Councils to make inquiries (making use investigative powers as need be) to establish whether or not action is required to stop or prevent harm occurring;
- a requirement for specified public bodies to co-operate with local councils and each other in investigating suspected or actual harm;
- the introduction of a range of protection orders, namely assessment orders, removal orders and banning orders; and
- a legislative framework for the establishment of local multi-agency Adult Protection Committees (APCs) across Scotland.
The principles of the Act are set down in sections 1 and 2 (of the Act), and require that any interventions under the Act must provide benefit to the adult which could not reasonably be provided without intervention and must be the least restrictive option available which benefits the adult.
Adult Protection Committees
Section 42 of the Act states that:
(1) Each council must establish a committee (an "Adult Protection Committee") with the following functions-
(a) to keep under review the procedures and practices of the public bodies and office-holders to which this section applies which relate to the safeguarding of adults at risk present in the council's area (including, in particular, any such procedures and practices which involve co-operation between the council and other public bodies or office-holders to which this section applies),
(b) to give information or advice, or make proposals, to any public body and office-holder to which this section applies on the exercise of functions which relate to the safeguarding of adults at risk present in the council's area,
(c) to make, or assist in or encourage the making of, arrangements for improving the skills and knowledge of officers or employees of the public bodies and office-holders to which this section applies who have responsibilities relating to the safeguarding of adults at risk present in the council's area,
(d) any other function relating to the safeguarding of adults at risk as the Scottish Ministers may by order specify.
(2) In performing its functions, an Adult Protection Committee must have regard to the desirability of improving co-operation between each of the public bodies and office-holders to which this section applies for the purpose of assisting those bodies and office-holders to perform functions in order to safeguard adults at risk present in the council's area.
The public bodies and office-holders to which this section applies are:
(a) the council,
(b) the Care Inspectorate,
(c) Healthcare Improvement Scotland (HIS),
(d) the relevant Health Board,
(e) the chief constable's representative for the relevant area (in practice this is usually the Divisional Commander),
(f) any other public body or office-holder as the Scottish Ministers may by order specify.
It is important to note that the terms of the Act are such that it is only the public bodies referenced above that are covered by the duties of the APC in terms of reviewing procedures and practice, giving advice or making proposals, and improving skills and knowledge.
Adult Protection Committees have been statutorily assigned the lead role for overseeing cooperation and communication between agencies to promote appropriate support and protection for adults at risk of harm. Their functions are laid out in section 42 of the Act as outlined above.
The annex to this guidance provides a summary of the wider and more operational provisions of the Act.
Establishment of the committee
APCs must be established for every council area. There may be different models to deliver this and local authorities should adopt the model that is most appropriate for their area. There is nothing in the Act that prohibits an APC being established that covers more than one council area, in which case the presumption is that each authority will remain accountable for their activities in their own council area. There is also nothing in the Act that prohibits the APC functions being aligned under wider committees, for example a combined Adult and Child Protection Committee. In such circumstances the duties that follow from the Act in relation to Adult Support and Protection must be followed by the wider committee.
Membership of the committee
The council is responsible for appointing a convener (sometimes referred to as "APC chair") and section 43(6) requires that this must not be an officer or member of the council. The ASP Code of Practice suggests that it would be good practice to appoint a convener who is independent of all bodies represented on the Committee, in particular to be independent of the council, the health board and the police. Although it is not a statutory requirement, this guidance strongly endorses that good practice expectation. The section of this guidance relating to with governance covers matters to do with the appointment of conveners in more detail.
The Act states at section 43(2) that APC membership must include representatives of the public bodies outlined above, with the exception of the council and the Care Inspectorate. In practice, every APC has at least one,
usually several, council representatives. The Care Inspectorate may nominate a representative to be a member of the APC, where that person appears to have the skills and knowledge relevant to the functions of the APC. Healthcare Improvement Scotland ('HIS') now sits as an associate member of the Scottish Adult Support and Protection Independent Conveners Association ('SASPICA') but as HIS is named in Section 42 it must nominate a representative to be a Committee member.
The Care Inspectorate, the Mental Welfare Commission for Scotland and the Office of the Public Guardian may nominate a representative to attend APC meetings, but there is no requirement on them to do so. Should they make a nomination, the APC must allow that person to attend. It may be relevant for attendance at some, but not all, APC meetings.
In practice it is common for APCs to regard themselves as quorate if there is representation from the council, the NHS and Police Scotland. This is a pragmatic and appropriate position to take and is in keeping with the spirit of the legislation.
Sections 43(4) & (5) state that the council may also appoint any other such persons who appear to have skills and knowledge relevant to the functions of the committee. In practice across Scotland appointments to the committee are delegated to the APC itself, and this guidance regards this as being proportionate and appropriate. All committee members should be of sufficient seniority to represent their organisations in discussions and decisions about policy, resources and strategy.
A wide range of statutory services contribute to the protection of adults at risk. Effective adult protection can only be achieved when it is planned and delivered within the wider context of public protection and community safety. APCs should therefore consider membership that includes representatives from Child Protection services, Multi Agency Public Protection Arrangements (MAPPA), Criminal Justice and Scottish Fire & Rescue.
To create an ethos and environment of inclusion, the committee membership should seek to be diverse in perspective, experience and culture – capable of change, flexibility and improvement, and ensuring equality and equity is embedded in its processes.
Most APCs have a range of sub committees and membership of this need not be drawn from the APC itself. This gives the opportunity to engage other agencies in the work of the committee without having to be full committee members.
In this context it would be important to consider involvement and engagement with:
- services for adults, children and families;
- other council services including housing, education, consumer protection, trading standards and community safety;
- health services including GP General Practices, allied health professionals, acute and psychiatric hospitals and community health services;
- third and independent sector organisations e.g. care providers and carer groups;
- the financial sector;
- independent advocacy organisations.
The need to support and protect adults at risk extends to all settings, including where adults are within managed and registered care services, the NHS and independent hospitals, and hospices. Where harm occurs or is suspected in these settings, the Care Inspectorate or HIS have responsibilities through their regulatory functions of inspection, investigating complaints and enforcement. Their inclusion in Section 5 of the Act means that they are also bound by the duties of cooperation, as defined by Section 5. APCs will want to ensure agreement and understanding about roles and responsibilities between the Care Inspectorate, HIS and local agencies who will have their own monitoring arrangements, when there is ASP activity within registered services.
The Mental Welfare Commission for Scotland (MWC) has particular statutory responsibilities (under mental health and incapacity law) in relation to the care and treatment of people with mental disorders, which includes learning disabilities, dementia, and related conditions. Their five main areas of work include: visiting people, monitoring the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000, investigations, providing information and advice, and influencing and challenging. They are involved in monitoring practice and carrying out inquiries, including those in relation to deficiencies of care.
MWC is a named body in Section 5 of the 2007 Act and therefore has a duty to cooperate and to make referrals, as per Section 5. APCs will want to ensure that arrangements are agreed and understood about the relationship between local agencies and the MWC in adult support and protection work.
Similar understanding will need to be developed with the Office of the Public Guardian (Scotland). Issues arising across APCs nationally may be relevant for consideration by the SASPICA.
Each Committee should ensure that their discussions and decisions are fully informed by the interests and concerns of local adults at risk and their carers. This may be achieved in a variety of ways, for example:
- there may be places on the Committee reserved for representatives of adults who have received or might need adult support and protection services, and their carers. Every possible means of facilitating participation (such as advocacy, pre-meetings, supporters, assistive technology and/or assistance with technology, interpreting services and the payment of travel expenses) should be considered.
- the Committee may establish regular contact with representative groups in their area, and ensure that such contact enables groups to explain their interests and concerns about adult protection as well as to give feedback on the extent to which they feel better protected by the Committees activities. It may be necessary and valuable to organise some ad hoc events where there are no established groups. Regular, carefully organised and facilitated events will ensure real exchanges of concerns and opinion.
Committees should consider inviting advocacy and carer organisations to be represented on the Committee, specifically charged with seeking out and representing the opinions of adults who may need or have needed protecting and their carers. It will be important to ensure that there is an adequate spread of interests represented, and that there is an exchange of information, rather than the Committee seeking feedback on its decisions and agenda.
Whichever options are chosen, it will be important for Committees as part of their regular self-assessments to consider whether it is enabling adults at risk to participate 'as fully as possible' in the carrying out of its functions (in the spirit of the principles of the Act).
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