Adult Support and Protection (Scotland) Act 2007
Adult Support and Protection (Scotland) Act 2007
2007 asp 10
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 15th February 2007 and received Royal Assent on 21st March 2007
An Act of the Scottish Parliament to make provision for the purposes of protecting adults from harm; to require the establishment of committees with functions relating to the safeguarding of adults who are at risk of harm; to amend the law relating to incapable adults; to remove an individual's liability for expenses incurred by councils in performing certain functions in relation to the individual's spouse or child; to allow the Scottish Ministers to delegate their functions relating to councils' duty to pay sums for the purposes of securing community care services; to make provision entitling a council to recover expenses incurred in providing social services to persons who are not ordinarily resident in the council's area; to allow the Public Guardian to intervene in court proceedings; to amend the law relating to mentally disordered persons; and for connected purposes.
Part 1
Protection of adults at risk of harm
Introductory
1 General principle on intervention in an adult's affairs
The general principle on intervention in an adult's affairs is that a person may intervene, or authorise an intervention, only if satisfied that the intervention—
(a) will provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs, and
(b) is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult's freedom.
This section applies for the purposes of section 2 only.
2 Principles for performing Part 1 functions
A public body or office-holder performing a function under this Part in relation to an adult must, if relevant, have regard to—
(a) the general principle on intervention in an adult's affairs,
(b) the adult's ascertainable wishes and feelings (past and present),
(i) the adult's nearest relative,
(ii) any primary carer, guardian or attorney of the adult, and
(iii) any other person who has an interest in the adult's well-being or property,
which are known to the public body or office-holder,
(i) the adult participating as fully as possible in the performance of the function, and
(ii) providing the adult with such information and support as is necessary to enable the adult to so participate,
(e) the importance of ensuring that the adult is not, without justification, treated less favourably than the way in which any other adult (not being an adult at risk) might be treated in a comparable situation, and
(f) 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).
3 Adults at risk
(1) "Adults at risk" are adults who—
(a) are unable to safeguard their own well-being, property, rights or other interests,
(b) are at risk of harm, and
(c) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.
(2) An adult is at risk of harm for the purposes of subsection (1) if—
(a) another person's conduct is causing (or is likely to cause) the adult to be harmed, or
(b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.
Inquiries
4 Council's duty to make inquiries
A council must make inquiries about a person's well-being, property or financial affairs if it knows or believes—
(a) that the person is an adult at risk, and
(b) that it might need to intervene (by performing functions under this Part or otherwise) in order to protect the person's well-being, property or financial affairs.
5 Co-operation
(1) This section applies to—
(a) the Mental Welfare Commission for Scotland,
(b) the Care Commission,
(c) the Public Guardian,
(d) all councils,
(e) chief constables of police forces,
(f) the relevant Health Board, and
(g) any other public body or office-holder as the Scottish Ministers may by order specify.
(2) The public bodies and office-holders to which this section applies must, so far as consistent with the proper exercise of their functions, co-operate with—
(a) a council making inquiries under section 4, and
(b) each other,
where such co-operation is likely to enable or assist the council making those inquiries.
(3) Where a public body or office-holder to which this section applies knows or believes—
(a) that a person is an adult at risk, and
(b) that action needs to be taken (under this Part or otherwise) in order to protect that person from harm,
the public body or office-holder must report the facts and circumstances of the case to the council for the area in which it considers the person to be.
6 Duty to consider importance of providing advocacy and other services
(1) This section applies where, after making inquiries under section 4, a council considers that it needs to intervene in order to protect an adult at risk from harm.
(2) Where this section applies, the council must have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services) to the adult concerned.
(3) "Independent advocacy services" has the same meaning in subsection (2) as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).
Investigations
7 Visits
(1) A council officer may enter any place for the purpose of enabling or assisting a council conducting inquiries under section 4 to decide whether it needs to do anything (by performing functions under this Part or otherwise) in order to protect an adult at risk from harm.
(2) A right to enter any place under subsection (1) includes a right to enter any adjacent place for the same purpose.
8 Interviews
(1) A council officer, and any person accompanying the officer, may interview, in private, any adult found in a place being visited under section 7.
(2) An adult interviewed under this section is not required to answer any question (and the adult must be informed of that fact before the interview starts).
(3) The power given by subsection (1) applies regardless of whether the sheriff has granted an assessment order authorising the council officer to take the person to another place to allow an interview to be conducted.
9 Medical examinations
(1) Where—
(a) a council officer finds a person whom the officer knows or believes to be an adult at risk in a place being visited under section 7, and
(b) the officer, or any person accompanying the officer, is a health professional,
that health professional may conduct a private medical examination of the person.
(2) A person must be informed of the right to refuse to be examined before a medical examination is carried out (whether under this section or in pursuance of an assessment order).
(3) The power given by subsection (1) applies regardless of whether the sheriff has granted an assessment order authorising the council officer to take the person to another place to allow a medical examination to be conducted.
10 Examination of records etc.
(1) A council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk to give the records, or copies of them, to the officer.
(2) Such a requirement may be made during a visit or at any other time.
(3) Requirements made at such other times must be made in writing.
(4) Records given to a council officer in pursuance of such a requirement may be inspected by—
(a) the officer, and
(b) any other person whom the officer, having regard to the content of the records, considers appropriate,
for the purposes of enabling or assisting the council to decide whether it needs to do anything (by performing functions under this Part or otherwise) in order to protect an adult at risk from harm.
(5) Nothing in this section authorises a person who is not a health professional to inspect health records (other than to determine whether they are health records).
(6) A requirement under subsection (1) which is transmitted by electronic means is to be treated as being in writing if it is received in legible form and capable of being used for subsequent reference.
(7) "Health records" are records relating to an individual's physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.
Assessment orders
11 Assessment orders
(1) A council may apply to the sheriff for an order ("an assessment order") which...
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