No formal and compulsory action should be taken before attempting the support and protection of a person with dementia on a voluntary, informal and consensual basis. This is entirely in keeping with the principle of the least restrictive approach, a principle common to all of the primary Acts. Local authorities and partner agencies need to apply voluntary and non-compulsory support and protection when supporting people, including people at risk, and there is often a mesh of response to risk between formal and informal provisions. Using legislation, whether informal or formal provisions, involves meeting a range of respective conditions or crossing critical thresholds to access powers.
For example:
The term 'abuse' is not used in the 2007 Act. The term used is 'harm'. This term includes all harmful conduct, including neglect and other failures to act as well as conduct which causes physical or psychological harm, unlawful conduct which appropriates or adversely affects property, rights of interests, and conduct which causes self-harm.
Medical assessment is required to confirm the formal provisions of the 2003 and the 2000 Act, but not so the 2007 Act, which requires the local authority to confirm an 'adult at risk'.
A practitioner or agency may access:
Having access to either or all of the Acts not only allows access to the services and provisions within the Acts, but also to the formal measures and legal rights in each of them.
Access to formal powers requires access conditions to be confirmed, e.g. under the 2003 Act (s.36) Emergency Detention Certificate, the medical practitioner believes it likely that:
An adult at risk with mental disorder may need support and protection under the 2003 or 2000 Acts, but may not be viewed an 'adult at risk' under the 2007 Act. For example, a mentally disordered adult may be at risk from others, but able to safeguard his/her own well-being, thereby falling outwith the terms of the 2007 Act, but potentially falling within the terms of the 2003 Act. In addition, an adult with impaired capacity because of mental disorder may not be at risk of harm as defined by the 2007 Act, but may need support and protection under the 2000 Act. Therefore, a selective use of the Acts based on relevant criteria is necessary to ensure correct access to the legislative framework that bests supports and protects the adult.
The principles contained in all of the Acts are the guiding lights of their application, emphasising the primary principle of non-compulsory care and treatment wherever possible in responding to risk. Thinking through the principles is a legal requirement and compulsory powers may be challenged if this stage has not been addressed. Practically the principles support, protect and inform the use of the statutory provisions; having critical significance in (a) the determination of statutory powers and orders, (b) the protection of rights of persons subject to powers, and (c) the supervision and monitoring of the exercise of powers by private proxies or practitioners. Notably, there are principles common to each of the Acts, which include benefit, the least restrictive option/approach, and the person's participation. Each Act, however, has its own set of distinctive principles that guide and underpin its use. Examine the Acts to ensure you are familiar with the principles.
Sometimes people will misuse the powers they have been granted however, as indicated in the Mr and Mrs D Inquiry (MWC 2012), the Commission indicated the relevant duties of the local authority under the Act (which were or might have been applied in the case to protect these adults). They were to:
Refer to your Acts and relevant MWC Inquiries to assist deliberation.
The 2003 Act was implemented with Inclusion in Mind which is a Scottish Government policy to promote involvement, participation and control for all who might fall within its remit. It sought to improve the quality of life of those affected by mental disorder and espouses, in its principles and philosophy, a determination not only to offer new and innovative care and treatment options, but also to promote the mental health and wellbeing and social development of people affected by mental disorder. The ambition is to reach every aspect of life that promotes wellbeing rather than just the elimination of symptoms. It sought to move away from segregated services, strengthening inclusive opportunities, and promoting access to universal services rather than just specialist services. This demonstrates a less formal approach, where services should be provided as per right rather than provided only in a formal context.
The 2007 Act consolidates the pursuit of voluntary support and protection wherever possible and where consent of the adult is required. There are a couple of exceptions i.e. where there is undue pressure or where the adult lacks capacity to give consent. The Act imposes a duty on councils to have regard to the provision of appropriate services, including independent advocacy services, where the council considers it needs to intervene to protect an adult at risk of harm.
In the 2007 Act, it is envisaged that the provision of 'appropriate services' in the majority of cases will be the primary means to support and protect adults at risk, including those with mental disorder, rather than pursuing formal protection powers under the Act; again an informal approach in the context of legislative duties. The provision of an independent advocate is a valuable way of empowering the adult and helping him/her access the information needed to make choices about services available, to make views known, and to take independent steps to remove themselves from risk of harm.
Other services are not defined in the Act, but consideration should be given to practical and personal support provided by social work, health, other public, independent and third sectors. This includes housing, independent living services, financial and benefits advice, occupational therapy, counselling and support for carers.
Useful services may also include:
As has been said, non-compulsory measures should be pursued wherever possible in supporting and protecting adults at risk. Each Act has a range of non-compulsory provisions, some of which require additional authority. For example, the 2000 Act, has a range of non-compulsory provisions with which to protect adults whose capacity may be impaired because of mental disorder, i.e.
Informal assistance or intervention must be carefully planned so that the adult is provided with the right kind of support, particularly to ensure he/she feels supported and listened to, and in control of any potential process towards protective action. An assessment of need may help confirm the respective duties of the local authority, e.g. section 25 of the 2003 Act (care and support services) or section 6 of the 2007 Act (advocacy and other services).
The social worker needs to be mindful of circumstances where the provisions of the Social Work (Scot) Act 1968 Act (the 1968 Act) may be used, i.e. section13ZA, which may offer a less restrictive and less formal provision than that of welfare guardianship to provide services or to transfer an incapable adult to residential care.
In many cases, careful inclusive and person-centred care and support management, developing an adult protection plan, or using the care programme approach may act as an alternative to seeking long-term compulsory powers.
Formal provisions in the primary Acts include a range of duties and powers to protect adults at risk, which have to be set in a local procedural and collaborative context.
The 2003 Act places a duty on the local authority to inquire into the circumstances of an adult at risk (s33), e.g. where:
The 2007 Act places a duty on the council to make inquiries about a person's well-being, property or financial affairs (s4), if:
The 2000 Act places a duty on the local authority in respect of adults with impaired capacity due to mental disorder to investigate any circumstances made known to it where the personal welfare of an adult seems to be at risk (s10). The duty to inquire and to take action under the 2000 Act may be applied where the adult's personal welfare is in jeopardy or where the adult, impaired by incapacity, needs support and protection, e.g. an adult with dementia.
The adult may:
Where it is clear the person's circumstances and risks are matched by the criteria of a particular Act, e.g. the 2003 Act, the local authority, may conduct the inquiry within that Act's context. Where it is, or becomes clear by assessment or action, however, that the person's circumstances more accurately relate to the criteria of another Act, e.g. the 2007 Act, or another Act provides a more appropriate mandate to act, the local authority may progress the inquiry under that Act. It also may pursue action or provisions, or meet other duties or functions in that Act's context and framework. In essence, each Act may act as a gateway to other Acts.
Refer to your Acts to confirm respective criteria.
It is useful to apply the key terms of the respective duties to inquire in each of the Acts and thereby match these with the person's circumstances and risks. The closest match should point towards the most appropriate duty to inquire. This should be achieved, by assessment, on a collaborative inter-agency basis. Thereafter, the combined application of the Acts may be necessary to meet the range of the needs and risks arising for an adult at risk. For example, an older adult with incapacity, affected by the effects of dementia, living alone, at risk of exploitation or harm from others, with major risks to her/his welfare, who has a need for care and treatment, and there is a need to protect her/his property of finances. Here there is, potentially, a need to consider all of the primary Acts.
The 2003 Act makes further protective provision by providing warrants (s35), which may only be sought by a relevant MHO, if it is thought either
A warrant under section 35 does not authorise the removal of the adult to a place of safety, but can lead to assessment for other formal provisions under the Act, e.g. a removal order, or an emergency or short-term detention certificate.
Within the 2007 Act, a council can apply for a warrant for entry (s37) to a sheriff who may grant this where satisfied that a council officer has been or reasonably expects to be refused entry or otherwise would be unable to enter. An urgent case application for a warrant for entry (s40 (1b)) may be made to a justice of the peace if it is impracticable to make the application to the sheriff and an adult at risk is likely to be harmed if there is delay in granting the warrant.
Within the 2000 Act, there is no warrant for entry. The sheriff (under s3), however, may make a consequential order, provision or direction as he/she considers appropriate, giving such directions any person exercising functions under the Act as to the exercise of those functions.
Under the 2003 Act, an adult at risk may be removed under section 293 to a place of safety (defined in s300) for up to 7 days. This provision is sought by a MHO from a sheriff. The need for the order may stem from an inquiry process.
Where it is impracticable to apply to the sheriff, and where a delay in obtaining the removal order would be prejudicial to the safety of the person, the application may be made to a justice of the peace under section 294. It is, however, best practice to make an application to the sheriff wherever possible. The police also have power to take a person to a place of safety (s297) if found in a public place and appearing to be mentally disordered and in immediate need of care or treatment.
Within the 2007 Act, a council may make an application to a sheriff for an assessment order (s11) to take an adult at risk to a more suitable place to allow a council officer or council nominee to conduct a private interview, to help decide whether the person is an adult at risk, and/or to allow a health professional to carry out a medical examination in private. A council may also apply to the sheriff for a removal order (s14) which authorises a council officer or any council nominee to move an adult at risk to a specified place to protect him/her from harm.
In summary, when assessing and confirming the appropriateness of warrants, it is essential to consider the key terms of the respective warrants in each of the Acts and thereby match these with the person's circumstances and risks.
Refer to your Acts to confirm respective criteria.
Go to Case Study 1 and complete the relevant activity.
The 2003 Act offers emergency and short-term powers, ie:
Under the 2007 Act, an adult at risk may be removed urgently to a suitable place (s40 (1a)) following an application to a justice of the peace by a council, where it is not practicable to make an application for the order to the sheriff, and when the adult at risk is likely to be harmed if there is any delay in granting the order.
Within the 2000 Act, there is no access to emergency or short-term orders. Some authorities, however, are able to pursue and obtain welfare guardianship orders on a fast track basis, in some cases obtaining either interim or full powers to protect an adult at risk. This requires speedy access to assessments and reports, and efficient collaborative working.
Within the 2003 Act, a compulsory treatment order (s63) may be granted by the Mental Health Tribunal, initially for up to six months, to either detain the patient in hospital and give medical treatment or to impose requirements, such as having to accept medical treatment in the community.
The 2003 Act offers a flexible and long-term framework for supporting the treatment and recovery of people with schizophrenia, bipolar disorder and other serious mental illnesses. The framework is arguably less appropriate in securing long-term care arising from the effect of permanent and incapacitating conditions such as dementia or alcohol related brain damage. This is where a social worker or MHO may consider the value of the 2000 Act in accessing relatively long-term provisions.
Under the 2000 Act, an intervention order (s53) to deal with clearly defined, one-off, financial, property or personal welfare matters may be sought via the sheriff. This order, although short term, lasting only as long as it takes for the action to be taken, may however take weeks (sometimes longer) to progress through the sheriff court. This reduces its effectiveness in protecting adults in the short term or immediately when required.
Within the 2000 Act, a local authority or a private individual or solicitor acting on behalf of a person may apply to the sheriff for a guardianship order (s57) with powers over (a) property and financial affairs or (c) personal welfare, or (c) both of these. The application of a protective suite of powers may be necessary to support and protect an adult with impaired capacity who is at risk while living at home. It could provide the crucial framework to manage risk and maintain the adult's health, welfare and safety in the community.
A welfare guardianship order may be needed to protect a vulnerable adult with mental disorder with impaired capacity, where a range of actions are required. The actions may have to be sustained over a period of time, such as three to five years, or in certain cases, may be applied on an indefinite basis. This may protect adults exposed to welfare and/or financial exploitation, neglect or harm by others. The order may include particular powers, e.g. to decide where the adult should live, to receive community care services, or to decide with whom the adult should or should not consort. A social worker or MHO should be cautious about the latter power that may be sought to create a barrier between an adult at risk from a person posing risk, because the requirement is on the adult and not on the other person. In some cases, a banning order (2007 Act) may be more appropriate.
It may also be necessary to seek financial powers under a financial guardianship order to protect and secure an adult's finances and/or property, where they may be open to risk, exploitation, misappropriation, or theft. Financial guardianship is most applicable where a the individual has significant amount of money to manage.
A banning order (s19) from the 2007 Act may ban the subject of the order from being in an adult's premises (and if necessary in an area of residence) for up to six months. A range of conditions may be applied applied on the subject including a power of arrest.
Go to Case Study 2 and complete the relevant exercise(s).
When complete, compare with the range of powers on Appendix 4.
Deciding which long term community based provision is most appropriate needs an exploration of the strengths and weaknesses of each of the orders in relation to the adult, eg:
An important determinant of a successful outcome between these two long-term provisions applied in the community is the non-compliance measure of each provision. The potential of non-compliance by the adult needs to be included in risk assessment and crisis contingency planning. Non-compliance with guardianship powers may prompt the guardian to proceed through the 2000 Act (s70) towards a residential care option, whereas non-compliance of a community based CTO may prompt a RMO to consider treatment under section 112, or to move the person to hospital under section 113 or 114. There are also other formal options in the 2003 Act. Therefore, if a contingency plan suggests a care option as a backup, welfare guardianship may be indicated; whereas, if treatment in hospital may be necessary, then a CTO may be indicated; to be agreed, again, on a multidisciplinary basis.
Only when a balanced exploration of respective benefits, deficiencies and backup contingency is conducted, can practitioners comfortably put forward a legislative design that encapsulates the application of an appropriate formal provision in a practical way. Thereafter, this formal framework must be set in the context of an interagency and multidisciplinary care plan, adult protection plan or care programme, relative to the adult's needs and risk. The carers needs must also be recognised and the interagency, multidisciplinary discussions are founded on inclusive, outcomes focused discussions with the individual and carers at the beginning, during and at the end of the process.
Consider their distinctive aspects, e.g. care and treatment - support and protection.
Applying the 2003 and 2000 Acts simultaneously offers an extensive health, care and support framework for adults with mental disorders including dementia. The legislation also allows for welfare issues, property and finances to be considered.
These Acts, however, lack powers against harmers and the protective framework that is available in the 2007 Act.
The 2007 Act includes:
Where this framework is needed, social workers may need to look at the provisions of the 2007 Act, and consider adding the powers of the banning order (s19) to the powers available in a compulsory treatment order (s63: 2003 Act) and/or guardianship order (s57: 2000 Act).
The range of protective measures includes:
Employing such an extensive range of powers for an adult at risk must be balanced by the principles in the Acts, in particular the person's participation must be supported, the powers must be of benefit to the adult and must represent the least restrictive option/approach available.
In protecting an adult at risk from a harmer, it may be necessary to compare and contrast the powers of guardianship orders and other long-term orders, such as banning orders. For example, to make decisions as to which persons the adult may consort with, whether on a supervised or unsupervised basis (welfare guardianship), with those of a banning order, e.g. to ban the subject of the order from being in a specified place and a specified area, and to made subject to specified measures). In deciding this, the relative principles of each Act need to be applied and certain questions should be asked, e.g. "Is it less restrictive on the adult at risk to have the harmer banned from accessing the adult than the adult required not to consort with the harmer? What are the adult's wishes and feelings about contact with the harmer?" In addition, the non-compliance measures need to be considered, e.g. what happens if the adult consorts with the harmer; is it necessary to move the adult into a residential care home using section 70 of the 2000 Act? Is this the least restrictive option? Or is it best the harmer is arrested (presuming a power of arrest has been requested in the banning order court proceedings) and taken into custody? Again to be considered on a multi-agency basis. Offences
Under the 2003 Act, an offence may be committed (s315) where a 'relevant person' ill-treats or wilfully neglects a mentally disordered person; or (s317) where a person obstructs a person authorised under the Act, e.g. a MHO, or refuses to allow access to the mentally disordered person, etc.
The Sexual Offences (Scotland) Act 2009 repeals s311 to s315, and s319 of the 2003 Act. There are offences concerning adults with mental disorder and provisions in the Act which recognise incapacity in relation to consent. Examples are:
Under the 2007 Act, it is an offence under s49 to prevent or obstruct any person from doing anything they are authorised to do under the power of the Act and to refuse, without reasonable excuse, to comply with a request for information under s10.
Under the 2000 Act, it is an offence under s83 for any person exercising powers under the Act relating to personal welfare of an adult to ill-treat or wilfully neglect the adult.
Go to Case Study 3 and complete the relevant exercise(s).
Once complete, reflect on Section B and your role as a social worker, identifying learning and development issues for you in your particular practice setting.
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