Adult Support & Protection Policy

Responsible Lead

Safeguarding lead Dr. Jamil Tarofdar

Governance or Assurance Committee

MyConsultant - Health Quality Assurance and Improvement Committee (HQAIC)

Implementation Date:

May 2022

Version Number:

1

Review Date:

April 2023

Responsible Person

Chief Executive Officer

 

Version No.1 April 2022

Adult Support and Protection Policy

CONTENTS

  1. INTRODUCTION

  2. AIM, PURPOSE AND OUTCOMES

  3. SCOPE

    1. 3.1  Who is the Policy Intended to Benefit or Affect

    2. 3.2  Who are the Stakeholders

  4. PRINCIPAL CONTENT

  5. ROLES AND RESPONSIBILITIES

  6. RESOURCE IMPLICATIONS

  7. COMMUNICATION PLAN

  8. QUALITY IMPROVEMENT – MONITORING AND REVIEW

  9. REFERENCES

 

1. INTRODUCTION

Most adults, who might be considered to be at risk of harm, manage to live their lives without experiencing harm. Often this is with the assistance of caring relatives, friends, paid carers, professional agencies or volunteers. However, some people will experience harm such as physical harm, psychological harm, sexual harm or exploitation of their finances or property. The Adult Support and Protection (Scotland) Act 2007 was introduced to maximise the protection of adults at risk of harm.

There are other relevant pieces of legislation designed to support and protect adults at risk of harm such as the: -

  • Adults with Incapacity (Scotland) Act 2000

  • Mental Health (Care and Treatment) (Scotland) Act 2015

The addition of the Adult Support and Protection (Scotland) Act 2007 now means there is a concise legal framework to facilitate further the protection of adults at risk of harm through the measures contained in Part 1 of the Act.

2. AIM, PURPOSE AND OUTCOMES

The aim of this policy is to assist in the prevention of harm occurring to adults who may be at risk, through building on good practice and a common understanding of the issues. This also provides guidance for all MyConsultant staff to improve their understanding of the following:

The roles and responsibilities of health professionals in protecting adults that may be at risk of harm.

Staffs duty to report their concerns and their duty to cooperate with any inquiries, visits, investigations.

The legal basis for intervention.
The terminology used in adult protection.
The principles of good practice in adult protection.
How to access training and further information regarding Adult Support & Protection

SCOPE
3.1 Who is the Policy intended to Benefit or Affect? All MyConsultant staff

3.2

Who are the Stakeholders?

CEO
Directors of MyConsult Ltd
Regulatory Bodies
Scottish Government

MyConsultant takes care to ensure your personal information is only accessible to authorised people. Our staff have a legal and contractual duty to keep personal health information secure and confidential.  In order to find out more about current data protection legislation and how we process your information, please visit the data policy on our website.

4. PRINCIPAL CONTENT
4.1 What does the Act do?
The Adult Support and Protection (Scotland) Act 2007:

  • provides greater protection to adults at risk of harm through powers to investigate and take action to support and protect an adult in situations where concern exists;

  • places a duty on MyConsultant to co-operate in investigating suspected or actual harm and to work in partnership to reduce the risk of harm.

  • places a duty on Councils to make inquiries and investigations to find out if further action is required to stop or prevent harm occurring.

  • introduces a range of protection orders including assessment orders, removal orders and banning orders;

  • recognizes the need for a multiagency approach and therefore provides for the establishment of local multi-agency Adult Protection Committees across Scotland

4.2 Who is at risk of harm?

The Act defines adults at risk as follows:

Adults at risk are adults, aged 16 years of age and over, 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. This is often referred to as the “3 point Criteria”.

Adult Support and Protection Policy

Application of the 3 Point Criteria

It is important to stress that all three elements of this criteria must be met. It is the whole of the adult’s particular circumstances, which can combine to make them more vulnerable to harm than others. The presence of a particular condition does not automatically mean an adult is an “adult at risk”. Someone could have a disability but be able to safeguard their well-being.

4.3 What is harm?

An adult is “at risk of harm” when:

  • Another person’s conduct is causing (or likely to cause) the adult to be harmed

  • The adult is engaging (or likely to engage in conduct that causes (or likely to cause) self- harm

  • The adult may be subject to institutional harm which can occur due to

organisational or system issues
Harm includes all harmful conduct and, in particular;

  1. (a)  Conduct which causes physical harm;

  2. (b)  Conduct which causes sexual harm

  3. (c)  Conduct which causes physical neglect

  4. (d)  Conduct which causes psychological harm (e.g. by causing fear, alarm or distress)

  5. (e)  Unlawful conduct which appropriates or adversely affects property, rights or

interests (e.g. theft, fraud, embezzlement or extortion)

  1. (f)  Conduct which causes self-harm

Examples of Harm

  • Neglect and acts of omission

  • Financial or material

  • Psychological/emotional

  • Physical

  • Sexual

  • Human trafficking

  • Forced marriage

  • Modern slavery

4.4 Principles of the Adult Support and Protection (Scotland) Act 2007

The overarching principle is that any intervention in an individual's affairs should provide benefit to the individual, and should be the least restrictive option of those that are available which will meet the purpose of the intervention.

Therefore, the following will be taken into account:

  • the wishes and feelings of the adult at risk (past and present)

  • the views of other significant individuals, identified as not being involved in the concerns raised, such as the adult's nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult's well-being or property

  • the importance of the adult taking an active part in the performance of the function under the Act

  • the provision of relevant information and support to the adult to enable them to participate  as fully as possible

  • the importance of ensuring that the adult is not treated less favorably than another adult in a comparable situation

  • the adult's abilities, background and characteristics (including their age, gender, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage)

The principles must be taken into account at all stages of any intervention and emphasise the importance of striking a balance between an adult's right to freedom of choice and the risk of harm to that person. Also recognises staff’s duty of care to escalate any adult protection concerns with the understanding that any intervention must be reasonable, necessary, proportionate and legal.

4.5 Statutory Powers and Duties Inquiries and Investigations

Councils have a statutory duty to make inquiries about a person's well-being, property or financial affairs if they know or believe that the person is an adult at risk and that they might need to intervene to take protective action.

  • Council officers have the power to carry out investigations through visits, interviews and examination of financial or other records (except health records)

  • Council officers can require health records to be produced in respect of an adult at risk. However, these records can and must only be examined by a health professional such as a doctor or nurse

  • Health professionals have the power to carry out a medical examination as part of an investigation. Being an online only service, this will not be done by Medical Practitioners in MyConsultant.

  • An adult must be advised, prior to an interview or medical examination, their right not to answer any questions / refuse to be medically examined. Individuals also have the right to object to their information being processed. However, a clinical judgment must be taken if there are overriding factors that would mean sharing/processing the data regardless of the objection. Any objection should be clearly documented within the patient record with the decision-making process noted to evidence outcome.

  • Councils have a duty to consider the importance of the provision of appropriate services to the adult, including, in particular, independent advocacy.

4.6 Duty to Report and Cooperate

The Adult Support and Protection (Scotland) Act (2007) sets out statutory duties of co- operation for certain public bodies and their office-holders

  • All Councils

  • The relevant Health Board

  • Chief Constable of police force maintained in the council's area

  • Care Inspectorate

  • Healthcare Improvement Scotland

  • Mental Welfare Commission for Scotland

  • The Public Guardian

  • Any other public body or office holder specified by the Scottish Ministers

 

These public bodies and office holders must

• Co-operate with a Council making enquiries under the Act

• Report the facts and circumstances to the local Council when they know or believe that someone is an adult at risk of harm and that action is needed to protect that adult from harm.

Where a named public body or office-holder knows or believes that a person is an adult at risk and action needs to be taken in order to protect that person from harm, then that public body or office-holder must report the facts and circumstances of the case to the council for the area where they believe the person to be located. MyConsultant staff should also be clear who they have a duty to report to within their own organisations.

The person at risk or suspected of being harmed should not be spoken to in the presence of an alleged/suspected perpetrator of harm.

If the person is in immediate danger, appears seriously injured physically/sexually, is unconscious, or is at serious risk of harm (e.g. requires urgent medical treatment and/or is subject to ongoing violence and requiring Police assistance), the appropriate emergency service should be called e.g. Police, Ambulance, or Fire and Rescue by dialing 999. The individual should be informed of the action taken where possible.

If a member of staff believes they are danger they must leave the immediate scene, contact the Police, and not return until it is safe to do so. The member of staff should inform their line manager immediately.

4.7 Offences

It is an offence to prevent or obstruct any person from doing anything they are authorised to do under the Act.

It is also an offence to refuse, without reasonable excuse, to comply with a request to provide information made under the provisions for the examination of records. This offence does not apply to the adult at risk. MyConsultant  have a legal obligation to comply with the Act and therefore do not rely on consent from the individual. However, the duty of confidentiality remains and individuals should be fully informed that their information will be shared unless there is a risk that this would jeopardise the investigation, or cause further risk of harm. Any objection to this should be recorded and a record of the decision and reason to share regardless of the objection should be noted.

Information shared should be adequate to allow the individual to do the job required, relevant to that situation and not excessive in line with current data protection legislation.

Adult Support and Protection Policy

4.8 Criminal Acts

Where it is suspected that a criminal offence may have been committed, or if there is uncertainty that something may be a criminal offence, Police should be contacted for advice / to report the incident at the earliest opportunity.
It is important that:

  • Care is taken not to disturb anything, which may be used as evidence

  • If the allegation is against a relative, friend, or carer that they are not informed of the allegation until the Police have agreed a course of action

  • If the allegation involves a member of staff it must be brought to the immediate attention of their Line Manager. The Service Manager or Senior Professional lead must be informed as it may be necessary for them to make a decision to inform the Police before discussing it with the employee in question

  • Questioning of either the alleged victim or the alleged perpetrator must not be undertaken by MyConsultant staff unless instructed by the Police

Where there is doubt if a criminal offence has been committed staff can take advice from the police on an anonymous basis.

4.9 If the Alleged / Suspected Perpetrator is also an Adult at Risk of Harm

Consideration must be given to their safety and well-being and to their needs as an adult at risk of harm.

4.10 If the Alleged / Suspected Perpetrator is a Staff Member

Where an allegation concerns the actions of a member of staff, who may also be a colleague, it is the duty of those concerned to report the matter to their line manager / service manager as well as reporting the matter to the relevant council. The information shared must be adequate to enable the matter to be investigated, relevant and not excessive.

4.11 Referrals and Initial Actions

Social Work Services are responsible for the overall coordination of Adult Support and Protection and are the central point of receiving and logging referrals.

Referrals should be made by telephone to:

Social Work Services in the area where the adult normally resides.

An entry of the events surrounding the referral should be documented in the person’s health record i.e. date and time referral was made; the name of the person in social work services who accepted the referral; name and time line manager/service manager/senior manager informed.

4.12 Consent and Capacity

It is very important to note that irrespective of a person’s ability to consent or whether they have capacity if you know or believe they are an adult at risk as defined by the Act you have a legal duty to Report.

Existing law allows information to be disclosed without consent, where such disclosure is required by law (either a court order or statute) or where such disclosure is in the public interest, although the person, about whom information is disclosed, should always be informed of the disclosure unless this is likely to jeopardise the investigation or cause further risk of harm. Where the public interest test is relied upon, then such disclosure must be proportionate to the harm it is being sought to prevent. All decisions should be documented appropriately.

Adult Support and Protection Policy

Crime detection and prosecution, as well as prevention, may provide legitimate grounds for disclosure. NHS Boards are required to ensure that their staff are aware of and can operate local procedures for sharing of information with the Police to promote the prevention and detection of crime, while respecting and safeguarding the interests of patients and the public in the confidentiality of personal health information in accordance with the principles in Sections 1 and 2 of the Act, the adult’s consent should be obtained prior to the information being obtained and the MyConsultant Data Sharing Protocol should be followed. Where the police approach health requesting information to prevent or detect a crime, they must submit a schedule 2, section 2 form, signed by a senior officer, providing a legal basis for sharing the information.

Whilst confidentiality is important, it is not an absolute right. Co-operation in sharing information is necessary to enable a local Council to undertake the required inquiries and investigations. Information should only be shared with those who need to know and only if it is relevant to the particular concern identified. The amount of information shared should be proportionate to addressing that concern. Adults who may be being harmed may be anxious about the information being shared with others and should be reassured.

4.13 Dissent and Escalating Concerns

All staff working within MyConsultant have an employee and professional responsibility to report and escalate concerns they may have about the care and well-being of adults who are unable to protect their own interest.

The referrer should receive confirmation of receipt of referral and should receive feedback regarding the outcome. Staff should contact social work if they have not received feedback regarding their referral.

If the referrer disagrees with the outcome of an ASP referral / investigation / case conference progress they should contact the CEO to discuss further.

5. ROLES AND RESPONSIBILITIES

All MyConsultant  staff have a duty and responsibility to:

Comply fully with this Policy

 Undertake relevant level of training

Ensure they know how to access this policy

  1. RESOURCE IMPLICATIONS

Will require to remind staff to study and understand this document as a condition for working in MyConsultnat.

Adult Support and Protection Policy

7. COMMUNICATION PLAN

This policy will be ratified by all MyConsultant Directors.

8. QUALITY IMPROVEMENT – Monitoring and Review

Policy will be reviewed in 2023 and then at least every 3 years

  • REFERENCES

Adult Support and Protection (Scotland) Act 2007 Code of Practice for local authorities and practitioners exercising functions under Part 1 of the Act http://www.gov.scot/Publications/2014/05/6492/0

Adult Support and Protection (Scotland) Act 2007

https://www.legislation.gov.uk/asp/2007/10/contents

Adult support and Protection (Scotland) Act 2007 Easy Read Guide

https://www.gov.scot/publications/adult-support-protection-scotland-act-2007-short- introduction-part-1-act/

Adults with Incapacity (Scotland) Act 2000

http://www.opsi.gov.uk/legislation/scotland/acts2000/en/aspen_20000004_en.pdf

Adults with Incapacity – Communication and Assessing Capacity: a guide for social work and healthcare staff
http://www.scotland.gov.uk/Resource/Doc/210958/0055759.pdf

Appropriate Adults Scheme

https://beta.gov.scot/policies/victims-and-witnesses/appropriate-adults/

Caldicott Principles

http://www.informationgovernance.scot.nhs.uk/wp- content/uploads/2016/03/CaldicottGuardianManualScotland-June2012v2.pdf

Data Protection Act 2018

http://www.legislation.gov.uk/ukpga/2018/12/contents/scotland

General Data Protection Legislation

https://www.parliament.scot/about/information-rights/data-protection/data-protection-policy

Integrated Health and Social Care Information Sharing Guidance

 

 

Appendix 1:

 

Key stages in Adult Support & Protection process where MyConsultant staff will actively assist and cooperate with both local authorities

The Adult Support Protection Process has nine key stages:

1) Raising a concern
Duty to Report - Contact duty social work & notify line manager by phone Advise adult of your actions

2) Referral process
Report using AP1 referral form submit to social work and send copy to ASP Adviser

3) Inquiry process
Duty to share information with council officer making inquiries

NO FURTHER ACTION or PROGRESS TO INVESTIGATION

4) Planning meeting
Duty to cooperate - Key MyConsultant staff will be invited to participate and contribute to the meeting

5) Investigation
Duty to cooperate - Key MyConsultant staff may be requested to act as second worker during the investigation

6) Case conference
Duty to cooperate - Invited MyConsultant staff must attend

7) Protection planning
Duty to cooperate - Invited MyConsultant staff must attend

8) Monitoring and Reviewing All MyConsultantstaff have a role to play

Closing and recording the adult protection process. Social Work Services