Adult protection and social care

The Adult Support and Protection (Scotland) Act 2007 was introduced to ensure a legislative response was available for people and situations not covered by the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. It allows local authorities to make inquiries where they would otherwise have no power to do so.  

A Code of Practice was published alongside the Act for local authorities and practitioners which provides guidance on when and where it would normally be appropriate to use these powers. 

The Scottish Government also published its Adult Support and Protection Improvement Plan: 2019 – 2022. It is designed “to complement and strengthen local adult support and protection (ASP) improvement activity, provide assurance and identify future areas for improvement so that adults at risk of harm in Scotland are supported and protected”.

In 2021 the Scottish Government published draft updated guidance for Adult Protection Committees following several changes impacting the Adult Support & Protection (Scotland) Act 2007. A code of practice, which aims to bring guidance up to date with current relevant changes to legislation was also published for consultation. 

The Adults with Incapacity (Scotland) Act 2000 provides ways to protect and safeguard the welfare and finances of adults who lack capacity to take some or all decisions for themselves because of a mental disorder or an inability to communicate. The Act also aims to support the involvement of adults with incapacity in making decisions about their own lives as far as they are able to do so. 

Anyone authorised to make decisions or take actions on behalf of someone with impaired capacity must apply five specific principles: benefit to the person; least restrictive option; taking account of their wishes; consultation with relevant others; and encouraging the person to use existing skills as well as develop new skills. 

Under the Act a number of public bodies are involved in the regulation and supervision of those authorised to make decisions on behalf of a person with incapacity, including the Office of the Public Guardian (Scotland), the Mental Welfare Commission for Scotland, the courts and local authorities.

The Office of the Public Guardian (Scotland) has produced Frequently Asked Questions in relation to the Power of Attorney and other issues related to the Public Guardian’s powers.

The Scottish Government consulted on the proposals to reform the Adults with Incapacity legislation in 2018 and published the consultation response analysis in August 2018. This led to the establishment of three working groups to firm up policy recommendations following the analysis of the consultation. 

The Scottish Government continues to work with stakeholders on the proposals that have already been suggested and has committed to incorporating the findings of the Scottish Mental Health Law Review chaired by John Scott QC before taking forward ideas into legislation.

Information on the Mental Health Law Review is available in the Mental Health policy page.

The Scottish Government and COSLA have launched a programme for reform of the adult social care system. 

A Shared Vision for adult social care support sets out what social care support will look like in the future and is made up of statements organised into five groups:

• The way we value and understand social care support describes ourhuman rights based approach to social care. It applies to the statements in all the groups.
• The way people access support describes how people will access support.
• The way people are supported describes how people will be supported.
• Our system, processes and decision making describes how system and processes will be organised and how decision will be made.
• Our support across Scotland describes how people's experiences will be consistent across Scotland.

A Programme Framework sets out priorities and workstreams for delivery of the programme. 

The Scottish Parliament's Health and Sport Committee recently held an inquiry into social care. The Committee had initially launched its inquiry in 2019 and, after putting its work on hold during the initial stages of the COVID-19 outbreak, agreed to continue and adapt its scrutiny to include lessons learned from the pandemic.  

In February 2021, the Committee published its report on the future of social care and support in Scotland. 

The Committee:

• calls for a national conversation on the future of social care, describing the current “crisis driven, reactive” model of social care as “unsustainable” and calling for more to be done to shift the focus to a preventative model which involves local communities in future planning of services
• suggests the problems faced by the care sector have been compounded by the COVID-19 pandemic
• expresses concern over the lack of value placed on social care and social care staff, in comparison to NHS staff, and emphasises the ongoing difficulty the sector faces in attracting and retaining staff, citing a lack of training and development opportunities, alongside low pay, as key reasons for this
• highlights the “continued lack of progress” on health and social care integration
• recommends the Scottish Government seek alternative models of commissioning and procurement with the current ones described as “counter-intuitive”.

The Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill was introduced to the Scottish Parliament on 4 June 2015 by the Cabinet Secretary for Health and Wellbeing and was passed by the Scottish Parliament on 3 March 2016.

Provisions in the Act include the following measures:

• Duty of Candour – The Act includes a duty of candour on health and social care organisations. This creates a legal requirement for health and social care organisations to inform people (or their carers/families) when they have been harmed as a result of the care or treatment they have received. 
• Ill-treatment and wilful neglect – The Act establishes a new criminal offence of ill-treatment or wilful neglect which would apply to individual health and social care workers, managers and supervisors. The offence also applies to organisations.

The duty of candour is a legal requirement for health, care service and social work organisations to inform people (and their families) when they have been harmed (either physically or psychologically) as a result of the care or treatment they have received.

The Act describes the incidents which would give rise to duty of candour procedure and also states that a registered health professional must decide whether the incident resulted in a certain outcome, a list of which is also set out in the Act.

The duty of candour procedure, which covers actions to be taken by ‘responsible persons’, will be set out in regulations. However, the Bill sets out the actions the regulations may make provision about, including meeting with, apologising to and providing support to those involved, as well as providing support and training to those carrying out the procedure.

Among others, the term ‘responsible person’ covers Health Boards, local authorities or any other person (other than an individual) who provides a care service or a social work or health care service, or an an "individual who provides a care service and who employs, or has otherwise made arrangements with, other persons to assist with the provision of that service."

Ahead of the Act's implementation on 1 April 2018, the Scottish Government published guidance on the organisational duty of candour. The guidance focuses on the implementation of the new procedure for all organisations that provide health services, care services or social work services in Scotland. Following an unintended or unexpected incident, organisations are encouraged to follow the guidance in implementing the processes outlined, to help ensure consistency of approach and equity of response across organisations.

Part 3 of the Act establishes offences relating to the wilful neglect or ill-treatment of adults receiving health care or social care. There are two main offences in this part: an offence that applies to care workers, and an offence that applies to care providers.

'Care worker’ is defined as:

• an employee who provides adult health care or adult social care (as defined in the Public Services Reform (Scotland) Act 2010);
• a volunteer who provides adult health care or adult social care;
• an individual who supervises or manages employees or volunteers providing adult 30 health care or adult social care; or
• a director or similar officer of an organisation whose employees or volunteers provide adult health care or adult social care.

The offence is committed where a care worker is providing care for another person and ill-treats or wilfully neglects that person. If providing that care is only incidental to the worker‘s other activities (for example, where the worker is a cleaner) then such a person would not fall within the definition.

• Care Information Scotland
• Citizens Advice Scotland
• Mental Welfare Commission