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.
Adults with Incapacity (Scotland) Act 2000
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.
In September 2017, Ministers announced that a review of the scope of reform required to the Adults with Incapacity legislation would take place as part of the 2017-18 Programme for Government. It has been confirmed that Andrew Rome has been appointed to chair the review of how mental health legislation meets the needs of people with learning disabilities or autism.
A Government consultation recently took place on proposals for reform to the Adults with Incapacity (Scotland) Act 2000. The proposals relate to the following:
- Graded Guardianships
- Change of forum for Adults with Incapacity (AWI) cases
- Creation of supported decision maker role and a supported decision making scheme
- Clarification of use of powers of attorney in deprivation of liberty cases
- Creation of short term ‘placement order’
- Clarification of the interaction between aspects of the AWI legislation and Adult Support and Protection legislation.
Health (Tobacco, Nicotine etc. and Care) (Scotland) Act
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.
Duty of Candour
Introduced by the Act above, 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.
Offences of wilful neglect or ill-treatment
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.
Domestic Abuse (Scotland) Act 2018
The Domestic Abuse (Scotland) Act 2018 creates an offence with respect to the engaging by a person in a course of behaviour which is abusive towards that person's partner or ex-partner.
The new law covers not only spouses, civil partners and cohabitants but also people in intimate personal relationships who do not live together.
As well as physical abuse, the Act covers other forms of psychological abuse and coercive and controlling behaviour that could not be easily prosecuted under previously existing law.
National Missing Persons Framework for Scotland
The Scottish Government published the National Missing Persons Framework, produced in collaboration with Police Scotland, local authorities, NHS Scotland and a number of third sector organisations. The Framework sets out the roles and responsibilities of the respective agencies and outlines the Government's key national objectives to prevent people going missing but also limit the harm associated with people going missing.
The Framework includes 8 commitments under the core objectives of prevention, response, support and protection. These commitments include:
- Agencies to ensure that prevention planning takes place locally for vulnerable individuals and groups.
- Agencies to exchange proportionate information to ensure that missing people are located quickly.
- Agencies to ensure that specialist support is made available to people who have been missing and their families.
- Scottish Government to ensure that risks of harm are highlighted in all training and guidance.
The timescale for the majority of actions in the Framework is 2018.
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