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Adult Support and Protection (Scotland) Act 2007

ENABLE Scotland’s view
Background Information
Current Issues

ENABLE Scotland’s view

People with learning disabilities should have the same rights as everyone else to make decisions about their lives. This includes decisions about where they live and whom they live with. The powers in this legislation could infringe those rights and lead to the views and opinions of people with learning disabilities being ignored. It is essential that the legislation is applied in a way that respects and recognises people with learning disabilities’ right to self determination.

Background Information

The Adult and Support and Protection (Scotland) Act 2007 1 was passed by the Scottish Parliament on 15 February 2007. It was initially called the Vulnerable Adults (Scotland) Bill but the name was changed because many people objected to being called vulnerable. The proposals originally included a new list of people unsuitable to work with certain adults. This list is now part of a different law called the Protection of Vulnerable Groups (Scotland) Act 2007 2.
As a result of the new law: -

• Local authorities have an additional duty to investigate when they think someone is being abused. They have new powers to enter someone’s house, speak to those involved, carry out assessments and in some cases take the victim to a safe place.


• Local authorities can apply for new types of court orders. These can be exercised without the consent of the individual if it is believed that the person is refusing consent because they are under “undue pressure”. The orders are: -

1. Assessment Orders – these authorise a person being removed to another place for the purposes of medical examination or interview


2. Removal Orders – these authorise a person being removed to another place when they are at significant risk of harm.


3. Banning Orders – these are basically like an interdict. They ban the alleged abuser from a particular place for a set period of time.

• Public bodies are required to share information and cooperate in the investigation of abuse. This duty covers local authorities, the Mental Welfare Commission, the Care Commission, the Public Guardian, the Police and Health Boards.


• Multi Agency Adult Protection Committees will be set up in all areas. These will include people from various agencies such as the Police, Health Board and Care Commission.

Current Issues

When a person leaves an abusive situation there will usually be an immediate and long-term need for emotional and practical support. For example, people may need services and appropriate accommodation as well as legal and financial advice. The law introduces new short-term powers so that people can be removed from situations of abuse. However, additional resources will be needed if people are to have a real choice about what happens next.

There is also a genuine concern that people will not be given accurate information about their rights. It is important that the guidance sets out that certain information must be given. For example, removal orders carry no right of detention and individuals are free to leave at any time. However, the law is misleading as states that the orders are “effective” for 7 days. This could lead to individuals believing they are detained when in fact they are not.

Local authorities must have regard to the importance of advocacy when they do anything under the law. Although this is a very vague requirement that falls short of creating a legal right to advocacy it is important that advocacy organisations are aware of the law and able to give support. It is also important that people are able to access legal advice.

The new legislation clearly creates a requirement for a large number of people to be trained. It is important that people with learning disabilities are involved in this, particularly in the area of making decisions and choices as they often face assumptions about their capacity to make decisions especially if others consider their
choices are unwise.

The law provides for an Adult Protection Committee to be set up in each area. The law states that certain organisations must be represented on each committee such as the Police, the Care Commission and Health Boards. For technical reasons it was not possible to include the voluntary sector in the law itself. However, it is likely the detailed guidance on these Committees will state that there should be such representation. It will be important to make sure individuals in each area put themselves forward for the Committees.

1 The Adult and Support and Protection (Scotland) Act 2007
Download from: http://www.opsi.gov.uk/legislation/scotland/acts2007/20070010.htm

2 Protection of Vulnerable Groups (Scotland) Act 2007
Download from: http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070014_en.pdf





Written by: Nicola Smith, ENABLE Solicitor
Approved by: ENABLE Scotland Board, 2 November 2007