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Chapter 1: Principles and definition of adult at risk

1. This chapter provides a description of the principles of the legislation as set out in Sections 1 and 2 of the Act and the definition of "Adults at risk" and "harm" (Sections 3 and 53 of the Act). It concludes with a short overview of offences under the Act.

Taking account of the principles of the Act

2. Sections 1 and 2 set out the general principles of the Act. They apply to any public body or office holder authorising any intervention or carrying out a function in relation to an adult. For example, they apply to any social worker, care provider or health professional intervening or performing a function under the Act.

3. This means that the following persons are not bound by the principles: the adult; the adult's nearest relative; the adult's primary carer; independent advocate; the adult's legal representative; and any guardian or attorney of the adult.

4. The Act requires the following principles to be applied when deciding which measure will be most suitable for meeting the needs of the individual. Any person or body taking a decision or action under the Act must be able to demonstrate that the principles in sections 1 and 2 have been applied.

5. The principles in Section 1 require that any intervention in an adult's affairs under the Act should:

• provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs; and
• is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult's freedom.

Principles for performing functions

6. The principles in Section 2 require that any public body or office holder performing a function under Part 1 of the Act, in considering a decision or course of action, in addition to the general principles in Section 1, must have regard to the following:

• the wishes of the adult - any public body or office holder performing a function or making a decision must have regard to the present and past wishes and feelings of the adult, where they are relevant to the exercise of the function, and in so far as they can be ascertained. Efforts must be made to assist and facilitate communication using whatever method is appropriate to the needs of the individual. For example, where the adult has an Advance Statement made under Section 275 of the Mental Health (Care and Treatment) (Scotland) Act 2003 then this should be given due consideration.
• the views of others - the views of the adult's nearest relative, primary carer, and any guardian or attorney, and any other person who has an interest in the adult's well-being or property, must be taken into account, if such views are relevant.

It is important that the adult has the choice to maintain existing family and social contacts. What the Act seeks to provide is support additional to the networks that may already be in place. Thus a person who may be an adult at risk may have neighbours or friends who have an interest in his/her well-being and are willing to give support. Every effort should be made to ensure that any action taken under the Act does not have an adverse affect on this.

• the importance of the adult participating as fully as possible - the adult should participate as fully as possible in any decisions being made. It is therefore essential that the adult is also provided with information to help that participation (in a way that is most likely to be understood by the adult). Where the adult needs help to communicate (for example, translation services or signing) then these needs should be considered. Any unmet need should be recorded.

Wherever practicable the adult should be kept fully informed at every stage of the process, for example, whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available etc.

• that the adult is not treated less favourably - there is a need to ensure that the adult is not treated, without justification, any less favourably than the way in which a person who is not an "adult at risk" would be treated in a comparable situation; and
• the adults abilities, background and characteristics - including, the adult's age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage.

7. For the purposes of these principles, making a decision not to act is still considered as taking a decision and the reasons for taking this course of action should be recorded as a matter of good practice.

Who is an adult at risk?

8. The Act refers throughout to "adult". In terms of Section 53 of the Act, "adult" means a person aged 16 or over.

Adult at risk - Section 3(1) defines "adults at risk" as adults who:

• are unable to safeguard their own well-being, property, rights or other interests;
• are at risk of harm; and
• 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.

9. 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 etc. It is important to stress that all three elements of this definition must be met. It is the whole of an adult's particular circumstances which can combine to make them more vulnerable to harm than others.

Risk of harm - Section 3(2) makes clear that an "adult" is at risk of "harm" if:

• another person's conduct is causing (or is likely to cause) the adult to be harmed, or
• the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.

10. The assessment of "harm" and the "risk of harm" are important elements under the Act. The definition of "adults at risk" requires an assessment to be made about the "risk of harm" to the individual at the outset.

11. Because any protection order under the Act represents a serious intervention in an adult's life, a sheriff must be satisfied that an adult is at risk of serious harm, rather than harm, before granting any such order.

Harm - Section 53 states harm includes all harmful conduct and, in particular includes:

• conduct which causes physical harm,
• conduct which causes psychological harm (for example by causing fear, alarm or distress),
• unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion),
• conduct which causes self-harm.

12. The definition of "harm" in the Act sets out the main broad categories of harm that are included. The list in the definition is not exhaustive and no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute 'harm' to others can be physical (including neglect), emotional, financial, sexual or a combination of these. Also, what constitutes serious harm will be different for different persons.

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