Part 1 of the Act allows a Local Authority to apply to the Sheriff for a Protection Order i.e. Assessment Order, Removal Order, Banning or Temporary Banning Order. Applications for all Protection Orders will be heard before a Sheriff, unless the Sheriff decides otherwise.
Assessment Order
An application for an Assessment Order can only be made where it is necessary to establish if the person is an ‘adult at risk’ and, if so, to establish whether further action is required to protect them from harm. An Assessment Order allows a Council Officer to take the person to a specified place in order to conduct a private interview and for a health professional to conduct a medical examination in private. An Assessment Order will only be necessary where it would not be possible to carry out a private interview or medical examination within the place being visited (e.g. the person’s own residence). An Assessment Order is valid for up to seven days, however the assessment itself should be undertaken within the shortest time possible. It should be borne in mind that the assessment order does not provide the power to detain the ‘adult at risk’ in the place where they are taken to and that the adult may choose to leave at any time.
Removal Order
This order authorises a Council Officer to remove the ‘adult at risk’ to a specified place where there is a likelihood of serious harm if they are not moved. This type of order may be varied or recalled by the Sheriff where this is justified by a change in the facts or circumstances of the case. Removal Orders are effective for up to a maximum of seven days. A Removal Order does not authorise the person’s detention and they may leave the place to where they have been removed, if they so wish.
Banning Order
This order bans the subject from being in a specified place for up to six months. It can only be granted where an ‘adult at risk’ is being, or is likely to be, seriously harmed by another person and the Sheriff is satisfied that banning the subject of the order from the place will better safeguard the adult at risk’s wellbeing rather than moving the adult. The Sheriff can also grant a Temporary Banning Order pending the determination of a full Banning Order. The relevant parties may appeal against the granting of, or refusal to grant a Banning or Temporary Banning Order.
Undue Pressure
A Sheriff must not implement a Protection Order if he/she knows that the ‘adult at risk’ has refused to consent to the granting of the Protection Order. However, if the Sheriff reasonably believes the ‘adult at risk’ has been unduly pressurised to refuse consent to the granting of a Protection Order, there are no other steps the Sheriff could take (with the adult’s consent) to protect them from harm, then a Protection Order may be granted. Examples of undue pressure include:
- It appears that harm is potentially being inflicted by a person in whom the ‘adult at risk’ has confidence and trust, and that the ‘adult at risk’ would consent to the order if the other person had not influenced them.
- The ‘adult at risk’ is afraid of another person or is being threatened.
For further information please refer to:
Adult Support and Protection (Scotland) Act 2007