Adult Support and Protection(Scotland) Act 2007

Key legislation-principles and provisions

The Adult Support and Protection (Scotland) Act 2007 provides measures to identify, support and protect adults who may be at risk of harm or neglect, whether this is physical or psychological harm, neglect, sexual abuse or financial exploitation.

The fundamental overarching principle of the Act is that: “any intervention in an individual’s affairs should provide benefit to the individual and should be the least restrictive option of those that are available.”

The following guiding principles must be taken into account when any parts of the Act are put into place. These are:

  • The wishes and feelings (past and present) of the adult at risk;

  • The views of other significant individuals, such as the adult’s nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult’s well-being or property;

  • The importance of the adult taking an active part in the performance of the function under the Act

  • Providing the adult with the relevant information and support to enable them to participate as fully as possible; the importance of ensuring that the adult is not treated less favourably than another adult in a comparable situation; and

  • The adult’s abilities, background and characteristics (including their age, sex, sexual orientation, religious persuasion, philosophical belief, racial origin, ethnic group and cultural and linguistic heritage).

Connection to human rights

Which key Articles of the Convention?

Article 3 - prohibition of torture and inhuman or degrading treatment. This is understood to include a duty to act to prevent, prohibit and remedy ill treatment. Some of the types of “harm” covered by the Act correspond with types of ill treatment covered by Article 3.

Article 8 - right to respect for private and family life, home and correspondence. This includes the right to free and informed consent to any intervention in one’s affairs and to physical and mental integrity – including forms of harm covered by the Act which do not reach the threshold of Article 3 - ill-treatment. Any interference with this right must be according to the law, in pursuit of a legitimate aim (such as the protection of the health of an adult at risk of harm) and be the least restrictive intervention necessary to achieve the aim, and must therefore be proportionate.

Article 1 Protocol 1- the right to peaceful enjoyment of possessions. Any interference in the financial affairs of an adult must pass the tests of legality, necessity and proportionality.

Which underlying principles?

The principle of participation in particular is reflected in that decisions being made under the Act require the adult to receive the relevant information and support to enable them to participate as fully as possible.

The principle of proportionality outlined above in relation to Article 8 corresponds with the overarching principle of the Act which says that “any intervention in an individual’s affairs should provide benefit to the individual and should be the least restrictive option of those that are available.”