It is not unusual for Scotland to be one step ahead of the rest of the UK when it comes to developing progressive, sometimes controversial, legislation. Earlier this year, laws were introduced by the Scottish executive that promise to give vulnerable adults more protection than their counterparts in England, Wales and Northern Ireland.
It looked likely that these new safeguards would become a flag bearer for devolution in the same way as free personal care for older people. But, some – including a number of major advocacy organisations for vulnerable groups – believe Scotland’s approach may turn out to be a model of how not to do it.
The Adult Support and Protection (Scotland) Act (ASPA) 2007 and the Protection of Vulnerable Groups Act 2007 both received royal assent in March and are due to be implemented over the next two years.
The ASPA gives local authorities new powers to enter settings where abuse of adults is suspected of taking place and remove and ban perpetrators from these places. It also creates the responsibility for local authorities to establish a statutory adult protection committee to develop strategic interagency working.
Much of the detail of how these powers will be exercised is to be included in codes of practice to be drawn up by civil servants and interest groups over the coming months. But they are already attracting critical comments. Norman Dunning, chief executive of charity Enable, says the act gives social workers the authority to use powers of intervention even if this isn’t what the suspected victim wants.
He adds: “It’s taking away a person’s citizenship rights in a discriminatory manner. Domestic violence could be taking place next door [between a non-disabled couple] but you wouldn’t be able to remove the perpetrator.
“The thing I don’t like is that this puts the focus on the disability. There seems to be confusion in people’s minds as to who has capacity and who doesn’t: if you pass the incapacity test no one should interfere with your decision making.”
Dunning is also concerned there could be confusion over the length of time someone can be placed in temporary accommodation. The maximum period is seven days but Dunning says the codes of practice must make it clear that it can be for a shorter period.
Ultimately, he fears the law could actually make it less likely people being abused will tell the authorities “because they will be frightened of losing control”.
This view is not shared by John Alexander, adult services senior manager at Fife Council. While the decision to intervene may rest ultimately with the local authority he expects social workers to only use these powers as a last resort.
“The fact there are these new powers doesn’t necessarily mean they will be invoked. In some black and white cases it will be inevitable, but they aren’t something we’re going to rush into using.”
There are practical issues too, he explains, as sometimes a victim may rely on an alleged abuser for their care. “Rather than removing vulnerable adults or alleged perpetrators, we’re more likely to put sufficient safeguards in place to protect the person in the situation.”
There have also been suggestions that councils won’t have enough temporary accommodation to make the plans work or sufficient resources to ensure the effectiveness of adult protection committees. Again Alexander is confident this isn’t the case: “There’s always provision made for emergency situations and I don’t think it would look too different to foster care.”
However, he does believe the act will significantly change the way front-line social workers handle adult protection. “Currently they spend most of their time doing client assessments and putting together care packages,” explains Alexander. “Under the act they will be required to undertake more protection functions and case investigations.”
Dovetailing with the ASPA is the Protection of Vulnerable Groups Act (PVGA), which creates a tougher vetting and barring regime for those working with vulnerable adults and children. It was introduced as a direct result of the Soham murders and is meant to link with similar laws in England.
One of the PVGA’s key measures is that personal assistants employed by those receiving direct payments will need to obtain an enhanced disclosure check to work in Scotland.
The move has been criticised by some for undermining the independence of those deemed suitable to manage their own care and decide who provides it. They argue that some direct payment recipients don’t feel comfortable asking their PA to get checked because they are often a family member or close friend.
Others, like Sue Bott, executive director of the National Council for Independent Living, believes it is a back door way for social services to increase its control over direct payments funds.
“There are some power issues here about local authorities not always being willing to let go and fully embrace the new agenda of vulnerable people having a direct say in how their personal assistance needs are met. They don’t quite trust [direct payment recipients] to do the right thing,” Bott says.
It seems likely that under the act councils will only fund direct payments to those who use PAs that have obtained an enhanced disclosure. Ultimately, says Bott, this will mean that local authorities will have a say over who should be employed as an assistant.
But Peter Brawley, manager of the Scottish Personal Assistant Employers Network, sees mandatory disclosures as “a small price to pay”, though he admits there are concerns that the new requirements could be misused by councils.
“It mustn’t be used as a tool for preventing independent living. A care manager will need to make a judgement call over whether someone is appropriate or not for example, does a drunk and disorderly or driving conviction from 20 years ago make someone inappropriate to be a PA?”
Alexander says he understands concerns about overkill but believes the measure is a “sensible precaution” for local authorities.
“If something were to go wrong and some form of abuse took place, the first person reporters would go to for a comment would be the director of social work. Saying you didn’t check because you were respecting the rights of the individual wouldn’t be any excuse. The challenge is in knowing what is an acceptable level of risk for a person to take.”
There can be no doubt that society in general is more risk averse than ever. The same can be said for social work: Scotland’s independent review of the profession said as much recently. But does it make it right and is it a road the rest of the UK should also go down?
However, the General Social Care Council is planning to consult on whether personal assistants could be registered. If this is agreed, there is still the question of whether registration is compulsory or voluntary. Meanwhile, a decision on whether personal assistants should have a Criminal Records Bureau check is down to the government.
Action on Elder Abuse chief executive Gary Fitzgerald is certainly hopeful the Scottish moves will prompt action by Westminster.
“We’re using it very powerfully to say to the Department of Health that the Scottish government is ahead of the game. We support 99% of the Scottish acts but I’m concerned about overruling the wishes of vulnerable people. We’d like to see guidance converted into legislation by the government,” he adds.
Fitzgerald believes English ministers are beginning to warm to the idea of increasing checks on PAs, but he’s less convinced: “I’d like to protect everyone if possible but the compromise I feel comfortable with is to make sure people know about the CRB check and how to access them. But if they don’t want a PA to have one then I’d support that.”
Bott says the NCIL will be monitoring closely the impact the measures have in Scotland. “We see this as an attempt to wrest control back from the individual and it could have long-term implications for the caring relationship.
“If the GSCC goes down that route it will face some opposition,” she adds.
The coming months will reveal whether Scotland really is just one step ahead of the game, or if it has completely lost touch with the pack.This article appeared in the 1 November issue under the headline “Balanced on a tightrope”