For professionals

Doctors

If we have contacted you and issued you with an incapacity / capacity form it’s because a concern has been raised relating to one of your patients. In order to have legal authority to investigate this concern, we need to establish:

  • whether or not the patient has the capacity to manage their own property and or their, financial affairs or
  • whether they may be capable of making informed decisions and acting on those decisions to safeguard their own affairs.

The incapacity / capacity report we issue seeks your view of the patient’s capacity. More guidance and information is available in our leaflet for doctors.

If you would like further information please contact us.

Social workers

We can investigate when the property or finances belonging to the adult are at risk or need to be safeguarded and provide a referral form for local authorities to use.  However, there are times when we cannot get involved in an investigation, for example, when there are concerns of a welfare nature. The local authority and the Mental Welfare Commission have equivalent investigative powers in relation to concerns about the personal welfare of an adult being at risk. You may need to refer to your own policies for guidance on how to proceed if you have concerns about the welfare of an adult.  An ASP investigation can be conducted at the same time as our investigation.

We have a fact sheet for Social Workers which outlines more about when we can get involved and what we can do.

Which legislation applies, AWI or ASP?

We understand that each case is different and that it may be difficult at times knowing where to start or which legislation applies i.e. Adults with Incapacity (Scotland) Act 2000 (AWI Act) or the Adult Support and Protection (Scotland) 2007 Act. Your starting point would be to determine whether the adult concerned has or lacks capacity as defined in the AWI Act

If the adult is capable of making decisions, communicating decisions, understanding decisions, retaining the memory of decisions and is capable of acting on that decision to safeguard their affairs, the Public Guardian would have no locus to investigate your concerns under the AWI Act.

For adults who are capable, they may still be vulnerable and at risk. If they meet the 3 point criteria of an adult at risk as defined in the Adult Support and Protection (Scotland) Act 2007, an investigation could be carried under that Act. Where this applies you should refer your concerns to the Adult Support Protection Officer within the local authority where the adult lives. For additional guidance, refer to our investigation case studies.