Council Officers must take into account the principles of the Act and records should be accessed and information shared only where disclosure would provide benefit to the adult and can only be accessed using Section 10.

Where possible and practicable the adult’s consent should be obtained.  This may not be possible where the:

  • adult lacks mental capacity
  • person acting as proxy lacks capacity, is unavailable or unwilling to give consent; or
  • situation is urgent and obtaining consent would cause undue delay
  • consent would put someone at serious risk of harm
  • purpose of disclosure would be undermined e.g. preventing or detecting of a crime

If you are unable to access records through the consent of the adult then Section 10 gives authorised Council Officers a statutory right to seek and obtain records including medical records from any source including other local authorities/councils and council departments, NHS, public, voluntary, private, commercial during the time of a visit to the person holding the records or at any other time.  The Council Officer must provide evidence of their identity and documentary evidence that they are authorised to access records. The Council Officer can inspect the records or arrange for any other appropriate person to inspect records e.g. someone with financial expertise.  In the case of health records only a registered health professional e.g. a doctor, nurse, midwife can be given the authority to inspect records or copies of records. The appropriate information from the health records can then be shared with the Council Officer by the health professional.

Good practice would be for the council to nominate persons of a suitable seniority and have procedures, agreed with relevant bodies which hold records, regarding accessing and proper disposal of records. This decision should be made in discussion with the agency responsible for keeping the records.

If a request for information is made at a time other than during a visit, it must be made in writing; electronic requests are acceptable as long as they can be used for subsequent reference.

Usually, only the relevant parts of a record should be copied for access by the Council Officer and the use of original records is discouraged. Copy records should be treated with the same degree of confidentiality as the original records.

Section 49 provides that it is an offence for a person to fail to comply with a requirement to provide information under Section 10, unless that person has a reasonable excuse for failing to do so.

Councils should make reasonable efforts to resolve disagreements when record holders refuse to disclose them. Informal or independent conciliation might be considered, depending on the circumstances and reasons given for refusal.

For additional details on access to records please refer to:-

Adult Support and Protection (Scotland) Act 2007 Part 1 - Code of Practice April 2022 (Chapter 10) – click here

Agreed section 10 template for use with financial institutions can be obtained from the South Lanarkshire Intranet ('Request for Information from Financial Institutions' form).