I bring the meeting to order, as we move to agenda item 4.
I preface my remarks by pointing out that the fact that I am questioning the necessity for the bill in no way means that I am unconcerned about vulnerable adults or anyone else who is at risk of abuse. Despite any such perception, that is certainly not the case.
If such a case came to the attention of the police, they would act because a criminal offence would have been committed. However, the bill was introduced to create powers for local authorities to access premises, for example, and to intervene effectively in advance of, or independently of, the production of evidence that a criminal act had been committed. The aim is to enable intervention in advance of, or independently of, criminal investigations by the police, although such investigations will clearly continue in circumstances such as those that Kate Maclean described. Additional legislation is required to ensure that powers of intervention exist and that local authorities know that they exist and will use them.
In the case study, the adult
Given the reluctance of the individual to bring in the police, the police's ability to gather evidence in the case would clearly be limited without the local authority's having the right of access that is described in the bill. The purpose of the bill is to enable people to deal with circumstances in which the position under the current law is not clear.
I want to take things a stage further. There is concern that the bill will lead to fewer criminal prosecutions. It seems that action would be taken in respect of some of the case studies that you have provided, but that there would not necessarily be a criminal prosecution. Would that be an acceptable unintentional consequence of the legislation?
I do not perceive a risk that there will be fewer criminal investigations; rather, I perceive the potential to uncover more circumstances in which people are at risk or are the subject of harm which were not previously uncovered, perhaps because the individual who is suffering the abuse does not want to involve the police. The act of uncovering abuse and protecting individuals does not of itself determine whether there will be a criminal investigation—there may or may not be such an investigation, depending on the evidence that is uncovered. The bill's crucial achievement would be to uncover the abuse and—I hope—to provide protection to the adult in question.
In the case that we have been discussing, the person is disabled and uses a wheelchair, but does not seem to lack any capacity. Why would the powers that have been mentioned be appropriate in that case, but not in other cases?
I am sorry—which example are you referring to?
The one that we have been discussing.
Are you still referring to the first case study?
Yes.
Using the powers would be appropriate in any case in which an adult is at risk of abuse and is not receiving support and protection. The purpose of the bill is to provide support and protection.
So the powers could be used to support and protect any adult. If, God forbid, an ex of mine moved back in with me because I had won money on the lottery, would I be regarded as an adult who is at risk of abuse?
I do not want to go into that case in detail. As you know, the bill defines categories of persons who may be at particular risk and lists circumstances in which a person might be at particular risk. We want to find a means of identifying adults who are not covered by existing legislative provisions or on whose behalf public authorities do not think that they have a right or duty to provide assistance. That is the bill's purpose.
It is typical for domestic abuse to continue for many years, during which the woman refuses to involve the police but most people around her know perfectly well what is happening. Why should such circumstances be not covered by the bill while others will? Why is a qualitative distinction made between that situation and others? In effect, you are saying that the situation of women who are subjected to domestic abuse—this might apply to other situations, but we are discussing domestic abuse—is not serious enough to be covered by the bill, so banning and removal orders and other measures in the bill could not be brought into play over and above the woman's decision to go to the police. Other categories of adult are, however, thought to be appropriate for inclusion in the bill.
The abuse of a person in a matrimonial situation is as unacceptable as abuse of an elderly person. The bill seeks to address gaps in existing provision. A number of measures protect people who suffer domestic abuse—particularly women—in addition to common-law provisions that afford a degree of protection—
Such measures do not override a woman's decision whether to involve people. People do not say, "Okay. We've heard you say that you're not interested in being part of this, but we'll do it anyway."
In the bill we acknowledge that there are adults who have capacity but who, for one reason or another, cannot exercise a choice—
For example, because they have small children and no money.
The bill defines categories of person who might be particularly at risk. The bill's purpose is to protect adults who are at risk; the categories are not meant to be exclusive. I am conscious that concern has been expressed to the committee that the bill takes an exclusive approach and that the way in which categories of people at risk are defined might cause a risk of unreasonable distinctions being made. The Executive will be happy to reconsider the matter before stage 2. Our purpose is to protect adults who are at risk of abuse, whatever the circumstances.
If two women who live next door to each other, one of whom is in a wheelchair, both suffer domestic abuse, the woman in the wheelchair would be covered by the bill's provisions, but the woman next door would not, even though their circumstances were almost the same.
As the bill is drafted, there is a risk of that being the case, which is why I said in response to the convener that we will be happy to consider the matter before stage 2. We want to make legal provision that will afford protection to both women in the situation that Kate Maclean described, if we can design the law to achieve that intention.
It has been suggested to the committee that an unintended consequence of the bill is that it could override provisions in other legislation: for example, it might override an advance statement that was made under the Mental Health (Care and Treatment) (Scotland) Act 2003, in which a person had stipulated that they did not want to be removed from their home. In such circumstances, who would decide which legislation would apply?
The bill provides for a test to be applied before a protection order can be made, and an advance statement would have to be considered. Section 2 defines the fundamental principles that will govern the added protection measures in part 1. It makes it clear that any person
They must be "taken into account"—but they could be overridden.
That is the case, but subject to the usual legal provision of "have regard to". For example, a sheriff, in making a judgment, would have regard to the person's wishes and feelings.
Yes. If a sheriff was making an order, he would take into account the person's wishes, past and present, which would include their statement. However, that would not be the only thing that would be taken into account.
In other words, if there was clear evidence before the sheriff that the person, having made an advance statement and expressed their wish, was currently suffering abuse or severe neglect as described under the bill, the sheriff would give priority to relieving that suffering.
So that is a yes.
To what?
The person's statement could be overridden.
It could be overridden in circumstances in which the sheriff, in considering whether to make an order, had had regard to the advance statement and, on balance, his or her view was that the person's risk of suffering abuse would be increased by following the advance statement. In such circumstances, the requirement on the sheriff is to look after the best interests of the adult.
I have another question about the bill's interaction with other legislation. In the Adults with Incapacity (Scotland) Act 2000, there is no provision for urgent intervention. Under the Adult Support and Protection (Scotland) Bill, however, urgent intervention would be allowed. If an adult with incapacity needed urgent intervention, would the authorities use the bill to carry that intervention out, even though the person was covered by the provisions of the 2000 act? If that is the case, will the bill be good legislation?
The question is about the interaction between the 2000 act and the bill.
Yes.
Section 4 states:
I presume that there is a reason why there is no facility for urgent intervention under the Adults with Incapacity (Scotland) Act 2000. I was not involved in committee scrutiny of the Adults with Incapacity (Scotland) Bill, so I am not so conversant with that legislation. However, it seems a bit messy to have to use new legislation for people who are covered by existing legislation.
I was not involved in the Adults with Incapacity (Scotland) Bill either, so I apologise for that. As the minister explained, we are trying to use the bill to add another building block to the suite of available measures. Those include the provisions of the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and other legislation on protection of vulnerable groups. It should not be impossible for councils to use those provisions because of a barrier that is related to access or urgent intervention.
I will ask a question on the back of that before I ask my other question. If you discover, when you get to a person through the measures in the bill, that they have capacity such that measures under the 2000 act would not be appropriate, why would you want to override their consent? If you established that they have capacity, should not that stop their consent being overriden?
The issue arises when there is good reason to believe that a person is withholding consent under undue pressure from another person. One of the fundamental points that the bill recognises is that it is possible for a person who has capacity and is not subject to the Mental Health (Care and Treatment) (Scotland) Act 2003 to be in a position in which they are not fully free to exercise their rights and to give their consent freely. Undue pressure would have to be demonstrated to the satisfaction of a court before that action could be taken. In the context of the bill and of the protection orders for which it provides, it is important to recognise that we are talking about what is expected to be a small number of cases in which additional powers are required to protect people who are in a difficult position.
We will come back to the numbers issue shortly. Some bodies, particularly those that represent people who have disabilities and who should in theory benefit from the bill, appear to have real concerns about the bill. Why do you think that is?
I have read the evidence that you mention and have considered some of the points that have been made. I am keen to ensure that when we come—as I hope we do—to stage 2 and consider the detail of the bill, that some of the specific points that have been raised are fully taken into account.
Can we examine that a bit more closely? It brings us on to the scope of the bill. Are you acknowledging that the scope of the bill is too wide in respect of the groups that it covers?
Not necessarily—but I am acknowledging that there are issues around the definition of adults who may be at risk. I want to come back and address the issue in a way that will ensure that there is no unreasonable distinction within the general population. However, I think that the focus of the bill is not on the general population or the generality of disabled people, older people or people who are ill in one way or another, but on a small group of people who currently fall between the stools of existing legislation.
You say that, but one of the case studies that you highlight in your letter to the committee focuses on William, who is a frail older person who suffers from alcohol abuse. I could, from my social work days, list dozens of cases in which someone abuses alcohol, becomes vulnerable and is then preyed on by others who use their house as a drinking den. You are mistaken if you are seriously suggesting that there will be only one or two such cases.
Are you saying that William should be left to drink himself to death, or until his friends had spent all his money?
That is the judgment that needs to be made. If you are saying that people who self-harm and self-neglect will come within the scope of the bill, you are talking about many people—I assure you that that will represent a wide group of people. If that is what you mean, say it and we will know where we stand. The question will then be whether the committee thinks the scope of the bill should be that wide.
You have identified one particular aspect of the case study, but the case study is typical in the sense that it involves an aggregate of different circumstances that would leave a person vulnerable. In our earlier discussion on how we assess the impact of the Mental Health (Care and Treatment) (Scotland) Act 2003 on budgets, I accepted that we can make only a best estimate. Similarly on this issue, at this stage I can offer only a best estimate of the scale of the potential requirements, given the experience of those who are already developing practical expertise in the area. That may not be the full picture.
Of course we should, but the issue is how we address that. Should we take people's rights away and impose services, regardless of whether they want them?
That is an issue, but let me mention a couple of things in response to the line of questioning. First, the assessment order is fundamental to all this. The provision states something to the effect that the assessment order will be in force for seven days, but in most cases the assessment is likely to take a couple of hours rather than a number of days. That is an important point.
That is not what the bill says—
I ask Shona Robison to hold on, as I know that Duncan McNeil and Euan Robson have supplementary questions. Obviously, this discussion will run for a bit.
The scenarios are all very interesting. I could turn the second scenario into an episode of "Taggart", in which William is eventually murdered by his alcoholic friends and whatever—
Duncan, will you stick to the question?
No, Shona Robison had 10 minutes for her point.
Duncan, that is what this discussion is about.
With all due respect, convener, it is not at this point.
Is not section 1(b) part of the way in which the bill copes with the point that Shona Robison made? It states that the intervention must be
Section 1(b) says that the least restrictive option should be taken. That reflects Duncan McNeil's point that we are talking about a process—a set of available steps. Shona Robison is right to say that there are hundreds—sadly, it is thousands—of people throughout Scotland who abuse alcohol and are damaging themselves. The bill does not say that we should move from where we are to the final stage in the process for all those people; instead, it sets out a series of steps and interventions of which the most extreme—the last step in the process, if it is required—is an order that is granted without consent because there is deemed to be undue pressure. My suspicion is that, in reality, in the vast majority of circumstances, carrying out an assessment and taking the first step will prompt the kind of change and service delivery that are required. Failing that, granting a mandatory order will be enough to persuade most of those who have not yet been persuaded that there is a need to change the service provision for the individual concerned.
I have some questions on definitions in the bill. At different points, it defines "adults at risk" and "abuse". A number of witnesses who have appeared before us have concerns about the term "abuse", particularly because it is a pejorative term and perhaps not appropriate for the bill but also because it does not cover some circumstances that the bill might cover, such as neglect, which is a form of unintentional abuse. We have had suggestions for alternative terms, such as "adults at risk of serious harm". I ask the minister for his view on those definitions and whether he is willing to consider the concerns that have been raised with us.
I do not want to prejudge any stage 2 amendments—that would not be appropriate—but I take on board the points that have been raised on definitions and, for example, the distinction between abuse and harm. It is clear that under the bill we want to offer protection to, for example, an elderly person who lives with a partner in circumstances in which, although there is no intention on anyone's part that the individual should come to harm, because of a combination of circumstances, harm results. I accept that it would be useful to reconsider some of the definitions to ensure that we offer protection to all those whom we want to protect in a way that people recognise as achieving that objective and not inadvertently achieving some other outcome.
Section 3 defines adults at risk as people who are
Everyone is aging—that is technically correct, as you say. We acknowledge that we must think carefully about the definitions. On the one hand, I do not want to exclude adults who might be at risk, but, on the other hand, we would not expect local authorities to investigate situations and circumstances that affect the whole adult population.
Helen, you normally ask trigger questions, but I think that the minister has answered some of the questions that you would have asked.
When I re-read the Official Report and various other documents that we have received via the internet and from elsewhere, I was impressed to see that more than two thirds of people warmly welcome the bill. It was interesting to be reminded of that, because sometimes when we sit through evidence-taking sessions we get confused by all the messages that we get. When you sit down with a cold towel over your head and really get down to reading the evidence, you understand it.
Broadly speaking, we envisage authorities being given a statutory duty to act where they have reason to believe that a person is suffering or is at serious risk of harm. The authority would have to follow the steps, starting with the action that you would expect them to take in any case. An additional range of actions will be available to them, should they prove necessary.
The minister has answered the rest of my questions.
I want to raise more specific issues. There is no mention of independent advocacy in the bill, which was incorporated specifically in the Mental Health (Care and Treatment) (Scotland) Act 2003. Is that a deliberate and considered omission, or was the matter simply overlooked and could be reconsidered?
Given that stark choice, I would tend towards the latter. We would certainly not want to rule out independent advocacy.
The point was raised frequently. Independent advocacy could be considered to be an essential part of the bill, given some of the concerns.
Yes. It is provided for in the 2003 act. Given Kate Maclean's questions about ensuring that we do not unduly override other provisions, we would want to be consistent if we can be. I am happy to come back to the committee on that at stage 2.
The other issue that I wanted to raise is appealability of the orders. Concern has been raised about the fact that one of the orders is appealable, but the others are not. It has been suggested that the orders would be very open to challenge, given their draconian nature. I wonder about the thinking behind the decision to leave an appeals process out of the bill although most people think that one should have been included.
I will respond to that and my officials will keep me right. The bill mentions a number of different orders. The removal order and the assessment order both have a limited life and there is no appeals process for them. Those orders have a short duration and are intended to provide an urgent response to an urgent situation in the circumstances that Helen Eadie asked about. Banning orders have a longer duration and there is a right of appeal in relation to them. To follow the analogy that was made earlier, a temporary banning order will be the interim version, and there will be a right of appeal with the approval of the sheriff principal. However, for a longer-term banning order, there will be a right of appeal without the matter first being referred to the sheriff principal.
The issue of the lack of an appeals process having been raised, I wonder whether you will go away and have a think about it. The fact that the issue has been raised suggests that the lack of an appeals process would be challenged further down the line, and none of us around the table could say with certainty what the result of such a challenge would be.
Indeed. All such matters require the best judgment to be made on the basis of the legal advice and evidence that are available. The judgment of those who advise ministers in such matters is that the current provisions achieve the right balance. Nevertheless, I would be happy to consider the matter further at stage 2 and to have further discussions with the committee about it.
Some of the witnesses also raised a concern about how effective the banning orders would be without having a power of detention or interdict attached to them. There would be little to prevent someone who was the subject of a banning order from simply returning, as the order would rely entirely on the other person in the house alerting the police to the fact that the person had returned. The concern is that it will be difficult to monitor the effectiveness of the orders in practice.
Such concerns can also arise in the context of other, similar interdicts. Paul Gray might like to respond to that.
Section 25 states:
But the constable would have to be advised that the banning order had been breached. If people—including the other person in the household—were not happy with the circumstances in which the banning order had been made, what capacity would there be to do anything about the breach?
The situation is parallel to the one that arises with interdicts. I suspect that, like me, committee members will have constituents who have been protected by an interdict but who have not reported a breach of that interdict by the individual concerned. That is a difficult circumstance for which we make no special provision in the bill.
Except, as Kate Maclean rightly pointed out, the difference is that in most circumstances the other person will have initiated the interdict whereas in the situation that you describe, it might not be the other person who initiates the demand for the banning order. That creates a qualitative difference in the relationship.
It is different, but I am not sure whether it makes a difference to the police officer's ability either to know whether the interdict has been broken or to act upon its breach.
If the individual who made the complaint that gives rise to the interdict is no longer acting in the way that gave rise to the complaint in the first place, that creates a different scenario. That would not necessarily be the case with a banning order. The question that was raised was how effective the banning order could be if it was initiated without the consent of the person protected.
I understand the point. In circumstances in which the person protected had not given their consent, which I expect would be unusual, the banning order would have been sought by another party—the local authority in most cases. The local authority would then have an interest in ensuring that the banning order was adhered to.
What assessment has the Executive made of the possible requirement for additional resources, particularly for accommodation support services and respite care? Can the current arrangements provide for that?
We recognise that resources might be required in a couple of areas. One is the provision of adult protection mechanisms, including committees that we expect each local authority to put in place, and the other is provision of care managers, who would be responsible for the delivery of services to the individuals in question. Members have seen the figures, which we have assessed at about £5 million for each area. Given the recent work that the adult protection unit in the Borders has done, it provided us with the best basis on which to estimate the potential cost. That is the ballpark that we are in.
But you might consider additional resources for those circumstances.
We will want to be assured that they have been taken into account.
Undue pressure has already been discussed. Does Jean Turner wish to raise other aspects of the subject?
Does the minister wish to add anything? Does the convener want me to ask about the human rights aspect?
There has already been some discussion about that. Perhaps the minister will address a point that was raised by Enable Scotland, which said that if someone were to make a clear decision that a third party might consider to be irrational, would such a decision automatically be deemed to have been arrived at because of undue pressure?
No. Undue pressure must be shown and the bill makes it clear how that condition must be met. There must be two aspects. First, the abuse or neglect must have been inflicted by a person in whom the victim of the abuse or neglect has trust and confidence. Secondly, evidence will be needed that the individual would reach a different decision if they did not have that trust and confidence in the person who may have inflicted abuse or neglect. Section 32(4) sets out a particular requirement.
Were you surprised by the number of representative organisations that expressed considerable concern?
Helen Eadie mentioned that she had read the responses and found that the weight of responses supported the bill but that a significant number expressed concerns. I was a little surprised that people's concerns appeared to take precedence over the bill's wider principles. Perhaps that is simply the nature of evidence giving—people highlight concerns rather than focus on what they welcome.
I appreciate the position. The perception was that several organisations had been strongly encouraged by people—including you—to ensure that all committee members were inundated with letters. Nevertheless, most of those letters came from groups that represent the elderly or the aged and not necessarily from people whom the likes of Enable or Capability Scotland represent. A clear distinction still appears to exist between organisations that represent the elderly, which are very supportive of the bill, and other organisations, which are at best ambivalent and at worst quite resistant. The difficulty is that the bill is not just about the elderly; it is about the people supported by all those organisations.
Indeed. We want to support the most vulnerable people whichever category they fall into. In recent days, several organisations have contacted me or my officials to express their concerns and have been encouraged to do whatever they want to do on their own behalf—it is not for us to determine what view the committee or any other organisation should take on the bill. When people welcome the bill, I welcome that.
The gap in the legislation needs to be filled. I thank you for the information that you have provided, which it would have been nice to have at the beginning of the process. From my experience, I know of the gap and of the need to enter and assess people. I would change my mind about the bill if you truly took on board all the fears that the committee has discussed and has heard from witnesses. How the bill will work in practice is difficult to accept.
You and the convener are right to highlight concerns that have been expressed, but it is broadly recognised that some adults who are at risk are not fully protected by existing legislation and practice and we need to ensure that authorities have powers to act and are willing and able to use those powers. The bill is intended to enable and encourage them to do that and to create new statutory responsibilities. The matter is serious, which is why, as I have said, we are collectively happy to consider concerns that have been expressed, particularly by some of the organisations that have been mentioned, to ensure that we have a bill that works.
I seek clarification on one issue, which could be given either today or in writing. The table on the page after page 4 in your letter compares the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the bill. It states that, under the 2000 act, community care team staff can act; that, under the 2003 act, mental health officers or doctors can act; but that, under the bill, any council officer will be able to act. Is that definition not a bit wide for these duties? Can that matter be examined, please?
That entry in the table simply reflects what the bill states, which is that an officer acting on behalf of the council shall have certain powers.
That needs to be tied down somewhat.
Again, I am happy to consider that further at stage 2. The aim is clearly to cover those who have responsibility for protecting individuals.
Some of the organisations that have raised worries about the bill with the committee were on the steering group. Did they raise those concerns during the steering group meetings? Will you consider reconvening the group?
To answer your first question, several of the concerns that have been raised in the committee were raised and discussed in full in the steering group. As a consequence of those issues, there were one or two dissenting voices. In engaging further in the process, we want, in the way in which I have described, to address some of the concerns that were raised at that stage and in the committee.
It was about transitional arrangements for people for whom a determination is being made on ordinary residence. If a difficulty arises, perhaps because two local authorities are trying to come to a decision, that will lead to delay. Is it possible to introduce transitional arrangements to protect the individual concerned? The question arises from a specific case that was raised with the committee.
That is an interesting question. Part 4 of the bill will allow us to make transitional arrangements by order.
I am sure that the clerks can provide details of that issue, which perhaps could be considered at stage 2.
Helen Eadie has what must be the final final point.
It is. Of the 33 responses that we received, 28 supported the bill. The submission from Community Care Providers Scotland raised a point that also arose during our earlier deliberations on the budget. The organisation is disappointed that voluntary sector providers are not to be represented on adult protection committees. I hope that that suggestion will be considered at stage 2, as the issue is important. The voluntary sector provides a range of support throughout Scotland, so I would like that suggestion to be taken up.
I agree that that is an important point. I also agree with Helen Eadie on the important role of the voluntary sector. I am happy to return to the issue at stage 2.
I thank the minister and his officials for their evidence. I apologise for the length of time that the minister has had to be before us, in two capacities. If it is any consolation, I point out that he is finished, but we are not.
That is some consolation.
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Mental Health Budget 2007-08