Item 2 on our agenda is the Adult Support and Protection (Scotland) Bill. We are at stage 1 and will take evidence today from two panels of witnesses. In the first panel, we have Shona Barrie from the Crown Office and Procurator Fiscal Service, George Graham from the Association of Chief Police Officers in Scotland and Adrian Ward from the Law Society of Scotland. Adrian has also made a personal submission to the committee. He gave evidence to the Justice and Home Affairs Committee in the first session of the Parliament when that committee considered the Adults with Incapacity (Scotland) Bill, so he has many years of experience in this area of the law. The fourth member of the panel is Philip Shearer from the Scottish Legal Aid Board. I welcome you all.
The legislation perhaps deals with circumstances that, as a prosecutor, I am unsighted on. When there is abuse in a criminal context, and when the prosecuting authorities and the police have been alerted and have become involved, criminal investigations and procedures all kick in. I suspect that others might be better placed than I am to tell you whether there is a need for the legislation and to tell you about any loopholes, but I take no issue with what is in the bill. Its aims of protection all seem highly worthy.
Does the existing criminal law suffice to cover most of the issues that you think might arise in this particular context, or has the criminal law had some problems?
The gap at the moment, if there is one, might arise when there is insufficient evidence for there to be criminal proceedings. There might be rules and responsibilities to ensure the protection of people who are vulnerable for one reason or another, but the criminal system, and the higher standard of proof that it requires, might not be available.
Are you comfortable with sanctions being taken out of the criminal law? We are applying sanctions to behaviour, but not the standard of proof that would normally apply, because the sanctions are being taken out of the criminal law.
I suppose that my department's interests are fairly narrow—we are considering the offence provisions that would follow breach of a banning order, and perhaps the offence provisions on obstruction. However, those offences fairly and squarely fall under criminal conduct—they are being made criminal offences. We have no issue with that whatsoever.
I do not disagree substantially with much of what Shona Barrie said. From the perspective of policing across Scotland, we very much welcome the bill's principles and provisions. However, it is difficult to predict or understand what the hidden incidence of exploitation and abuse might be. I think that there is a requirement at least to outline, in a public and legislative way, just how agencies would respond to situations of exploitation or abuse. From an ACPOS policing perspective, therefore, there is no doubt that the bill's provisions will enhance the protection of adults who may be seen to be vulnerable, so we welcome the bill.
So you think that the bill will address an unmet need and plug a gap in provision.
It is difficult to know exactly whether that is the case, but it may well be so. My view is that there is definitely an underreporting of the kind of incidents with which the bill is concerned. I agree with Shona Barrie that, if criminal acts take place, there is an awful lot of legislation and, indeed, common law that apply to them and to some of the abuse that is covered in the bill—for example, an incident could be criminal assault or simple theft. However, we just do not know what is taking place. There is an awful lot of behaviour that, whether or not there is proof, may just fall short of being criminal acts and which would indeed fall within the categories that the bill mentions. We therefore welcome the extra protection that the bill would allow.
I think that you are going to get a cumulative response, convener, because I agree with the first two responses. I would like briefly to answer your question in two parts, in relation to part 1 of the bill, which is on the protection of adults at risk, and part 2, on the proposed changes to the Adults with Incapacity (Scotland) Act 2000.
The convener's question relates to a wider question of ministerial policy on which I do not think that it is appropriate for me to comment. The board's interest is in identifying operational legal aid implications of pieces of legislation. I will leave it at that for the time being, but I will be happy to answer any further questions that arise from that.
Nanette Milne has questions for the panel about definitions.
As all members of the panel will be aware, the bill defines adults at risk of abuse as people over 16
Feel free to jump in.
I will jump in first while the others are thinking.
Does the current definition adequately protect the people who are at risk?
The definition could be a bit wider. We should compare the proposed definition with the definition in the Scottish Law Commission's draft bill, which defined vulnerable adults as
I acknowledge the difficulty with the term from a policing perspective—I am talking about vulnerability, not necessarily abuse, although I acknowledge Adrian Ward's comments on the use of "harm" rather than "abuse". The precise difficulty is whether we would exclude certain categories of people from protection under the bill or whether we would have such a broad definition of vulnerability that it would start to infringe on people's rights. The challenge is to define clearly, or narrowly, what constitutes a vulnerable person, bearing in mind the difficulty that will arise if the definition remains too broad. I do not have a simple answer, but there is still some work to be done to narrow the definition. Professionals—certainly police professionals—would welcome a clear and agreed definition across agencies of who is vulnerable and who is covered by the bill.
Does that mean that you agree with some of the evidence that we have had that the definition could be so broad that it might encompass individuals who would be outraged to be considered to be or designated as adults at risk and may feel that their right to make their own decisions is being overridden by an externally imposed definition? That is to view the matter from the individual's perspective, but is that the other side of what you are saying?
That is exactly the point. A number of individuals would rightly take exception to interventions on their behalf when they would wish to make their own decisions about associations, friendships and families. That issue is played out in the ability to override a person's refusal to consent to an assessment, removal or banning order. If the category is too broad, that will make it difficult for professionals across the agencies to understand who falls within the definition. There is still some cross-agency work to be done on clarifying those definitions.
To pick up on the point about harm and abuse, abuse implies to me some kind of mens rea, and I wonder about acts of omission, such as a failure to obtain services.
You will have to explain mens rea.
It is a criminal law concept and perhaps I should not use it in this context. It implies that there is—now I am struggling to give you a definition—criminal intent.
It is not sufficient that there is an action, but there must be intent to cause a problem.
The discussion that we had on the Adults with Incapacity (Scotland) Act 2000 a few years ago is relevant here. There are two stages: the gateway for people who are not excluded from possible consideration under the legislation should be broad but, when there is to be an intervention, rigorous tests should come into play. That might be a way of squaring the circle that was causing concern.
We need to avoid imposing an external behavioural norm that is not necessarily about abuse or even harm.
That comes at the second stage.
That is what I mean. That is when the difficulty might arise, because it might be more convenient for an institution to define "adult at risk" in a way that is not necessarily the best for an individual.
I want to go back to where the question started. We are considering section 3, which is entitled "Adults at risk"—that is what the bill is all about. The definition can reasonably be fairly broad as long as there are strict tests to determine whether a procedure under the bill should be applied.
I assume that Philip Shearer does not want to add anything at this stage.
The bill proposes to give a local authority officer the powers of investigation and powers to enter premises, for which there might be many triggers. I come from a general practice background and I know that there might be difficulties with the burden of proof. Will you give examples of what the triggers might be, to help to make it clearer how the provisions of the bill are to operate? A sheriff might grant a warrant for entry to premises, but that might intrude on an individual's privacy. I would have thought that a degree of proof would be needed before that path could be taken. How many people would be involved in triggering the powers?
That relates to Adrian Ward's point about the initial gateway and what happens further down the line when some kind of intervention is effected.
I hope that I have understood the question, which two examples might help to answer. First, the Mental Welfare Commission for Scotland carried out an investigation into the case of a Mr H. The first page of the investigation report sets out Mr H's circumstances after things had gone badly wrong. He was described as being
I suppose that the difficulties are who from outside the home knows what is happening inside it and how things are triggered. In your submission, you say that there are laws that deal with the situation that you have described in which a person is harming himself or herself because of how they are living—I think that you mention a 1948 act.
Yes—I refer to section 47 of the National Assistance Act 1948. Currently, in the first scenario that I described, under the 1948 act somebody could be removed as a last resort. The bill proposes to repeal that provision without replacing it with a direct equivalent.
So what should be done in such cases? You have highlighted more than one provision that will be removed—there is also a question about power of attorney. What should be done in such situations if those provisions are to be wiped out by the bill?
That is a policy issue on which it is not up to me to comment one way or the other. The Law Society of Scotland has supported the principle that, under the legislation, there should be no interventions without the consent of the person one is seeking to protect, except in limited circumstances, such as when there has been undue influence. That position is unlike the position under the 1948 act. The issue needs to be addressed, although it is not for me to address it. The committee might want to hear what local authorities and social work departments in particular have to say about it, as section 47 of the 1948 act continues to be used when people are found in circumstances such as those in the first example that I gave. That is a major policy issue that is ultimately for the Parliament rather than any of us who are giving evidence to consider. I simply want to highlight the fact that the issue exists. Some situations might be so bad that, although people will say that they want to stay the way they are, it should be possible to change things—there should be a mechanism for doing so. By flagging that up, I am speaking against a view that I have expressed and the Law Society's view; I am simply saying that the issue needs to be considered. That may not fully answer your question, but I wanted to make that point.
When you spoke about broad inclusion and rigorous tests, I understood that that was important, but it would be difficult to measure harm in the case that you highlighted involving a family, a failure to act and perhaps exploitation that would be difficult to prove—I refer to the person being put to bed at 8 o'clock. I wonder whether such cases would fall within the proposed legislation, which is very broad. From my own social work experience, I am worried that we could be talking about an awful lot of cases.
I would like to add to what has been said before Mr Ward comments on that. How can we assess situations in which somebody is sent round to put a person into bedclothes at 5, 6 or 7 o'clock at night in the expectation that they will be put to bed then? That frequently happens under local authority-delivered care because home care workers' timetables mean that they must start at such times.
I gave examples in response to a question about when an investigation—even in the most informal sense of the word—would be triggered and someone would start to look at a situation. I was really talking about the gateway level; I am not saying that all the examples would warrant specific action under the bill when it is enacted. I was asked, "What are the potential danger signs that would trigger local authority action?" I am not saying that all my examples were of situations in which there should have to be intervention.
I confess to being slightly confused and somewhat distracted by the examples. I wonder whether I could return to first principles and my reading of the power of investigation for local authorities. My understanding of the provision, at least from a policing perspective, is that it will allow a preliminary assessment to be made. It will address some of the existing gaps, when there is a suspicion, rumour or general belief that something is not right in a premises. Such situations are always difficult.
A question occurs to me, albeit that it arises out of the slightly off-the-point issue of when somebody is put to bed. We are to have local authority investigators, but a huge amount of care is delivered via local authorities. How robust is the measure, given that we are putting the powers into the hands of local authority investigators? Surely for much of the time they will be investigating situations that are already under local authority control, given that those services are part and parcel of what local authorities deliver.
There are two issues. On local authorities monitoring local authorities, I cannot speak for local authorities, but perhaps some of your witnesses at later evidence sessions might be able to do so. I imagine that local authorities sometimes had the same issue in relation to child protection. I would have thought that they ought to be able to structure matters so that there is a reasonable distance between their investigative people and those whom they might need to investigate internally, but I think that the question of how they would handle that is one for local authorities.
I am referring to section 5 of the bill, which places a requirement on various bodies to co-operate when abuse is known or suspected. When I see a long list of bodies, I immediately think—as many of us do—of the various files that are sitting in our constituency offices. We end up in a round robin scenario and get nowhere fast because so many people are involved.
Section 5 states that the requirement to co-operate is
Our experience is that the minute that we involve more than one agency, everything slows up. However, it is fair enough if you do not have a specific comment about that at this stage. We can explore the matter with other witnesses.
Before you move on to your more technical point, I will ask Mr Ward about the definition of abuse. I understand what he is saying about the broader—as he describes it—definition in the Scottish Law Commission's draft bill, which includes exploitation and deprivation.
I have been advised by the clerk that I must suspend the meeting because of the fire alarm, although we are not required to go anywhere. I am sorry about this.
Meeting suspended.
On resuming—
I bring the meeting back to order. I am not sure where we were—were we in mid-Robson question? Sorry, Euan.
Mr Ward talks in his submission about extending the definition of abuse to include deprivation and exploitation, but is that not effectively covered in the bill? Section 50(1) of the bill states that abuse
I refer you to the Law Society's submission on the specifics, which suggests the following definition:
The bill introduces various types of protection orders. I ask the panel—I suspect that the question is really for Adrian Ward and Shona Barrie—whether there should be an appeals process for all the orders. Could a failure to have an appeals process for all the orders constitute a human rights issue?
The simple answer is yes, but the practical problem is that some orders are of very short duration. How do we accommodate an appeal against an order that has effect for only a short period? However, in general, I would be happier with there being an appeals process. In some cases, an appeal might be run retrospectively; the case will be over, but there will still be a determination of what should have happened. That will not benefit the individual, but it will give useful guidance to those who are trying to operate difficult provisions in, by definition, difficult circumstances.
What Adrian Ward says about the duration of some of the orders is probably in point. I cannot claim to have sufficiently detailed knowledge of the European convention on human rights, but it is right to highlight the fact that there will be the competing considerations of the duties of the state and article 8 privacy issues. In practice, the duration of an order could make an appeal mechanism fairly meaningless in some scenarios.
No one else wants to comment. We can explore that question in a different session.
My question is on the banning orders. The Scottish Parliament information centre briefing states:
I believe that I am personally responsible for the concept in the bill that, sometimes, it is better to remove the person who is causing the problem rather than the victim. I remain of that view. There are occasions when it is unreasonable that the victim should have to leave home and it might be better that a clearly identified person who is causing the problem should be the one who is removed from the setting. That is a clear concept and one either agrees with it or disagrees with it.
I agree with the principle that Adrian Ward has been discussing, in that there will be circumstances in which it would be useful to remove the person's access to the individual. That very much follows civil interdict procedures. Often, we will ask for bail conditions on what individuals can do, which are fairly powerful means of preventing further harm or difficulty.
It is important that the committee is clear about the point at which the investigation might commence. What would be the trigger for an investigation?
Have we not already covered that?
To some extent, I suppose, but I wondered about a victim who was living in fear of the consequences of their actions. Who else might be able to trigger an investigation if the victim cannot do so?
One of the first things that we must recognise is that such situations can be particularly sensitive and emotive for the people who are subjected to harm, and indeed for those who are doing the harm. Some of the bill's principles to do with interagency working and the sensitivities of approaching such situations are sound. Across agencies, including social work, carers and the police investigative community, we would want to discuss and understand the implications of launching investigations.
It does. Thank you.
Section 32 starts:
In our submission, we suggest that the phrase "unduly pressurised" be amended to "unduly influenced or pressurised", mainly because undue influence has been developed and is understood as a legal concept. It expresses the idea of someone taking advantage of an individual's susceptibility in such a way as to disadvantage them. Because we lawyers know what undue influence means, we would prefer it if the word "influenced" was added.
So you are saying that sheriffs would feel on much firmer ground if the wording reflected the concept of undue influence as well as undue pressure.
Yes. They would be able to address a known concept and apply the tests that relate to it.
Anyone who breached a banning order would not be able to access legal aid.
Indeed. They would not be able to use legal aid to secure representation or seek advice.
We have made it clear in our submission that that is clearly a matter for ministers and whatever their policy intention might be. However, the proposed approach has a certain symmetry with current provisions for custody appearances as a result of interdicts under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the Protection from Abuse (Scotland) Act 2001, which are funded under assistance by way of representation, rather than by civil or criminal legal aid. A mechanism could be developed in that respect; in any case, we have drawn the matter to the attention of our Scottish Executive colleagues, and are waiting to hear about their policy intention.
Jean Turner will now ask questions on intervention and guardianship orders.
Earlier, Adrian Ward referred to time-limited appointments and suggested that renewing guardianship orders should be made easier. After all, the process costs £2,000 to £3,000, which has implications for people's estates. Moreover, the current approach involves the harrowing business of sorting out financial matters, gathering depositions and medical reports and so on. I wonder whether the witnesses could expand on that issue.
The current procedure for renewing a guardianship order is exactly the same as the procedure for applying for one. Indeed, the procedure for interventions and guardianship orders is the same. In all cases, one requires two medical reports, one of which must be from a consultant, and a third report from the mental health officer, if one seeks welfare powers, or from another suitable person. None of those reports must be more than 30 days old when the application is submitted.
Before we wind up our questions to the first panel, I want to ask Philip Shearer about the availability of legal aid in its broadest sense, which we have had a question about. Are there any other areas in the bill in relation to which that might become an issue?
In general, with civil proceedings that involve private individuals in the sheriff court or the Court of Session, civil legal aid is available, subject to financial eligibility and merits tests. With criminal prosecutions in the sheriff court, the High Court or the district court, the accused can obtain criminal legal aid, subject to the usual test.
So you do not envisage that there will be any problems.
No, although if further issues come to the committee's attention as the evidence sessions unfold, I will be quite happy to consider them.
I thank the panel very much. I ask its members to swap with their successors.
The Association of Directors of Social Work very much welcomes the bill. There are occasions—not large in number—when we seriously lack the mechanisms to enable us to take action in this area. That is highlighted by the work of the Mental Welfare Commission for Scotland, which could give chapter and verse about such occasions in addition to the example that has been cited. There have been occasions when we have had difficulty gaining access to people's homes and engaging with families and carers on the sort of issues that previous witnesses have highlighted.
The British Association of Social Workers in Scotland warmly welcomes the introduction of the bill, which is much needed, for three principal reasons. First, the current legislation that deals with mental health and with adults with incapacity is inadequate for dealing with many of the situations that we in social work come across. Secondly, the creation of interagency protocols and practice guidance to ensure that there is consistent adult support and protection across Scotland, through the introduction of adult protection committees, is an important plank of the legislation. Thirdly, notwithstanding the concerns that exist about how they will be enacted, the additional powers in the bill are important, especially for us in social work. In certain circumstances, it is difficult for us to get over the threshold.
The Royal College of Nursing Scotland also welcomes the bill. For a long time, nurses have been at the forefront of caring for older people, which is my particular interest, and have felt disempowered in many respects because there are very few channels through which they can bring abuse to light. Given changes in demography and the group of clients whom nurses will commonly come up against, the bill provides nurses with an opportunity to support and protect older people, in particular.
The Royal College of Physicians of Edinburgh also welcomes the proposed legislation. We see it as complementary to both the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000. The bill fills a gap in relation to issues of autonomy. There are people who lack autonomy because they lack will—for example, if they have suffered a catastrophic event such as a subarachnoid haemorrhage and are unable to frame wishes—and there are people who lack autonomy because of a lack of mental capacity. There are also situations in which people have both will and mental capacity but lack autonomy because they are unable to act for themselves and are in dependent relationships. In relation to those circumstances, there is a gap in the legislation. The bill is also complementary because it strengthens the other elements of the 2000 act. Having said that, I think that the bill raises two areas of concern: the definition of "vulnerable adult" and certain operational issues.
The Scottish division of the Royal College of Psychiatrists also welcomes the bill and sees it as complementary to existing legislation. It will provide protection for vulnerable adults who are not covered by the provisions of existing legislation.
Dr Starr has led Nanette Milne straight to her question about definitions.
It is clear that Dr Starr does not think that section 3 adequately covers the group of people whom the bill is intended to protect.
There are difficulties with the definition. One of our concerns is that if aging people are covered in the definition when infirmity and disability are already included, what does that mean? I look in the mirror each day and look at photographs of myself and I see that I am aging. The definition needs to be similar to those in the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. In the 2003 act, "mental disorder" is clearly and rigorously defined and "incapacity" is rigorously defined in the 2000 act. In the bill, however, what is meant by an "adult at risk" seems far more nebulous.
Does anyone else want to comment on the definitions of an adult at risk of abuse and the word "abuse" in those circumstances?
I share the view that aging in itself should not be part of the definition.
We probably all concur.
Although the Royal College of Psychiatrists did not specifically address the issue, as has been said, mental disorders are finely defined and disability is defined. Infirmity is not very well defined in medicine whereas autonomy as a principle of medical ethics is well understood in health services.
Without getting into the detail of what the words might mean, we need to ensure that we do not miss people out and that the description ensures that the kind of people we know we should protect are included. We should not use a form of words that excludes people from consideration.
Do any of you think that using the word "abuse" in the bill is negative?
We have moved away from using the word abuse and I am sure that that is also true for social work colleagues. The reason is that when we are dealing with such situations of dependency, we have to work with both the person who provides the care and the person who is dependent—and potentially being abused. We do not want legal frameworks to be a big stick in the background because that is not how we work—we want to open up dialogue. Introducing pejorative terms such as abuse is unhelpful. We should think more in terms of neglect—a carer might not be doing as well as they could and we could help them to improve the care that they provide. That is the point towards which we try to work.
Perhaps Alex Davidson and Ronnie Barnes should comment. It strikes me that abuse carries a sense of malign intent whereas a great deal of what we are talking about could be classified as benign neglect. Do you share that concern?
Yes. We have watched the development of the bill and have had concerns about some of the language—for example, we have worried about the possibility that "vulnerable adults" might be seen to equate to "disabled adults"—and have made representations about those issues.
As I said earlier, we have to ensure that we do not miss people. People can find themselves in vulnerable situations for temporary periods and we would not want those situations to be ignored because we were definitely talking about particular kinds of abuse. Legislation is precise, and if it is worded incorrectly, people will be missed. The bill that we are discussing offers us a once-in-a-generation opportunity to include those who are currently excluded from provisions in other legislation.
Are you, therefore, suggesting that the term "abuse" be changed?
I think that it should be qualified. Adrian Ward's description of abuse was quite expansive and embraced the main tenets that we would like to see in the bill.
The notion of neglect—whether intentional or unintentional neglect—has been removed, to some extent. However, that notion is important in light of the things that we see in the media about older people, particularly when they are in hospital.
It occurs to me that all this has a resource implication. It might be that the social workers or the general practitioners are best placed to answer my question. When you start talking about having protection orders and removal orders, you must also think about places that people can go to. If we are going to widen the definition so far that we will be intervening in more people's lives, there will be a huge resource implication to do with places to take people to. If we are so concerned about people being neglected that we want to take them away from the circumstances that they are in—I am deliberately not using the word abuse—there has to be somewhere for them to go. Given that social workers effectively work at the sharp end of that provision and GPs often end up being the first port of call in this regard, I would like to know their feelings about the situation that I have described.
Before we deal with that question, I would like to finish dealing with the question of risk and harm.
I express some doubt about that, because many of us take the view that we do not have solutions to our present problems, never mind adding new ones.
I support what Alex Davidson says. At present, we are faced with situations in which we must consider the resource implications of our work. I guess that the launch of the legislation will have implications, because when the public become more aware that abuse is not to be tolerated, we can expect an increase in the number of referrals of people who are being abused. We will have to consider what to do about that, because we cannot ignore it. We cannot go a certain distance and then no further. Committee members, as legislators, must consider the possible resource implications. We can help you with what we think the implications will be as a result of the provision of places of safety, if that is the term that describes what we are looking for. We need to consider where those places might be and what we might have to do to have a sufficient number of them to meet the demand that we might expect.
It would be useful for the committee to have an estimate of that and an estimate of the potential number of people that we are talking about. At present, we do not really have that.
I should say that I am a physician, so it is kind of you to invite me to appear as a general practitioner. Although we work closely with our GP colleagues, I do not think that I could speak directly for them.
I presume that, in some cases, it would be better for a person to remain in their home, but that raises even bigger questions about resources, because if the carer is excluded from the home while investigations are carried out, or at the conclusion of investigations, provision will have to be made for other carers to go into the home as and when required. It is not just about care home beds or places of safety physically outwith the home but resources going into the home to maintain the person there. Do you agree that that would have to be included?
I agree. The people we are talking about, who may well be so-called abusing their dependent relatives or kin, are also providing a phenomenal amount of care. They are doing a good job. It is a balance. That is why there is a difficulty with using pejorative words such as abuse in these situations. I can speak locally when I say that, at present, that kind of care would not be readily available for many people who are in that situation. That is an issue when we consider banning or exclusion orders and it is an issue of the threshold at which the more serious parts of the bill come into play and we start excluding or removing people from homes. The idea of serious abuse needs to be defined. It needs some sort of individual consideration of what is best for the person. We would like to think about it in terms of autonomy, as well as issues of harm.
In the context of inquiries and investigations, section 4 of the bill places a duty and obligation on local authorities to investigate the well-being of an adult. How do you see that additional regulation interacting with the existing powers of the Mental Welfare Commission, the care commission and local authorities? What would be the complexities in that?
I start with a quote from Community Care on the recent investigation into services in Cornwall. The director of social work said that
When a social worker comes to me with a case that they are concerned about, I would say that under present legislation it all depends on whether the adult has capacity. Have they been assessed for the capacity to make decisions? In many such situations, there is no access to do that assessment. I would then have to say that, under the Adults with Incapacity (Scotland) Act 2000, we cannot do anything until the person has had their decision-making capacity assessed. What legal framework do we have for enforcing that assessment? At the moment, it would have to be the Mental Health (Care and Treatment) (Scotland) Act 2003. We would be faced with the prospect of having to admit somebody to a psychiatric unit for assessment under a short-term detention certificate, simply in order to assess whether they had decision-making capacity, in order for the rest of the provision to be made. In practice, that does not happen, but that is the only legal framework that we have at the moment for doing that.
My local authority already operates within interagency guidelines and we expect the bill to give us additional powers that will provide the range of measures that we need in the toolkit with which we operate. We already assess people; none of what is in the bill will take away from good social work assessment, in which we still expect to engage people.
I will comment on abuse and show why the concept is not always helpful; indeed, such treatment is not always malicious. I was asked to see somebody with Down's syndrome because her health appeared to be deteriorating. It emerged that her health was deteriorating because her mother, who was the primary carer, was developing Alzheimer's disease. When I first saw the mother, she was still capable of acting as the main carer, but her dementia progressed to the stage at which her daughter suffered significant neglect. As the mother became more demented, she became less and less willing to co-operate with social care provision to maintain her daughter's health. I assessed whether the daughter had decision-making capacity and we were prepared to apply for an intervention order if necessary. In other cases, the individual might not have impaired decision-making capacity, but in such cases, there is no provision for assessing and protecting them at present.
Alex Davidson welcomed adult protection committees at the start. On the basis of your initial comments, I take it that you do not expect more bureaucracy to develop via those committees. Would it help to limit the number of members of those committees? If you have never thought about that, you can go away and think about it.
I have thought about and discussed the question. Locally, many of the same people from the police, social work departments and education services who are members of child protection committees are likely to be members of adult protection committees. That raises resource issues and other matters. However, that should come back to local decision making about who appropriate members are and getting that right; the situation in the Western Isles will be different from that in South Lanarkshire. It is important to weigh up that issue and give it due recognition.
We say in our submission that we are concerned that there is no maximum number of people a local authority could co-opt on to an adult protection committee. As has been mentioned, local authorities may well be involved in part of the care structure that is being investigated. Given that, it is unreasonable for a local authority to have the power to co-opt a number of members that could outnumber those who are members by right. We felt that a limit was appropriate.
We can explore that.
I will stick with inquiries and investigations. What level of evidence would trigger a formal investigation? That is a bit of a judgment call.
One of the things that I have been looking at, and about which I am currently writing a proposal, is identifying appropriate predictors of what might warrant a carer or a service becoming involved. Predictors would be a means of being proactive rather than reactive. The research has already clearly identified a number of likely predictors that, if a person is scoring highly on them, should put up a flag for a service provider. I am advocating a screening tool that would indicate that services need to investigate further if people are scoring highly. It would be at that point that social work colleagues would be able to say that there was definitely a case for intervention, but it seems to me that there are already predictors, in certain situations, that show that people are likely to be at risk of abuse. One way of deciding the trigger would be to look at the predictors.
That, frankly, was as clear as mud to me. It does not actually tell me anything. Unless we get into a long explanation of what predictors are and how they are arrived at, I do not find that particularly helpful and it seems that other members feel the same. Is there a better explanation of what that all means?
If you are asking what would trigger me to go in to investigate something happening, then something would need to happen. For instance, if a nurse went in to do a nursing assessment and found as part of that assessment that there were things that needed to be looked for that would indicate that some kind of abuse was going on, the nurse could use that information to make other services aware that abuse could be going on in that situation.
What about if a neighbour phones up? That is what we are really trying to get at. What level of flagging up by anybody, officially or unofficially, is liable to trigger an intervention? There is a danger that it could become a mechanism by which a lot of busybodies get involved, but sometimes busybodies save communities and save people. I think that you know what I am trying to say. At what level do you actually go in officially? What might actually bring that on us?
Ronnie Barnes might want to comment on that. We did some work across Scottish local authorities to review issues arising from the Borders inquiry and to look at people whom we deemed vulnerable, with a question mark about what that meant, and we now have a fair bit of evidence about what that means.
We are already building up a body of knowledge and expertise about what we now call adult protection. Ten years ago, most local authorities operated within what we called elder abuse guidelines. In my day job, we started to think that we needed to review that title because we were talking not only about older people but all vulnerable adults. In England at that time, the Department of Health published "No secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse", which compelled all local authorities and health authorities to work together on interagency practices and protocols on adult protection. From that, the same situation has emerged in Scotland. The bill will crystallise what people are beginning to develop already. In the Lothians and Borders, where I work, we already have interagency guidelines and are already involved in such work. We are looking forward to the bill giving us the additional powers that will enable us to act in situations in which we cannot act at the moment.
Does the bill give more than just greater access? Does it give the opportunities that Paddy Healy mentioned as part of child protection assessment? In the examples that have been given, access was not enough, because it always happened too late, when the abuse had occurred and the vulnerable person was raking through the bins. Will the bill be more effective than just providing greater access? Will vulnerability become part of assessment? If there are any obvious signs of financial, physical or other abuse, will there be an assessment not only of a person's physical needs in and around the house, but of their vulnerability and whether they need protection? At what point will that take place?
Good practice that enables us to avoid some such circumstances already exists in what we now call adult protection. To point up the need for the bill, we are talking about the extreme circumstances in which legislation is needed. There will always be extreme circumstances, but that does not take away from the good, solid practice that improves people's lives simply through the work that is already going on. The fact is that there is a limit and the bill will allow us to go beyond the current limit.
The bill authorises access to health records. At present, the guidance on medical records from the General Medical Council is that we should not share information with other organisations unless there is a justification for doing so and vulnerable adults policies provide a justification. The guidance also states that we should normally have the consent of the person whose records they are, but in many situations of vulnerability we cannot obtain consent. At present, many doctors are uncertain about whether they have any legal protection for sharing medical records with their social work colleagues and the fact that the bill provides statutory authorisation to do so will be helpful for doctors.
I thank the witnesses for giving evidence. As I say to everybody else, if anything that you wish you had communicated occurs to you afterwards, please get in touch with the committee clerks, who will ensure that we are apprised of it.
That ends the committee's business in public. I ask the people who are in the public gallery to leave and ask for the sound system to be switched off so that we can move into private.
Meeting continued in private until 16:44.
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