I welcome colleagues to the 35th meeting in 2005 of the Justice 2 Committee. Members will have received the agenda and the other committee papers as usual. I have apologies from Colin Fox; Carolyn Leckie may attend in his absence. I understand that Maureen Macmillan will join us later, too.
Thank you. The Justice 2 Committee is having its 35th meeting—how time flies when you are enjoying yourself.
Thank you for that extremely helpful letter. Coming as it did after the end of the consultation period, it has given us information that we did not have when we thought of asking you to come to a meeting.
The letter is detailed and helpful; it shows that good progress has been made in a number of areas. In the letter, minister, you mention "intromission with funds" and I want to ask about the extension of that to local authorities and other organisations. On page 5, you say:
I will ask Jan Killeen to answer that.
We held a consultation meeting in October at which it was acknowledged that considerable thought would have to be given to the management of conflicts of interests among organisations. For example, an organisation might be a direct care provider but might also, because it knows the person, help that person to manage their funds.
I am grateful for that answer. The criteria are eminently sensible, but when will they be agreed and be ready to be implemented?
Work continues on them as we speak. The aim is to have them in place in advance of the amendments coming into force.
Will you clarify a technical point? Does that require further legislative procedure?
Yes, it does. At the moment, the 2000 act allows only individuals to intromit with funds. Even though many adults who lack capacity have only fairly modest assets, they may have more than their Department for Work and Pensions payments. The only way of managing their finances at the moment is through the top-heavy procedure of guardianship. The changes to the 2000 act would allow organisations to manage funds on behalf of individuals who do not need guardianship but need a simple way in which someone can manage their funds.
A subsequent legislative measure is proposed to address that.
That is correct.
That was outlined in our consultation paper.
Will you be more specific about when legislation will be introduced? You do not have to give an answer today. You said that it would happen when a suitable legislative slot was found. Are you confident that such a slot could be found in this diet of the Parliament or would it be later than that?
We hope to find a slot in this session. We are in discussions with colleagues about a bill that might be suitable, although other considerations have to be taken into account in doing that. If it is at all possible, we intend to legislate next year, but that will depend on our being able to get approval for a suitable bill.
Bill Butler asked about the criteria that organisations need to satisfy. I am concerned about the obvious conflict of interests. Take the example of an elderly, vulnerable person of modest means living in a local authority home. Most of us would think that there could be a conflict of interest in giving the home that is directly concerned for providing for that person control over their resources.
The management of care home residents' funds is covered by part 4 of the 2000 act. The scenario that you describe should not arise. However, I can see that there might be a conflict of interests in the case of someone who was receiving community care services in their own home. We would have to look at how matters were managed.
That would concern us and we will look at the matter closely. We want to ensure that the local authority acts with the best interests of the adult in mind and does not make its financial interests paramount.
For many of the individuals whom we are talking about, a local authority may contract out the provision of services to a specialist voluntary organisation provider. There is an indirect relationship. The care provider does not receive direct payment for the service; it delivers a support service to an individual, the cost of which is met either by the individual or by the local authority. There would be a concern if the private sector provided a service and charged the individual directly without the involvement of a local authority. How would that be managed? We need to tease out those issues.
I am not imputing malign intent to any organisation. However, there is a genuine capacity for confusion if clearly defined lines have not been drawn.
That is correct. Even with the best will in the world, conflicts of interest can lead to dilemmas and sometimes to wrong interpretation. We need to proceed cautiously and carefully.
I apologise for not being here for the minister's opening remarks. I want to discuss the proposal to dispense with caution. I was recently made aware of a man who was asked for £1,500 caution to deal with the affairs of his brother, who had had a stroke. He was taken aback at the prospect of having to find that amount of money. I notice that the minister now plans to give sheriffs the discretion to dispense with those bonds. What sort of criteria will the sheriffs use? Will they have guidance? Will the proposal be purely about the financial means of the person who is applying to look after their relative's affairs? Will it be connected with their character?
There will be a type of risk assessment process, which will need to be worked out in collaboration with the OPG and perhaps with the sheriffs. We have not yet reached that stage, but there would certainly need to be guidelines about the risk that is posed. That is the key. It is unfortunate that only two insurance companies provide caution. They have the market and it is not cost effective for them to offer caution below a certain level, so it is often disproportionate.
Recent conversations that I have had have made me aware of that. What timescale do you envisage to make any changes?
Anything that requires legislative change will depend on our getting a suitable hook. If anything else can be done beyond that, such as training and guidance, we will move as soon as we have clarity on the legislative proposals.
Thank you, minister. We will wait to hear further news.
I have more of a comment than a question. It is interesting that the Executive and the committee are engaging in robust post-legislative scrutiny. Could we not spread that model across the Executive? Consideration of the effectiveness of a piece of legislation has reaped positive benefits. I crave the convener's indulgence to allow me to thank the minister and Jan Killeen for the changes that have been made to legal aid in relation to advice and assistance. The cross-party group on learning disability, Enable and PAMIS—the Profound and Multiple Impairment Service—were keen for that to happen. I am grateful to the Executive for having listened. The measure was implemented in June, so we do not need to wait.
Your plaudit has been noted and received with pleasure in the appropriate quarters.
Jackie Baillie mentioned post-legislative scrutiny. I am sure that the committee would want the parliamentary authorities to hear its comments on how legislation can best be scrutinised once it has been passed. We in the Justice Department can certainly learn from the work that we have done; indeed, we are seeking to review other pieces of legislation. However, because other things were required and because we are still working on the issue, we have done a lot more work on the 2000 act than on anything else that required legislation. In a sense, there was unfinished business. Jan Killeen and others have made a huge effort. The response that that work is getting across the country is heartening. People can already see the benefits of what we have done. They were able to tell us their concerns and we listened and responded. We might not agree on everything, but people generally welcomed the opportunity to continue the dialogue.
Does the Executive intend to communicate with the Association of British Insurers, for example, to see whether the sector has any comments about the availability of caution cover?
That is certainly a useful idea. If the association has anything to say, we will listen with interest.
It used to be the case that intestate estates were administered and the court had to be petitioned to appoint an executor. In such circumstances, caution was essential before the court would make the appointment. As far as I am aware, that requirement continues, so I do not know from where that caution is being obtained. That might be an issue to take up with the Law Society of Scotland, which might have practitioners' information about it.
We can do that. We have been heavily engaged with the Law Society of Scotland on this and several other issues, so anything that it can say on the matter would be useful.
As there are no further questions, I thank the minister and Jan Killeen for coming this afternoon. We now move into private session.
Meeting continued in private until 16:39.