Adults with Incapacity (Scotland) Bill: Stage 1
Resumed debate.
We move to the resumed debate, which we were in the middle of when we adjourned for lunch and question time. The next speaker is Gordon Jackson. [Interruption.] Would those members who are not taking part in the debate please leave quietly.
Consideration of the bill in committee has been an interesting experience. The Justice and Home Affairs Committee has been good and I certainly agree with Roseanna Cunningham that we have worked very hard. The staff have given us every possible help.
Taking evidence on the bill has been interesting, but sometimes extremely difficult. Some issues that were raised were—to my surprise—much more difficult than I thought they might be. The obvious example is the evidence that we heard from people who feared that the bill would lead somehow to euthanasia by the back door. My initial reaction was to dismiss that; I thought that I was dealing, by and large, with people who had a particular agenda—who saw, as it were, euthanasia under every bed.
However, the more evidence I heard, the more I began to worry. That worry has not entirely gone away. I accept without reservation what Jim Wallace said this morning about the Executive having set its face absolutely against any form of euthanasia. In no shape or form is it the bill's intention that euthanasia should occur. However, I would add a rider to that: history is full of legislation that did something, or helped to do something, that it was absolutely never intended to do. The fact that the bill does not intend to assist euthanasia does not totally satisfy me.
To some extent, the complaint of those who are concerned about euthanasia is not against the bill, but against the law in general. Some people think that the law in this country has gone the wrong way on that subject; they look at recent court decisions and disagree with them. Their argument is often with the existing law, not with any changes that the bill would make.
I am delighted that the Executive has decided to remove certain words from the bill, in particular the words
"ventilation, nutrition and hydration by artificial means"
from the definition of medical treatment. I was never happy about the inclusion of those words. I understand that they were not meant to do any harm, but they introduced doubt, fear and worry. Many members of the committee were uncomfortable about those words, even if we could not always articulate why. They seemed to cause more problems than they were likely to solve, so we are pleased to be shot of them.
The worry persists in other people's minds, if not in the Executive's—not in relation to withdrawing artificial hydration from someone who is in a persistent vegetative state, but in the much greyer area of psychogeriatrics. Before I deal with the change, it is worth saying what is in the minds of those who have that fear. They envisage that a doctor may feel that a particular treatment might be beneficial, but that he will be told by the guardian or the other appointed person, "I don't want that done." In that stalemate, treatment that is needed might not be given. That was a genuine fear. Those who are not clear about why the Executive is making the change should realise that that fear came not just from groups such as the Catholic Church or the Scottish Council on Human Bioethics, but from responsible and reputable medical opinion.
There were two ways of dealing with that fear. One was to put a legal duty of care on the guardian. Rightly, Jim Wallace rejected that, because it is not workable. It would raise more problems than it solved, so I am glad that we have not gone down that path. The second way was to move the goalposts—I commend the Executive for taking that step. The idea is that, if two bodies of medical opinion agree that treatment is required, the onus will be on the guardian to stop it—if that does not happen, the doctor will be free to go ahead and give the treatment. I hope that that alleviates the fears that were raised. Whether it will do so, I am not sure, but I await with interest responses from those who have given evidence about whether that arrangement satisfies them, because this is a difficult problem.
I welcome the bill. It shows the value of the way in which our legislative process works. It shows the value of front-loading legislation with the taking of evidence, which allows matters to be focused on at an early stage and the Executive to respond. We will wait and see whether more needs to be done but, for the moment, I welcome the bill and especially the Executive's flexibility on these issues.
I will focus my comments, which I hope will be helpful, on proxy decision makers and the role of the courts. I welcome the opportunity to rationalise the law in this area, with the appointment of welfare attorneys, continuing attorneys and guardians and with the role of the public guardian.
I say to Dr Richard Simpson that, under section 18(2), the sheriff has the power to place the welfare attorney under the supervision of the local authority. In addition, section 3(4)(a) provides for the appointment of a person as a safeguard. However, as the Law Society of Scotland pointed out, the bill makes no provision to deal with powers of attorney that existed before the enactment of the bill. I draw members' attention to the Law Society's submission that such powers of attorney should be registered within a specific period, that they should not be used until they are registered and that they should fall if they are not registered. The bill omits such measures.
I welcome the fact that the bill's definitions of capacity and incapacity are flexible. I say to Ben Wallace that this is not a matter of absolutes. Rightly, the sheriff has great discretion, not only in hearing evidence, but in the kind of orders that he makes on recalling people. If I have time, I will deal with sheriffs, but that measure is welcome.
Eric Clive raised points about the role of European law. I know that Mr Wallace mentioned that, too, but I am not sure whether he was referring to the Council of Europe's recommendations on the principles on the legal protection of incapable adults. Professor Clive said that the Council of Europe principles are reassuringly similar to the ones that lie behind the bill. In an interesting paper, which I am happy to provide the minister with if he does not have a copy, Professor Clive refers to the Hague conference on international law and the convention that will be signed—it is in final draft— dealing with incapable adults, their carers and officials when the laws of more than one country are involved. The conflict between laws should be noted—it would be good for Parliament to take account of that international legislation.
Eric Clive also mentions a problem under section 60(1), which relates to the appointment of guardians and their extensive powers. His view—I have read it carefully and concur with it—is that this measure could cause difficulties when an adult recovers some capacity but there has not been time to vary the guardianship order. We could end up with a capable adult with a guardian. An amendment could take care of that, but it is another issue that the Minister for Justice should address.
The Mental Welfare Commission has voiced concern about the fact that there is no right to appeal automatically against renewal of a guardianship order. It is also concerned—I share that concern—that the three-year appointment
may be too onerous and put people off. I know that, in his response to the committee's report, the Minister for Justice addressed the fact that the sheriff could make an order for a shorter period, but I think that three years might become the norm.
I have dealt with section 17 on continuing attorneys. I am glad that the minister mentioned the training of sheriffs. I would have liked him to go further and nominate sheriffs in this area. Perhaps that will come in due course.
Will the Minister for Justice clarify where the Court of Session has exclusive jurisdiction? This morning, he mentioned areas where there is exclusive jurisdiction under section 45 and section 47. I want it made plain in the bill what is exclusive and where jurisdiction is not with the sheriff court. I would like a response from the Executive on legal aid. I want movement towards there being no means test for applications on behalf of an incapax under this bill, just as there are no means tests for some matters covered by the Mental Health (Scotland) Act 1984.
I welcome the bill. Adults with incapacity need to be protected, and the bill will certainly make the financial side of an incapable adult's life easier to manage.
The Minister for Justice announced some amendments this morning. I believe that the amendments on guardianship and the public guardian's office go some way to addressing some of my concerns, but those concerns should be raised anyway—I will scrutinise the amendments further.
As far as I am aware, the Executive feels that section 1 offers protection, as it states that any intervention by a proxy decision maker must be of benefit to the patient. However, it does not give protection against a situation in which there is a refusal to act. There is a fear that the bill may make passive euthanasia possible.
Although section 44 gives a doctor a general authority to treat—treatment includes nursing and administration of food and liquids by artificial means—it defines not only the use of a feeding tube but food and water themselves as "medical treatment". That could cause problems—should food and drink be regarded as basic care? I appreciate that the Minister for Justice mentioned some amendments on the definition of treatment and I look forward to further clarification on that point.
The welfare attorney has authority to refuse the treatment authorised under section 44. The bill gives proxy decision makers considerable influence to refuse medical treatment. For example, a proxy or guardian can refuse to allow commencement of tube-feeding for a patient who is not dying but has difficulty in swallowing. That needs further scrutiny.
The liability of the welfare attorney is a sensitive issue. Welfare attorneys must act in good faith and their behaviour must be reasonable. Giving power without responsibility to proxy decision makers may—I stress may—allow passive involuntary euthanasia and remove protection for the incapable adult from abuses of power.
As the law stands, if medical staff starve an incapable patient to death, they are liable to prosecution for a criminal omission and may be sued for breach of a duty of care. They could also be struck off. Under the bill in its present form, the power to refuse treatment, food and fluids could be passed from people with duties of care to people with no such duties. I appreciate that the Minister for Justice addressed that this morning.
If the incapable patient is starved to death as a result of a refusal or omission by a proxy, no one can be prosecuted or sued. That is because, in those circumstances, in order to prosecute a person under the criminal law or to sue them under the civil law, one must first prove that they had a duty to act.
I welcome the amendments that the minister put forward this morning and I look forward to hearing the responses.
Like everyone else, I welcome the bill. I knew little about the difficulties faced by thousands of Scots until I heard the evidence at the Justice and Home Affairs Committee. It is a measure of our democratic system that the Parliament has found time to allow more than 60 organisations to present their views on the subject so far. I am sure that many more will lobby us in the weeks ahead.
Having heard the evidence, I have decided that the bill is urgently required. We should commend the efforts of the groups and individuals who have taken time to assist us in its preparation. Many of my constituents have written to me with concerns about medical issues raised by part 5. I hope that they will be as reassured as I am by Mr Wallace's amendments.
To those who say that lawyers will have a field day with the bill, I say that by the end of the debate Parliament's wishes will be clear and on record. There will be no doubt about the meaning of the act when it comes into force.
At the heart of the bill is the protection of an
adult's capacity and the provision of flexible legislation if an adult lacks capacity. We are not dealing with an all or nothing principle; we are dealing with decisions relating to cases involving an adult who might have partial capacity. We want the person to retain their individuality. We should respect the decisions that they can take.
The bill would confer positive powers to appoint welfare attorneys who should always act in the best interests of the incapable adult. For the first time, health care workers will have clear legislation governing their activities with incapable adults. That will reassure them that their practices are lawful, not just established practice.
A fundamental aim is that procedures be simplified. Welfare attorneys can take action on a range of issues, preventing the need always to go to court. We want to make the process less costly, less cumbersome and less traumatic for those on whom the bill seeks to confer rights.
There will be a single integrated approach to the welfare property needs of adults who are incapacitated and the act will provide a legal framework for research. The bill has clear principles for clearer legislation. While we should scrutinise it further, I believe that we have it broadly right.
I have considered carefully the arguments about whether we should impose a duty of care on welfare attorneys and proxies. I am persuaded by the comments of Professor Sheila McLean. She states, as others do, that there is no tradition of a duty of care on individuals in the community. Imposing that duty on an individual, as a non-professional person, would turn legal tradition on its head. I prefer the option presented by the British Medical Association, which calls for a code of practice.
It is incumbent on us as legislators to balance the interests of all individuals who are affected. We must not make the duties and responsibilities on an individual so onerous as to deter or weigh down the welfare guardian. The amendment that deals with the definition of the nearest relative is significant. I have argued, as have others, that we should modernise our approach to that. I am pleased that this bill will lead the way.
I reject the claim that we are opening the door to constructive euthanasia. We have to guard against unscrupulous relatives or doctors not acting in the interests of incapable adults, but I believe that that scenario is unusual. However, there should be provision for interested parties to go to court. The bill is not about constructing detriment or confusion, but takes a refreshing, simplified approach that will benefit more than 100,000 adults in Scotland.
I support the bill and the amendments that have been announced today.
I welcome the bill, which is much anticipated and long overdue, and will address gaps in the legal position regarding medical treatment and the financial affairs of up to 100,000 adults with incapacity. The chamber should extend thanks to the many individuals and organisations that have campaigned for the bill and made comment on it to all of us, as well as the significant contribution made by the Scottish Law Commission.
As the secondary committee, the Health and Community Care Committee, of which I am convener, had a very short period in which to make a contribution at stage 1, but while we raised certain points of concern, we are happy to accept the general principles. I am pleased that the Parliamentary Bureau and the Executive have acknowledged the problems with timetabling. Suspension of elements of standing orders and discussions with all relevant conveners means that in future no committee should find itself in the same position with regard to the legislative process.
I thank committee members, particularly our reporter, Ben Wallace, for their diligent work under great pressure of time. I also thank the Justice and Home Affairs Committee for its considerable work so far, including its attention to many of the medical issues that have been raised. I look forward to working with it again at stage 2. Given the lack of notice and time at stage 1, it is clear that the Health and Community Care Committee will want to consider the bill in some depth at stage 2, particularly as the majority of areas of concern are medical.
Many of the key issues that were raised with our committee have been taken up by the Executive, and I welcome Jim Wallace's statement this morning. It is clear that the Executive has listened and acted on many of the points of concern that have been raised. It remains to be seen what the response will be of those who raised their concerns about definition of treatment, withdrawal of treatment, duty of care and living wills.
It is important that, for the purpose of the bill, incapacity is not seen as an all or nothing condition. Just because an individual is not capable of making one sort of decision does not mean that they cannot make any. Just because they cannot make a decision today does not mean that they cannot make a decision tomorrow. Adults must be given every assistance to make decisions for themselves where possible. I was glad to hear Jim Wallace's comment that people with a learning difficulty should not be viewed as being
incapable—that was an area of great concern to the Health and Community Care Committee.
Right from the start, the Executive has made it clear—I am pleased to hear the Executive reiterate it today—that the bill is not a euthanasia bill, either by the front or the back door. Many organisations have expressed reservations and concerns that section 44, by classifying
"ventilation, nutrition and hydration by artificial means"
as medical treatment, allows for the possibility that guardians—some with conflicts of interest and no statutory duty of care—would advocate withdrawal or withholding of treatment as being of benefit to the patient. That spectre loomed large for many as a result of the bill. It is to be hoped that the minister's statements and the Executive's amendments to define medical treatment more positively and more broadly will go some way to alleviating those concerns.
However, I feel that Roseanna Cunningham and Mary Scanlon had a point when they said that there is a requirement in section 1(2) that interventions must benefit the person with incapacity, but that there is no corresponding requirement that a decision not to intervene must benefit them. Intervention in section 1 could be spelled out in terms of acts of omission as well as positive acts of treatment. We know what the Executive's intention is in this bill—let us make it as watertight as possible.
Organisations such as Alzheimer Scotland have raised the issue of research with the Health and Community Care Committee. I welcome the comments that have been made to broaden that out to be of more general benefit than only to the individual. It is clear that there are still outstanding issues in terms of the primacy of opinions when people have to go to court; we are moving in the right direction, based on the amendments outlined to us today. We need to take into account some of the British Medical Association's comments about advance directives to the Justice and Home Affairs Committee.
Generally speaking, we all welcome the bill. I welcome the Executive's comments and the amendments it has announced today.
I begin by congratulating the Justice and Home Affairs Committee on a superbly impressive report. In my years at Westminster, I have never seen such thorough and effective work on a bill before the first Parliament debate. We should all be proud of the Parliament's new procedures and the effective work being done by all its committees. I also congratulate the
Executive on introducing the bill.
Most parts of the bill are universally welcome. I want to focus on its medical aspects. The bill addresses the current lack of clarity, which the Minister for Justice mentioned this morning. In some cases, the lack of clarity has resulted in no treatment being given.
I am delighted by the amendment on research. I welcome the fact that artificial nutrition and hydration are to be taken out of the definition of medical treatment, resulting in a broad definition. That ought to deal with the serious concerns that have been raised by a range of organisations. I look forward to receiving their detailed responses to the amendment.
We should no longer need to discuss euthanasia in connection with the bill, although many interesting questions about euthanasia were raised in evidence. We should deal with them on another occasion. During the evidence taking by the Justice and Home Affairs Committee and the Health and Community Care Committee, I was struck by the confusion about whether it is necessary to go to court to withdraw hydration and nutrition.
As I said this morning, I must disagree with the Executive's significant change to the balance between medical opinion and that of a proxy. As there is now no issue surrounding hydration and nutrition, it is unnecessary to change section 47 as the Executive proposes. The change goes much further than was suggested even by medical opinion—neither the BMA nor my colleague, Richard Simpson, suggested it.
We all received a briefing from Alzheimer Scotland, which made it clear that
"any challenge should have to be made by the doctor".
In other words, the decision should rest with the welfare attorney or guardian. Alzheimer Scotland goes on to discuss
"inappropriately prescribed or over-prescribed neuroleptic drugs" and says that
"when carers ask for medication to be reviewed they are often refused and their views disregarded."
That situation will be made worse by what was proposed this morning.
More serious opposition will come from campaigners for people with learning difficulties. Those who are currently tutors dative will lose the rights that they have. One person has approached me about the matter and I know that she will be very angry about the Executive's announcement. She was told 28 years ago by doctors that she should put her daughter into Gogarburn hospital. She has looked after her daughter all that time,
resisting certain epileptic drugs doctors have tried to give her because she knew what effect they would have on her daughter's stomach. What doctor knows better what is good for her daughter?
We all know that medicine is not an exact science—it changes from year to year and even month to month. At stage 2, I will lodge an amendment to deal with that matter. Furthermore, the fact that electroconvulsive therapy can be given with a second medical opinion, against the wishes of a proxy, is another matter that is totally unacceptable.
I want to concentrate on two areas of the bill that have been the most contentious: the inclusion of hydration, nutrition and nursing care as medical treatment and the role of proxies in deciding whether medical treatment can be withdrawn. I welcome the minister's opening statement that those areas will be subject to amendment. However, we will need time to consider whether the amendments deal with the concerns that have been raised or whether new amendments will be necessary.
The minister has made it clear that the bill will not change the current position—euthanasia is illegal. The problem is that there are widely differing interpretations of the current law, or rather ways in which it is carried out in practice. Following the Law hospital case, the Lord Advocate stated that he would not authorise prosecutions of qualified medical practitioners who, acting in good faith and with the authority of the Court of Session, withdraw life-sustaining treatment from a patient in a persistent vegetative state, which results in the patient's death.
In its evidence to the Justice and Home Affairs Committee, the British Medical Association contended that it is not necessary to go to court to get permission for cessation of treatment for every case of PVS. It further said that it believes that the law is more flexible in Scotland than in England. It said that the Executive's interpretation—and, by definition, Lord Hardie's statement—would cause it concern. It also said that it hopes that the general principle of withdrawing and withholding treatment from a wider group of patients who are similarly incapacitated will operate with the same flexibility.
It is against that background that alarm has been raised about the intentions behind the bill and what will happen in practice. The inclusion of nutrition, hydration and ventilation as medical treatments, with the power of proxies to deny medical treatment, has led a number of witnesses to suggest that the bill would allow euthanasia.
Professor Sheila McLean said that the bill gives positive powers to treat people who are incapable and that the concerns of other witnesses should be assuaged because of that. She drew attention particularly to the fact that everything that is done under legislation should be governed by the general principles set out in part 1.
I believe that the Executive, ministers and many organisations genuinely wish to modernise the law and to bring benefit to perhaps 100,000 people in Scotland. I also believe that there is no intention on the part of ministers to make euthanasia possible. However, many witnesses have expressed sincerely their view that the law is confused. The Executive has a responsibility to reflect on and to allay all such concerns. This Parliament has a responsibility to produce legislation that is unambiguous. While I welcome the minister's statement today, we need to wait until we see the amendments that will be lodged. I would like to hear that the concerns of the people who made representations to the committees have been assuaged by those amendments.
These issues will continue to be highlighted at the next stage of the bill. I hope that the minister will reflect on the evidence that has been given and accept that further changes may be needed to allay the genuinely held concerns of many people.
I welcome the opportunity to contribute to today's debate. I have a long-standing interest in the bill.
I am pleased that the Scottish Executive has recognised the deficiencies in the current legislation concerning adults with incapacity, and the confusion surrounding it. Placing this bill before Parliament at such an early stage of the legislative programme demonstrates the Executive's understanding of the severity of the problems facing people who are affected by current legislation.
I believe that the bill represents a genuine and successful attempt to alleviate the problems facing adults with incapacity and their carers. It seeks to balance the concerns of those who opposed elements of the Scottish Law Commission's original draft bill with the overwhelming need for change to current legislation. Existing legislation is fragmented and archaic. As we heard this morning, some of it dates back hundreds of years. The trail of legislation through history has resulted in a system that lacks any semblance of coherence or structure.
The diversity and complexity of applicable legislation is widely regarded as causing
unnecessary disadvantage to vulnerable people. Even those who have concerns about the bill generally accept the need for reform. I recognise and understand those concerns and I hope that the Minister for Justice and the Minister for Health and Community Care will help to alleviate such fears and bring about unanimity regarding the benefits of the bill.
We should no longer be forced to endure legislation that, among other things, leads to the freezing of joint bank accounts when carers are already facing the most extreme difficulties and pressures. Measures in the bill will address such practical problems and help to alleviate the stress faced by carers of incapable adults.
I believe that the general principles—as laid out in part 1—provide a firm and humane foundation for new legislation. Within those principles, the rights of the adults concerned are given priority. Indeed, there is now a duty to use and develop— where reasonably practical—adults' skills in relation to the management of their welfare.
Of the estimated 100,000 people who lack capacity in some or all areas of their lives, around 60,000 suffer from some form of dementia. The continued increase in the number of older people in society, coupled with the higher incidence of dementia in that age group, means that the problem can only get worse. Alzheimer Scotland's report to the Royal Commission on Long Term Care of the Elderly predicts that, by the middle of the next century, more than 100,000 Scottish people will suffer from dementia. The need for continuing research into the causes, cures and treatments of dementia is evident. I hope that that is borne in mind during the various stages of the bill and that the final version places priority on the needs and care of the sufferer and is not overly restrictive.
The passing of this bill will prove that the Scottish Parliament is able to respond to the real needs of the Scottish people. Existing legislation causes misery, suffering and indignity to countless families around the country. National and local organisations throughout Britain have been calling for changes to existing legislation for many years. We in Scotland have the opportunity to pave the way towards a legal system that genuinely enhances the rights of adults with incapacity and their carers. I urge everyone in the chamber to support the bill.
At the outset, I want to reaffirm my party's support for the bill that the Scottish Executive has placed before us. I also pay tribute to the work of the Justice and Home Affairs Committee, its convener and its clerks. As Roseanna Cunningham said this morning, the committee has been extremely hard-working and has considered an enormous amount of material from the Executive and other sources—some of it self- inflicted—with great diligence and good humour.
Having broadly welcomed the bill, I should add that the Conservatives also welcome the amendments that the minister has said he is prepared to make. Colleagues from all parties have signalled their concerns about a number of areas and I am relieved that changes will be incorporated to include same-sex partners in decision making. It was abhorrent to me that a partner of very long standing should be excluded from any part of the decision-making process, simply because they were of the same sex.
The area that is undoubtedly of greatest concern—and on which colleagues across political divides will have had most representations—is artificial hydration, nutrition and ventilation. The debate will go beyond the doors of this chamber between individuals and organisations as diverse as the Society for the Protection of Unborn Children, the Scottish Council on Human Bioethics, the British Medical Association, the Royal College of Nursing and the Law Society of Scotland.
Those organisations represent professions as diverse as doctors, nurses, a host of other medical practitioners and, importantly, lawyers. Such individuals have a shared interest in that they will be left to police and manage the legislation practically and morally once it is passed. It is no coincidence that they are the only people who are highlighting the euthanasia issue time and time again. Most often, they—along with religious confidants—help us to deal with the emotional consequences of family bereavement.
Who are we to deny those various correspondents the right to air their concerns in a fitting and proper manner? The Scottish Executive has set its face against passive euthanasia; I hope that it will not be so set in its mind about voluntary euthanasia, which is a topic that has been raised by many of the people who e-mail me and other correspondents.
Duty of care, advance statements and medical research are other areas of concern that will come within the scope of possible amendments. Without the Millan committee report to guide us, I felt that considering a bill with dubious definitions and medical treatments was putting the cart before the horse. I am therefore happy with the minister's reassurance that the definitions will be tightened.
As time is short and many other members wish to speak, I want, finally, to comment on section 48, entitled "Authority for research". I was delighted
when Mr Hide, currently in Kuala Lumpur, gave his evidence on the changes and improvements in treatment that have developed thanks to research. My nephew was recently the victim of a serious cycle accident, which resulted in severe head trauma. Without Mr Hide and the knowledge gained from research, my nephew may not have lived. Please, therefore, do not curtail too many of the researchers' activities.
I join members in welcoming the bill and commend the Justice and Home Affairs Committee for its work. Unlike Malcolm Chisholm, I have not had that many years' experience of ploughing though committee reports, but having read this one I feel that there is a great deal in it that merits re-emphasis. I make no apology for re-emphasising one or two specific points today.
My first point relates to the definition of mental disorder, which is a debate that has been running in the chamber for some time. I am acutely aware of the position of the Millan committee and others on this matter. Nevertheless, the report makes it clear that the need for as broad a definition as possible of the so-called threshold test should be re-examined. The example that is often used is brain damage caused by an accident or stroke. We must ensure that people who are rendered incapable in those circumstances are not excluded from the process.
Mr Chisholm also remarked that the debate on euthanasia is perhaps not one that we should be having any more. I do not agree. The bill is not watertight. The range of opinions that we have heard today makes it clear that there is some confusion, even in the chamber, about what the bill could mean in that respect.
I associate myself with the remarks made by Roseanna Cunnigham, Gordon Jackson and Margaret Smith. I fully accept that the Executive's intention is to disallow euthanasia by the front door, the back door or any other means, but that being the case, I cannot for the life of me understand why that is not simply specified. There may come a point when we want to discuss euthanasia in the chamber, but that is not what we are trying to achieve with this bill. If we want any semblance of euthanasia categorically to be removed from statute, we should say so explicitly. I cannot see what the problem is.
On the health aspects of the bill, it is worth picking up on one of the points made by the Royal College of Nursing and the BMA in their submissions. The difference between clinical and medical treatment seems to me to be a lot more than simply semantic. If the potential for omission remains, there is the potential when treatment is withdrawn for nursing care to be withdrawn too, simply because nursing is in the same section. It would be useful to clarify exactly what we mean. Clinical care is a better term than medical care because it encapsulates the important role that the nursing profession plays in the treatment of patients.
Rather than putting that point in my own words, I quote Dr Wilks of the BMA, who said when giving evidence:
"We have made it absolutely explicit that the process leading to, and the decision to withdraw or withhold treatment, should be consensual among doctors, nurses and the family. We also understand clearly that when a decision has been made to withdraw or withhold treatment of any type, it is primarily the nurses who have to pick up the consequences of that decision for short-term or long- term nursing."—[Official Report, Justice and Home Affairs Committee, 17 November 1999; c 392-93.]
It is also important to recognise that the nursing profession's immediate responsibilities are governed by a clear professional code of conduct. Professionals could be led into conflict if the legislation is not nailed down. It would be a sad state of affairs if we put the people who are at the coal face of providing essential services into such a difficult position.
The bill is to be welcomed. I do not think that there is in any sense a party political slant on it. While the Executive has made some steps towards accepting the concessions the committee recommended, further action could be taken on the specific areas I have mentioned.
There can be no doubt that a bill such as the Adults with Incapacity (Scotland) Bill is long overdue. The proposed legislation will provide a much needed and, unfortunately, long delayed overhaul of the current Scottish legal system as it affects adults who, for a variety of reasons, lack sufficient capacity to make decisions about their welfare, medical treatment or financial affairs; decisions which the vast majority of us take for granted.
The difficulties that such people face affect not only themselves, but partners, other family members and carers. In my career in social work, I came across many instances in which incapacity caused havoc in a family, not just for the more obvious reasons of someone no longer being able to do things that they once did, and of the emotional impact that that caused, but on a more practical level. We have already heard about a couple's joint bank account not being able to be accessed by the partner who remains capable, even if the money is for the benefit of their incapacitated partner.
Under current legislation, the only remedy available is to apply to court for the appointment of a curator bonis, and that is a costly, complicated procedure. The bill would allow for the capable partner in such cases to operate the joint account for the benefit of both partners, without resort to a complex, inflexible legal remedy. That benefit is to be welcomed.
I also welcome today's announcement by the Minister for Justice, echoed by several other speakers in the debate, that the Executive intends to include partners of the same sex under the definition of nearest relative. That was highlighted in the Justice and Home Affairs Committee report, and takes into account the social realities of contemporary Scotland. It advances the definition contained in the Mental Health (Scotland) Act 1984.
As has already been mentioned, the largest group of adults with incapacity who will benefit from the bill are those suffering some form of dementia, and their carers. With life expectancy increasing and the population aging, the current figure of 60,000 people with dementia is likely to increase over the next three decades.
It should be noted that Alzheimer Scotland welcomes the bill, and when the Justice and Home Affairs Committee was taking its considerable amount of evidence, I was particularly struck by the paper that it presented and by its concerns about the legal status of research. According to Alzheimer Scotland, section 48 as drafted would render it illegal to carry out therapeutic research where it was for the benefit of others or for future sufferers, rather than for the adult concerned.
Although such research would have to be carefully regulated, it is clear, if we are to advance our knowledge of the causes of dementia and offer hope for future cures, that such research is necessary. I do not believe that it is the intention of the bill to preclude proper clinical trials of drug treatment or other treatment in this or related areas. I therefore welcome this morning's speech by the Minister for Justice, in which he said that the Executive would seek to widen the scope of section 48 at stage 2, in line with European conventions.
During the evidence sessions of the Justice and Home Affairs Committee, a number of references were made to the fact that the bill could result in back-door euthanasia because the wording of sections 41, 44 and 47 was not sufficiently specific. I believe such arguments to be something of a red herring. On many occasions, not least in the speech by the Minister for Justice this morning, the Executive has stated that it is totally opposed to living wills. In "Making the Right Moves", the Executive specifically rules out giving clear legal force to advance statements, as proposed by the Scottish Law Commission and the alliance for the promotion of the incapable adults bill. I do not believe that the bill, as currently written, would change that.
Perhaps that is a pity. I would have preferred to have debated the issue as covered by the Law Commission's draft proposals. I have a great deal of sympathy for the concept of living wills, the legal and moral minefield notwithstanding, but I accept that to deal with them would have greatly held up the bill's progress, because of their controversial nature, and I accept that the issues that the bill addresses require immediate action.
As I said, the measures in the bill are long overdue, and I appreciate why the Executive has omitted advance statements from it, but we should discuss that issue at some point in the future.
I completely concur with the statement in the recommendation in the Justice and Home Affairs Committee report, that
"this is a good Bill."
However, as stated in the Health and Community Care Committee memorandum, the bill contains
"a number of ill-thought-out provisions."
The bill will require some amendment to clarify or strengthen what already exists; we have already heard from the Minister for Justice about some of the Executive's intentions, not least those on section 44.
I believe the bill to be basically sound. It should be supported. It will enhance the lives of a number of people in our society, and the lives of those who care for them.
What a pity the press gallery is empty. I suppose that that tells us about politics and the story. The good news is that a large bus- full of people came down from the Highlands to hear today's debate. The fly in the ointment is that they were all members of the Conservative party— you win some, you lose some.
I particularly enjoyed what Lyndsay McIntosh said. Tricia Marwick and Malcolm Chisholm also made strong contributions. I am coming to the debate as a layman, who has had no involvement with the bill thus far. When we read about the bill and about old people, people with dementia and so on, it is easy to think that lightning will not strike us.
I will share with members the fact that lightning did strike my family. In January, my wife was diagnosed as having a brain tumour. It was a very traumatic, frightening period of her life. The good news is that she is much recovered and is coming
on. I and my family can speak from first-hand experience of how such things can come at anyone: the bill affects us all.
I have personally experienced the lack of co-ordination—albeit with the best of intentions— among dedicated health professionals who are absolutely devoted to their jobs. However, because their roles were sometimes not brought together, one could see the gaps. As a spouse and a parent, I found that pretty difficult. I had to get more involved than perhaps I should have been.
I am quite proud to be associated in a small way with the bill. It ties up a lot of loose ends. However, I plead with the minister to ensure that, as the bill progresses, the maximum consultation takes place with health professionals from residential homes, social work departments, hospitals and so on. As I said, I am a layman—I cannot tell what is right or wrong with the bill, but health professionals can. I am sure that Mr Wallace will take that on board.
I do not know how many members read a poisonous piece in the Daily Mail of 30 November by a Mr Heathcoat-Amory—or amoral, or whatever his name is. He spent quite a few column inches rubbishing this Parliament and every one of us from all parties. I assure members that he used language stronger than "numpties".
I am proud to be involved in a piece of legislation such as the bill. It goes to show what a lot of tripe some of our critics talk about this Parliament. If we did not have a Scottish Parliament and if we did not have devolution, we would find it much more difficult to introduce the bill. I commend it to the chamber.
I particularly appreciated Jamie Stone's speech.
The arguments for reform have been well rehearsed, and I do not wish to go through them again. Suffice it to say that the bill and the reform of the law are important, to enable control of the affairs of persons who are unable to take some, or any, decisions for themselves. The bill allows decisions to be more tailored to their particular needs and made more user friendly.
It is with a great sense of both humility and pride that we are discussing and will eventually decide on the issue—humility, because the bill involves vulnerable people, their carers and their families who have to make difficult decisions, sometimes about life and death, and pride because the Scottish Parliament, which represents the diversity of opinion of the Scottish people will, finally, decide on the bill.
I have been involved in the issue for some considerable time as a member of the Justice and Home Affairs Committee. The evidence that we received was, in all cases, presented in a manner that brought dignity to the people whom we are trying to help. I want to take this opportunity to pay tribute to all those who contributed and to the convener, members of the committee and the clerks.
One could address many issues when speaking about the bill. However, like many other members, I will concentrate on medical treatment. Members are aware that the committee report notes that that issue raises
"difficult and often emotive issues, on which it is unlikely that consensus can ever be achieved."
However, I hope that, with good will and sensitivity, we can achieve consensus.
Obviously, one hopes that medical decisions will be made through discussion between doctors and proxies, with the best interest of the patient in mind. As the committee report highlights, the role of proxy decision makers is of some concern. I was concerned that non-intervention was not specifically mentioned as having to be for the patient's benefit and that, while the bill gave doctors discretion over medical treatment, it left proxy decision makers with the right to refuse medical treatment. In short, the final decision of whether to refuse medical treatment seemed to lie with the proxy decision maker. That led some individuals and groups to fear that that role could be abused either by the more unscrupulous who had a financial interest or by those who were tired of the responsibility of an aged relative.
The committee report notes that, for some witnesses, the rights of the proxy decision makers were not adequately balanced by responsibilities. Those witnesses did not feel that the general principles of the bill, as proposed, gave adequate protection to vulnerable people—particularly regarding the administration of
"ventilation, nutrition and hydration by artificial means".
I welcome the proposed amendment, which will remove those words.
It is important that people understand that there is no possibility of the bill introducing euthanasia by the back door, as that is certainly not the Executive's intention. I share the concern expressed by Roseanna Cunningham and Tricia Marwick that the British Medical Association's evidence to the committee seemed to show that euthanasia is not unknown. That is what worries organisations such as the Churches, and it will have to be addressed.
The idea of introducing a statutory duty of care was put forward by the BMA and the Scottish
Council on Human Bioethics, but it would be difficult to place on individual proxies, as Professor McLean said in her evidence. I realise that there are concerns about disempowering the proxies, and although I take on board what Malcolm Chisholm said, I am still inclined towards placing the final decisions on treatment in the hands of doctors—particularly when lack of treatment, or the withdrawal of treatment, would result in the patient's death. However, as Malcolm says, that might not be necessary any longer.
Doctors already have a statutory duty of care. If there was disagreement or misconduct, the families of the incapable adult could seek recourse through the courts. That would strengthen this aspect of the legislation. I welcome the Minister for Justice's proposed amendment that will allow for a second opinion before the proxy's wishes can be countermanded.
This is an important issue that we must get right. It is essential that there should be no grey areas, no ambiguities. This Parliament has the privilege—and it is a privilege—of making an important contribution to people's lives. The area that I have highlighted, and the solutions that I suggest and which have been suggested by the Minister for Justice will, I hope, bring clarity to the sensitive issue of medical treatment.
I welcome the bill and much of its content. I congratulate my colleague Roseanna Cunningham, the Justice and Home Affairs Committee and the Health and Community Care Committee on the immense amount of work that has obviously been put into the scrutiny of the bill. They have demonstrated clearly the true value of the committee structure in this Parliament, and they deserve the congratulations of all members. They set an example to us all. I agree with the point that was made by Gordon Jackson about the front-loading part of the consultation process. This legislation is the first evidence that that will work, and is a good example of how we can open up areas of concern at an early stage, to achieve consensus in resolving them.
I will confine my comments to the subject of the nearest relative. The section of the bill that defines the nearest relative is of great importance to the entire bill, as it defines who may or may not be regarded as the person who is most appropriate to look after the affairs of the person who is unable to make their own decisions. A priority list is provided in the bill, which details who should be regarded as the nearest relative—child, father, mother, brother, sister and so on. The definition is crucial. The issue is whether this Parliament will recognise the rights and, importantly, the role that should be played by partners who are not genetically, genealogically or technically legally linked to the patients. That key area must be addressed, as it concerns the way in which the bill will deal with the issue of same-sex partners. I welcome the fact that the minister is seeking to extend the definition of nearest relative to same-sex partners.
I want to raise a point of procedure, although I am not sure whether there is such a thing. It might be helpful, in future debates, if notice is given— even during the debate—of any amendments that have been lodged by the Executive. A list of those amendments could be given to members. I understand that, in the Executive's response to the Justice and Home Affairs Committee, some of the amendments that are being proposed might not have been put forward. I raise that point in a spirit of co-operation. In the scrutiny of future legislation, a listing of Executive amendments might be considered.
It is of some concern that same-sex relations have been left out of the original draft of the bill. The idea that a person who may have lived with their partner for decades could have their guardianship over that partner overruled by the next nearest relative, who may not have been around for the past 20 years, is untenable. The potential grief and upset that could be caused is incalculable. In our age, not to acknowledge that men and women live in long-term single-sex relationships—particularly when we are considering who is best placed to act as proxy—is unacceptable. Further consideration of that issue is necessary, and I am pleased that the Executive wants to do that. We should not imply to the lesbian and gay community in Scotland that their relationships are second-class, or that, on important issues that affect their human rights, they cannot rely on the Parliament to act in a just and fair way.
I do not think that the bill will become a totem of gay rights. We should focus on the right of the patient to have the person who is closest to them helping to protect and support them and their decisions. I believe that—in a spirit of equality— there is consensus on the issue. We should address the needs of patients in times of crisis and distress. Few in the chamber would disagree with that.
Human rights are universal. They apply to us all—patients and loved ones. I hope that we are all loved ones because, as Jamie Stone said, the bill potentially affects all of us. It is a credit to the Parliament that it is being introduced, and the manner in which that has been achieved is credit to the committees and to the Executive.
Like others, I want to congratulate the relevant committees on the work that has been done in scrutinising the bill. I welcome the fact that the bill has been introduced in such a short time— we are all conscious of the difficulty in bringing forward detailed bills such as this at Westminster. The Parliament was created to be able to deal relatively quickly with matters that are of immediate interest to people in Scotland, and to deal with those matters in a way that is appropriate to the needs of the people. It is worth recording the fact that the committees have done such a thorough job.
I shall highlight three areas of concern—areas that I would like to be addressed more effectively during the remaining stages of the bill. First, I am concerned that controversial treatments for mental disorders, such as electroconvulsive therapy and neurosurgery, might—as I understand the terms of the bill—be given in certain circumstances to adults who are incapable of consenting to or refusing such treatments.
On Fiona Hyslop's point, I agree that human rights apply to everybody in all circumstances. We must be extraordinarily careful in ensuring that the principle of consent applies where humanly possible. I am not against necessary treatment being given where circumstances demand it, but it is important to maintain the principle that informed consent should be sought whenever possible, before treatment is given.
Secondly, I am concerned that the balance of control has shifted a bit too far in the direction of carers. I am concerned that the terms of the proposed legislation place no duty of care on welfare attorneys. There should be a quasi- contractual legal basis for the rights and responsibilities that apply to both the incapable adult and the carer, and there shouId be greater clarity in that process. It is difficult to produce legislation that applies to all circumstances, but I do not understand why it is not possible to establish the duty of care in the legislation or to apply that to welfare attorneys.
My final point is that the legislation is meant to apply to a relatively confined group of people in particular circumstances. In parallel with that, an increasing number of people suffer from Alzheimer's disease, dementia and so on. There is some concern that, when the legislation is enacted, it might come to apply to people to whom it was not intended that it should apply.
We must ensure that the application of legislation such as this cannot be extended to apply where it was not intended. More research must be done and we must take more expert advice on how to define what dementia is, and who the sufferers are. We must establish clear boundaries in relation to the bill—we must ensure that people's rights are protected and maintained wherever that is feasible and whatever people's circumstances. The Parliament must do everything that it can to ensure that protection of human rights is applied to everybody. That is an important principle for legislation from the Scottish Parliament.
The Justice and Home Affairs Committee report describes the bill as good; by the time it is enacted, it will be legislation that all members are proud of. The Liberal Democrat manifesto contained a commitment to such a bill, although of course other parties were similarly committed. The bill would not have come about without the efforts of many people before the Parliament was established; I mention particularly the alliance for the promotion of the incapable adults bill and the Scottish Law Commission. Jim Wallace rightly talked of the shared journey of developing this new legal framework.
How a society treats its most vulnerable members is perhaps a mark of how civilised it is. In the past, we have fallen short in that. The fact that, within a year, the Scottish Parliament will have rectified a deficiency that affects more than 100,000 people is a demonstration of the strength of the devolution settlement. We may all be touched by this legislation, personally or through our relatives, as Jamie Stone eloquently said.
The key principles embedded in the bill are that there should be appropriate efforts to communicate with the adult concerned; that whatever is done is for their direct benefit; that the least intrusive measure must be chosen to achieve that benefit; and that those close to the adult will have a right to be consulted.
Having looked at the evidence to the Justice and Home Affairs Committee, I welcome some of the amendments that the Minister for Justice mentioned this morning. It is difficult to digest them all quickly, but it seems right that, in exceptional circumstances, the nearest relative should be removed from their legal position. As other members have said, it is clearly right that the category of spouse or partner should include partners of the same sex. I strongly agree that it is necessary to reform the handling of the general and financial affairs of incapable adults and accept the Minister for Justice's assurances that there will be stringent safeguards on managers of care establishments and others who look after residents' finances. However, I want to see exactly what the safeguards are.
Part 5 has caused most comment to the Justice and Home Affairs Committee. As Jim Wallace and Roseanna Cunningham said this morning, it is unsatisfactory that, except in an emergency, there is no explicit authority for a doctor to treat a patient who is unable to give consent. It is important to change that. I welcome the clear opposition to euthanasia expressed by the Minister for Justice, which, I think, all members will share.
When are the regulations under section 45 likely to be made? If we had at least draft regulations by stage 2, that would facilitate debate. I welcome the proposed changes to section 48. I welcome the simpler and more positive definition of medical treatment. Like Pauline McNeill, I agree with the cogent arguments that Professor Sheila McLean made at the Justice and Home Affairs Committee against placing a statutory duty of care on welfare attorneys and guardians. Des McNulty, who is no longer in the chamber, would be wise to look at what she said, as it clarified the issue.
I have some difficulty with section 1(4)(a), which concerns living wills. I give weight to the Royal College of Nursing's evidence and feel that there are considerable difficulties in trying to take into account previous wishes when medical science may have moved a long way on. We will need to return to that matter and give it very careful consideration. I do not have an answer at this stage. I look forward to hearing what others say at stage 2, but I think that there are still some concerns about section 1(4)(a). If the minister has anything to add to what was said this morning, I will be grateful to hear it.
This debate is a starting point for the bill, rather than even the first hurdle. We have taken the evidence, we have information before us, we have appraised what is, in the minds of many, a very good bill, but there is long way to go before it can come into force.
Richard Simpson suggested that the need for change dated back as far as 1585—a time when there was another Scottish Parliament. That is noted. However, this process, involving the Scottish Law Commission, started in 1981. The previous Government considered this proposal in 1995 and decided to carry it forward. This Government, to its credit, took that onwards in 1997. It is now time to bring the recommendations to fruition.
We must remember the principal aim of this bill, which is to make things better for people who suffer from incapacity—permanent incapacity, transient incapacity or progressive incapacity. Those are the people whose fundamental rights, to which Des McNulty referred, must be protected.
Like Euan Robson, I want to pick up one of the features of this debate. All of us in the chamber today and all the members of the Justice and Home Affairs Committee have tended to concentrate on the medical and health issues, but the bill goes a lot further than that. We are talking about the everyday issues of life. When in section 1(4)(a) we read about
"the past and present wishes"
of individuals who have suffered incapacity, we need to remember that we are dealing not only with life-and-death issues, but with the material and all other aspects of those people's lives, such as where they wish their goods to go. We should bear that in mind when considering section 1(4)(a), important as the medical aspects are.
The bill is about not only those who suffer from incapacity, but those who care for them. The carers are a very important aspect, as Karen Whitefield reminded us. It is important that their wishes are taken on board all the way through this process. There are many cases of children who have suffered incapacity and are living with an elderly parent. The great concern of the elderly parent is what will happen after their death to their child. I believe that the bill offers them a way forward. It offers them fresh hope, in that others can be identified to take on the mantle that they have borne for many years.
The bill is unique, because it is not based on political interest or dogma. Every member of this Parliament has a chance to contribute to it. This is a chance to get legislation into place that means something and that can help people who are extremely vulnerable. To that extent, Fiona Hyslop's comment about the spirit of co-operation applies easily to this bill.
Some members of the Justice and Home Affairs Committee will be more involved in the preparations for the bill's next stage than others. At this point, I would like to pay tribute to Roseanna Cunningham. She paid tribute to all the members of the Justice and Home Affairs Committee, and Malcolm Chisholm offered his commendations as well. Roseanna has taken us through this bill with great fairness and, at times, panache. Lyndsay McIntosh thought that there was always an element of humour, but there was also a firmness that put us in our place.
A problem for Roseanna Cunningham was to get this bill through to a time scale. We recognised that that was important at stage 1, but we now move on to stage 2. The Justice and Home Affairs Committee must ensure that it does not face too much pressure to meet time scales. We should remember that stage 2 is a line-by-line examination of the bill, which contains a lot of
words and much detail. Such an examination cannot be hurried. If the committee is put under pressure to meet a deadline, one could say that a form of guillotine was being imposed. We have to ensure that we do not bow to such pressures.
I do not know whether this will cheer up Mr Gallie and the other members of the Justice and Home Affairs Committee who are still in the chamber, but I should advise them that I am in discussions about the possibility of the committee having a regular twice-weekly slot between January and Easter.
Roseanna is always cheering me up. What would really cheer me and every member up would be for the bill to go through as quickly as possible, as its aims are full of merit and it will improve the lot of many people.
Of course I have concerns about the bill, as everyone else does. I will not list them because of time constraints. This debate has been particularly eloquent. Many representations have been made and much detail has been picked up by members from all parties. Issues such as intervention cause me some concern. It is easy to identify positive intervention, but it is more difficult to identify what constitutes negative intervention. Perhaps such issues will be taken on board at stage 2.
Everybody will welcome the appointment of the public guardian. On welfare attorneys, as far as I am aware, the bill does not allow for the fact that people might already be acting as advocate for individuals. Perhaps registration is needed of those who are currently regarded as attorneys.
The ending—in effect—of the curator bonis system will be welcomed across the board. The system could be excessively expensive and many of the people who were being looked after could ill afford it.
The arguments about medical treatment could have been eased, although Malcolm Chisholm raised the valid point again about removing the contentious words "ventilation, nutrition and hydration" from the bill.
I welcome the minister's amendments. They go some way to satisfying many of the representations that we have had, but I take on board Malcolm Chisholm's warning that we must ensure that the wishes of people who care and have given their lives to looking after others are not undermined.
Finally, on an issue on which everybody expects me to be slightly contentious—same-sex partners—I will say that it would be nonsense to eliminate the views of people who had been in a long-standing and loving same-sex relationship, or even just a friendly relationship irrespective of sexual involvement. I make no apology for saying that, as I always argue that loving relationships, or partnerships that are based on friendship, should be recognised. Therefore, I welcome the minister's comments on same-sex partners or friends.
I am aware that, as the last person to speak before the minister closes the debate, I am in acute danger of touching on some points that have already been made. I hope that you will forgive me, Presiding Officer, if I cover some territory that has already been covered. Given Phil Gallie's last remarks, I am not sure what influence Lyndsay McIntosh is having on his politics these days— [Laughter.]—but his comments are welcome none the less.
It is clear that all parties support the general principles that underlie the bill. As several contributors to the debate have pointed out, moves to introduce a bill for adults with incapacity began in the 1980s and we should give credit to those who started that campaign. I congratulate the members of the Justice and Home Affairs Committee on their work, and I do not say that simply because I am Roseanna Cunningham's deputy. As this is the first time that a committee has had to take a bill through the legislative process, they should be congratulated on the way in which they have handled that task.
It gives me some pleasure to be able to wind up this debate for the SNP, because I was the person who moved this issue as party policy at our national conference in Inverness two years ago. We recognised the growing campaign for the introduction of this measure, and it is good to see that the Executive has chosen to introduce this bill early in the Parliament.
I would like to refer back to my own professional experience and to the disadvantages that result from the present legal system. Those disadvantages have to be dealt with not only by professionals who work with adults with incapacity, but by some of the most vulnerable members of our society. That problem has been mentioned by several speakers, including Jim Wallace and Scott Barrie, who referred to the freezing of joint bank accounts when one person in a couple develops dementia.
In my area, one of the most common problems concerns young people with acquired brain injuries. Because of the legal difficulties, the relatives have found themselves struggling to deal not only with the trauma of a young member of the family having a head injury, but with that person's personal and financial affairs. Unfortunately, that is a problem that some people experience day in, day out, and that is why most people recognise
the value of the bill.
The burden that those legal difficulties create often falls upon the shoulders of a relative or carer who may have little understanding of the legal problems. Very often, those people have had to resort to seeking expensive legal advice to address those problems. Karen Whitefield made that point in her contribution this afternoon. In my experience, the relative or carer was often an elderly person who had to cope with the trauma of their child's condition and the legal problems associated with it.
A couple of members have mentioned the fact that myths have built up around the bill. It is important to highlight the fact that this bill does not focus entirely on the issue of incapacity. That point was initially raised by Nora Radcliffe, who was taken somewhat by surprise when she was called to speak this morning. The bill seeks to empower individuals to make decisions on their own behalf where they have the capacity to do so. I fear that there is a growing impression that those who have learning difficulties, mental illness or a head injury will somehow automatically fall under the provisions of the bill. The bill is not about removing rights; it is about providing greater safeguards for individuals in managing their affairs. We must provide protection where it is required.
I want to raise a point that has not been mentioned in the debate so far. From my discussions with organisations with a particular interest in the bill, it has become clear that considerable misunderstandings exist about the bill. Organisations such as the Scottish Association for Mental Health and ENABLE, to mention only two, find themselves dealing every day with people who may benefit from the bill's provisions. They report that there is a clear lack of understanding amongst local organisations about the legal technicalities that may arise from the bill. I believe that information needs to be provided on that specific area.
I find a clear willingness on the part of organisations with an interest in the client groups who may be affected by the bill to work with the Executive to produce an information guide. The guide could be distributed to local organisations to disseminate information to field workers, who may be someone's first port of call for advice on the issue. Concerns exist that some of the people who may get the greatest benefit and security from the the bill may not receive it because of a lack of information. When the bill has passed through Parliament, I ask the Executive to consider the possibility of producing a public information leaflet that can be disseminated to local organisations to help them pass on the valuable information that will be required.
Several members have mentioned ECT and neurosurgery for mental disorder, an area where there appears to be some ambiguity over the impact of the bill. Jim Wallace said in his opening speech that he is trying to clarify that area, but there is some confusion about how the bill will apply to a person who is either an informal or formal patient, who may have incapacity and who ends up in hospital. A distinction exists on the type of treatment that that person can be provided with in hospital. I hope to see that addressed at stage 2, although I recognise that the matter may cross over to the Millan committee's considerations.
It is clear from the debate that the major area of controversy centres on the medical areas in the bill. That was also clear from the evidence that was given to the Justice and Home Affairs Committee. I do not intend today to rehearse all the concerns that have been raised, but Roseanna Cunningham highlighted in her opening speech the need to address that subject at stage 2.
The definition of intervention needs to be clarified. I ask that the Executive give serious consideration at stage 2 to Roseanna's point about the inclusion of such a definition in the bill.
Tricia Marwick raised a number of important points on nutrition and hydration, in particular with regard to the BMA's evidence. Gordon Jackson made the point that the words "ventilation, nutrition and hydration" in section 44(2)(b) of the bill have created fear and uncertainty. I welcome the Executive's commitment to amend that section, but I must add that the jury is out—until we see the Executive's amendment—on whether the clarification will be sufficient. The concerns on this part of the bill focus primarily on the possibility of back-door euthanasia. As several members have pointed out, the Executive has no intention of providing for that, but it will have the opportunity, at stage 2, to ensure complete clarification.
The assessment and certification of incapacity also requires clarification. The explanatory notes state that the bill makes
"assessment of capacity . . . a matter for the medical practitioner in charge of the patient's treatment."
Although that is fairly clear, the definition in the bill is
"any person who is responsible for the medical treatment".
That definition is slightly wider. It relates to a point that Richard Simpson raised earlier, when he pointed out that in modern medicine, decisions are often made by teams. The definition needs to be amended to recognise the change in medical practice.
Christine Grahame made a point about the right of appeal over the renewal of guardianship orders. That issue is of particular concern to the Mental Welfare Commission. I hope that the minister will
heed those concerns and, if necessary, amend the bill at stage 2 to take account of them.
A number of aspects of this bill require clarification and amendment, especially those sections that deal with medical provision. I believe strongly that the Executive is committed to addressing those problems, and I hope that amendments will address those concerns adequately, so that the bill will be recognised for its good aspects, not its bad aspects.
It gives me great pleasure to close this debate on behalf of the Executive, and to welcome warmly and enthusiastically the new politics that has broken out across the chamber. I am struck by the extent to which I agree with almost every word that Phil Gallie uttered. I am worried that that could become a habit. [Laughter.] Much more intriguing was the love-in between Phil Gallie and Roseanna Cunningham. We will watch for developments with great interest.
The extent to which members have been able and willing to come together across party political divisions and discuss this issue is testament to the commitment that people of all parties have to ensuring that we take positive, constructive steps on this matter. As a number of members have said, that shows the difference that having a Scottish Parliament can make. It has enabled us to introduce in the first year of our existence legislation that many people have waited a long time for. We should not lose sight of the significance of that fact.
Like others, I pay tribute to a number of people, in particular the Justice and Home Affairs Committee for the work that it did. Roseanna Cunningham effectively and eloquently set out much of that work earlier today. I pay tribute also to the contributions made by the Health and Community Care Committee and the Subordinate Legislation Committee.
In addition, I thank the wide range of organisations that have contributed to the debate—not just since we began to consider the matter formally in Parliament, but in the months and years leading up to that time—which has enabled us to reach a consensus on the direction we wish to take.
I commend also Eric Clarke, MP for Midlothian— who was in the chamber earlier—whose recent amendment in Westminster closed a loophole that will provide an interim arrangement for the management of finances of a number of people who will be protected by our own legislation.
The fact that so many people have contributed to getting to this stage is an excellent basis on which we can move forward. However, we recognise that it is important that we get the detail of the legislation right. Many people have made the point that this is a stage 1 debate, but in the weeks and months ahead, in this chamber and, crucially, in the Justice and Home Affairs Committee at its twice-weekly meetings, there will be a need for careful scrutiny. We welcome that.
At the risk of agreeing with Phil Gallie twice in one day, the principal aim of this bill is to make things better for persons with incapacity. I do not mind who we work with, or who we sit down and have discussions with, to ensure that we do that. It was interesting that one or two speakers talked about concessions on the part of the Executive in relation to the amendments that we propose to make. I do not see those amendments as concessions. They indicate exactly what we are about—listening to what people say to us and ensuring that we improve the process and the legislation as we go along. I hope that the amendments are positive evidence of our willingness to listen to those who raise points with us.
A number of points of procedure were made about the legislation, which I know are more matters for the Presiding Officer to take on board. I noted the point that Fiona Hyslop made about the presentation of amendments. We tried, through Jim Wallace's introduction of those amendments in his opening speech, to set out clearly at the beginning of this debate the direction in which we are moving. We are open to suggestions as to how that process can be developed.
Will Susan Deacon give way?
Since I am agreeing with Mr Gallie today, I will give way.
On the issue of amendments, Mr Jim Wallace suggested that there would be a second medical opinion, but Dr Simpson referred to team decisions being taken, which suggests that there could already be more than one opinion. Would the second medical opinion be seen as an independent one, separate from the team decisions being taken?
It is important to clarify a couple of points in relation to that. First, as all members have agreed in this debate, individual circumstances vary dramatically. What is best for the individual is central. In various situations there are teams of people involved. We have tried to get the right balance between the different individuals involved but have always tried to keep the adult with incapacity at the centre of that consideration.
The amendment in question relates to decisions that are taken about specific treatment administered to the individual. A view emerged,
during discussion on this issue, that the introduction of a second medical opinion in such circumstances was an important safeguard, should a proxy not consent to treatment for the individual. It was felt that the balance should be altered further by the introduction of a check into the system for a doctor to give a second medical opinion. I have listened to the speeches on that issue. It is clear that there are different views in Parliament on that point. We are trying to get the balance right. I hope that we can work together to do that.
The issue of euthanasia has come up repeatedly in the debate. I feel the need to restate the Executive's intent. We do not intend in any way to change the existing law on euthanasia. Gordon Jackson made an important point earlier in the discussion, which applies to some of the other areas that we have touched upon. It is important that we focus on the provisions of this bill and what it will do. Of course it has raised discussions on other matters, on which people have strong views, and no doubt discussions will continue. However, many of those matters are outwith the scope of this bill.
As far as this bill is concerned, it does not alter the existing position on euthanasia. Euthanasia will remain a crime in Scotland. Similarly, it does not alter the position in relation to living wills. It does not alter the existing provision in relation to emergency treatment. I give the assurance to Kay Ullrich, who raised this point, that a patient who requires emergency treatment will get it.
It is certainly not our intention to change the existing legal provision as far as the withdrawal of treatment is concerned. I hope that the amendment that Jim Wallace mentioned earlier helped to make clear that the principle of this bill is that any treatment must be done for the benefit of the adult. The wording, if I can repeat it, is that "any procedure or treatment designed to safeguard or promote physical or mental health" is what will be provided within the context of the bill. I hope that that makes our intent clear.
The issue of duty of care was raised in relation to medical professionals and to attorneys and guardians. Euan Robson made reference to points that Professor Sheila McLean made before the Justice and Home Affairs Committee. Persuasive arguments have been made throughout the consideration of the bill that point out why we do not want to place a duty of care on attorneys or guardians. We appreciate the intent but we believe that there would be practical difficulties relating to enforcement. Doctors and nurses have a duty of care to patients when making clinical decisions about a patient's treatment and care. To pick up on a point that Duncan Hamilton raised, it is inconceivable that basic nursing care would be withheld from a patient whatever their condition.
Many other points of detail were raised in the debate. I give an assurance, on behalf of the Executive, that we will closely consider them and points that are raised during stage 2 consideration of the bill.
I join everyone who has spoken in this debate in saying that I hope that we can take this bill through to completion and make sure that this Parliament delivers real improvements and better legal protection for some of the most vulnerable people in our society and those who care for them.
I am proud to have had the opportunity to speak for the Executive on the matter today.