Adult Support and Protection (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Adult Support and Protection (Scotland) Bill. Members should have in front of them the bill as amended at stage 2—SP bill 62A—the marshalled list, which contains all the amendments that have been selected for debate, and the groupings, which I have agreed.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period for voting on the first division will be 30 seconds. Thereafter, I will allow a period of one minute for voting on the first division after a debate. All other divisions will be 30 seconds.
Section 6—Visits
Group 1 is on visits: accompaniment by a doctor. Amendment 1, in the name of Dr Jean Turner, is the only amendment in the group.
Amendment 1 seeks to ensure that when a council officer enters someone's house or place of residence—which could be anywhere, for example a nursing home or a hospital ward—to determine whether the person is an adult at risk of harm, they will be accompanied by a doctor, who, preferably, will be the person's own general practitioner, if they can be found. I have made the proposal because I realise from my own experience how traumatic it is to enter someone's home to section them or to have them removed for treatment because they are self-harming.
We must remember that the numbers of elderly people and people with special needs in the community will grow. Many elderly people who live in their own homes are terrified of being taken into a nursing home or some other form of accommodation. The issue was highlighted for me recently, when one of my constituents refused any help from NHS 24. If we had been able to send in a doctor, the situation would have been resolved quite easily. I know from past experience that doctors often enter situations that they think they will not be able to manage, but as soon as the person sees a doctor from their practice or one whom they know, the situation is defused.
Amendment 1 would also allow the medical examination that is envisaged under the bill to be undertaken in the adult's home, so it would not be necessary for them to be removed to another place.
As a former GP, I recognise that my proposal might place an additional burden on GPs, but the evidence that the Health Committee received suggested that it would not be an enormous burden. Doctors would have to make such visits on only a handful of occasions a year. I commend the amendment to Parliament.
I move amendment 1.
Amendment 1 is similar to an amendment that was debated at stage 2. Although I recognise the good intentions behind it, I have reservations that its provisions would be inflexible, and might give rise to circumstances in which a visit could not go ahead because a GP was not available.
The intent of amendment 1 could be secured perhaps in secondary legislation, but probably in a code of practice or guidance. That would be better than cementing it into statute in a way that could lead to unforeseen undesirable situations arising.
Although I acknowledge the value of Jean Turner's experience and recognise that it will often be the case that a GP is an appropriate person to be involved, I share Euan Robson's reservations. As he said, at stage 2 the Health Committee considered whether a doctor should be present for all visits under section 6. Amendment 1 would require a GP to attend when a visit was prompted by concerns about a person's well-being and would mean that reasonable steps would have to be taken to ensure that the GP was from the adult's practice.
Section 8 already provides that the primary person sent by the council may be a health professional and that no one other than a health professional can conduct a medical examination of an adult who may be at risk. It quite deliberately allows flexibility in the choice of who that health professional should be. On occasion, the best person will be the adult's GP or another GP who is registered at the same practice. However, in other cases the health professional with whom the adult is most familiar and who can most readily assist them will be a district nurse or mental health professional. In those circumstances, that person's presence would be more appropriate, therefore we should retain the flexibility that the bill currently provides.
On that basis, I ask Dr Turner to seek leave to withdraw amendment 1.
On most occasions when section 6 will be used, a medical problem will be present in the background, which could be solved quickly, kindly and sensitively by the presence of a GP. The bill is about adult support and protection and the least intervention that is required to help people. It would be a kindness for a general practitioner to be present—as I said, they should preferably be a GP whom the person knows, although I know that that might not always happen. I honestly do not think that it is too much of a burden or too difficult to find a GP. A GP has to be found when someone has to be sectioned under the mental health legislation, and it is perfectly easy to do that.
I press amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division. As this is the first division, there will be a five-minute suspension.
Meeting suspended.
On resuming—
We will proceed with the division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Ind)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (Sol)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 18, Against 84, Abstentions 0.
Amendment 1 disagreed to.
Section 8—Medical examinations
Group 2 is on the right to refuse consent to medical examinations. Amendment 2, in the name of the minister, is the only amendment in the group.
Part 1 will introduce new measures to protect adults who are at risk of harm. For stage 3, we have lodged only two amendments to part 1, after significant changes were made at stage 2. Part 1 will place a duty on relevant bodies to co-operate in investigating and responding to harm and will also provide rights of entry to allow that to happen. [Interruption.]
One moment, minister. There is far too much noise. Conversations can be held outside the chamber.
At stage 2, Nanette Milne submitted an amendment that sought to strengthen individuals' rights during interviews or medical examinations by ensuring that they would be made aware of their right to refuse to participate prior to any proceedings taking place. At that stage, I offered to come back with an amendment on medical examinations that was consistent with the provisions on interviews that we introduced at stage 2. Along with those provisions, amendment 2 will make it clear that action under the bill is intended to support adults, by ensuring that they are fully informed of their right to refuse consent to either an interview or a medical examination before it takes place. Amendment 2 responds to concerns that were raised in the Health Committee.
I move amendment 2.
Amendment 2 agreed to.
Section 11—Criteria for granting assessment order
Group 3 is on the criteria for granting assessment orders. Amendment 3, in the name of the minister, is the only amendment in the group.
Amendment 3 also responds to a point that the Health Committee discussed at stage 2. In this case, Shona Robison lodged an amendment on assessment orders and I offered to produce an Executive amendment at stage 3 that would be consistent with Euan Robson's amendment on removal orders, to which the committee had agreed.
The intention behind amendment 3 is to ensure that a person who is the subject of an assessment order is assessed in a place that is suitable and available for either an interview or a medical examination. The intention has always been that a person who is the subject of an assessment or removal order should be assessed in or removed to a suitable and available place. Amendment 3 will make that intention explicit in the bill.
I move amendment 3.
Amendment 3 agreed to.
Section 49—Persons authorised to perform functions under this Part
Group 4 is on authorised persons: council officers. Amendment 4, in the name of Dr Jean Turner, is the only amendment in the group.
Amendment 4 seeks to ensure that council officers who have the power to enter premises and remove an adult at risk of harm are social workers with at least 12 months' experience since qualifying. The Health Committee was concerned when it first received the bill that council officers are to be given such serious powers. Being removed against one's will is beyond most folk's hopes and fears. They hope that it will never happen to them, but it could happen to any one of us. Council officers should be fully qualified and experienced enough to be able to handle the situation with great sensitivity. As the bill stands, any council officer may undertake the task.
The deputy minister has recognised the issue and is committed to introducing regulations to restrict the definition of a council officer. He has been kind enough to issue a draft of the regulations laying out the proposals. I am grateful for that courtesy and for the time that he gave me prior to lodging my amendments. However, the draft regulations propose that as well as undertaking a week's training, which I support, those eligible to use the extensive powers under the bill will require to be qualified social workers with only six months' experience. That is not enough; they should have 12 months' experience.
The regulations also propose that the first visits under the act, which will determine what happens next—whether somebody is taken away to be examined or is subject to a banning order and so on—may be undertaken by managers of adult day care or home care services. That is not appropriate, as there could be a conflict of interest if there were complaints about those services.
I lodged amendment 4 because I have witnessed situations in which extremely vulnerable people were dealt with, and it takes a high degree of experience to cope in such situations and to tone down a situation that might easily blow out of all proportion. Such situations must be handled with care and with the least intervention. The powers under the bill to enter premises to investigate or remove people should be used only by qualified social workers with a minimum of 12 months' experience. In fact, I would make that 24 months, but in the spirit of compromise I have said 12 months in the amendment.
I move amendment 4.
Although I accept the spirit of amendment 4, we should be serious about the reality of people who are employed in our local authorities. While the 24 months that Jean Turner indicated is her preferred option would be far too restrictive, I argue that 12 months is perhaps too restrictive as well. People should not underestimate the seriousness with which council employees will approach the powers that we are giving to them. To suggest that someone will go in willy-nilly and not treat the matter in the way in which we hope that they will is somewhat disrespectful to people's training and experience, which they may have gained before they were qualified. Introducing a restriction of 12 months would be going too far. We should resist amendment 4.
I agree with Scott Barrie. There is a risk with amendment 4 that we would be trying to manage the work of social work departments by statute, which would not be appropriate. It is a matter for the exercise of discretion by the social work departments of local authorities.
I have consulted social work departments on amendment 4 and I have not received anything other than a general feeling that it would be sensible.
I agree with Scott Barrie that the intentions behind Jean Turner's amendment 4 are favourable, but the Executive's position is to resist it, because the approach that is set out in the draft regulations that I have circulated, which recognise that different functions are involved, is the right one. Council officers who perform functions that relate solely to visits may include, for example, day care managers who are also skilled and qualified people. However, a qualified social worker will be required to pursue a protection order. Therefore, the draft regulations will further limit the group of officers who are permitted to carry out those functions.
The views of social work professionals and colleagues in the Scottish Social Services Council were sought on the draft regulations. The proposed approach will provide some flexibility with regard to persons who may carry out more basic functions, but it will ensure that only appropriately qualified and trained persons are authorised to perform roles that relate to assessment and removal. However, the detail of the draft regulations still needs to be worked through with the Association of Directors of Social Work, and therefore will be subject to wider consultation.
On the basis of that approach, we will resist amendment 4.
I accept what Scott Barrie said about previous experience, but we do not know what an individual's experience prior to becoming a social worker will be. We also do not yet know what the regulations will be. Therefore, I press amendment 4.
The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Ind)
Petrie, Dave (Highlands and Islands) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (Sol)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 23, Against 64, Abstentions 0.
Amendment 4 disagreed to.
After section 51
Group 5 concerns independent advocacy services and guardianship orders for adults with incapacity. Amendment 9, in the name of the minister, is grouped with amendments 13, 14 and 27. If amendment 14 is agreed to, amendment 27 will be pre-empted.
The amendments in this group relate to part 2 of the bill, which amends the Adults with Incapacity (Scotland) Act 2000.
Members of the Health Committee will recall that, at stage 2, I accepted two amendments in the name of Shona Robison, which stated that the sheriff must take account of any views that are expressed on an adult's behalf by someone who provides independent advocacy services. On reflection, I realised that Ms Robison's amendments applied only to applications for intervention or guardianship orders and that it would be more desirable to ensure that the sheriff should take the views of the adult concerned into account in any kind of proceedings under the 2000 act. Those could include applications for renewal of a guardianship order or replacement of a guardian.
Having accepted Shona Robison's point, it is appropriate to broaden the provision into a general one, for the avoidance of any doubt. Amendments 9, 13 and 14 will ensure that the sheriff must take views that an independent advocate expresses on behalf of the adult into account in any type of proceedings under the 2000 act.
Amendment 27, in the name of Nanette Milne, relates to an application for guardianship under the 2000 act and is intended to ensure that the sheriff considers not only whether other lesser measures under the act would be sufficient to enable the protection of the adult's interests, but whether other existing legislative provisions would be sufficient to do so.
Amendment 27 is unnecessary. Of course we want the sheriff to take account of the powers that are available to the local authority under, for example, the Social Work (Scotland) Act 1968, but the sheriff already has discretion. The provision that Nanette Milne seeks to amend already ensures that the sheriff will have to be satisfied that there are no means under the 2000 act by which the local authority can act, but they will also be bound by the general principles in section 1 of the 2000 act and will have to be satisfied that the benefit for the adult that is being sought can be achieved only by way of an intervention under that act. Nanette Milne's amendment 27 might also restrict the sheriff's discretion, so we ask her not to move it.
I move amendment 9.
Amendment 27 is a minor amendment, but it would extend the scope of section 51 of the Adults with Incapacity (Scotland) Act 2000 to other legislation. The minister has assuaged my concerns. I will not move amendment 27.
Amendment 9 agreed to.
Section 53—Powers of attorney
Group 6 is on powers of attorney and foreign solicitors. Amendment 23, in the name of Nanette Milne, is grouped with amendments 24 to 26.
Amendment 23 is designed to provide a mechanism for certifying powers of attorney when the granter is abroad. It would allow certification by a wider class of professional, including qualified and practising lawyers, notaries public, commissioners for oaths or similar in any jurisdiction outwith Scotland where the granter is present.
The reason for amendment 23 is that it has been reported to the Law Society of Scotland that some solicitors have encountered significant practical problems in having powers of attorney certified when the granter is abroad. The current certification provisions in sections 15(3)(c) and 16(3)(c) of the Adults with Incapacity (Scotland) Act 2000 refer to certification
"by a solicitor or by a member of another prescribed class".
Although the term "a solicitor" is not qualified, the public guardian has not been willing to accept certification by a solicitor in any jurisdiction other than Scotland. The bill as it stands will amend the term "solicitor" to "practising solicitor", making it clear that only a practising Scottish solicitor may certify. That will cause problems where a person currently in another country desires or requires to grant a Scottish power of attorney.
Amendments 24 to 26 are consequential to amendment 23.
I move amendment 23.
The Executive does not support amendments 23 to 26. As members will recall, amendments were passed at stage 2 to clarify the definition of "solicitor" for the purposes of sections 15 and 16 of the 2000 act. We lodged those amendments following consultation with the relevant interests on whether the definition should be limited to a solicitor practising in Scotland. That proposal found support, therefore only practising solicitors, practising advocates and registered medical practitioners can currently give the certificates that are required under sections 15 and 16 of the 2000 act. They are members of professions that are subject to professional regulation and they carry professional indemnity cover, which is necessary and appropriate protection for people who grant powers of attorney.
Broadening out the class to include foreign solicitors would raise questions as to how such professional regulation and protection could be assured. Of course, we are dealing with legal mechanisms under Scots law, and there is the important question whether a foreign solicitor could properly advise a person who is granting power of attorney about its effect under Scots law. Accordingly, I ask Nanette Milne to withdraw amendment 23 and not to move amendments 24 to 26.
I listened carefully to the minister's explanation, in which he made valid points about foreign solicitors.
Amendment 23, by agreement, withdrawn.
Amendments 24 to 26 not moved.
Section 54—Accounts and funds
Group 7 is on withdrawers, notice of change of address and duration of certificates etc. Amendment 10, in the name of the minister, is grouped with amendments 11 and 12.
The amendments in the group again relate to adults with incapacity and are technical amendments to new part 3 of the 2000 act.
Amendment 10 provides for a seven-day time limit for notifying the public guardian of a change of address of the adult or the withdrawer. Amendment 11 provides that the register that is maintained by the public guardian must be updated when the authority of the withdrawer is suspended or terminated.
Amendment 12 provides that the public guardian may specify a time limit for the validity of certificates of authority to provide information about funds, open a bank account and transfer specified sums. That will provide certainty and remove the possibility of open-ended authority. The amendment provides that the public guardian can cancel certificates of authority and that, if she does so, she must notify the appropriate person.
I move amendment 10.
Amendment 10 agreed to.
Amendments 11 and 12 moved—[Lewis Macdonald]—and agreed to.
Section 60—Intervention orders
Amendment 13 moved—[Lewis Macdonald]—and agreed to.
Section 61—Guardianship orders
I point out again that, if amendment 14 is agreed to, I will not call amendment 27 because of pre-emption.
Amendment 14 moved—[Lewis Macdonald]—and agreed to.
Group 8 is on adults with incapacity and transitional guardians. Amendment 15, in the name of the minister, is the only amendment in the group.
Amendment 15 reflects the purpose of an amendment that Nanette Milne lodged at stage 2.
The bill contains a provision that requires all transitional guardians—that is, pre-2000 act curators, tutors dative and tutors at law—to renew their guardianships under the 2000 act, if appropriate, within two years of the provision coming into effect or within two years of the person attaining the age of 16, whichever is the later. Without such a renewal, their authority to act as a guardian will cease.
Nanette Milne's amendment at stage 2 sought to avoid the risk that some adults would lose their guardians because the requirement to renew was not specifically drawn to the guardian's attention. Amendment 15 requires the public guardian and the local authority to take reasonable steps to notify transitional guardians of the requirement to renew their guardianships. It therefore meets the objective that was discussed at stage 2.
I move amendment 15.
I thank the minister for his comments. Amendment 15 certainly satisfies my concern and I am happy with it.
Amendment 15 agreed to.
After section 63
Group 9 is on the power to help incapable adults benefit from social services. Amendment 16, in the name of the minister, is grouped with amendment 16A.
Amendment 16 clarifies local authorities' powers in relation to the provision of services to adults with incapacity under the Social Work (Scotland) Act 1968. The amendment aims to address an issue about the use of court orders under the Adults with Incapacity (Scotland) Act 2000. I explained the background to and rationale for the amendment in my letter of 7 February to the convener of the Health Committee, and copies of that letter are available to members today.
Practice in applying for orders under the 2000 act varies among local authorities. We do not believe that it is always necessary to obtain a guardianship order when an adult with incapacity is to be moved to residential accommodation. For example, it would not be necessary in a case in which there was no disagreement about the service to be provided, if the adult appeared to be content with the move and there was no question of their being deprived of their liberty. Our policy is to ensure that community care services are provided as quickly as possible after an assessment and without the case going to court unless that is necessary.
However, it has become clear from the consultation on the draft guidance that, because some local authorities have doubts about the extent of their legal powers, they seek a court order in every case. Clearly, a consequence of that can be that an adult who lacks capacity has to wait unnecessarily in a hospital bed for which they no longer have any clinical need when a suitable place is available for them in a more appropriate care setting.
Having consulted on this issue, we have come to the conclusion that clarification of the law would be helpful. Amendment 16 therefore seeks to clarify the powers of local authorities in relation to the provision of community care services to adults with incapacity. It also seeks to ensure that the principles of the 2000 act are applied when a local authority takes any steps using the powers.
Of course, local authorities, as public authorities, must comply with the European convention on human rights. The power under the 1968 act does not allow local authorities to take steps that would deprive the adult of his or her liberty. Local authorities will still have to judge when it is appropriate for the power under the 1968 act to be used. We will therefore issue guidance to help local authorities make such judgments. Clear guidelines will be set out as to when it may be appropriate to use the power. By clarifying the legal position, amendment 16 will assist local authorities.
Nanette Milne's amendment 16A seeks to add an additional provision to amendment 16, to prevent a local authority from taking steps under the 1968 act if it is aware that an application for an intervention or guardianship order, which would cover the steps in question, is likely to be made. Amendment 16 already provides that the power under the 1968 act cannot be used when a proxy is already in place with the power to take the decision in question, or when an application for an intervention or guardianship order is currently before the courts. Those provisions impose clear restrictions on the use of the power. I therefore do not believe that amendment 16A is necessary.
Amendment 16A also risks introducing the unintended consequence of preventing a local authority from using the power in the 1968 act when it is aware that an application is likely to be made but has no control of when that application will be made. In such circumstances, there would clearly be a risk that the application would not progress.
We have already issued draft guidance to assist local authorities in deciding when it is appropriate for an application to be made for an order under part 6 of the 2000 act, and when it may be appropriate to use its power under the 1968 act. The guidance makes it clear that certain criteria must be met before the power under the 1968 act is used. One of those criteria would relate to a court application being made in the first place, which would clearly indicate that there was no agreement on the proper course of action. In such circumstances, the local authority should act accordingly. We intend to make all such points clear in the final version of the guidance.
I hope that what I have said gives Nanette Milne the reassurance that I know she is looking for and that she will not move amendment 16A.
I move amendment 16.
I welcome amendment 16, which covers many of the Health Committee's concerns. The intention behind amendment 16A was to extend amendment 16 so that it covered possible applications. I accept the minister's argument that amendment 16A might lead to delays if a local authority did not know when an application was to be made. I will therefore not move amendment 16A.
Amendment 16A not moved.
Amendment 16 agreed to.
After section 67
Group 10 is on the revocation of compulsion orders and applications to the Mental Health Tribunal for Scotland. Amendment 17, in the name of the minister, is grouped with amendments 18 and 20.
This group of amendments and the following two groups deal with the Mental Health (Care and Treatment) (Scotland) Act 2003, which will be amended by the bill.
Criminal justice and mental health legislation already makes provision for the protection of the public from those who, by reason of a mental illness, may pose a risk of further serious offending. The legislation does so by allowing a court to impose a compulsion order, or a compulsion order together with a restriction order. A compulsion order allows for the detention in hospital of a patient and for the provision of treatment.
When a compulsion order is imposed together with a restriction order, the period of detention may be without limit of time and Scottish ministers are given powers in respect of the care and treatment of the patient. Decisions in respect of discharge are reserved to the Mental Health Tribunal for Scotland, but Scottish ministers are party to the consideration of such cases and may lead and challenge evidence. The restriction of liberty in this way for an indeterminate period of time is limited to circumstances in which such restriction is necessary.
Amendment 17 adds an additional test to the criteria for the revocation of a compulsion order when that order is in place in combination with a restriction order. The additional test is that the tribunal is not satisfied that it continues to be necessary for the patient to be subject to the compulsion order. In practice, that means that, if the tribunal does not consider that the order continues to be necessary, it may discharge the order. In such cases, the patient will then become a voluntary patient.
I should emphasise that discharge follows treatment, testing out and, when on-going care and treatment are required, the creation of a robust and established care regime. It is not a step that is lightly taken. In considering the position that they wish to adopt in individual cases, Scottish ministers will consider reports from clinicians, the police and others as appropriate and will oppose discharge when they consider that the protection of the public warrants that approach.
That change means that the tests for imposing and lifting the order will be the same. That will satisfy the expectation that the restriction of liberty continues when it is necessary, but not when it is not necessary. There will now be consistency between the criteria in part 10 for the lifting of compulsion and restriction orders and those in part 9 for the lifting of compulsion orders, in so far as both parts of the 2003 act will now refer to the necessity test.
Amendment 17 ties in with amendments that were agreed to by the Health Committee at stage 2. Those amendments introduced a necessity test in relation to the criteria for the discharge of prisoners who are transferred to hospital for treatment of a mental disorder. Amendment 17 makes no change to the arrangements that are in place for patients suffering from a mental disorder who are detained in order to protect any other person from serious harm. In such cases, the tribunal has no power to order discharge from the compulsion order. If, following discharge, the patient's mental health deteriorates, the power is available to detain them under the civil provisions of the 2003 act.
Amendment 17 is supported by the Mental Welfare Commission and the Royal College of Psychiatrists.
Amendment 18 relates to applications to the Mental Health Tribunal. It will apply when the tribunal is considering whether it is under a duty to carry out a two-year review of certain types of order. It will also apply when Scottish ministers are considering whether to refer a case to the tribunal for a two-year review.
One of the conditions for such reviews is that no application has been made in the relevant period to revoke or vary the order. The amendment will ensure that any applications that are made in the relevant period but are subsequently withdrawn are treated as never having being made. That will ensure that the tribunal will review and make a determination in all cases in line with the policy that cases should be reviewed at least once every two years. Without the amendment, there is a risk that, as a consequence of withdrawn applications, the tribunal might not review a case for a period of time in excess of two years, so defeating the intention of Parliament.
Amendment 20 is a technical amendment.
I move amendment 17.
Amendment 17 agreed to.
After section 67C
Amendment 18 moved—[Lewis Macdonald]—and agreed to.
Schedule 2
Repeals
Group 11 is on the repeal of section 142 of the Mental Health Act 1983. Amendment 19, in the name of the minister, is the only amendment in the group.
Amendment 19 repeals, for Scotland, section 142 of the Mental Health Act 1983, which has already been repealed for England and Wales. Section 142 relates to the payment of a mentally disordered person's salary and pensions directly out of moneys provided by Parliament or the consolidated fund. The paying authority can distribute the person's pay or pension as it thinks fit, which offers the funds no formal protection. The mechanisms that are available under the Adults with Incapacity (Scotland) Act 2000 are now available for any future cases that might arise and we consider that the section should, therefore, be repealed.
I move amendment 19.
Amendment 19 agreed to.
Section 71—Commencement
Group 12 is on the commencement of certain provisions in parts 2 and 3A. Amendment 21, in the name of the minister, is grouped with amendment 22.
These are technical amendments relating to part 2, which deals with adults with incapacity, and part 3A, which deals with mental health. They relate, first, to amendment 16, which clarifies the powers of local authorities. The amendments bring that provision into effect on the day after the bill receives royal assent, to ensure that any doubts about the extent of local authorities' powers are removed as soon as possible.
Secondly, the amendments relate to two stage 2 amendments to the Mental Health (Care and Treatment) (Scotland) Act 2003, on the discharge of patients from compulsion. It is considered advisable that those amendments should be introduced as soon as is practical.
I move amendment 21
Amendment 21 agreed to.
Amendment 22 moved—[Lewis Macdonald]—and agreed to.
Long title
Amendment 20 agreed to.
That ends consideration of amendments.