Adult Support and Protection (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-5042, in the name of Andy Kerr, that the Parliament agrees to the general principles of the Adult Support and Protection (Scotland) Bill.
We introduced the Adult Support and Protection (Scotland) Bill principally to provide support and protection for those people in our communities who are vulnerable to harm, inadvertent or otherwise, but who are not covered by existing legislation. In 1993, the Scottish Law Commission produced a paper on how best to protect vulnerable adults, in which it observed that, at that time, there was "little or nothing available" to protect adults who were vulnerable but not mentally disordered. The paper also noted
"an increasing awareness that abuse, deprivation and exploitation of vulnerable adults generally occurs and that the existing law is often not capable of tackling it effectively."
In 1997, the Scottish Law Commission published a draft bill to address those concerns. Since then, the Parliament has passed the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.
The bill is designed to fill a gap. In the context of the increasing numbers of people who are living ever longer in old age, it will address the vulnerability of those who are mentally well and capable but who are nonetheless frail and at risk of harm. The Adults with Incapacity (Scotland) Act 2000 provided groundbreaking new legislation for managing the welfare or financial affairs of adults who lack the capacity to manage those matters for themselves. The Mental Health (Care and Treatment) (Scotland) Act 2003 updated the legal framework for people with a mental disorder. The main aims of the bill are to update further the legal framework to address the gaps that remain, which include groups of people who are not covered by existing statute and omissions in the range of interventions that are available to provide support and protection. In effect, those gaps mean that practitioners currently have no means to access some adults who are or may be at risk of harm.
We first consulted on many of the proposals that are in the bill in 2001. Respondents to that consultation indicated strong support for measures that addressed a wider group than those with a mental disorder. There was a high level of agreement about the need for the kind of protection orders that are proposed in the bill.
Since then, as members will be aware, there have been repeated calls from Age Concern Scotland, the Mental Welfare Commission for Scotland, the Vulnerable Adults Alliance Scotland and others who represent older people and those who are infirm to legislate for better protection of adults. That is because abuse can happen in regulated care settings such as care homes and in family homes. It happens in relationships of trust, in which it can be difficult for the individual who is being harmed to seek the help that he or she needs. Sometimes, that is because the individual relies on the abuser for care and sometimes because of fear of reprisal.
The bill is about unintended harm as well as intentional abuse. Abuse, by definition, results in harm, but harm does not always result from abuse. The bill is intended to offer protection against abuse and other causes of harm, because the person who suffers inadvertently needs such protection.
I recognise that acting to protect adults in those circumstances raises some sensitive issues. That is fully reflected in the Health Committee's stage 1 report. I welcome the committee's support for the important provisions in parts 2 and 3 of the bill and I acknowledge that its recommendations focus on the critical issues in part 1. I am grateful for the Health Committee's careful consideration of those issues and I thank the Finance Committee and the Subordinate Legislation Committee for their comments.
The Health Committee's stage 1 report endorses our approach to some provisions in part 1. In the context of the general principles of the bill, the committee supports the provisions that establish rights of entry and inquiry and which put adult protection committees on a clear statutory footing.
The bill's main purpose is to provide protection from deliberate and unintended harm. It is important to recognise that harm to vulnerable adults includes and encompasses abuse. Abuse of older people—elder abuse—is a reality and one of the reasons why we need the bill, but I am happy to concur with the committee's view that we need to give sufficient emphasis to situations in which harm is a result of self-neglect or the pressures of caring rather than intentional abuse. We will consider how that may be better reflected in the wording of the bill at stage 2 so that we explicitly provide protection from harm, including abuse, rather than risk appearing to focus on abuse to the exclusion of all else.
We will consider how the bill makes clear the overlap with existing legislation. The bill reflects principles that are common to other legislation, such as recognising the importance of the adult's known wishes. It is not intended to override the advance statements that a person may make about their treatment should they require intervention under the Mental Health (Care and Treatment) (Scotland) Act 2003, and we will certainly consider how best to make that clear as we go forward.
Advocacy is important in helping people to communicate their views. The committee has said that people to whom the bill applies should have the same rights as those who are subject to interventions under existing statute, and I am happy to concur with that point. Part 1 offers practitioners, for the first time, a range of options for responding to actual or suspected harm, and the underpinning principles put the individual's wishes first.
The bill requires better co-operation among the agencies that are most likely to become aware of an adult being at risk of harm. It places a number of duties on local authorities and allows us to limit the class of council officer who will be permitted to perform the functions that are identified under the bill. Ministers will use the order-making power to define clearly the officers who are empowered to act and the qualifications that they will require to be able to use those powers.
The committee welcomed the rights of access and inquiry. Sometimes, getting through the door will be enough, as the opportunity for a conversation with an appropriate professional may give an individual who may be at risk the information that he or she needs to make a real choice. However, that will not always be the case; hence the need for the further powers that the bill confers. There are safeguards to prevent inappropriate use of those powers. Protection orders can be used only with the authority of a sheriff. There is a balance to be struck between acting immediately to prevent serious harm and providing appropriate appeal rights to ensure that actions are in proportion to needs.
I acknowledge that the most contentious of the protection orders is the removal order. To grant a removal order, the sheriff will need to be satisfied that it is necessary to prevent serious harm to the adult who is being removed. A removal order will expire after seven days or any shorter period that is specified in the order.
The bill provides for variation or recall of a removal order when there has been a change in facts and circumstances. However, such a variation can never extend the period of the order beyond seven days. There is no right of appeal against a removal order only because the order is of such specific and limited duration that any appeal against it is unlikely to be heard until after it has expired. As a result, an appeal that is heard after the order expires would not provide a different outcome for the adult at risk. He or she may instead seek a variation or recall of the order, thereby providing an opportunity for the issue to be looked at again by the court.
Has the minister discussed the civil shrieval procedures that would have to take place? I see no mention of them. Will they be like interim interdicts? How will they work?
We have taken appropriate advice on the procedures, to which I will be happy to return in the course of the afternoon to give Christine Grahame more detail of the way in which they will work.
In acknowledging issues that are raised around protection orders, such as those that were raised by Christine Grahame, I am happy to consider what might be needed to make it clearer in the bill how appeals procedures will function. We want to return to that area at stage 2.
The bill aims to balance rights and protection. To override an adult's refusal of consent, where a court is persuaded that it is withheld because there is undue pressure, will be an absolute last resort. We do not expect such circumstances to arise very often. However, where a responsible professional person is convinced that an adult is refusing support and protection due to undue pressure from another person, it is essential that he or she is enabled to present the evidence of that to a sheriff for their urgent consideration.
One of the most sensitive issues raised at stage 1 has been the definition of adults at risk. I agree that we should respond to the committee's concerns in that area by seeking to narrow the definition of adults at risk of harm in order to clarify the bill's intentions. There are people with profound and multiple impairments and others with cognitive impairment who are unable readily to articulate their views. They are among the people whom we seek to protect and support and we must not lose sight of their needs.
The other measures in the bill are to enhance the operation of the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Social Work (Scotland) Act 1968 by simplifying and streamlining them to deliver the original policy intentions. I believe that those measures, which have been broadly supported, will achieve those objectives.
We have considered carefully the views of the Health Committee. Ministers will seek to respond to those views in as positive a way as we can, consistent with the fundamental principles of the bill. On that basis, I hope that the bill can move to the next stage of consideration with broad-based support.
I move,
That the Parliament agrees to the general principles of the Adult Support and Protection (Scotland) Bill.
The bill has had what I would describe as a difficult birth. Perhaps that is because, as I understand it, its origins lay with the Bichard proposals, from which it was disentangled. Initially, the focus was on the elderly, but the bill was broadened out to cover other groups. Whatever its background, suffice to say that it is a bill with a lot of difficulties, to which I want to turn my attention.
We have no problem with parts 2 and 3 of the bill; our problems are with part 1 and, in particular, sections 3 to 38. As legislators, we have to balance the involvement of the state in people's lives, and its duty to protect vulnerable individuals, with the rights of those individuals themselves. I do not diminish the fact that that is a difficult balancing act.
The first problem is who is covered by the bill. The minister said that there will be amendments at stage 2, but a bill that has to be significantly amended at stage 2 tells its own story. I hope that the Executive will reflect on the drafting of the bill for future reference. If a bill has to be substantially rewritten, that should concern everyone in the Parliament.
As the minister said, the bill is widely drawn. There is potential for everybody to be covered at some stage in their lives. The definition of adults at risk includes those with disabilities and those who have temporary illnesses, but surely the fact that someone is disabled does not, in itself, make them vulnerable. The disability organisations made that point. It is someone's disability along with other factors that makes them an adult at risk. That needs to be made clear in the bill. As the Health Committee said, we need to make it clear exactly whom the bill is designed to protect.
The second problem is the use of the word "abuse", which is not helpful because it is loaded and accusatory. An adult at risk might have been subject to benign neglect rather than deliberate abuse. If their carer is labelled an abuser, that will not help them to accept the perhaps badly needed help that they require to continue with their caring role. We know that the pressure on carers can cause frustration and lead them to act in a way that puts people at risk of harm, but if we are to engage in positive discussions with carers about how they can change that behaviour, the term "abuse" must change. Use of the phrase "at risk of serious harm" is one way forward to address the problem.
Clarification is needed of the bill's relationship with other legislation, including the Mental Health (Care and Treatment) (Scotland) Act 2003. It is important that adults who are covered by the bill have the same rights as those who are covered by the 2003 act, including, for example, the right to advocacy services. I hope that the minister will reflect on that.
The right of officers to enter premises is a powerful provision in the bill and it should be exercised only by those who are involved in dealing with the legislation. At present, the bill gives any council officer the power to enter premises, but that must be amended. The minister acknowledged that the power is far too wide.
The power to override consent is of greatest concern because it is such a fundamental issue. Let us remember that we are talking about an adult who has capacity. Surely the power to override their consent should be used only as a last resort, when all other options have been tried and it is necessary to avoid immediate harm. I am afraid that the case studies that have been given—not just by the minister, but by some of the organisations that gave evidence to the committee—are of concern. To me, they were not cases of last resort and the intervention was disproportionate.
I hope that the minister notes the concern about the power to override consent. Are we really saying that someone who has a chronic alcohol problem, who refuses assistance or services but who clearly has the capacity to make decisions can be forced to accept help and may be forcibly removed from their home for their own protection? If the minister is saying that legislation should be used to do that, he is mistaken. I know from my years of experience working as a home care manager that we cannot force people to accept help even if they badly need it. The idea that home care staff should force their way into someone's house, perhaps facing verbal or even physical aggression as they do so, is not practical. No one would want to see people being moved from their home against their will, other than in exceptional circumstances.
Neither of those situations is palatable, and I cannot see either happening in practice. That means that there is another danger with the legislation, because it raises the expectation that it can be used to sort out some of our difficult social problems. Clearly, the bill will not do that and it is not fair on anyone to raise those expectations.
There needs to be some honesty and clarity about exactly what the bill can achieve. It cannot be used as an excuse for people not to do their jobs. In committee, we heard time and again about cases in which, if the person responsible had been doing their job properly when there was lots of evidence that someone was at risk, the outcome would have been different. We need to be clear that, even with new legislation, if people do not do their jobs properly and are not resourced correctly, others will still be left in vulnerable situations. It is a question not just of legislation, but of what goes with it.
Having said that, I believe that there is a small group of people who need protection and support but who are not currently covered by the appropriate services. The bill needs to define clearly who those people are and what assistance they can be given. There needs to be a two-way process, with reciprocity in the bill to ensure that it is not just a big stick to threaten carers and that it provides the help that is badly needed.
The Executive must recognise the cross-party concern about the bill. We want to salvage something out of a badly drafted bill, and we are happy to co-operate in doing that. With reservation, and with the caveats that I have outlined, we are prepared to support the general principles of the bill at stage 1. We want the serious issues to be addressed by the minister at stage 2.
This may be a somewhat repetitive debate.
As we know, the general purpose of the bill is to provide an overall framework of support and protection for adults who are at risk of serious harm. It has been described as being complementary to both the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003, and will plug gaps in that existing legislation.
I admit to having been somewhat sceptical about the need for the bill when first presented with it. I wondered whether its laudable goals could not have been achieved by enforcing or amending the legislation that is already in place and ensuring that people do their jobs properly. Parts 2 and 3 will do just that, by proposing changes that will simplify and streamline the protection of adults with incapacity in their welfare and the management of their finances and property. Those measures have been generally welcomed as being beneficial to that group of vulnerable people.
The controversial provisions in the bill are in part 1. Although 28 of the 33 organisations and individuals who commented on it were generally supportive, several submissions from bodies representing groups whom the bill is designed to protect were against key elements of part 1. They expressed concern that the bill could be seen as a threat to the autonomy of people with disabilities and, moreover, that it could create barriers to the reporting of abuse by people who are fiercely protective of their independence and fearful of being perceived as unable to cope.
The majority who were firmly in favour of the proposals in part 1 include those representing the elderly, such as Age Concern Scotland. That group has fought hard to expose elder abuse, which it says is much more prevalent than is generally realised. The Association of Directors of Social Work cited problems in the existing legislative framework in respect of gaining access to individuals when there is evidence or suspicion that an adult is at risk. The Association of Chief Police Officers in Scotland was in no doubt that the bill would enhance the protection of adults who may be seen to be vulnerable. Given that balance of evidence, I am prepared to accept that there is a clear need for the bill.
However, the bill as introduced has given rise to some serious concerns, which the Health Committee flagged up in its stage 1 report. Those concerns raise fundamental issues about the balance between the reach of the state in its duty to protect and the right of an individual to the lifestyle of their choice. The committee recommended several changes that are necessary if the bill is to be accepted as a useful and effective piece of legislation. I completely agree with the committee's recommendations.
In the bill as introduced, the definition of an adult at risk could encompass potentially any adult in the population. The definition needs to be narrower and less discriminatory towards those who have disabilities. The use of the term "abuse" is unacceptable and could alienate well-meaning and caring people who have been guilty of unintentional neglect rather than deliberate abuse. The bill's use of such terms could lead to an unwillingness to seek or accept help to improve the circumstances of an individual at risk for fear of being labelled as an abuser. As Shona Robison mentioned, we need a less pejorative description such as "adult at risk of serious harm", which sounds far less threatening to carers and to the vulnerable adults involved.
Another concern is that the bill as introduced could override rights that were established under other pieces of legislation, notably the right to advocacy and the right to make an advance statement, which were provided for in the Mental Health (Care and Treatment) (Scotland) Act 2003. The fact that the bill provides for no right of appeal against removal orders could, it is thought, be challenged under the European convention on human rights. The bill needs to be amended to take account of those concerns.
The most controversial element in the bill is undoubtedly the provision of powers that, in certain circumstances, will allow protection orders such as removal orders to be put in place against the wishes of the adult at risk. Clearly, only in exceptional circumstances should an adult with capacity have their privacy invaded or be removed from their home without consent. The power to override an adult's consent should be used only as a last resort after all other options have been tried and when it is necessary to avoid immediate harm. Surely there must be a requirement that, before a sheriff can make a protection order against the wishes of a capable adult at risk, the local authority must demonstrate that it has tried all other options before seeking to override the adult's consent.
Sufficient resources must be put in place to ensure that adults who are subject to protection orders can be accommodated. The bill should make it clear that no one can be removed from home without appropriate care and accommodation being available to them.
The definition of the council officer that is referred to in section 7(1) needs to be tightened so that the power to enter a person's place of residence is given only to appropriately qualified and experienced individuals. That should be made explicit.
I support the provision that each local authority must set up an adult protection committee to take a strategic overview in jointly managing adult protection policies, systems and procedures at local level. I agree with the Health Committee's view that the voluntary sector should be represented on those committees.
Taking into consideration the fact that the balance of evidence indicates that the bill is necessary to enhance the protection of a particularly vulnerable section of society, and given the minister's willingness to amend the bill to take account of most of the concerns that I have expressed—in particular, the need to strike the right balance between upholding a person's right to the lifestyle of their choice and ensuring that public authorities can intervene when there is thought to be a risk of serious harm—my Conservative colleagues and I are content to support the general principles of the bill at stage 1. We will pursue the appropriate suggested amendments at stages 2 and 3.
I am particularly pleased to take part in the debate. Legislation in this important area is clearly necessary.
The reforms in part 1 of the bill are, frankly, of immense importance. The protection of adults at risk is, in the most general sense, of the greatest importance and is a mark of a civilised society. Parts 2 and 3 provide for useful reforms in closely related areas. Most of those reforms are born of the experience of the operation of existing legislation, by which I mean primarily, but not exclusively, the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.
I will deal with parts 2 and 3 first. It is clearly right to amend the Adults with Incapacity (Scotland) Act 2000 to allow someone with an interest in the adult with incapacity to displace the nearest relative—on cause shown—as the adult with incapacity may not be in a position to do so. The changes to power of attorney are similarly helpful, as are sections 54 to 59, which deal with the intromitting of funds. I hope that the minister will pick up the Health Committee's concerns about points that the Scottish Legal Aid Board made with regard to section 55. The sections on intervention orders and guardianship orders are similarly helpful. They are designed to make more flexible the application process for those orders and for their extension or renewal.
On part 3, the minister will have noted the Health Committee's suggestion—prompted by the Scottish Association for Mental Health—that those subject to compulsory treatment should not be excluded from direct payments, and the important recommendation that transitional arrangements be established under the ordinary residence procedure of the Community Care and Health (Scotland) Act 2002, so that care packages continue while local authorities seek to establish funding arrangements. The appearance of a considerable additional financial burden in the course of the financial year can cause small local authorities real difficulties, because their general income base may be much lower than that of the authority from which an individual has come.
I have no doubt that part 1 of the bill is necessary. As members will know, there are examples of protection not being available or delivered to adults who are clearly vulnerable and require it. The fundamental point is that the bill leaves no doubt that local authorities have a duty to make inquiries and that health boards and other agencies must act in co-operation. I regard sections 4 and 5 as critical.
I will quote briefly from an inspection report by the social work services of my local authority. Section 146 of the report makes the case for the legislation. It states:
"Clarification of some aspects of the legislation as it relates to vulnerable people would be a positive development, providing clearer criteria for their protection. The Mental Health and Adults with Incapacity Acts address the needs of people who have a mental disorder or who lack capacity. A Vulnerable Adults Bill would include people with learning disabilities and would be particularly relevant for other vulnerable people who do not lack capacity and who do not have a mental disorder."
The bill is important to precisely those people and in the interests of clarity.
In sections 4 and 5 of the bill, a clear circle of protection is drawn around those who may require help and assistance. The provisions are similar to those relating to child protection. On umpteen occasions, case co-ordination has been shown to be particularly vital. The bill spells that out.
As other members have said, definitions are critical. On balance, I tend to think that "harm" is a more acceptable term than "abuse", but we will discuss that at stage 2.
I will make one or two other suggestions. There is an appropriate hierarchy to the orders that the bill establishes. Assessment, banning and removal orders are generally acceptable, but I do not think that they are ranked in quite the progressive way in which they ought to be. Perhaps the minister will consider ordering the provisions differently.
I agree that there should be an explicit statement that removal is a last resort. That would be helpful in clarifying the position for those who need to operate the legislation. As other members have said, we must know to where removal will take place. We must ensure that, if there are removal orders, there are places to which people can go.
I would like to make two final points.
It may be helpful if I indicate that at this stage in the debate I am not applying the normal time limits.
Thank you. In that case, I will be slightly more expansive than I would otherwise have been.
It is clear that statutory adult protection committees will be valuable. However, the minister might consider an important additional provision. Child protection committees currently exist and an adult protection committee was recently established in the Borders on a voluntary basis. The bill ought to impose on adult and child protection committees a duty at least to liaise. Apart from anything else, it is important to have an equivalent approach to the care and protection of two groups in society. In addition, a person who has required protection from a child protection committee might be at a transitional stage and need protection from an adult protection committee. We must ensure that there is clear co-operation between the two bodies. I am sure that in practice there will be such co-operation, but nothing prevents us from making the intention clear from a national perspective.
There should be a further, important duty on all parties to keep proper records. My suggestion emerges from practical experience—I will not go into that in detail, but the minister is aware of the situation. It is all well and good that the bill contains a requirement to look at records, but incomplete or unsound records might be no use. They might be unhelpful or even misleading and they might give a false sense of security. The inclusion of a duty on all parties to keep proper records would be an essential amendment to the bill.
I welcome the minister's intention to respond to the Health Committee's proposals and recommendations, of which there are a considerable number. I will not repeat the committee's concerns—other members have mentioned them, in particular the concern about the overriding of consent. In that context, stage 2 of the bill will be particularly important.
My party is pleased to endorse the general principles of the bill, which we think is timely and needed.
It is often said that the committee system is the heart and soul of what happens in the Scottish Parliament, combining as it does the functions of select and standing committees in the rather different system at Westminster. Our legislative scrutiny is front loaded—hence the fairly lengthy and detailed process involved before the stage 1 debate can take place. The equivalent stage in Westminster involves a debate on general principles as a first step, followed by an amendment procedure that does not really allow for discussion of the principles of the bill.
It is worth emphasising that the committee stage of bills in the Scottish Parliament is not intended to be a rubber-stamping exercise. The purpose of our front-loaded scrutiny, as opposed to the approach in the other place, is to ensure that flaws in draft bills are identified and drawn to the attention of ministers and the Parliament, so that the Parliament can pass legislation that works in the way in which it was intended to work. If that does not happen, the law of unintended consequences haunts every piece of legislation.
That is particularly important in the context of the bill, which will have far-reaching effects. It is fair to say that the bill caused the Health Committee considerable difficulties, to which I will refer. Members who read the stage 1 report—I concede that probably few members outside the Health Committee have done so—will quickly have realised that there was a good deal of ambivalence about the bill, which is evidenced in the committee's substantive recommendations for change.
Members will see from paragraph 52 of the report that committee members went to meet people who would be directly affected by the bill, including groups of older people in Fife, a group of people who have mental illness in Edinburgh, and a group of people with learning difficulties in Glasgow. I thank Age Concern, SAMH and Enable for helping to organise those meetings. The meetings were essential, because we had learned that a number of the groups that the bill is intended to protect had significant concerns about the bill's implications.
When new legislation is enacted to provide protections for people, we do not expect to find such opposition. In some cases, there was outright opposition. Members need only scan through the Official Report of the evidence-taking session of 19 September to begin to see the problem. Broadly speaking, there was a clear difference of opinion between witnesses representing groups dealing with the elderly and witnesses representing some of the other significant groups of people who are included under the definition of adults at risk in section 3 as
"adults who, because they are affected by disability, mental disorder, illness, infirmity or ageing, are—
(a) unable to protect themselves from abuse, or
(b) more vulnerable to being abused than persons who are not so affected."
Leaving aside the fact that that is potentially the entire population at some time or another of their lives, members need to remember that we are talking about people with full capacity. The bill includes the right to enter someone's property even against their will, as well as the right to remove them from their own homes or to remove a third party from the home. That was a particular cause for concern.
I direct members' attention to the sharp divisions of opinion between different representative bodies on the power to override consent, which is contained in section 32. A discussion of the evidence is contained in paragraphs 163 to 182 of the Health Committee's report. Members will note that paragraphs 173 and 174 cover the most vocal opposition from Kevin Morris, on behalf of National Union of Students Scotland disabled students. He castigated the bill as "patronising". He said:
"The bill will take back a lot of what we have worked long and hard for for disabled people."—[Official Report, Health Committee, 19 September 2006; c 3040.]
Capability Scotland reported that its clients thought that the bill was fine—until they realised that they were included in the definition, at which point they became somewhat less enthusiastic. Andrew Reid of Inclusion Scotland indicated that disabled people should not be getting treated differently from able-bodied individuals.
Other groups such as Age Concern Scotland and the National Autistic Society Scotland were more positive. However, the division of opinion was expressed throughout the committee's proceedings, to a greater or lesser extent, and it was the principal reason for the committee's having such difficulty coming to a final view. Ultimately, however, the committee had to come to a view. Parts 2 and 3 were deemed generally pretty uncontroversial and gave the committee little concern. We are content with the provisions there. However, we had significant reservations about part 1, in particular the new powers in sections 3 to 38. The bill raises fundamental questions about the limits to state intervention, as set against the individual's right to personal autonomy—the right to be wrong; the right to be different.
We took the view that, on balance, the bill has the potential to fill a gap, although we had difficulty pinpointing what that gap was. I am still not entirely clear about that. We welcomed some provisions. However, we felt that key definitions were seriously flawed. There were also concerns about the relationship between the powers under the Adult Support and Protection (Scotland) Bill and the powers contained in existing legislation. Which would take precedence?
Our main concerns and recommendations can be grouped as follows. First, they are to do with the definition of adults at risk in section 3, which we considered to be inadequate. It should not be so all-encompassing and should not effectively discriminate against particular groups. The definition should be capable of being operationally effective. We were particularly concerned that such a central provision should not be amendable by subordinate legislation. Indeed, that echoes what the Subordinate Legislation Committee had to say on the matter.
The term "abuse" is discussed in paragraphs 111 to 121 of the committee's report. We felt that it was an unhelpful term. During evidence taking, it became crystal clear that it was expected to encompass not just specific acts of commission but also inadvertent actions and actions that might broadly be categorised as being carried out with the best of intentions, albeit misplaced. The term also covers neglect and self-neglect. The committee was of the view that the terms "abuse" and "abuser" might inhibit complaints rather than encourage concerns to be raised, particularly if the so-called abuser is a carer who is unable to cope with the situation in which they find themselves. The committee therefore recommends that the term "abuse" be replaced with phrasing that is less emotive and value laden, such as "at risk of serious harm".
On the interrelation between the bill and existing legislation, the committee felt that the bill should contain the same rights to advocacy services as exist under the Mental Health (Care and Treatment) (Scotland) Act 2003 and that it should be clearly indicated that advance statements similar to those covered by the provisions of the 2003 act should not be able to be overridden by the powers under the bill. There was a concern that there would be a bit of what one might call "legislation shopping", with officials deciding to apply the principles of one bill because it did not provide the same protection as the other.
Council officers' entering premises was also discussed by the committee. Apparently, as it stands, any council official can enter premises to undertake an assessment. The committee feels that the bill should be a tad more specific in that regard.
The committee considered appeals against orders. There is no appeal against an assessment order: the removal of an individual who is deemed to be at risk so as to assess the situation. That may just happen in the course of a day—we accept that; however, we are not convinced that it is appropriate for people to be removed from their homes against their will without a right of appeal. No such right of appeal is currently provided for in the bill. I do not accept that the fact that there is a seven-day limit on such orders bars an appeal. The courts are accustomed to immediate hearings—for example, interim interdict procedures can be triggered literally overnight. The courts are well capable of dealing with that kind of scenario.
The overriding of consent was perhaps the single most controversial aspect of the bill to be discussed by the committee. We believe that it should be an absolute last resort, to be used only when all other options have demonstrably failed. However, much of the case-study evidence unfortunately suggested that intervention would be contemplated in situations in which it was not a last resort.
The reciprocity and resources argument has been mentioned and was discussed in the Finance Committee's report. We believe that, if someone is to be removed from their home, there is an obligation to place them in equivalent and appropriate care and accommodation. The committee believes that that should be stated in the bill, although it is mindful of the concern surrounding the availability of resources—including financial resources—to implement the bill properly.
All those concerns have been raised directly with the minister, who has said that he is willing to narrow the definition of "adults at risk" to make it clear that it will not necessarily relate to all people with disabilities. He has also said that he will reconsider the use of the term "abuse", to reflect our concern that it is unnecessarily stigmatising to those causing unintentional harm.
The minister has said that he accepts the importance of advocacy. I may have missed it, but I hope he said that that will be stated in the bill. He has also stated that he would accept the primacy of an advance statement, and I hope that that will be stated in the bill. He has said that he will clarify that protection orders will genuinely be used only when they are absolutely necessary. I ask him to clarify, in his closing speech, that that means after all other measures have failed. Finally, he has said that he will seek to limit the definition of "council officer" to those who are at least competent in terms of their qualifications and experience.
Those assurances from the minister go some way to alleviating the committee's concerns, although he has not accepted all our recommendations.
I thank all members of the committee for their participation, and I thank the clerks for all the hard work that was done in the background. I also thank all those who gave evidence on the bill. For obvious reasons, some of them had a more difficult time than others in the process, but I hope that we made it as positive an experience as possible.
No doubt, we will engage in further dialogue in respect of the various issues that have been raised, but for the present I can say that the committee will endorse the principles of the bill.
In my time on the Health Committee, we have scrutinised a raft of legislation on many subjects, and the bill is definitely up there with those that have engendered the most debate. As we have heard, the committee deliberated long and hard over its stage 1 report. It seemed that we had to determine not only whether the bill was good law, but whether it was necessary to introduce a new bill or whether existing legislation was sufficient to cover the areas that the bill seeks to address.
In common with the rest of the committee, I welcome the measures that have been included in parts 2 and 3 of the bill. They are sensible amendments to existing legislation and they will ensure that the bill delivers its stated policy aims. However, part 1 of the bill is more contentious and raises the most significant concerns. I share the committee's view—and other members have raised the issue—about the powers contained in section 3 to 38.
It is often said that a civilised society is defined by how it looks after its more vulnerable citizens. We have a duty to ensure that the bill lives up to its name and offers protection to those citizens. Although I do not doubt that the bill could be worthwhile legislation if it is eventually passed, it is clear to me that it will require significant amendment if it is truly to be fit for purpose.
I whole-heartedly agree with the minister's assertion to the committee in his letter of 17 November that
"there are some individuals in our society who do cause harm intentionally and it is critical that this bill introduces measures that prevent this."
The question for the committee is whether or not the bill as it stands introduces those measures in an appropriate way.
There must be a careful balancing act to ensure that we protect those in our society who are vulnerable, but allow individuals the right to live their lives as they choose. The bill should certainly not be a policing mechanism. Because of the definitions of the terms "adults at risk" and "abuse", I hope that the minister will agree that the bill requires some refinement. I will elaborate more on that shortly.
During one of our evidence sessions, the committee heard from Kevin Morris, disabled students officer for the National Union of Students; he has already been quoted. Kevin told us that he was
"scared by the general principles of the bill and the school of thought that lies behind it. The fact that it is all-encompassing is very dangerous. That scares many disabled people."—[Official Report, Health Committee, 19 September 2006; c 3043.]
That is why I was pleased to note from the aforementioned letter that the minister is
"willing to narrow the definition of adults at risk to make clear that it will not relate to all people with disabilities."
Sometimes it might be necessary to use a sledgehammer to crack a nut, but this is not one of those times. I hope that the minister also takes into account the committee's views, which echo those of the Subordinate Legislation Committee, on deleting that part of the bill that permits the definition of adults at risk to be amended by subordinate legislation. That is a very important recommendation.
I would like to minister to clarify the definition of "abuse". Fourteen of the 18 respondents who made substantive comments on that had clear concerns about that definition. The committee felt strongly that the term implies intentional, perhaps even malicious harm and, although that does happen—we are not saying that it does not—the situation is often more one of benign neglect. To label someone as an abuser in those circumstances would be unhelpful in the extreme.
The minister has now told the committee that he is
"willing to reconsider the use of the term ‘abuse' throughout the Bill",
and I hope that the Executive will lodge significant amendments on that point at stage 2. The alternative term, "adults at risk of serious harm", was suggested during our stage 1 deliberations and I am sure that there will be many other suggestions. I look forward to hearing the minister's amendments.
The bill is aimed at widening the raft of protection measures previously put in place by the Parliament for those who are covered under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000. The acts ensure that those people have a right to independent advocacy services. As we have already heard from Nanette Milne, that is not the case with the bill that we are discussing today. It is vital that those who would be covered under the bill have the same rights as those who are covered by other, similar acts. I hope that we hear a commitment to that from the minister today.
Having said all that, I support the bill's aims because I believe it to be well intentioned, and I now believe it to be necessary, although I was not convinced of that at the outset. However, I agree with Shona Robison's comments about the number of amendments that are likely to be necessary at stage 2. I have a sense of déjà vu, because this is not the first health-related bill that I have been involved with to be in this position. I hope that the minister and his civil servants take that on board.
I urge Parliament to support the bill at stage 1. I also urge the Executive to work with the committee to deliver legislation that will not stigmatise Scotland's vulnerable adults but will provide the necessary support to help them.
As some members might know, I come to the bill against the background of the Miss X case, in which a lady with learning difficulties suffered horrific abuse over a substantial period at the hands of her siblings, to the point where her life was put at risk. The faults in that case, and there were many, were put down to the practice and procedures of the social work department, including the failure to look at reports properly, the failure to make connections and the failure to follow up. One of the large failures was not to see the young woman on her own, without the siblings who were abusing her being in the background.
People might have thought that I would welcome the bill because it would have provided the opportunity to enter the lady's house and speak to her away from those who threatened her. In fact, although a guardianship order was in place that would have allowed the social work department to enter the premises to see how the ward was doing, it was not used.
Although I welcome the purposes of the bill, I wonder whether it will change anything. One of the interesting comments in the committee's report came from a witness who said:
"the question is whether the Bill takes a sledgehammer to crack a nut".
The more I read the report and looked at the bill—I will speak about the flaws in the drafting—the more I wondered whether it is too heavy handed and will simply not deliver. The Government is in the habit of producing legislation that might not be necessary, despite which the SNP will support the bill at this stage. Nevertheless, I want to look at some of the problems.
Many of the definitions have been covered, but let us consider one that has not—visits, which are dealt with by section 6. The definition of "council officer" has been dealt with, but let us look at the next words in that section. It says that a council officer
"may enter any place for the purpose of enabling or assisting a council conducting inquiries under section 4 to decide whether it needs to do anything".
That is extremely wide. I would like the minister to tell me what kind of places ought to be covered.
Section 9, entitled “Examination of records etc”, says in subsection (1):
"A council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk to give the records, or copies of them, to the officer."
Subsection (5) says:
"Nothing in this section authorises a person who is not a health professional to inspect health records".
That is the only caveat; all other records can simply be looked at and no notice is needed. Subsection (2) says:
"Such a requirement may be made during a visit or at any other time."
A visit to where—the bank? All the bill says is that a visit is to "any place". Those are huge drafting issues that bother me. Does the minister want to clarify anything?
I seek clarification from Christine Grahame as to which places she thinks should not be included in the bill, because I think that the intention is evident.
Such situations occur when people have capacity and against their will, but the bill would allow a council officer to go to their bank and look at their bank records. That is just one matter of definition that I picked out of the bill that gives me great concern.
The bill heaves with procedures—it is littered with them. There are procedures to take people to court, which the minister will explain; assessment orders; and no right of appeal in certain circumstances although it seems like a clear breach of the ECHR not to have a right of appeal where a banning order is in place.
Euan Robson gave the game away when he told us what I already knew, which is that there are adult protection committees in the Borders. Do we need to provide for such committees in the bill? Do we need to set up a system and have procedures? Where an authority has learned the hard way, it draws together all its agencies and applies procedure. Authorities do not need legislation to do that.
The point is that if we put such committees on a statutory footing, there will be no doubt that they should exist. Although the Borders committee was born of experience, it has provided an example for others to develop. It would be fine if all authorities did the same voluntarily, but if they do not, there should be statutory provision.
I cannot agree. The process is happening in many places in Scotland. The chief social work inspector could make plain through her guidance that that is what she expects local authorities to do. Do we need another layer of bureaucracy, form filling, pen pushing and paper clipping, which gets in the way of front-line services and takes up manpower? That takes me back to resources.
Examination of the evidence indicates that this is not only my point of view. Page 11 of the Health Committee's stage 1 report lists the main concerns of SAMH, Enable Scotland and Inclusion Scotland, which covers 20 locally based organisations. The first one is a whopper. It is that
"the Bill is unnecessary given existing legislation and criminal law".
Those are their words, not mine. They are also concerned that it
"discriminates against those with disabilities by specifying them in the definition of adults at risk"—
that point has already been dealt with—and that it
"overrides some beneficial measures contained in existing legislation."
Those are grenades thrown at the bill. We must bear in mind the other legislation that is in place and the fact that we have guardianship orders. I note that the evidence on guardianship orders is that the procedure is "cumbersome and expensive" and that we need to speed up the process. Let us do that—let us speed up the process of guardianship orders, which allow the guardian to enter premises where they think their ward is at risk.
For me, the jury is out on the bill. I will be interested to see how the many fundamental flaws in the bill, which range from simple matters such as definitions—I know that they represent the building bricks of the bill—to procedures, can be remedied.
I think that I may be the only non-member of the Health Committee to participate in the debate so far.
No. Christine Grahame is not on the committee.
I beg Christine Grahame's pardon.
It may come as a surprise to members, although I hope that it does not, to learn that we are all getting older. We hope that we will continue to be able to live independent lives and will be in full control of our faculties for the rest of our lives, but it is a fact that a significant proportion of us will not. That means that we will require care and support, possibly in a regulated care setting. I hope that we will find ourselves in a setting in which the care is—as it is in the majority of cases—sympathetic, loving and safe.
It is not just in old age that care may be required. As the minister has said, people are now living longer with medical conditions that cause incapacity, such as strokes. Many people have increased dependency needs, require care and are less able to protect themselves from abuse or to deal with issues of poor care.
Young people with complex needs also move from the children's system into a very different adult world. It has become clear from previous work that has been undertaken by the Parliament—the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003—that further measures are needed, so we have this bill.
From what everybody has said, I think that it is recognised that the bill is a well-intentioned and, arguably, needed extension of the protection that the Executive has already given to those with incapacity. As many other members have said, this is undoubtedly a complex area and the bill perhaps involves intervention to a greater extent than has heretofore been the case in people's private family lives. The bill is not only about care that is given in the regulated sector, in which people have a job to do and it could be argued that they should be doing that job properly to the standards against which it can be measured. It also covers people who are cared for, often at great personal sacrifice, in their own homes by relatives. I and others in the chamber are members of the newly formed cross-party group on carers. We have heard evidence in members' business debates of the stress on individuals of caring for a loved one with incapacity.
A considerable amount of concern has been expressed in the debate about the detail of some of the measures and about their potential impact. However, the bill will set up a system whereby there will be a single point of control, and that can only be a good thing. It will place a duty on agencies to investigate suspected abuse or harm, will provide new powers to carry out assessments, will create a range of options for intervention and—crucially—will extend the powers to designate individuals who should not be allowed to work with people who require care. The extension of the vetting and barring process will be a significant benefit. The bill will do a number of other things, too, so at this stage we should agree to its general principles. However, as Roseanna Cunningham has pointed out, we should not simply go through a rubber-stamping exercise.
It should be acknowledged that there are major concerns. I hope that the minister will give some indication of the extent to which he acknowledges those concerns and how that recognition will influence his approach to stage 2. I invite him to comment on whether he agrees that, as things stand, there is a danger that we will create a hierarchy of legislation involving the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the bill, and that people might pick and choose the provisions that they will apply.
I urge the Parliament to support the bill's general principles on the basis that there is a gap in the existing legislation that requires to be filled, but I support Janis Hughes in her request that the minister and his officials take on board the genuine concerns that have been expressed on some aspects of the bill by members of all parties, and I hope that the minister will give us a clear indication of how he intends to address those at stage 2.
When I first started to read the bill, I realised that there was a need for people to be able to enter patients' homes to assess them but, as I read through the bill, I began to wonder how on earth its provisions could be implemented with due care and attention, such that such action represented the least restrictive option.
The legislation that I used as a general practitioner will probably be knocked out by the bill. The Law Society of Scotland highlighted in evidence and has subsequently reiterated that the bill will mean that it will no longer be possible to use section 47 of the National Assistance Act 1948 to remove adults who are not mentally disordered or incapable, but who through self-neglect are living
"in circumstances of serious squalor and risk to health."
The Law Society has made it clear that if the bill is enacted, people in that position will not be covered.
Although the definitions must be examined, I am happy to give the bill my support at stage 1 because the minister has suggested that he will tackle that issue and a few others, including the powers of local authority officials. The fact that council officials will have the ability to question the autonomy of a person who has capacity is extremely worrying, especially given that, as I read the bill, that could take place anywhere—in a nursing home, for example, or even in the ward of a hospital. There will be no restriction on the premises that a local authority official may enter if there is any suggestion that someone with capacity is endangered at any time of their life.
Although I welcome the provision, people will have to be properly trained. Such training should be available not only to local authority officials, but to GPs, because it might be appropriate for a person's GP to accompany the local authority official on such an occasion. Quite often, the GP will be well known to the person. If the right people enter a person's house to assess them, it might well not prove necessary to go through all the court procedures that give rise to the doubts that I have about overriding a person's autonomy. If someone does not want to be removed, it is quite a serious matter to create a power to allow them to be removed. I believe that people's human rights are under threat—we have been told that human rights will not be violated, but I am not sure about that.
People will need to understand the legislation and realise that the bill fills a gap. Given that they will need to be sure that they know which piece of legislation they are acting under, they will need advice before they move.
In the past, I would have thought that it was rarely necessary to enter someone's home without their consent, but I can see that in the future, with so much work being done in the community and so many people under strain because they do not have the support that they need, even carers who care very much for people may in some circumstances put themselves and the person for whom they are caring at risk. They therefore need support.
We need to know where people are going to be removed to, and it needs to be up front that it is of a high standard, equal to their current accommodation. As we already have difficulty finding accommodation for people who need respite, who are homeless or who need to be removed for other reasons, I do not know where such accommodation will be found.
It is great that professionals will be working together but, like the General Medical Council, I am wary about confidentiality of health records. That has been mentioned by other members. From the point of view of a patient's rights, we have to be careful about giving out information. Their wish not to have information passed on could be overridden. On the whole, professionals try to be careful about that.
Does Dr Turner agree that some of the dreadful cases in the past have arisen because of reluctance to share such information?
Christine May is correct. People need training in how they should use and share information. I believe that people should share information. I also believe that people should be given time to attend adult protection committees. When I was a general practitioner, I found it difficult to get time off. I had to be replaced by a locum to be able to attend a meeting to discuss the needs of patients—usually children.
Other members have raised good points, all of which I agree with. The bill has been introduced with a good heart. It required a lot of work before it was presented to us, and it needs considerably more work, which the minister seems prepared to do. Although I am willing to go along with the bill, we need to be careful when we are introducing legislation that will override a person's rights.
I am in no doubt why the people of Scotland need the Adult Support and Protection (Scotland) Bill. It is clear to me, having sat through the Health Committee's evidence sessions and having read the submissions, that there is majority support for the bill. The evidence that the committee heard and received came from the voluntary and statutory sectors. All the written and oral evidence pointed to the need for the bill. Organisations such as Age Concern and Help the Aged told us that they believe that elder abuse regularly goes unreported, often because victims are too embarrassed, but also because they are sometimes simply unable to report it. More than 40 organisations under the banner of the Vulnerable Adults Alliance Scotland lobbied the Scottish Executive to introduce legislation to protect adults of all ages who are at risk from abuse. As other members have said, the Scottish Law Commission produced a report in 1997 and its work reflected the concerns of the Mental Welfare Commission and the social work inspectors. By introducing the bill, the Executive has responded positively and is clearly determined to support all those calls.
We know the reasons why many victims fail to report the abuse—other members have spoken about that. I am convinced that there are people in Scotland who need help but who will not get it if the bill is not passed. The bill is needed to allow suspected harm to be investigated, for those individuals who may have capacity but who, for a variety of reasons, are unable to exercise their choice. The proposals in the bill represent a solution to the difficulties of securing appropriate help and assistance.
The bill will make it someone's responsibility to investigate reports of abuse and it will require all agencies to work together to investigate those reports—that does not happen at the moment. It will also ensure access to people who may be victims of abuse where access is being denied. That is to support the older person's right not to be abused and to offer them help and support if they need or want it. We heard during evidence that that was part of the problem in the Scottish Borders Council.
As a consequence of the work undertaken by the Scottish Executive and the reference group that it established, and of the analysis of responses to its consultation, the Scottish Executive decided that it would no longer use the term "vulnerable adults". The term was felt by disability groups in particular to be unhelpful and potentially labelling.
Great efforts have been made by the Scottish Executive to engage with a range of organisations to seek their views on the proposals. The engagement involved meetings and the establishment of a reference group. That group included organisations such as Enable, Capability Scotland, the Royal National Institute of the Blind, RNID, Sense Scotland and the Scottish Association for Mental Health among others.
The Health Committee listened carefully to the concerns of the disability organisations that gave evidence. In response to questions put by Nanette Milne and by Christine May—who is no longer in the chamber—
Yes I am.
I am so sorry—I meant Christine Grahame, not Christine May.
The response to those questions by Adrian Ward of the Law Society of Scotland was compelling. He said:
"I strongly believe in the need for the bill for adults at risk of abuse. I first advocated such a need publicly at a conference of United Kingdom social work people in 1990. I said that there was a clear need for better awareness, better systems and better legislation to address the broad area of deprivation, exploitation and abuse. In my own practice, even in the past few weeks, I continue to see cases in which there is that need.
In a broader context, the bill covers the third of three areas. We have the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003, and the Adult Support and Protection (Scotland) Bill is just as necessary as the other two pieces of legislation. I urge the committee to watch out for whether we are leaving any gaps in the broad coverage of the great variety of needs that all these pieces of legislation look at. I have flagged up a concern that part 1 of the bill has narrowed to focusing on abuse, although issues of deprivation and exploitation remain significant.
It should also be borne in mind that the 2000 act deals with people who are considered incapable under its terms and that the 2003 act deals with people who are considered mentally disordered under its terms, but there are others who are vulnerable and who need protection. In addition, if the bill is enacted, some of the protections in it will better address some of the needs of people within the categories addressed by the 2000 and 2003 acts, so I welcome the bill."
I welcome it too.
In which cases would the member think it appropriate to override the views of an adult with capacity who did not want an intervention?
I will return to that point later in my speech. The point was covered by a Mr Graham, a physician who gave evidence to the committee on the bill.
Mr Ward continued:
"I am concerned that the bill has narrowed to focusing on abuse rather than maintain the wider picture with which the process started, and I fear that that may leave gaps. However, those aspects can be addressed during the bill's passage."
I agreed with Mr Ward when he said:
"I believe that the proposed amendments to the 2000 act would be improvements and that they are necessary."
He then continued:
"Again, however, I have made submissions about how the proposed improvements can in turn be improved. The bill's improvements would not change the intention of the 2000 act, which we met to discuss when the Parliament started. The 2000 act was the Parliament's first major piece of legislation. Five or six years down the line, we have experience of working with it and we know the aspects that are causing unintended difficulties. As a general point, members of a unicameral legislature must be aware that, when we enter a new field, although we all try to get it right, a few years down the line this or that could be improved and that some things are not working out as well as they might.
The bill addresses two issues that cause problems in practice and problems for the people out there whom the legislation is meant to serve. First, the issues connected with getting all the reports marshalled and put before the court without any of them being more than 30 days old will be addressed by the bill. Those issues have been a source of many problems, some of which have been quite artificial, given that many of the people to whom the 2000 act applies have long-term conditions such as dementia. Secondly, the bill will deal with the issue of caution—it is spelled "caution" but pronounced "cayshun"—which is the guarantee bond. Tomorrow, a man is coming to see me who is his wife's financial guardian. He has a bill for £375, her estate is reduced to £22,000 and he wants to know what he can do about that."
I will have to skip some of my comments, but I want to mention banning orders. In the evidence that we gathered, the proposed banning orders attracted the most comment of all the protection orders. I asked our witnesses to comment on how effective banning orders would be. In particular, I asked Adrian Ward to comment on his view that the term "banning order" is imprecise and unduly emotive and should be replaced with the term "exclusion order". We should listen to what he said:
"I believe that I am personally responsible for the concept in the bill that, sometimes, it is better to remove the person who is causing the problem rather than the victim. I remain of that view. There are occasions when it is unreasonable that the victim should have to leave home and it might be better that a clearly identified person who is causing the problem should be the one who is removed from the setting. That is a clear concept and one either agrees with it or disagrees with it."
I happen to agree with it. Adrian Ward continued:
"The question whether what should be imposed is a ‘banning order' or an ‘exclusion order' is a matter of terminology. You will have picked up on the fact that I do not greatly like the terms ‘abuse', ‘abuser' and ‘banning orders'. I prefer ‘harm', ‘risk of harm' and ‘exclusion orders'."—[Official Report, Health Committee, 5 September 2006; c 2971-72 and 2982.]
The bill is invaluable and must proceed to stage 2. As has been said, we want to send out a message to potential abusers throughout Scotland that it is no longer acceptable in Scotland to harm vulnerable people. We have the chance today to do something about the situation. I hope that members support the proposals.
During the previous session of Parliament, in 2002 to 2003, I tried to have hate crime legislation extended to all the groups that are identified under European employment law as subject to discrimination. That seemed to be the simplest way to get a list of groups that are subject regularly to discrimination. There are six such groups: women; the lesbian, gay, bisexual and transgender community; minority communities on the basis of race; minority communities on the basis of religion; the elderly; and disabled people. I am absolutely convinced of the necessity for the bill because, at that time, the Executive, in discussions with Equality Scotland and in response to parliamentary questions that I asked, said that it could address our concerns, but through legislation other than that on hate crime. The bill is a proposal for that other kind of legislation.
The appalling and unbelievable level of mistreatment of elderly and disabled people is apparent in the research that Equality Scotland carried out in producing the proposal on hate crime. That situation has been one of the biggest surprises to me about what happens in our country—it is unconscionable. It is absolutely clear that the bill is not before time. However, I am conscious of the concerns that have been raised by Shona Robison, Roseanna Cunningham and Christine Grahame, who asked whether the bill will change anything.
One particular concern is that the bill could place pressure on carers, who might be alarmed by the idea that they, in a time of extreme pressure, without being able to seek the kind of help that carers need, might come to suffer. As Christine May observed, we now have a group in the Parliament that campaigns for more support to be given to carers, so it would be extremely sad if any carer was treated as if they were an abuser when the case might be one of neglect or even mistreatment that occurred under intense pressure of the sort that few members could imagine or comprehend.
My other concern is about parliamentary time between now and the election in May, because there is a parallel and linked bill—the Protection of Vulnerable Groups (Scotland) Bill—that will complete stage 1 at the beginning of the new year. That detailed bill is already attracting a huge amount of criticism. It supports the Adult Support and Protection (Scotland) Bill, and needs to be considered in that context.
I urge the Executive to take on all the concerns about the bill and to lodge as many stage 2 amendments as it can to address them. Otherwise, the Parliament should ask for more time to consider the bill. The Parliament may also want extra time to consider the Protection of Vulnerable Groups (Scotland) Bill. Those are two extremely important bills, and we should give them the time that they deserve. If we cannot get that time in this parliamentary session, they should be held over until the next session, so that we are able to make two really good pieces of legislation.
It should be clear to the minister from the debate that parts 2 to 4 of the bill will not cause him a great deal of difficulty. The interest will focus on part 1. I will pick up one or two points in the best order that I can.
The definition of adults at risk will be important, and it is welcome to have the minister's helpful remarks and his commitment to consider it carefully. We will need to be clear about what the minister's amendments say. There will doubtless be considerable debate at the Health Committee on that point. It is important that we establish the definition and that it should not thereafter be amendable by statutory instrument. It would be unfortunate if that was the case, particularly if it was amendable under the negative procedure.
I ask the minister to reconsider proposed new section 87A of the Social Work (Scotland) Act 1968, which introduces a power to modify that act for persons placed from outwith Scotland, and appears to allow ministers to alter a statute. That needs further consideration.
The minister said that he will reconsider the definition of "abuse". A number of possible definitions have been advanced and, as I said earlier, "harm" might be a better and more helpful term.
Members made a number of suggestions on the powers of officers to enter premises. It has helpfully been said that the term "council officer" will need more clarification. However, we must understand what is meant by phrases such as "any adjacent place". If the minister is not minded to change the wording, a Pepper v Hart statement as to what is meant by "any adjacent place" might be helpful at stage 2 or 3. The powers to enter premises will have to be used sparingly and carefully. They should not be regarded as a general right to barge unwelcome into any home.
Roseanna Cunningham made a point about respecting different lifestyles. I am sure that that is the Executive's intention, but the minister must make clear remarks to that effect at stage 2. It is important to respect the fact that there might be differences in what is acceptable between generations, given that younger people might enter older people's homes. Differences arising from custom and practice or upbringing need to be respected. Certain standards that a younger generation might apply to a particular situation need not be the same standards that an older generation would apply, for understandable and acceptable reasons. We can return to that at stage 2.
It is important to include advocacy in the bill. Robin Harper made an interesting point about the effect on carers. I had not previously considered that carers might think that the bill was somehow threatening to them. I had considered the alternative—that it would be helpful to them to a considerable degree. The issue is interesting and will need to be considered further.
Section 5, which describes the additional agencies to which the bill applies, could specify the police, because they are important. I know that they are included in a general description, but it would be helpful if they were specified.
The most important feature of the bill relates to what I describe as a circle of protection around the people who need it. So often, we have seen a communication breakdown in that circle of protection, such that the people who had evidence and understanding did not pass it on, or only an incomplete picture was available. I hope that the bill will ensure that that does not happen again. Of course there will be incidences of human failing, but the policy intention should be clear.
Adult protection committees, which will be put on a statutory footing, are important, because they are a focus in that circle of protection. With all due respect to the member who suggested this, who is no longer here, it is unfair to suggest that they are just a prescription for bureaucracy and additional members of staff. If that were the case, they would not be worth while. The fundamental purpose of those committees, which is of considerable importance, is misunderstood.
It is important that recommendation 23 in the Health Committee's report, on advance statements, is implemented.
Overall, I remain convinced that the bill is important. It covers what might be considered to be gaps in statutory provision. Moreover, it should leave no doubt, which has arisen in the past among public authorities about how they should proceed when confronted with people who need protection. The ethos of the bill is correct and it is worth while, which is why I commend it to members and hope that it is successful this evening.
This has been a good debate, with two significant outcomes. Although the bill has general cross-party support, members have asked whether it is really necessary or whether existing legislation could be amended accordingly.
I agree with Shona Robison, who asked whom the bill will protect, because that is not clear at all. However, the minister was right to say that individuals' wishes must come first.
Nanette Milne was right to be sceptical. Amendments to existing legislation might be more appropriate. The definition of adults at risk must be narrowed. The fact that there is no right of appeal must have ECHR implications.
Euan Robson is right to say that it is vital to protect adults who are at risk. The bill clarifies local authorities' duty to do that, but I am reminded of the situation with children's panels. If we remove adults, where will we remove them to? Children's panels have had horrendous nightmares with regard to limited residential establishment provision.
Our party has received the bill reasonably well. The bill's premise is perfectly logical: it is an attempt to fill the gaps in existing legislation and create a policy that will protect and serve all vulnerable people in Scotland, which is commendable. The need for such legislation is undeniable, although the need for a new bill is questionable.
Particularly interesting is the proposal to create adult protection committees that are responsible for co-operating with public bodies to protect those who are deemed to be adults at risk. The definition of adults at risk needs to be revised, but such individuals clearly deserve individual care and attention. Adult protection committees will have the sole responsibility of looking after the well-being of vulnerable persons and they will direct all their funding and resources to that cause. They are expected to have a great deal of influence in monitoring the care of at-risk adults.
In its submission on the bill, Age Concern Scotland stated:
"the Adult Support and Protection (Scotland) Bill gives out a strong message that abuse in any form against any individual is unacceptable and that those who may be more at risk of abuse because of their life circumstances will be offered additional protective measures."
No person in Scotland should suffer because of their psychological, financial or social situation. The bill aims to tackle those issues. Its intention appears to be to protect those who cannot protect themselves and to come to the aid of those who are taken advantage of by others. The bill's provisions will also be used to intervene in cases of benign neglect, where a care giver unintentionally neglects their charge, but neglect is nonetheless present.
My party signed up to the bill in committee, but we did so on the understanding that significant changes will have to be made at stage 2. We agree with the Health Committee's recommended changes and we look forward to the minister's response to our concerns. In supporting the bill, we must be careful to avoid overstepping social boundaries in relation to the autonomy and independence of adults with disabilities and to avoid patronising those whom we categorise as adults at risk, who might consider that they are perfectly capable of caring for themselves. It will be tricky to define exactly who is considered to be at risk, but the current definition must be refined. As it stands, every individual in the chamber could be considered an adult at risk to some degree.
There is also concern that, if authorities are sent into homes to investigate complaints—from outside sources—of neglect or abuse, that might discourage those who are in possible danger from reporting abuse. Many people who receive care within the home are extremely defensive of their independence and fear that asking for help might indicate that they are unable to cope with their situation or their autonomy. In evaluating and expanding the bill, we must be careful to consider the concerns of those who will benefit or suffer from it.
There is concern that individuals might be removed from their homes before adequate services are available to them. We must not get ahead of ourselves when we consider the financial constraints of the legislation. We must be sure that appropriate funding and resources are available to provide for adults at risk if it is necessary to remove them from their living situation. If we do not make available appropriate funding, we cannot expect local authorities to cope with the demands that implementing the bill will surely place on them.
It is clear that the provisions in the Adult Support and Protection (Scotland) Bill respond to the real need for increased protection of those people who are considered to be adults at risk. Existing legislation has attempted to tackle the issues that affect individuals who suffer from abuse and neglect in Scotland, but no bill on the matter has been as comprehensive as the one that we are discussing today. I look forward to the future evaluation and discussion of the bill when the Executive has recognised and responded to the Health Committee's concerns.
Accordingly, we support the bill.
This has been a useful debate that has left the minister in no doubt about where changes to the bill are required.
Euan Robson said that the bill is the mark of a civilised society. That may be true if it does what the Executive says it will do, but that is what concerns are being expressed about. He also said local authorities will be left in no doubt that they have a duty to take action to protect vulnerable adults. Of course, they should be doing that already. He said that the bill would work in the interests of clarity, but the system should already be clear. He also talked about the establishment of adult protection committees but, as Christine Grahame pointed out, that has happened already without the bill.
Euan Robson made a reasonable point about the need for the bill to provide for appropriate accommodation in relation to reciprocity. We all agree with that.
Roseanna Cunningham talked about how the law of unintended consequences can haunt legislation, and that is what we are concerned about. We are not being difficult when we raise concerns; as legislators, we want to ensure that the law that we pass does what it is intended to do and does not have unintended consequences from which we have later to pull back.
There is undoubtedly ambivalence about the bill, as Roseanna Cunningham said. She mentioned that various groups have expressed concern, particularly those which represent disabled people, whom the bill intends to protect. We need to listen to those who will be affected by the bill, in particular when they raise genuine concerns about the bill being patronising and taking away rights. It is the minister's duty to reassure them on those points.
Roseanna Cunningham also talked about key definitions that are flawed, which has been a theme throughout the debate. She talked about equivalent and appropriate accommodation, which is similar to a point made by Euan Robson, and the necessity for the minister to accept the Health Committee's recommendations. He has accepted some recommendations, but others will be the subject of further debate.
Janis Hughes talked about the need for significant amendments if the bill is to be fit for purpose. She said the bill should not be a policing mechanism. I totally agree with that, and it is of concern that the bill is being perceived in that way. She also made the point that 14 out of 18 respondents were concerned about the term "abuse", which the minister has said he will address at stage 2. We will need to see what he comes back with on that.
Janis Hughes also mentioned the rights to advocacy that must be included, and we agree with that. She talked about déjà vu in referring to extensive amendments at stage 2—the Mental Health (Care and Treatment) (Scotland) Act 2003 comes to mind. There were about 600 amendments to that legislation at stage 2; I hope that we will not have to deal with so many amendments at stage 2 of the bill. I would have thought that lessons might have been learned from the 2003 act. The Executive has to get a bill right at stage 1 when it can. There will always be amendments at stage 2, but the minister must acknowledge that amending fundamental parts of a bill at stage 2 shows that it was badly drafted. We should not have to redraft fundamental elements of the bill at stage 2, but that is what we will have to do.
Christine Grahame challenged us all on the need for the bill, and she made some valid points. She talked about the fact that failure in procedures and practice was at the root of the Miss X case, and she asked whether the bill would have made any difference. The jury is out on that. She also made points that had not been made previously about the terminology in the bill. She referred to visits, to the wide ability to enter any place in the course of inquiries into an adult protection case and to the fact that the examination of records could include the examination of personal information against a person's will. That takes us back to the issue of consent, which gives all of us—certainly Scottish National Party members—cause for concern.
Christine Grahame also asked whether the lack of a right of appeal where a banning order is in place had ECHR implications, which is a valid question, and she suggested that other things, such as the speeding up of the guardianship orders process, should be happening anyway. That point was worth making, as there are concerns about that process.
Christine May discussed the role of carers and their need for support. We all agree with what she said in that respect. She talked about the single point of control in the system and the creation—to an extent—of the duty to investigate. Someone will have responsibility for that duty, but it is a concern that, in Scotland in this day and age, legislation must be passed to make a duty out of something that should already be the job of someone who works in social work services. It is in that context that we must reflect on having to pass the bill. We must ensure that people are aware of their responsibilities in their work and that they receive the appropriate back-up and have enough resources to do their jobs to the best of their abilities.
Jean Turner spoke about the training that will be required to ensure that the legislation is adequately implemented. Her point was well made.
Unlike the rest of us, Helen Eadie was glowing about the bill. Perhaps she does not share the concerns that other members have, about which, as I said, the minister has been left in no doubt.
Finally, Robin Harper talked about hate crimes against elderly people. Of course I accept what he said, but I am not sure that the bill will combat such crimes. Societal attitudes must change, but we must be cautious about always looking to legislation to fix societal problems. Education is needed to change attitudes. Legislating can sometimes seem an easy answer, but it can make problems even more difficult because it is often not the answer.
The tone of the debate and the content of speeches by members of all parties should give the minister a clear indication of what is required at stage 2. I hope that we can make the bill into legislation that will have a practical effect and will achieve what people have set out to achieve. With the caveats that I have mentioned, we are, as I have said, happy to support the bill at stage 1.
The sensitivities surrounding the important issue of the proper protection of vulnerable adults have been highlighted in the debate. Acknowledging that abuse can exist or that frail elderly people can be at real risk of unintended harm is not always comfortable, but all members will be aware of cases involving such abuse or risks from their constituencies—such cases have been mentioned—or from media reports. Our task is to find a way of protecting vulnerable people from harm or abuse—one that will not be unduly intrusive on their rights. We want to clarify what the boundary ought to be between the reach of the state and the right to choice and privacy of capable but frail or vulnerable adults. We certainly do not intend to create a means of unnecessary intervention; rather, we want to enable the state to be an advocate that gets on the side of individuals who have capacity but who are not fully able to exercise choice for one reason or another.
I welcome the indications that most members have given that they support the general principles of the bill, although I recognise that that support is qualified by a shared recognition of the need for further debate on and amendments to it. In a sense, Roseanna Cunningham dealt with the point that Shona Robison made towards the end of the debate. It is entirely proper that bills that are introduced into the Scottish Parliament are properly scrutinised at every stage. There is no merit in thinking that committees ought simply to rubber stamp proposals or that we should always aspire, before we even reach stage 1, to answer all possible questions that might arise in drafting legislation, try though we might.
The point of the process of scrutiny of new law by committees of the Parliament is that the committees ought to add value to what comes before them. One cannot take that view and at the same time say that a new bill should contain nothing of substance that needs to be amended or improved.
Legislation is sometimes required even when we believe that existing statute ought to provide people with protection or that existing duties ought to be carried out in a way that provides such protection. Good law can include measures that clarify and consolidate, as well as measures that innovate. The bill does all those things.
Is the main driver of the bill the medical profession, social workers, the legal profession or society in general? In the past 50 years or so there has been legislation—possibly flawed—that has dealt adequately with the problem in the majority of cases. In what way will the bill improve matters?
Nanette Milne was right to identify the fact that the great majority of organisations in all the sectors to which John Swinburne refers that gave evidence to the Health Committee supported the general principles of the bill. In her speech, Jean Turner referred to some of the existing law that applies, which dates from the early days of the NHS. That legislation has been overtaken by developments since then and we need to amend and improve it. I do not regard the bill as the property of one interest or group. I think that it is required and that the increasing numbers of people who are living to a very old age and are frail, although they do not lack capacity, make it essential for us to have measures that address their vulnerability in a fair and proportionate way.
We need to create the means of effective intervention but to ensure that interventions are proportionate to needs. Where an individual is believed to be at risk, the means must exist for that concern to be investigated. Where that investigation is impeded, there must be the means to carry it out. Where an investigation finds that an individual is at serious risk of direct and immediate harm, the means to act must be available.
We need to tackle abuse and to deal with abusers—those who cause harm intentionally. The bill introduces measures to do that and to give victims of abuse the chance to be supported to take action to stop what is happening to them. The bill is also intended to extend protection to those who are at risk as a result of action that is not intended to have that consequence. We want to make it easier both to bring the perpetrators of abuse to justice and to protect those who are the victims of inadvertent neglect or self-harm. The bill covers all those risks and is intended to do so.
We expect that, in most cases, public authorities will use the powers that the bill gives them with the full approval of the adult at risk. In some cases, a person will be asked to leave their usual home to have a discussion with officials elsewhere. In those cases, to which a number of members have referred, the individual may say that they choose to stay where they are. We expect that in almost all instances that expressed wish will be respected.
The minister is making some important points. However, he will agree that the bill imposes duties on local authorities. Because those are duties, they are presumably inspectable. Even if the bill is not amended, any overzealous application of the duties will presumably be picked during the inspection process.
Indeed. It will be the duty of adult protection committees in each area to review the use of all protection orders and to report their findings biannually to ministers, to ensure that those orders are not used inappropriately.
Christine Grahame asked about the procedures for protection orders. Section 38(8) makes provision for those procedures to be specified in rules of court that will be approved by the Sheriff Court Rules Council. Members will recognise that that is the usual procedure; it applies, for example, under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
The minister might not be able to answer my question today, but I want to make the point that when there is an application for an interim interdict, statements of fact—condescendences—must be supplied, and in appropriate circumstances the other party must have an opportunity to respond, so that something is on paper about which the sheriff can hear evidence. That is what I was getting at. To what extent has the minister explored the matter, given that the proposed approach would interfere with individuals' rights?
Protection orders will be granted only if a court or tribunal has evidence that it can consider. Christine Grahame has an interest in the detail of the matter and I will be happy to write to her about it if I have not fully answered her question. However, I am satisfied that the bill will provide for a proper judicial process, whereby evidence will be considered. None of the protection orders that are envisaged in the bill will apply without proper and due consideration.
I seek further clarification on the issue that Euan Robson raised. In a case of benign neglect, would the first duty of the local authority be to provide help and support to the carer?
Absolutely. The clear intention is to provide local authorities with the means to act when their existing means and duties in relation to persons at risk have not produced the desired outcome. The process would begin only after other measures had been exhausted. More contentious orders, such as removal orders, are intended to be the last resort.
The question was asked whether the absence of a reference to the police as one of the bodies required to co-operate with local authorities and other bodies is significant. I am happy to consider the matter at stage 2, if the motion on the bill's general principles is agreed to at decision time. We acknowledge the key role of the police in detecting and acting on the situations that we have been discussing.
In most cases, when questions have been asked, the public authority will have fulfilled its duty, the individual will have exercised their choice and the matter will end at that point. However, in the rare and exceptional cases in which there is undue pressure, protection orders should be available to authorities if the other approaches that Robin Harper mentioned have failed. The bill offers a means to assess an individual and, in some instances, to remove them from a situation in which they are at risk, for a short period. The person might be removed just for a few hours, so that a simple health check can be carried out, or for a few days, so that their circumstances can be assessed more broadly.
It would be unusual for a removal order to have to remain in operation for the maximum of seven days. However, there might be circumstances in which an adult is prevented from exercising choice by another person in the household. In some situations, the person might not fully understand the pressure under which they are put. In such exceptional circumstances, it is right that there should be provision for a return to court for further consideration of the case.
Concerns were raised about unintentional discrimination in the application of protection orders. Public authorities already have an obligation to assess whether action under legislation is compatible with the ECHR. The provisions of the bill are compatible with the ECHR. I agree with the Health Committee that the more restrictive actions should be taken only as the last resort, if there is a risk of serious harm and all other options have been exhausted. Any sheriff will need to be clear that there is a risk of serious harm. The code of practice that accompanies the legislation will signpost and emphasise the importance of those tests.
This might not be the opportune moment to make this point, but I do not think that another opportunity to do so will arise.
I am concerned about the use of guardianship orders, which give access and powers of entry in the circumstances that the minister described. Has he reviewed the evidence that the committee heard about the operation of guardianship orders, for example about how expensive and difficult to renew they are? May we consider that system in the first instance, to ascertain whether it might work better?
It is important to stress that guardianship orders under the Adults with Incapacity (Scotland) Act 2000 are not designed to meet emergency situations of the kind that we have been discussing; they are granted only after careful consideration of the adult's needs, and only if the adult lacks capacity as certified by two medical practitioners.
The proposals under the bill and the provisions of the 2000 act are complementary, but different. Under the 2000 act, measures can be put in place only when a person is assessed as having incapacity. The powers under the bill will allow an initial assessment to be made if it is unclear whether or not a person has capacity. I hope that that will allow for an appropriate decision to be made. If a person is found not to have capacity, the 2000 act will apply.
The question whether there is a risk of competing legislation was raised. There ought not to be any such risk. Once an assessment has been made, if a person lacks capacity, they should be supported by measures under the 2000 act. As Christine Grahame and others know, there are measures in the bill that will address and improve some aspects of the 2000 act to ensure that they work as intended.
The code of practice will provide further guidance on the structure and operation of adult protection committees. Euan Robson, I think, made a point about ensuring that adult protection committees and child protection committees share their expertise and that there should be no undue overlap. That point has been addressed—there is provision for that expertise to be shared.
Order. Members are being too noisy.
There is an expectation that service users and voluntary sector representatives will be included in adult protection committees. We do not believe at this stage that that is likely to place an onerous duty on organisations to get involved. We expect their involvement to happen in any case, and provision is included to allow it. I mentioned that adult protection committees will review and report on the use of protection orders. That will allow us to continue to respect the human rights of those affected.
Robin Harper asked about the Protection of Vulnerable Groups (Scotland) Bill. As I am sure he will recognise, that bill covers a different area—namely, the removal from the workforce of perpetrators of abuse. The Adult Support and Protection (Scotland) Bill is very much focused on the victims of abuse—they stand at the centre of it.
The remaining parts of the bill have been mentioned briefly, and I will respond briefly.
Order. There are far too many conversations going on.
Thank you, Presiding Officer.
The power to amend the provisions of the Social Work (Scotland) Act 1968 on placements from outwith Scotland is subject to the affirmative procedure. Therefore, it will be subject to scrutiny by the Parliament. Work on that area is already under way. We will ensure that the 1968 act is reviewed appropriately so that the work is delivered properly. The 1968 act currently includes provisions on the responsibilities of Scottish councils regarding the assessment and provision of services—that matter was also raised in the debate. We will consider ways to help address the issues that have been highlighted using revised guidance with a view to ensuring that the legislation is modern and fit for purpose.
We recognise that it is not possible simply to pass a law and thereby completely eradicate the risk of harm. We acknowledge that particularly in the context of the increasing number of people who we know will live into their 80s and 90s in the future. The Parliament can reduce the risk of harm through legislation, however. That is what the bill is all about. We want to work with all concerned to achieve that outcome in the context of practical definitions that provide clarity and consistency, give clear direction to the relevant public authorities and enable individuals to exercise choice and be safe. It is about striking a balance between extending protection and enabling people to live fulfilling lives. We believe that the bill can deliver both those objectives.