Adults with Incapacity (Scotland) Bill
Jim Wallace, the minister in charge of the bill, has a prior engagement today in Holland and I shall therefore speak to the motion that the bill be passed.
The bill will serve the people of Scotland well. It provides reform that is long overdue. It might have waited years to go through the UK Parliament. The Scottish Parliament has completed the process within a year.
Many individuals and organisations have made valuable contributions to the bill. The Scottish Law Commission started the task in 1991 and we owe it our thanks. I also thank the Justice and Home Affairs Committee, which has worked hard to get the detail of the bill right. It distinguishes itself every time it meets to consider legislation in the Parliament. Members of that committee and the Health and Community Care Committee have lodged thoughtful amendments and have challenged the Executive to achieve the best possible legislation. The bill has, as a result, been substantially improved.
Other organisations have contributed significantly by examining the issues, briefing members of all parties and helping with the preparation of amendments. I genuinely believe that we have worked hard in partnership in committees and in the chamber, and I am confident that we now have a bill of which the whole Parliament—notwithstanding individual debates—can justifiably be proud.
It is estimated that, at any time, 100,000 people in Scotland are affected by incapacity; the families and the people who look after them are also directly affected. This bill is about protecting, in one logical and principled piece of legislation, the rights and interests of people who lack the capacity to make decisions themselves.
The bill is broad and flexible. It provides for an elderly person whose spouse lacks capacity and who needs access to their joint bank account. It will help parents and relatives of a young adult with a learning disability who wish to make good life decisions on that adult's behalf. Any one of us will be able to appoint attorneys to look after our welfare and financial affairs if we lose capacity in the future.
Part 5 has, rightly, been extensively debated in and outside the Parliament. It clarifies the law for medical treatment for adults with incapacity by establishing a general authority for doctors to provide treatment to those who are unable to give consent. That will help adults with incapacity to receive appropriate treatment in the broadest sense and will rightly put them on an equal footing with others who are incapable of consenting.
As has been said today, the Executive believes that the various rights and safeguards incorporated in part 5, as well as those in the rest of the bill and in common law, provide a secure framework to protect adults with incapacity and ensure appropriate roles in their treatment for everyone involved, whether professionals or relatives and carers.
The bill strikes a balance between enabling and protecting; it is about the freedom of individuals and the role of statutory authorities, general principles and detailed statutory requirements. The bill creates genuinely user-friendly systems with rigorous safeguards to protect people who are among the least able and the most vulnerable in society.
The bill—perhaps more than other issues that have been recently reported—is an example of the real good that the Scottish Parliament can do; it moves this area of the law into the 21st century and makes a substantial and real difference to every family in Scotland.
I move,
That the Parliament agrees that the Adults with Incapacity (Scotland) Bill be passed.
I thank the minister for his kind comments about the Justice and Home Affairs Committee. I want to join him in thanking the members of the committee for their work and for surviving the endurance test that they have been put through to get us to this stage. The Deputy Minister for Justice, the Deputy Minister for Community Care and the Executive team have also been part of those long proceedings and we all appreciate their work, particularly at stage 2.
We had some careful debates during stage 2, because we were well aware of its controversial aspects and everyone was concerned that our debates—no matter our personal opinions about various amendments—should be conducted in a logical, sane and coherent way. Notwithstanding some of the more alarmist coverage that I occasionally read in the press, I think that we achieved that aim. However, I should say that such coverage was most unhelpful in our attempts to have a sensible debate on these matters.
I also want to thank the committee clerk and the clerking team, who worked flat out for the committee and made things a great deal easier at stage 2 than they would otherwise have been. Every one of us owes them a great debt and we are extremely lucky to have such good clerks working in the Parliament. I note that they were here throughout this afternoon's proceedings, and I suspect that the Presiding Officer and his deputies will have been as grateful for their assistance as I have been over the past months.
I will briefly address the bill in general. I reiterate what I said in the stage 1 debate: had the election outcome in May been other than what it was, the Parliament would still have been debating this bill now because it was also part of the SNP's manifesto. I suspect that any bill that we had introduced would have been in much the same terms as this one, so it is evident that there is support across the chamber for this item of the Executive's programme.
Everybody recognised that there was a clear need for reform. Because of the controversies that have arisen over certain aspects of this bill, there has been a tendency to overlook the difficulties that people have faced until now. It would have been helpful if those difficulties had also received coverage. A large and increasing number of people have to deal with a member of their family who will now be described as incapable, and currently encounter problems in doing so. This bill will make it considerably easier for them to deal with members of their family who are incapable.
Equally, who can decide what about medical treatment of an incapable adult is highly uncertain at present. Doctors can feel unprotected, even when they make relatively minor or routine decisions about treatment, or may feel that they have to delay necessary treatment until some kind of authority has been given. We should be clear that the bill clarifies the legal justification for administering medical treatment that might otherwise be regarded as common assault—that is the kind of thing that we tend to forget.
Although I may wish that certain amendments had been carried, I know that even organisations that have concerns that have not been met have not asked us to vote against the bill. That is a measure of what the bill achieves in its totality.
I have one question for the Executive—I do not know whether the Deputy Minister for Community Care plans to make one of the winding-up speeches. I think that some time ago the Executive stated its intention to create a Scottish commission for the regulation of care, as recommended in the white paper "Aiming for Excellence". Measures to create such a commission have not been included in the bill. If the Executive still intends to introduce such a commission later, when is that likely to happen? The minister could perhaps say a few words about that because it may have some bearing on what we have been debating.
I thank the Deputy Minister for Justice, everybody who has been involved with the bill and everybody in this chamber. We have managed to get through a long and arduous process relatively unscathed and I think that the Parliament can be proud of itself.
I thank Roseanna Cunningham for not describing me as bizarre at any point in this debate—that is probably a first. I will not use this speech to thank everybody; instead I will pass out some congratulations. It is fitting that Angus MacKay and Iain Gray are here to see this bill being passed—I presume—by the Parliament. They deserve genuine congratulations. Congratulations are also in order to Roseanna Cunningham and my colleagues on the Justice and Home Affairs Committee, as well as to the many organisations that have promoted this bill over a long time. In particular, the bill has been dear to the hearts of the members of the Alliance for the Promotion of the Incapable Adults Bill.
Before the Scottish parliamentary elections, all of us were lobbied for the implementation of such a bill; the Parliament has certainly delivered. I recall attending, immediately after the election, a meeting of the Troon carers forum at which the bill was firmly in people's minds. Carers forums across the country have shown interest in the bill and will feel some cause for celebration today.
With the greatest respect to members, I look back to my former colleagues, who served with me in Westminster until 1997. Michael Forsyth and his colleagues in the Scottish Office at that time set the hare running on this bill. There are people to be congratulated across the political spectrum.
I recognise that one or two organisations, such as Advocacy 2000, had some reservations about adult with incapacity choice. I hope that they will feel reasonably happy with the outcome of today's debate. At times, there has been a lot of contention and anxiety surrounding words such as ventilation, nutrition and hydration, but overall this bill is about duty of care. Time and again, ministers have emphasised that the bill is about safeguarding and promoting the interests of adults with incapacity. I believe that everyone will welcome that.
There are one or two concerns. I mentioned one, relating to six-month partnerships. Another—I make no apology for raising it again—relates to the financial support to carers who are or feel obliged to go to the Court of Session. I would like ministers to keep that in their minds and to take it back to their colleagues.
I am sad that amendment 1, in the name of Lyndsay McIntosh, was not accepted. I think that its effect on the bill would have been harmless, but that it would have dealt with many concerns—perhaps myths or wrong perceptions—in the country. I have listened very carefully to what ministers have said today and I accept their assurance that euthanasia is not induced in any way by this bill. However, I suspect that some of my colleagues may feel that that is not quite the case and regret the failure to accept Lyndsay McIntosh's amendment. Personally, I wish the bill fair weather when it comes to a vote—although each member from the Conservative party will make up their own mind on the merits or otherwise of the bill.
I do not intend to repeat much of what has been said—especially the minister's masterly summary of the bill's provisions. I confirm that the Liberal Democrats support the bill, which was promised in our manifesto.
I would like to add to the tributes to the convener of the Justice and Home Affairs Committee, to the clerks and to the ministers who appeared before the committee. They took us through difficult areas that were completely new to some of us, and did so in a careful and co-ordinated fashion. I would also like to pay tribute to the witnesses, who gave their evidence with considerable clarity.
Last summer, the Justice and Home Affairs Committee, meeting informally, first heard from Adrian Ward, the spokesperson for the Alliance for the Promotion of the Incapable Adults Bill, who gave an eloquent and enthusiastic welcome to the then draft bill. Over the months, we have improved that bill. It has been thoroughly debated and the amendments that were made today have made it better still. Mr Ward told us that he first suggested the need for a bill such as this way back in 1986. We should record our thanks to the Scottish Law Commission for its consultation in 1991, which led to a final report in 1995. We would have been poorer without that work and might have had to do more than we have.
As has been said already, it is a tribute to the devolution settlement that this Parliament has brought the bill to this stage. The reforms are long overdue and 100,000 people in Scotland and their carers are directly affected. The bill will constitute one, updated, codified piece of legislation for the welfare of adults with incapacity. I commend it to the chamber.
Two back-bench members have indicated that they wish to speak before the minister winds up.
I will be very brief. This has been a learning curve, particularly in relation to the interaction between the committees and the Executive. I am delighted by how much the Executive took on board and the extent to which it accepted cross-party amendments in the Justice and Home Affairs Committee. The incorporation of international law—the Hague convention—puts Scotland ahead of Westminster, which cannot be bad.
This bill is the first measure that clearly and directly affects the citizens of Scotland. Some people may be disappointed that the passionately held views that were expressed to the committees did not meet with agreement in the chamber, but the advance in the protection for adults with incapacity is undoubtedly substantial. The role of carers, family and proxies in treatment decisions has been clarified and the bill promotes good practice, which is what all our laws must do.
We have worked out a procedure involving a wide range of individuals and organisations. It would not have been possible to do that a year ago under the Westminster legislative process. The interaction between members in the committee and the chamber and civic Scotland will ensure that our laws stand the test of time. Whether the bill will last as long as the act that we repealed in schedule 6—the Curators Act 1585—remains to be seen. Nevertheless, we have created a new procedure, we have tested it and it has worked well.
The only cautionary note that I would sound is that if it had not been for the ability of the Health and Community Care Committee to take further evidence following the major change at stage 1, there might have been some feeling that carers had not had the opportunity to express their views fully. The way in which the Health and Community Care Committee and the Justice and Home Affairs Committee have worked together is another parliamentary innovation. I am sure that that will continue. The bill represents a major advance in the protection of adults with incapacity.
I seek the Parliament's permission to move a motion without notice.
Do we agree to take a motion without notice?
Members indicated agreement.
Motion moved,
That the Parliament bring decision time forward to immediately after the minister's winding-up speech and proceed with decision time and members' business immediately thereafter.—[Mr McCabe.]
Motion agreed to.
I will be brief, too, but I want to step into this orgy of thanking, which Mr Gallie took a little further than I was entirely comfortable with.
We have heard how the new Parliament has been able to legislate more quickly and in greater volume. I want to mention the group of people who have suffered more than everyone else for that—the civil servants of the Scottish Executive. Angus MacKay and I would particularly like to put on record our thanks to the bill team—my 11 other brains. That is a joke that the Justice and Home Affairs Committee will appreciate.
I want to address some of the points that have been raised. The Executive intends to bring the provisions for attorneys and access to accounts and funds into force in April 2001. Part 5 will come into effect in the summer of 2001. As Roseanna Cunningham said, provisions on care establishments will follow in the context of our proposals for the new Scottish commission for the regulation of care, which will take over the supervisory role referred to in part 4. Our target for putting in place the commission is April 2001. However, that will depend on the legislation needed to set it up. Intervention orders and guardianship will come into effect in April 2002.
The Adults with Incapacity (Scotland) Bill is the first large bill on a major policy area to be passed by the Scottish Parliament. As Christine Grahame said, it will put Scotland alongside the best systems of law in the world on this subject. If the Parliament were to vote against the bill today, it would put back by years—as Dr Simpson mentioned, hundreds of years—any reform of the law protecting one of the most vulnerable groups in Scotland. That would disappoint all those people who have campaigned for change, including more than 1,000 concerned citizens who, over the past nine months, have written to us in support of the bill.
Defeating the bill would serve no one's ends; if we pass it, history will show that this Parliament, in its first major policy legislation, is serving the interests not of the powerful, not of the vociferous, not of the partisan, but of those who, up to now, have been voiceless and vulnerable. We can all—every one of us—be proud of that, and I commend the bill to the chamber.