Hansard

Malcolm Chisholm is talking about situations in which there is a conflict of opinion between the doctor and the guardian on a proposed course of action. We have tried to create a balance, which no one pretends is easy to strike. We have allowed a second medical opinion, to ensure that the view of not only one doctor would prevail in such cases. We have also provided for recourse to the courts, in the event of a dispute.

A reasonable balance has been struck in a difficult area. I have no doubt, however, that we will return to these matters at stage 2, during detailed committee scrutiny, when that balance can be explored further. We have listened to the concerns that have been expressed to us, and have tried to act on them by striking a different balance from that which was proposed in the original draft of the bill. I believe that the balance that we have struck gives weight to the various concerns. However, as I said, I am sure that we will return to that issue.

There have been demands to include a statutory duty of care for welfare attorneys and guardians in this bill. The intention behind that proposal is good, but we are convinced that that statutory duty is neither necessary nor desirable. As the Scottish Law Commission said in 1995, a duty of care already exists. Section 73 of the bill refers to that duty and to the requirement for attorneys and guardians to act in good faith.

The contribution of Professor Sheila McLean, in her evidence to the Justice and Home Affairs Committee, which is reported in the appendices to the report, is well argued and sets out the position clearly. It is clear that attorneys and guardians must follow the general principles and codes of practice, and must seek professional advice when that is appropriate. Professional duties of care exist only in relation to specific services. A statutory duty in the bill for welfare attorneys and guardians would be extremely difficult to enforce. We are convinced that we should not go down that road.

The Justice and Home Affairs Committee sought clarification of our decision not to include provisions on advance statements in this bill. Our position remains that we have no plans to legislate in that controversial area, in which there is a sharp division of public opinion.

How does that sit alongside the requirement in the bill to take account of the present and past wishes of the adult? The Executive sees a clear distinction. The provision in section 1 of the bill to take the adult's wishes into account is intended to impose a responsibility to establish what the adult wants, or has previously expressed a wish for. The provision does not, however, have a bearing on the legal status afforded to an advance statement or living will that was made by an adult when they had the capacity to do so.

The provisions on research in section 48 have also attracted a good deal of comment. That is a sensitive area in which it is necessary to ensure that the interests and well-being of the adult are fully protected. We have, therefore, been careful to construct the terms of section 48 as tightly as possible. The conditions placed on such research are rightly onerous.

There have been persuasive arguments that the type of research allowed should be broadened slightly. Research is, by its very nature, more likely to be of general benefit than of benefit to an individual and there is a case for slightly greater

latitude. I propose, therefore, to bring forward at stage 2 an amendment based on the Council of Europe's Convention on Human Rights and Biomedicine, which has already been accepted by many European countries and is seen as an international standard. That will permit research in exceptional situations; research that aims to benefit, through significant improvements in the scientific understanding of an individual's condition, disease or disorder, the person concerned or other persons in the same age category who are afflicted with the same disease or who have the same condition.

Section 45 of the bill allows certain treatments to be excepted from the general authority to treat in section 44 of the bill. In finalising which treatments should be excepted, we have made it clear that we will take on board the views expressed in the Parliament and by the Millan committee. That remains our position. I want, however, to be open with members about our current thinking and, with that in mind, I will now outline the specific treatments that, subject to comments, we propose at this stage should be covered by regulations made under section 45. We recognise that electroconvulsive therapy is a controversial treatment and we intend, therefore, that ECT should be possible under this bill only where a favourable second medical opinion has been obtained. For three other treatments, we believe that Court of Session approval should be necessary. Those are psychosurgery, sterilisation and the implantation of hormones to reduce sexual drive.

Part 5 of the bill has, perhaps unsurprisingly, provoked the greatest debate. I believe that some of the changes that I have outlined today will improve the bill, and will ease the anxieties of those who have had concerns about its purpose.

Finally, I am sure that the Parliament will want to know the eagerly awaited timetable for implementing the bill. We want to press on with the bill as fast as possible; no one is under any illusion that there is not a great deal of work to be done. Nevertheless, up to half the changes could be made by April 2001. By then we hope to have set up the public guardian's office, to have introduced provisions for continuing and welfare attorneys and provisions for the access to funds scheme.

The medical treatment and research provisions could be implemented by summer 2001. We intend that arrangements for managing residents' finances will be implemented in September 2001, when we hope the new Scottish commission for the regulation of care will become operational, following the passage of a bill to establish it. Intervention orders and the new form of guardianship should be in place by April 2002.

We shall set up a national implementation steering group, which will include some of the key organisations that will be preparing themselves for implementation and that can advise the Executive on what needs to be done. We want to make sure that carers' and service users' views are effectively represented.

As the Justice and Home Affairs Committee says in its report, this bill is good. We have worked hard to ensure consensus of opinion in some difficult areas. There is agreement that reform of the law is long overdue. I look forward to the debate today, and to the rest of the shared journey towards passing this important legislation.

I move,

That the Parliament agrees to the general principles of the Adults with Incapacity (Scotland) Bill.