Hansard

It is only right that, as convener of the Justice and Home Affairs Committee, I take a few minutes in the chamber to comment on the committee's experience of dealing with the bill. I hope that I will be allowed a little latitude to do that. It is fair to say that all members of the committee feel as if they have come out of a long, dark tunnel only to be faced with another long, dark tunnel at stage 2 of consideration of the bill.

I would first, and most importantly, like to express my appreciation of the work that was put in by every member of the committee in a difficult period, when the committee worked extremely hard. We have been dealing not only with this bill, but with the Abolition of Feudal Tenure etc (Scotland) Bill, which will be debated next week. The committee has also had a member's bill referred to it and has continued to progress two items of specific committee interest—prisons and domestic violence—which we began to examine in September. On top of that, the committee has dealt with a variety of petitions and items that have been referred to it by the Subordinate Legislation Committee and the European Committee.

Our work load has been colossal, so it is lucky that all members of the committee managed to retain their sense of humour and—more important—the sense that we were working as a committee, not just as a collection of more or less party political individuals.

In the past two months, when we dealt with stage 1 of this bill and the Abolition of Feudal Tenure etc (Scotland) Bill, there were times when we felt like guinea pigs. If we occasionally plaintively asked one another what a stage 1 report looked like, it can now be judged whether we got it right. That we managed to get this far is in no small measure due to the excellent work of

the committee clerk and his team; they worked flat out and we owe them a great debt. We are very lucky to have them and I hope they, too, felt part of a real team.

The approach that we adopted to the report reflects our belief that it is important to represent in it all shades of opinion in the committee. Not all opinions were held unanimously but, in my view, to refuse to record views because they were not held by all members of the committee would be to misrepresent the range of views on aspects of this and, no doubt, other bills. If we say that a view was held by the committee as a whole, it was; anything less than a unanimous view has been recorded with the appropriate qualification. On this bill, it was important that we did that, because far more of it was controversial than might have been anticipated.

We were aware of the extensive consultation undertaken by the Scottish Law Commission, which did the initial drafting. The committee took its own informal briefings during the summer recess, so that we would be better prepared to deal with the bill. We heard oral evidence from seven organisations and from one individual, Professor Sheila McLean, over three meetings. We could easily have heard a good deal more evidence from organisations and individuals. Even now, I am getting letters from organisations and individuals confidently expecting to be able to continue giving evidence at stage 2. That would have a serious impact on the timetable; we might have to discuss that. The areas of particular concern are highlighted in our report and arise principally from a handful of sections on the medical aspects of the bill. I will return to them later.

Returning to my shadow justice persona, I emphasise that if the Scottish National party had won on 6 May, we would all still have been here today debating essentially the same bill. We had a manifesto commitment to the introduction of an adults with incapacity bill and had also set our faces against including living wills in it. On SNP benches, therefore, there is support for the legislation, which I suspect extends to all parties. That is because of the clear need for reform.

In the welter of coverage of the controversial parts of the bill, the very real difficulties that people face right now have been overlooked. I hope that members have read the evidence highlighting some of those problems, by organisations such as ENABLE and the alliance for the promotion of the incapable adults bill. The large and increasing number of people who have had to deal with a member of their family who can be described as incapable—and I am in that position—will know that there is little choice between the existing power of attorney, which was not designed for those with incapacity, and the nuclear option of appointing a curator bonis.

I say nuclear option because the curator takes over the management of the whole estate, although the level of incapacity might mean that some money matters could be understood and handled by the individual. Nor does that system work when the incapacity is over the short term rather than the longer term. There are problems even when people think that they have sorted out their affairs through a joint account. A bank or a building society can, and often does, freeze the whole account when one of a couple becomes incapable. Just as bad is the situation that can occur when one person goes into hospital and the hospital takes over the management of their finances, effectively excluding their perhaps very long-term partner from further involvement.

Those are all actual examples of what can happen currently, and they make the need for the bill very apparent. The bill would allow a new form of welfare power of attorney, which would mean that medical and financial decisions could be delegated without having to do so on the once- and-for-all basis that is the case now. It would allow most of those functions to be carried out without the time-consuming and expensive process of going to court.

At present the position regarding who can decide what, when it comes to medical treatment of an incapable adult, is highly uncertain. Doctors can feel legally unprotected, even when they are making relatively minor and routine decisions about treatment. Alternatively, they have to delay necessary treatment until some kind of authority can be sought. The bill clarifies the legal justification for administering medical treatments that might otherwise be regarded as common assaults. We should not run away from the problem that doctors and nurses occasionally feel that they have to do something for which they could be prosecuted. The fact that they are not is a measure of the common sense of most people involved. However, that does not solve the problem that doctors and nurses are leaving themselves open, potentially, to prosecution in a situation in which most of us recognise that that should not happen.

For all the good that the bill does, we would be foolish not to recognise that it has other, more controversial aspects that have not been dealt with by the decision to remove the sections recognising advance directives or living wills that were contained in the Scottish Law Commission's original draft. When the bill was first announced, many people were relieved by the indication that those sections would not be included, because they felt that that meant that we would not become bogged down in the long-drawn-out arguments to

which the recognition of advance directives or living wills would have given rise.

However, lo and behold, we are having those arguments all the same. The exclusion of the sections that I mentioned was widely welcomed— as I indicated at the beginning of my speech, had the SNP been in government, we would also have excluded them—but there are still strongly expressed concerns that have not been alleviated. There is no doubt that much of the debate today and at stage 2 will centre on those concerns.

I cannot list them, but later speakers will no doubt pick on some of the issues that they feel need further clarification. Some of what the minister has said today and some of the concessions that he has already indicated will be made might help to address those concerns. However, we will have to await the response of the various organisations and individuals involved to see whether they feel that the amendments that are being trailed today go far enough.

One overarching concern has been what is meant precisely by the word "intervention" in section 1 of the bill. Witness after witness, including the bill team from the Scottish Executive, has assured Parliament, through the Justice and Home Affairs Committee, that intervention is meant to describe something that has happened— what might be termed an act of commission. However, others have equally strongly pointed out that, unless defined, an intervention could also be held to be an act of omission. That is what is giving rise to a great deal of the concern.

Perhaps it would be useful to provide a clear definition of the word "intervention" in the legislation. That would go a considerable way towards relieving the anxieties of those who feel that the end result of passing the bill will be decisions not to treat, rather than what it is being presented as—legal justification to treat. The ability to treat is important—I have already referred to the fact that, strictly speaking, doctors and nurses might at the moment be doing things that could technically be described as assault.

The dangers inherent in not treating are currently hugely controversial, as recent newspaper articles—not about the bill, but about practices that it is alleged take place throughout the national health service—highlight. Concern is being stoked up by that external controversy, which does not relate directly to the bill. If it is not the Executive's intention to permit the refusal of treatment, perhaps that should be more clearly spelled out than has been the case until now. It might be said that it is not necessary to do that when that is not what is meant, but one could equally argue that there is no reason not to do so, because it can do no harm to the overall intent of the bill.

Another issue that arises out evidence taken at stage 1 is the question of advance directives or living wills. The Executive took a decision to exclude them from the legislation, despite the fact that they were included in the Scottish Law Commission's original draft bill. I have already indicated that that would also have been the SNP's view, had we been in government. The Justice and Home Affairs Committee recognises the reasoning behind the decision and supports it.

The decision to exclude advance directives was widely welcomed as sensible, given that to include them would have risked the whole bill over that argument. The difficulty that I and, perhaps, some members of the Justice and Home Affairs Committee have is that, having heard the evidence of the British Medical Association, which was that the existence of an advance directive will have enormous weight when a decision about treatment is made, we began to wonder whether advance directives would be imported into the scenario in any case.

If one accepts that section 1(4)(a), to which the minister referred, is correct and that account has to be taken of

"the present and past wishes and feelings of the adult so far as they can be ascertained", it is difficult to imagine any clearer expression of those wishes than an advance directive— basically, that is what the BMA told us.

As a result of that recognition, the Royal College of Nursing has expressed concern that the bill will in practice result in enormous weight being attached to entirely unregulated living wills. That issue needs consideration. Perhaps the decision to exclude advance directives was taken in the clear knowledge that, in practice, they could not be excluded, and that there was no point in having a row about something that was inevitable. However, the concern of the RCN should at least be recognised. I do not have any specific suggestion as to how that could be done. I think that most of us do not want living wills to become part of statutory law, although perhaps they will become part of our law, willy-nilly. We have to think carefully about how we deal with that issue.