Hansard

I have been asked to provide members with a brief overview of the measures proposed in the bill, the background to them and some of the issues that have been raised during the consultation process. I stress that this overview is based on my interpretation of the bill, following work that I have undertaken for the SPICe briefings and conversations that I have had with Executive officials. Members of the bill team will have the opportunity to discuss the bill with the committee and I am sure that they will clarify any issues raised.The substantive provisions in the bill are contained in parts 1 to 3. I propose to discuss each part in turn; if there are any issues that members want to discuss, we can do so before I move on to the next part.Part 1 of the bill concerns the protection of adults at risk of abuse. In the past, such adults have been described as "vulnerable", but that term did not find favour with a number of respondents to the Executive's most recent consultation. One respondent felt that it focused too much on people's disabilities rather than their abilities and so asked the Executive to come up with a different term to describe adults in that position. The Executive has come up with the term "adults at risk of abuse". However, given that that is a new term, I will use it along with the word "vulnerable", in the context that others have used it.Traditionally, vulnerability has been associated with mental disorder. The current legal definition of mental disorder can be found in the Mental Health (Care and Treatment) (Scotland) Act 2003, which I will call the mental health act for short. The definition includes mental illness and learning disability. The problem with using the term "mental disorder" to describe vulnerability is that it does not cover all the groups that the Executive hopes to protect through the measures that it proposes in the bill.The policy background to this part of the bill can be traced back to the work of the Scottish Law Commission, which in 1997 published a position paper and a draft vulnerable adults bill, which followed on from a discussion paper in 1993. It recommended a new legislative framework, with a variety of measures aimed at protecting all adults who are vulnerable, not just those who have a mental disorder. Many of the proposals in the bill are based on those recommendations and were consulted on by the Executive in 2001.Further impetus for change came with the high-profile Borders inquiry into long-term abuse of a woman with learning disabilities by her primary carer and others. The SPICe briefing provides further background to that. The inquiry reports found significant gaps in the protection offered by various agencies as well as a misunderstanding of the statutory powers available to them. In addition, it was considered that there were gaps in the legislative framework and it was recommended that the Executive introduce a vulnerable adults bill to complement existing legislation Last year, the Executive published a further consultation and it has set up a steering group, with representatives of key stakeholders, which has discussed and provided views on the major issues connected with the bill.It is also envisaged that, should the bill be passed, the steering group will continue to have a role—for example, in developing codes of practice to run alongside the bill's measures. Certainly, key stakeholders have played a part in the development of the policy, but what is less clear from the documents that accompany the bill is the extent to which the groups that the Executive seeks to protect—for example, older people—have been included in that process.It is important to note in relation to the bill's consultation process the existence of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) Scotland Act 2003. The Executive considers that the bill's proposals will complement both those pieces of legislation. The policy memorandum provides details of the current statutory powers that are available to public authorities. Most of those are associated with mental disorder and are contained in the 2003 act. They include powers to enter premises and to remove people with a mental disorder who are at risk. There are also provisions in the National Assistance Act 1948 and the Social Work (Scotland) Act 1968. In addition, limited common-law powers of entry without warrant are available to the police.Given the current powers, it has been argued that sufficient legislation is in place and that what the Executive seeks to do through the bill could be achieved by improving guidance on current procedures and/or amending existing legislation. However, the Executive notes in the policy memorandum that it did consider such options and gives a variety of reasons why it rejected them. Principally, it came back to the problem that current legislation does not cover all the groups that the Executive seeks to protect. The Executive argues that there is a need for a bill to complement the provisions in the 2003 act and the 2000 act.I will move on to the proposals in part 1 of the bill. Section 1 sets out the general principle of part 1, which is that a person may intervene or authorise an intervention in an adult's affairs only where they are satisfied that the intervention will provide benefit to the adult and is the least restrictive option available. Section 2 states that a public body, when performing functions under this part of the bill, should have regard not only to the principle in section 1, but to the wishes of the adult at risk and of others with an interest in the adult's welfare. In addition, such bodies have to provide as much information and support as the adult at risk needs to ensure that they can fully participate in any proceedings under the bill. Public bodies would include local authorities, the Mental Welfare Commission, the public guardian and the relevant national health service board.Those sections could be regarded as the Executive's attempt to respond to concerns that were raised with it and the Scottish Law Commission that the use of interventions such as removal orders and banning orders would constitute significant interventions in the life of an adult that may contravene article 8 of the European convention on human rights on the right to autonomy and privacy. It should be noted that the Scottish Law Commission contended that the public interest in protecting adults at risk of abuse or harm outweighed any temporary disruption to an individual's autonomy and privacy. Nevertheless, it stated that no intervention should take place without the consent of the vulnerable adult, unless the adult had a mental disorder or was subject to undue pressure.Most of the respondents to the Executive's 2001 consultation agreed with the Scottish Law Commission as long as there were appropriate safeguards and that "undue pressure" was further clarified. The Executive has proposed in section 32 that a sheriff cannot grant an application for an order under the bill if the adult at risk does not give their consent. However, it is also proposed that the sheriff or the person carrying out the order can ignore the refusal to consent if they reasonably believe that the adult at risk appears to be under undue pressure to refuse consent. What constitutes "undue pressure" is clarified in section 32. However, as far as I am aware, that clarification was not previously consulted on, though I presume that it was discussed in the steering group. It may be interesting to ascertain whether it meets the concerns of those that wanted more information on what "undue pressure" would mean in practice.Section 3 defines an adult at risk as a person aged 16 or over"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."The definition can be regarded as the culmination of work to gather opinions by the Scottish Law Commission and the two Executive consultations. However, the definition is different from that proposed by the Scottish Law Commission, which was consulted on in 2001, and different from the revised version in the Executive's 2005 consultation. Presumably, the definition was discussed in the steering group, but it is difficult to make an assessment of how popular or otherwise it may be with stakeholders.Section 50 defines the term "abuse" for part 1 of the bill. As far as I am aware, the Scottish Law Commission did not propose such a definition, but the Executive did in its 2001 consultation and then produced a revised version in 2005. Again, the proposal in the bill is different from both of those. Despite that, it is possible to see that the Executive has taken on board some of the comments it received. In 2001 and 2005, the Executive tried to find a statement that defined abuse. However, some respondents to the latest consultation suggested that as well as a statement, there should be a list of behaviours that illustrates what is meant by the term "abuse", which the Executive has taken forward in the bill.Section 4 proposes a duty on local authorities to make inquiries about an adult's well-being, property or financial affairs, where the person falls within the definition of an adult at risk, and the council knows or believes that it might have to intervene to protect the adult from abuse.Section 5 requires all relevant public bodies to co-operate with one another where abuse is known or suspected and to report any concerns to the local authority. For the respondents to the Executive's consultation, the issue was whether local authorities should take the lead in such inquiries. Just over 50 per cent of respondents were in favour, but there were some concerns. Some respondents thought that if there had been a criminal offence, the police should make such inquiries. Although some could see a role for local authorities in issues concerning the welfare of the adult, they did not necessarily believe that such a role would be appropriate in cases involving finances or property.The bill proposes to allow a local authority officer to have powers of investigation when they are making inquiries into cases that involve adults at risk. Those include powers of entry to investigate premises, to take along any other persons reasonably required for the visit, to conduct private interviews with the adult at risk, and to inspect records. In addition, health professionals will be able to conduct a medical examination on the adult at risk.If an officer cannot gain entry to the premises, they will be able to apply to a sheriff for a warrant for entry. It is important to note that nothing in the bill would allow interviews or medical examinations to take place without the consent of the adult at risk.When carrying out an investigation, if it is not possible to hold either a private interview or medical examination in the premises being visited, it is proposed that a local authority should be able to apply to a sheriff for an assessment order to facilitate that. As with all orders under part 1 of the bill, the sheriff can appoint a person known as a safeguarder, whose role it will be to represent the interest of the adult during the process. In addition, and again as with all other orders under the bill, a sheriff will not be able to grant an order without the consent of the adult at risk unless they are under undue pressure.The bill also proposes that a sheriff will be able to grant a removal order, which will allow the removal of an adult at risk to a specified place while investigations take place. To grant the order, a sheriff will need to be satisfied that the adult concerned is at risk and is likely to be seriously abused if they are not removed. Such an order can be made for up to seven days.The final order proposed in the bill is a banning order. Under the bill, a local authority will be able to apply to a sheriff for a banning order on the person or persons abusing the adult at risk. The Executive considers that the use of a banning order should be a last resort. The banning order would specify the place from which the person is banned and the length of time—up to a period of six months—for which they are banned. An application could be made by the adult at risk or someone acting on their behalf, any other person who is occupying the property from which the individual concerned will be banned, or, under certain circumstances, the local authority. The bill will also allow a sheriff to grant a temporary banning order while they consider an application for a full banning order.One of the reasons for banning orders is that the Executive does not believe that the adult at risk should always have to be inconvenienced when they are the ones that have been abused, for example by being removed from where they live. The proposal for banning orders received significant support during the consultation. However, some respondents were concerned about what would happen if the abuser was also a vulnerable person or adult at risk. Others were concerned about the unintended consequences that a banning order could have on the victim. For example, one respondent proposed a scenario in which the abuser was the primary carer of the adult, living in the adult's home. They were concerned that excluding the primary carer could result in the adult being placed into other accommodation against their wishes, so they wanted assurances that if a banning order was granted, a package of care would be put in place to allow the person to remain in their own home. In addition to the orders, the Executive proposes that each local authority must establish an adult protection committee to"take a strategic overview in jointly managing adult protection policies, systems and procedures at a local level".In carrying out their functions, adult protection committees would be required to co-operate with a range of public bodies to safeguard adults at risk. Those would include the relevant local authority, the Scottish Commission for the Regulation of Care, the relevant national health service board, the chief constable of the relevant police force and any other public body specified by Scottish ministers. The bill proposes that each local authority will be responsible for appointing an independent convener of the adult protection committee and its other members, which will require to include a variety of public bodies. Last year, the Executive proposed that adult protection committees should not just have the functions that are proposed in the bill, but should take the lead in investigations. Although in favour of the committees in general, respondents were less sure about their taking the lead in investigations, as it was felt that such a role would overlap with those of existing agencies. Therefore, the Executive has not taken forward that proposal. Most respondents were in favour of giving the committees a statutory basis to ensure consistency across the country. The bill contains two further provisions in part 1. First, it proposes that Scottish ministers should prepare and publish a code of practice, which will contain guidance on the operation of the various protection measures. As I stated earlier, the Executive proposes that the steering group will support the development of the code, but there is little information in the documents that accompany the bill about what would be contained in the code. The bill proposes that local authorities, their officials and health professionals will be required to have regard to the code. Secondly, the bill will make it an offence to prevent from carrying out their duties under part 1 or obstruct any authorised person.A number of issues arise from part 1 of the bill that the committee may wish to consider. The Executive believes that the measures outlined in the bill should be complemented by other interventions for which statute is not required, such as mediation. The Executive considers that mediation would be useful in cases in which the abused and perpetrator live together and want to continue to do so. It consulted on whether mediation should be offered in all such cases, but most respondents considered that it should be offered on a case-by-case basis only. There was further discussion in the consultation responses of who should provide mediation services. Some respondents were in favour of that resting with local authorities; others wished voluntary organisations to provide them; while others still suggested that the adult protection committees should have a role in their provision. However, the policy memorandum makes no further comment on how mediation will be delivered.Another issue concerns the financial assessment of the costs associated with the measures proposed in part 1, the detail of which is contained in the financial memorandum. The Executive has estimated that the measures will cost £13 million to local government as a whole. The bill team advised me that the Executive expects to provide some funding to meet the additional costs that have been identified, but it has not clarified exactly how much that will be.As I said, the bill proposes that an adult be defined as a person aged 16 or over. However, some bodies, particularly youth organisations, have pointed out that the Protection of Children (Scotland) Act 2003—sometimes known as POCSA—stipulates that a child is aged under 18. The Executive points out that the definition of an adult in the bill mirrors that in the Adults with Incapacity (Scotland) Act 2000. However, some organisations believe that it is important for any legislation for adults at risk to dovetail with POCSA. It might also be of interest to the committee to know that the Executive originally included in the vulnerable adults consultation proposals for a list covering those people who have been disqualified from working with vulnerable adults, similar to that covering those who have been disqualified from working with children under POCSA. That has not been covered in the bill. Instead, it is being consulted on as part of the Executive's response to the recommendations of the Bichard report. I understand that those proposals will be introduced through another bill.