Hansard

I am pleased to move this motion to approve the general principles of the Adults with Incapacity (Scotland) Bill. The bill is a major piece of law reform. It has been particularly close to my heart since those campaigning for its introduction approached me more than 18 months ago. It says something about what this Parliament can do that we are able to legislate on such an important area. Those of us who tried to get this legislation through at Westminster were often knocked back and frustrated. The legislation is likely to affect every family in Scotland at some time. The chance we now have to get the legislation on the statute book is an indicator of the real good that the Scottish Parliament can do.

The purpose of the bill is to improve the law for adults who lack the capacity to make decisions about their finances and welfare. Adults with incapacity include some people who have dementia or severe learning disabilities or who have suffered strokes or a brain injury. It is estimated that 100,000 people in Scotland are affected by incapacity at any time. Their families and those who look after them are also affected. The bill is part of the wider framework of Scottish ministers' commitment to social justice in which every one of those people matters. The bill will improve their rights and protection and will make the task of caring more straightforward. It will make a real improvement to the quality of life of Scottish people.

The process in which we are involved is a shared journey. A great many people helped to identify the need for reform and have helped us to

arrive at the proposals in the bill. I understand that campaigning to update the law started as early as 1984. It was prompted by the antiquated and unsatisfactory nature of existing arrangements and the increasing number of people affected by Alzheimer's disease and other forms of dementia. It was also prompted by changing attitudes in society, greater awareness of the rights of those with incapacity and moves away from institutional care to care in the community. I acknowledge the hard work and foresight of those who were involved in the early days of putting forward proposals for reform.

The Scottish Law Commission embarked on a major project when it published a discussion paper on the subject in 1991. The paper was debated across Scotland with a variety of interests, including statutory and voluntary bodies and, most important, those involved directly in caring for family or friends.

The Scottish Law Commission's report on incapable adults was published in 1995 and included a draft bill. I salute the commission for its breadth of thinking and the care that it took in developing this new framework of law. The commission is the architect of the bill that we are now considering.

The shared journey continued when the Scottish Office consulted on the issues in 1997. More than 160 responses were received, but the consultation and listening did not stop then. We have been assisted by groups such as the alliance for the promotion of the bill, by experts in mental health and social work and by many others, including carers. There has been a helpful debate on how to achieve the best outcome for this most vulnerable group of citizens. The process has given us confidence that there is widespread support for the bill.

The long consultative journey has embodied the Parliament's aims in developing legislation. However, I am aware of the limited time that the committees have had to consider the bill, and I am particularly grateful to the members of the Justice and Home Affairs Committee for their careful scrutiny, assisted by the Health and Community Care Committee and the Subordinate Legislation Committee.

I am also grateful for the Justice and Home Affairs Committee's thoughtful and constructive report to the Parliament. We have made a written response, which is available to all members, and I shall respond to some of the committee's other points today.

We are planning to bring forward some technical amendments at stage 2 to improve the bill further. They will include provisions for private international law, which governs how the law of

Scotland in this area interacts with that of other countries. I shall have more to say shortly about more substantive amendments.

The bill is based on strong and overarching general principles. I want to emphasise that incapacity is not an all or nothing condition, and there will be no labelling based on preconceived notions of what a person can or cannot do, nor will anyone be considered incapable just because they have a learning disability or a mental illness. Doctors will make most formal assessments of incapacity, but we expect them to get advice from others who know the adult and who are aware of the nature of the decisions to be made on the adult's behalf.

The bill requires everyone involved in the decision-making process to use appropriate means to communicate with the adult and to find out for themselves what the adult wants. There are other important general principles—whatever is done should be for the direct benefit of the adult. The least intrusive measure must always be chosen to achieve that benefit, and those close to the adult will have a right to be informed and consulted.

The Executive has listened to the concerns that have been raised about the bill's definition of the nearest relative who will be one of the people involved in decision making.