Hansard

Individual cases—it is important to stress that cases are considered individually—will differ according to the individual's incapacity and the particular circumstances. Is a specific intervention required for the sale of heritable property, for example, or is something more general needed? Such decisions will, by their nature, involve a range of people. As I have indicated, there will be medical input, and legal input will be important in identifying the precise requirements for particular situations. Obviously, the views and information of those most closely connected with the adult concerned are particularly relevant. Such people will have some knowledge of the adult's wishes. A clear indication of the person's incapacity will also be relevant.

We intend to lodge an amendment to the bill to allow the adult to ask for the nearest relative to be removed from their position in exceptional circumstances. We have also listened to concerns

about excluding partners of the same sex from the definition of spouse or partner. That was reflected in the Justice and Home Affairs Committee's report. We will introduce an amendment to the effect that a same-sex partner may be included as the nearest relative for the purposes of this legislation.

On more specific provisions, the bill will expand and enhance private arrangements that an individual can make for the possibility of their future incapacity. We hope that an increasing number of citizens will take advantage of those provisions. It is already possible to appoint an attorney to look after one's property and financial affairs. The bill will make it possible to appoint a welfare attorney to make decisions about personal welfare, including medical treatment. Though powers of attorney are essentially private arrangements, there will be new safeguards against abuse. A new office of the public guardian will keep information on public registers about the powers being exercised on behalf of people who have lost capacity. The courts will be able to intervene if something is wrong and to remove an attorney's powers as a last resort.

The freezing of accounts when the account holder loses capacity has been one of the most common and distressing problems with the current arrangements. The bill will resolve those difficulties by including, at part 3, a simple and much-needed scheme for access to an adult's funds, which will provide supervised access to, for example, an adult's bank or building society account. It will allow a carer or relative to use the adult's funds to manage day-to-day household expenses.

Part 4 of the bill sets out unified arrangements for managers of care establishments to look after their residents' finances in the event of incapacity and where there are no other suitable arrangements. This provision will encompass those living in hospital and in residential and nursing homes. For the most part, managers who currently perform that service for their residents do so informally and without checks and safeguards. The scheme in the bill puts that right.

We have listened to the genuine concerns expressed to us about the possibility of conflicts of interest for managers and we agree that there should be stringent safeguards to prevent any such conflicts. The bill provides for independent monitoring of establishments and for national standards. Where residents have significant funds, other measures will generally be taken to protect their financial interests.

A significant part of the bill sets up a new, flexible and accessible system of intervention and guardianship orders, which replace the existing offices of curator bonis, tutor at law, tutor dative and guardianship as defined by mental health legislation.

Where an adult lacks the capacity to make a one-off decision, such as signing an important document, a one-off order can be sought in the sheriff court. Where longer-term arrangements are needed, a guardianship order can be made, with powers conferred over specified aspects of an adult's life. A relative or carer could apply to be guardian and, when there is no other alternative, the chief social work officer of the local authority may be appointed welfare guardian.

It will be possible for the courts to appoint a financial guardian to an adult with incapacity. Specific powers will be conferred over the adult's property and financial affairs, and the public guardian will supervise the exercise of those powers. Accounts will normally have to be kept and the public guardian can investigate any concerns.

It is fair to say that part 5 of the bill, which deals with medical treatment and research, commanded the attention of the Justice and Home Affairs Committee and of the Health and Community Care Committee, and rightly so. We recognise, as does the Parliament, that these provisions raise sensitive issues and require the closest consideration. I repeat that the Executive appreciates the careful and balanced views expressed by the Justice and Home Affairs Committee, which were based on widely differing written and oral submissions, all of which were sincere expressions of deeply held opinions.

It is useful to rehearse briefly the background to part 5. The law as it stands is not clear. There is no explicit authority for a doctor to treat a patient who is unable to consent, except in an emergency. That lack of clarity could well result in such patients not receiving treatment that could enhance their well-being and quality of life. That is manifestly unsatisfactory. Similarly, current research practice lacks the statutory underpinning needed to provide safeguards for those patients, as well as for researchers. Part 5 of the bill introduces a statutory framework that protects the interests of the patient, gives a balanced role to his or her legal representative and, at the same time, invests doctors with appropriate authority.

I now turn to some of the specific areas of difficulty. A recurrent theme has been the implication that, in some way or another, the bill opens the way to passive euthanasia. I want to make the position absolutely clear. The Scottish Executive is totally opposed to euthanasia. Any such act is a crime in Scotland and nothing in the bill is designed to alter that position.

That said, however, the Executive believes that some changes to part 5 are desirable to create a

more balanced approach to treatment decisions. We accordingly propose to lodge amendments at stage 2, which will help to allay some of the concerns that have been expressed. We propose an amendment to section 47, which will allow a doctor to seek a second medical opinion in cases in which the guardian or welfare attorney has refused consent to the medical treatment that has been proposed. If that second opinion confirms the need for the treatment in question, the doctor will be able to proceed. However, anyone with an interest in the personal welfare of the patient, including a doctor, welfare attorney, guardian or relative, will be able to appeal to the Court of Session if they are concerned about the course of action that had been proposed by a doctor, even when that action is supported by a second medical opinion.

We have listened carefully to the views that were expressed by the committee on the definition of medical treatment and, in particular, the inclusion of artificial nutrition and hydration. That particular part of the bill has caused considerable unease. We propose to amend the definition of "medical treatment" to remove reference to particular procedures and to define treatment simply as "any procedure or treatment designed to safeguard or promote physical or mental health". The positive nature of the new definition will underline the fact that the purpose of this bill is to help, not to harm, adults with incapacity.