Hansard

The bill is to be welcomed—that is clear—but there are some problems with it. I am not sure whether the bill will last as long as the Curators Act 1585, which is the first act to be repealed by the new bill.

The change in the bill's title to "adults with incapacity"—from the original proposal of "incapable adults"—recognises that incapacity is not an absolute, for the individual with a learning disability, or for the individual with Alzheimer's. Incapacity may be temporary or permanent, it may be worsening, or it may vary according to the area in which the decisions are to be made. Much attention has been paid to the most severe situations, but the thresholds of incapacity are important and I am not convinced that the bill covers them adequately.

The rules on consent for treatment in relation to children, which have always been rather person- oriented in Scotland, have recently changed to allow consent to be given based on the ability to understand, without a specific age limit. It seems that the bill attempts to treat incapacity in a similar way, but that is not absolutely clear because of the

medical certification that has to be issued. Such certification has to deal in absolutes, rather than in thresholds.

Evidence from various organisations has indicated that people with learning disabilities at the most severe end of the scale will undoubtedly require the full capacity of the bill, but those at the lesser end will not. We are slightly hide-bound by the timing of the Millan commission; if it had reported first, we might have had new definitions, which would have made things much easier.

Will the minister, in summing up, advise what consideration was given to the inclusion in the bill of a concept of partial incapacity, assisted decision making, or advocacy? None of those terms appears in the bill, yet they are the new clinical issues at present.

On the matters that have caused the greatest difficulty—certainly, the Health and Community Care Committee has had problems with them—I will limit my remarks to three areas. First, the decisions are currently made by a team rather than by individuals, and it would be helpful to find a way of recognising that in the bill.

The second difficulty concerns the balance between the decision of the medical team and that of the proxy. I understand from the minister's speech that an amendment will be proposed on that, but—as the minister said—it is a matter of balance between the two decisions. It seems to me that the courts should be involved only in instances where disagreement is recognised between the two. There should be no primacy over who should go to court. I am not a lawyer. I do not know how that could be done. However, when it is recognised that decisions should be made jointly, if they are not and if there is a dispute, there should be an automatic reference to the courts, rather than one or other party having to go to court.

There has been much discussion about duty of care. I accept the evidence of Professor Sheila McLean to the Justice and Home Affairs Committee that we cannot impose a duty of care on proxies. That would be inappropriate. Nevertheless, there is inadequate reference in section 73 to the limit of liability of proxies, and it would be helpful to extend that limit in some way without going as far as a duty of care.

The issue of omissions as opposed to commissions of intervention has been dealt with. I understand that legally, interventions include intervening as well as not intervening. However, the issue of cessation of treatment has not been covered adequately.

On the matter of research, if I understand the minister's statement, the bill will be amended to take into account the European Convention on

Human Rights and Biomedicine. I welcome that, because the original text of the bill seemed to rule out the use of randomised controlled trials with placebos, and also defined the benefit to the individual as having to be "real and direct", which was a strict definition that would rule out genetic research that might produce a distant benefit.

The bill is to be welcomed. It will benefit a significant number of adults. However, the definitions in section 1, particularly those in relation to the wishes of the individual, are not sufficiently clear. I am not a lawyer, but if primacy is given to section 1(4)(a), which refers to

"the present and past wishes and feelings of the adult so far as they can be ascertained", the written statements that I was presented with as a general practitioner, and which many of my GP colleagues increasingly are being presented with, will be of considerable importance. It might be possible to address that issue in notes of guidance, but further clarification is required at stage 2.