Hansard

We introduced the Adult Support and Protection (Scotland) Bill principally to provide support and protection for those people in our communities who are vulnerable to harm, inadvertent or otherwise, but who are not covered by existing legislation. In 1993, the Scottish Law Commission produced a paper on how best to protect vulnerable adults, in which it observed that, at that time, there was "little or nothing available" to protect adults who were vulnerable but not mentally disordered. The paper also noted

"an increasing awareness that abuse, deprivation and exploitation of vulnerable adults generally occurs and that the existing law is often not capable of tackling it effectively."

In 1997, the Scottish Law Commission published a draft bill to address those concerns. Since then, the Parliament has passed the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.

The bill is designed to fill a gap. In the context of the increasing numbers of people who are living ever longer in old age, it will address the vulnerability of those who are mentally well and capable but who are nonetheless frail and at risk of harm. The Adults with Incapacity (Scotland) Act 2000 provided groundbreaking new legislation for managing the welfare or financial affairs of adults who lack the capacity to manage those matters for themselves. The Mental Health (Care and Treatment) (Scotland) Act 2003 updated the legal framework for people with a mental disorder. The main aims of the bill are to update further the legal framework to address the gaps that remain, which include groups of people who are not covered by existing statute and omissions in the range of interventions that are available to provide support and protection. In effect, those gaps mean that practitioners currently have no means to access some adults who are or may be at risk of harm.

We first consulted on many of the proposals that are in the bill in 2001. Respondents to that consultation indicated strong support for measures that addressed a wider group than those with a mental disorder. There was a high level of agreement about the need for the kind of protection orders that are proposed in the bill.

Since then, as members will be aware, there have been repeated calls from Age Concern Scotland, the Mental Welfare Commission for Scotland, the Vulnerable Adults Alliance Scotland and others who represent older people and those who are infirm to legislate for better protection of adults. That is because abuse can happen in regulated care settings such as care homes and in family homes. It happens in relationships of trust, in which it can be difficult for the individual who is being harmed to seek the help that he or she needs. Sometimes, that is because the individual relies on the abuser for care and sometimes because of fear of reprisal.

The bill is about unintended harm as well as intentional abuse. Abuse, by definition, results in harm, but harm does not always result from abuse. The bill is intended to offer protection against abuse and other causes of harm, because the person who suffers inadvertently needs such protection.

I recognise that acting to protect adults in those circumstances raises some sensitive issues. That is fully reflected in the Health Committee's stage 1 report. I welcome the committee's support for the important provisions in parts 2 and 3 of the bill and I acknowledge that its recommendations focus on the critical issues in part 1. I am grateful for the Health Committee's careful consideration of those issues and I thank the Finance Committee and the Subordinate Legislation Committee for their comments.

The Health Committee's stage 1 report endorses our approach to some provisions in part 1. In the context of the general principles of the bill, the committee supports the provisions that establish rights of entry and inquiry and which put adult protection committees on a clear statutory footing.

The bill's main purpose is to provide protection from deliberate and unintended harm. It is important to recognise that harm to vulnerable adults includes and encompasses abuse. Abuse of older people—elder abuse—is a reality and one of the reasons why we need the bill, but I am happy to concur with the committee's view that we need to give sufficient emphasis to situations in which harm is a result of self-neglect or the pressures of caring rather than intentional abuse. We will consider how that may be better reflected in the wording of the bill at stage 2 so that we explicitly provide protection from harm, including abuse, rather than risk appearing to focus on abuse to the exclusion of all else.

We will consider how the bill makes clear the overlap with existing legislation. The bill reflects principles that are common to other legislation, such as recognising the importance of the adult's known wishes. It is not intended to override the advance statements that a person may make about their treatment should they require intervention under the Mental Health (Care and Treatment) (Scotland) Act 2003, and we will certainly consider how best to make that clear as we go forward.

Advocacy is important in helping people to communicate their views. The committee has said that people to whom the bill applies should have the same rights as those who are subject to interventions under existing statute, and I am happy to concur with that point. Part 1 offers practitioners, for the first time, a range of options for responding to actual or suspected harm, and the underpinning principles put the individual's wishes first.

The bill requires better co-operation among the agencies that are most likely to become aware of an adult being at risk of harm. It places a number of duties on local authorities and allows us to limit the class of council officer who will be permitted to perform the functions that are identified under the bill. Ministers will use the order-making power to define clearly the officers who are empowered to act and the qualifications that they will require to be able to use those powers.

The committee welcomed the rights of access and inquiry. Sometimes, getting through the door will be enough, as the opportunity for a conversation with an appropriate professional may give an individual who may be at risk the information that he or she needs to make a real choice. However, that will not always be the case; hence the need for the further powers that the bill confers. There are safeguards to prevent inappropriate use of those powers. Protection orders can be used only with the authority of a sheriff. There is a balance to be struck between acting immediately to prevent serious harm and providing appropriate appeal rights to ensure that actions are in proportion to needs.

I acknowledge that the most contentious of the protection orders is the removal order. To grant a removal order, the sheriff will need to be satisfied that it is necessary to prevent serious harm to the adult who is being removed. A removal order will expire after seven days or any shorter period that is specified in the order.

The bill provides for variation or recall of a removal order when there has been a change in facts and circumstances. However, such a variation can never extend the period of the order beyond seven days. There is no right of appeal against a removal order only because the order is of such specific and limited duration that any appeal against it is unlikely to be heard until after it has expired. As a result, an appeal that is heard after the order expires would not provide a different outcome for the adult at risk. He or she may instead seek a variation or recall of the order, thereby providing an opportunity for the issue to be looked at again by the court.