Hansard

The bill has had what I would describe as a difficult birth. Perhaps that is because, as I understand it, its origins lay with the Bichard proposals, from which it was disentangled. Initially, the focus was on the elderly, but the bill was broadened out to cover other groups. Whatever its background, suffice to say that it is a bill with a lot of difficulties, to which I want to turn my attention.

We have no problem with parts 2 and 3 of the bill; our problems are with part 1 and, in particular, sections 3 to 38. As legislators, we have to balance the involvement of the state in people's lives, and its duty to protect vulnerable individuals, with the rights of those individuals themselves. I do not diminish the fact that that is a difficult balancing act.

The first problem is who is covered by the bill. The minister said that there will be amendments at stage 2, but a bill that has to be significantly amended at stage 2 tells its own story. I hope that the Executive will reflect on the drafting of the bill for future reference. If a bill has to be substantially rewritten, that should concern everyone in the Parliament.

As the minister said, the bill is widely drawn. There is potential for everybody to be covered at some stage in their lives. The definition of adults at risk includes those with disabilities and those who have temporary illnesses, but surely the fact that someone is disabled does not, in itself, make them vulnerable. The disability organisations made that point. It is someone's disability along with other factors that makes them an adult at risk. That needs to be made clear in the bill. As the Health Committee said, we need to make it clear exactly whom the bill is designed to protect.

The second problem is the use of the word "abuse", which is not helpful because it is loaded and accusatory. An adult at risk might have been subject to benign neglect rather than deliberate abuse. If their carer is labelled an abuser, that will not help them to accept the perhaps badly needed help that they require to continue with their caring role. We know that the pressure on carers can cause frustration and lead them to act in a way that puts people at risk of harm, but if we are to engage in positive discussions with carers about how they can change that behaviour, the term "abuse" must change. Use of the phrase "at risk of serious harm" is one way forward to address the problem.

Clarification is needed of the bill's relationship with other legislation, including the Mental Health (Care and Treatment) (Scotland) Act 2003. It is important that adults who are covered by the bill have the same rights as those who are covered by the 2003 act, including, for example, the right to advocacy services. I hope that the minister will reflect on that.

The right of officers to enter premises is a powerful provision in the bill and it should be exercised only by those who are involved in dealing with the legislation. At present, the bill gives any council officer the power to enter premises, but that must be amended. The minister acknowledged that the power is far too wide.

The power to override consent is of greatest concern because it is such a fundamental issue. Let us remember that we are talking about an adult who has capacity. Surely the power to override their consent should be used only as a last resort, when all other options have been tried and it is necessary to avoid immediate harm. I am afraid that the case studies that have been given—not just by the minister, but by some of the organisations that gave evidence to the committee—are of concern. To me, they were not cases of last resort and the intervention was disproportionate.

I hope that the minister notes the concern about the power to override consent. Are we really saying that someone who has a chronic alcohol problem, who refuses assistance or services but who clearly has the capacity to make decisions can be forced to accept help and may be forcibly removed from their home for their own protection? If the minister is saying that legislation should be used to do that, he is mistaken. I know from my years of experience working as a home care manager that we cannot force people to accept help even if they badly need it. The idea that home care staff should force their way into someone's house, perhaps facing verbal or even physical aggression as they do so, is not practical. No one would want to see people being moved from their home against their will, other than in exceptional circumstances.

Neither of those situations is palatable, and I cannot see either happening in practice. That means that there is another danger with the legislation, because it raises the expectation that it can be used to sort out some of our difficult social problems. Clearly, the bill will not do that and it is not fair on anyone to raise those expectations.

There needs to be some honesty and clarity about exactly what the bill can achieve. It cannot be used as an excuse for people not to do their jobs. In committee, we heard time and again about cases in which, if the person responsible had been doing their job properly when there was lots of evidence that someone was at risk, the outcome would have been different. We need to be clear that, even with new legislation, if people do not do their jobs properly and are not resourced correctly, others will still be left in vulnerable situations. It is a question not just of legislation, but of what goes with it.

Having said that, I believe that there is a small group of people who need protection and support but who are not currently covered by the appropriate services. The bill needs to define clearly who those people are and what assistance they can be given. There needs to be a two-way process, with reciprocity in the bill to ensure that it is not just a big stick to threaten carers and that it provides the help that is badly needed.

The Executive must recognise the cross-party concern about the bill. We want to salvage something out of a badly drafted bill, and we are happy to co-operate in doing that. With reservation, and with the caveats that I have outlined, we are prepared to support the general principles of the bill at stage 1. We want the serious issues to be addressed by the minister at stage 2.