Hansard

This may be a somewhat repetitive debate.

As we know, the general purpose of the bill is to provide an overall framework of support and protection for adults who are at risk of serious harm. It has been described as being complementary to both the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003, and will plug gaps in that existing legislation.

I admit to having been somewhat sceptical about the need for the bill when first presented with it. I wondered whether its laudable goals could not have been achieved by enforcing or amending the legislation that is already in place and ensuring that people do their jobs properly. Parts 2 and 3 will do just that, by proposing changes that will simplify and streamline the protection of adults with incapacity in their welfare and the management of their finances and property. Those measures have been generally welcomed as being beneficial to that group of vulnerable people.

The controversial provisions in the bill are in part 1. Although 28 of the 33 organisations and individuals who commented on it were generally supportive, several submissions from bodies representing groups whom the bill is designed to protect were against key elements of part 1. They expressed concern that the bill could be seen as a threat to the autonomy of people with disabilities and, moreover, that it could create barriers to the reporting of abuse by people who are fiercely protective of their independence and fearful of being perceived as unable to cope.

The majority who were firmly in favour of the proposals in part 1 include those representing the elderly, such as Age Concern Scotland. That group has fought hard to expose elder abuse, which it says is much more prevalent than is generally realised. The Association of Directors of Social Work cited problems in the existing legislative framework in respect of gaining access to individuals when there is evidence or suspicion that an adult is at risk. The Association of Chief Police Officers in Scotland was in no doubt that the bill would enhance the protection of adults who may be seen to be vulnerable. Given that balance of evidence, I am prepared to accept that there is a clear need for the bill.

However, the bill as introduced has given rise to some serious concerns, which the Health Committee flagged up in its stage 1 report. Those concerns raise fundamental issues about the balance between the reach of the state in its duty to protect and the right of an individual to the lifestyle of their choice. The committee recommended several changes that are necessary if the bill is to be accepted as a useful and effective piece of legislation. I completely agree with the committee's recommendations.

In the bill as introduced, the definition of an adult at risk could encompass potentially any adult in the population. The definition needs to be narrower and less discriminatory towards those who have disabilities. The use of the term "abuse" is unacceptable and could alienate well-meaning and caring people who have been guilty of unintentional neglect rather than deliberate abuse. The bill's use of such terms could lead to an unwillingness to seek or accept help to improve the circumstances of an individual at risk for fear of being labelled as an abuser. As Shona Robison mentioned, we need a less pejorative description such as "adult at risk of serious harm", which sounds far less threatening to carers and to the vulnerable adults involved.

Another concern is that the bill as introduced could override rights that were established under other pieces of legislation, notably the right to advocacy and the right to make an advance statement, which were provided for in the Mental Health (Care and Treatment) (Scotland) Act 2003. The fact that the bill provides for no right of appeal against removal orders could, it is thought, be challenged under the European convention on human rights. The bill needs to be amended to take account of those concerns.

The most controversial element in the bill is undoubtedly the provision of powers that, in certain circumstances, will allow protection orders such as removal orders to be put in place against the wishes of the adult at risk. Clearly, only in exceptional circumstances should an adult with capacity have their privacy invaded or be removed from their home without consent. The power to override an adult's consent should be used only as a last resort after all other options have been tried and when it is necessary to avoid immediate harm. Surely there must be a requirement that, before a sheriff can make a protection order against the wishes of a capable adult at risk, the local authority must demonstrate that it has tried all other options before seeking to override the adult's consent.

Sufficient resources must be put in place to ensure that adults who are subject to protection orders can be accommodated. The bill should make it clear that no one can be removed from home without appropriate care and accommodation being available to them.

The definition of the council officer that is referred to in section 7(1) needs to be tightened so that the power to enter a person's place of residence is given only to appropriately qualified and experienced individuals. That should be made explicit.

I support the provision that each local authority must set up an adult protection committee to take a strategic overview in jointly managing adult protection policies, systems and procedures at local level. I agree with the Health Committee's view that the voluntary sector should be represented on those committees.

Taking into consideration the fact that the balance of evidence indicates that the bill is necessary to enhance the protection of a particularly vulnerable section of society, and given the minister's willingness to amend the bill to take account of most of the concerns that I have expressed—in particular, the need to strike the right balance between upholding a person's right to the lifestyle of their choice and ensuring that public authorities can intervene when there is thought to be a risk of serious harm—my Conservative colleagues and I are content to support the general principles of the bill at stage 1. We will pursue the appropriate suggested amendments at stages 2 and 3.