Chamber
Plenary, 23 Nov 2006
23 Nov 2006 · S2 · Plenary
Item of business
Adult Support and Protection (Scotland) Bill: Stage 1
I am particularly pleased to take part in the debate. Legislation in this important area is clearly necessary.
The reforms in part 1 of the bill are, frankly, of immense importance. The protection of adults at risk is, in the most general sense, of the greatest importance and is a mark of a civilised society. Parts 2 and 3 provide for useful reforms in closely related areas. Most of those reforms are born of the experience of the operation of existing legislation, by which I mean primarily, but not exclusively, the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.
I will deal with parts 2 and 3 first. It is clearly right to amend the Adults with Incapacity (Scotland) Act 2000 to allow someone with an interest in the adult with incapacity to displace the nearest relative—on cause shown—as the adult with incapacity may not be in a position to do so. The changes to power of attorney are similarly helpful, as are sections 54 to 59, which deal with the intromitting of funds. I hope that the minister will pick up the Health Committee's concerns about points that the Scottish Legal Aid Board made with regard to section 55. The sections on intervention orders and guardianship orders are similarly helpful. They are designed to make more flexible the application process for those orders and for their extension or renewal.
On part 3, the minister will have noted the Health Committee's suggestion—prompted by the Scottish Association for Mental Health—that those subject to compulsory treatment should not be excluded from direct payments, and the important recommendation that transitional arrangements be established under the ordinary residence procedure of the Community Care and Health (Scotland) Act 2002, so that care packages continue while local authorities seek to establish funding arrangements. The appearance of a considerable additional financial burden in the course of the financial year can cause small local authorities real difficulties, because their general income base may be much lower than that of the authority from which an individual has come.
I have no doubt that part 1 of the bill is necessary. As members will know, there are examples of protection not being available or delivered to adults who are clearly vulnerable and require it. The fundamental point is that the bill leaves no doubt that local authorities have a duty to make inquiries and that health boards and other agencies must act in co-operation. I regard sections 4 and 5 as critical.
I will quote briefly from an inspection report by the social work services of my local authority. Section 146 of the report makes the case for the legislation. It states:
"Clarification of some aspects of the legislation as it relates to vulnerable people would be a positive development, providing clearer criteria for their protection. The Mental Health and Adults with Incapacity Acts address the needs of people who have a mental disorder or who lack capacity. A Vulnerable Adults Bill would include people with learning disabilities and would be particularly relevant for other vulnerable people who do not lack capacity and who do not have a mental disorder."
The bill is important to precisely those people and in the interests of clarity.
In sections 4 and 5 of the bill, a clear circle of protection is drawn around those who may require help and assistance. The provisions are similar to those relating to child protection. On umpteen occasions, case co-ordination has been shown to be particularly vital. The bill spells that out.
As other members have said, definitions are critical. On balance, I tend to think that "harm" is a more acceptable term than "abuse", but we will discuss that at stage 2.
I will make one or two other suggestions. There is an appropriate hierarchy to the orders that the bill establishes. Assessment, banning and removal orders are generally acceptable, but I do not think that they are ranked in quite the progressive way in which they ought to be. Perhaps the minister will consider ordering the provisions differently.
I agree that there should be an explicit statement that removal is a last resort. That would be helpful in clarifying the position for those who need to operate the legislation. As other members have said, we must know to where removal will take place. We must ensure that, if there are removal orders, there are places to which people can go.
I would like to make two final points.
The reforms in part 1 of the bill are, frankly, of immense importance. The protection of adults at risk is, in the most general sense, of the greatest importance and is a mark of a civilised society. Parts 2 and 3 provide for useful reforms in closely related areas. Most of those reforms are born of the experience of the operation of existing legislation, by which I mean primarily, but not exclusively, the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.
I will deal with parts 2 and 3 first. It is clearly right to amend the Adults with Incapacity (Scotland) Act 2000 to allow someone with an interest in the adult with incapacity to displace the nearest relative—on cause shown—as the adult with incapacity may not be in a position to do so. The changes to power of attorney are similarly helpful, as are sections 54 to 59, which deal with the intromitting of funds. I hope that the minister will pick up the Health Committee's concerns about points that the Scottish Legal Aid Board made with regard to section 55. The sections on intervention orders and guardianship orders are similarly helpful. They are designed to make more flexible the application process for those orders and for their extension or renewal.
On part 3, the minister will have noted the Health Committee's suggestion—prompted by the Scottish Association for Mental Health—that those subject to compulsory treatment should not be excluded from direct payments, and the important recommendation that transitional arrangements be established under the ordinary residence procedure of the Community Care and Health (Scotland) Act 2002, so that care packages continue while local authorities seek to establish funding arrangements. The appearance of a considerable additional financial burden in the course of the financial year can cause small local authorities real difficulties, because their general income base may be much lower than that of the authority from which an individual has come.
I have no doubt that part 1 of the bill is necessary. As members will know, there are examples of protection not being available or delivered to adults who are clearly vulnerable and require it. The fundamental point is that the bill leaves no doubt that local authorities have a duty to make inquiries and that health boards and other agencies must act in co-operation. I regard sections 4 and 5 as critical.
I will quote briefly from an inspection report by the social work services of my local authority. Section 146 of the report makes the case for the legislation. It states:
"Clarification of some aspects of the legislation as it relates to vulnerable people would be a positive development, providing clearer criteria for their protection. The Mental Health and Adults with Incapacity Acts address the needs of people who have a mental disorder or who lack capacity. A Vulnerable Adults Bill would include people with learning disabilities and would be particularly relevant for other vulnerable people who do not lack capacity and who do not have a mental disorder."
The bill is important to precisely those people and in the interests of clarity.
In sections 4 and 5 of the bill, a clear circle of protection is drawn around those who may require help and assistance. The provisions are similar to those relating to child protection. On umpteen occasions, case co-ordination has been shown to be particularly vital. The bill spells that out.
As other members have said, definitions are critical. On balance, I tend to think that "harm" is a more acceptable term than "abuse", but we will discuss that at stage 2.
I will make one or two other suggestions. There is an appropriate hierarchy to the orders that the bill establishes. Assessment, banning and removal orders are generally acceptable, but I do not think that they are ranked in quite the progressive way in which they ought to be. Perhaps the minister will consider ordering the provisions differently.
I agree that there should be an explicit statement that removal is a last resort. That would be helpful in clarifying the position for those who need to operate the legislation. As other members have said, we must know to where removal will take place. We must ensure that, if there are removal orders, there are places to which people can go.
I would like to make two final points.
In the same item of business
The Deputy Presiding Officer (Trish Godman):
Lab
The next item of business is a debate on motion S2M-5042, in the name of Andy Kerr, that the Parliament agrees to the general principles of the Adult Support...
The Deputy Minister for Health and Community Care (Lewis Macdonald):
Lab
We introduced the Adult Support and Protection (Scotland) Bill principally to provide support and protection for those people in our communities who are vuln...
Christine Grahame (South of Scotland) (SNP):
SNP
Has the minister discussed the civil shrieval procedures that would have to take place? I see no mention of them. Will they be like interim interdicts? How w...
Lewis Macdonald:
Lab
We have taken appropriate advice on the procedures, to which I will be happy to return in the course of the afternoon to give Christine Grahame more detail o...
Shona Robison (Dundee East) (SNP):
SNP
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 wh...
Mrs Nanette Milne (North East Scotland) (Con):
Con
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 ...
Euan Robson (Roxburgh and Berwickshire) (LD):
LD
I am particularly pleased to take part in the debate. Legislation in this important area is clearly necessary.The reforms in part 1 of the bill are, frankly,...
The Deputy Presiding Officer:
Lab
It may be helpful if I indicate that at this stage in the debate I am not applying the normal time limits.
Euan Robson:
LD
Thank you. In that case, I will be slightly more expansive than I would otherwise have been.It is clear that statutory adult protection committees will be va...
Roseanna Cunningham (Perth) (SNP):
SNP
It is often said that the committee system is the heart and soul of what happens in the Scottish Parliament, combining as it does the functions of select and...
Janis Hughes (Glasgow Rutherglen) (Lab):
Lab
In my time on the Health Committee, we have scrutinised a raft of legislation on many subjects, and the bill is definitely up there with those that have enge...
Christine Grahame (South of Scotland) (SNP):
SNP
As some members might know, I come to the bill against the background of the Miss X case, in which a lady with learning difficulties suffered horrific abuse ...
Section 9, entitled “Examination of records etc”, says in subsection (1):
"A council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an ad...
Lewis Macdonald:
Lab
I seek clarification from Christine Grahame as to which places she thinks should not be included in the bill, because I think that the intention is evident.
Christine Grahame:
SNP
Such situations occur when people have capacity and against their will, but the bill would allow a council officer to go to their bank and look at their bank...
Euan Robson:
LD
The point is that if we put such committees on a statutory footing, there will be no doubt that they should exist. Although the Borders committee was born of...
Christine Grahame:
SNP
I cannot agree. The process is happening in many places in Scotland. The chief social work inspector could make plain through her guidance that that is what ...
Christine May (Central Fife) (Lab):
Lab
I think that I may be the only non-member of the Health Committee to participate in the debate so far.
Roseanna Cunningham:
SNP
No. Christine Grahame is not on the committee.
Christine May:
Lab
I beg Christine Grahame's pardon.It may come as a surprise to members, although I hope that it does not, to learn that we are all getting older. We hope that...
Dr Jean Turner (Strathkelvin and Bearsden) (Ind):
Ind
When I first started to read the bill, I realised that there was a need for people to be able to enter patients' homes to assess them but, as I read through ...
Christine May:
Lab
Does Dr Turner agree that some of the dreadful cases in the past have arisen because of reluctance to share such information?
Dr Turner:
Ind
Christine May is correct. People need training in how they should use and share information. I believe that people should share information. I also believe t...
Helen Eadie (Dunfermline East) (Lab):
Lab
I am in no doubt why the people of Scotland need the Adult Support and Protection (Scotland) Bill. It is clear to me, having sat through the Health Committee...
Christine May:
Lab
Yes I am.
Helen Eadie:
Lab
I am so sorry—I meant Christine Grahame, not Christine May.The response to those questions by Adrian Ward of the Law Society of Scotland was compelling. He s...
Shona Robison:
SNP
In which cases would the member think it appropriate to override the views of an adult with capacity who did not want an intervention?
Helen Eadie:
Lab
I will return to that point later in my speech. The point was covered by a Mr Graham, a physician who gave evidence to the committee on the bill.Mr Ward cont...
Robin Harper (Lothians) (Green):
Green
During the previous session of Parliament, in 2002 to 2003, I tried to have hate crime legislation extended to all the groups that are identified under Europ...
Euan Robson:
LD
It should be clear to the minister from the debate that parts 2 to 4 of the bill will not cause him a great deal of difficulty. The interest will focus on pa...