Hansard

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 standing committees in the rather different system at Westminster. Our legislative scrutiny is front loaded—hence the fairly lengthy and detailed process involved before the stage 1 debate can take place. The equivalent stage in Westminster involves a debate on general principles as a first step, followed by an amendment procedure that does not really allow for discussion of the principles of the bill.

It is worth emphasising that the committee stage of bills in the Scottish Parliament is not intended to be a rubber-stamping exercise. The purpose of our front-loaded scrutiny, as opposed to the approach in the other place, is to ensure that flaws in draft bills are identified and drawn to the attention of ministers and the Parliament, so that the Parliament can pass legislation that works in the way in which it was intended to work. If that does not happen, the law of unintended consequences haunts every piece of legislation.

That is particularly important in the context of the bill, which will have far-reaching effects. It is fair to say that the bill caused the Health Committee considerable difficulties, to which I will refer. Members who read the stage 1 report—I concede that probably few members outside the Health Committee have done so—will quickly have realised that there was a good deal of ambivalence about the bill, which is evidenced in the committee's substantive recommendations for change.

Members will see from paragraph 52 of the report that committee members went to meet people who would be directly affected by the bill, including groups of older people in Fife, a group of people who have mental illness in Edinburgh, and a group of people with learning difficulties in Glasgow. I thank Age Concern, SAMH and Enable for helping to organise those meetings. The meetings were essential, because we had learned that a number of the groups that the bill is intended to protect had significant concerns about the bill's implications.

When new legislation is enacted to provide protections for people, we do not expect to find such opposition. In some cases, there was outright opposition. Members need only scan through the Official Report of the evidence-taking session of 19 September to begin to see the problem. Broadly speaking, there was a clear difference of opinion between witnesses representing groups dealing with the elderly and witnesses representing some of the other significant groups of people who are included under the definition of adults at risk in section 3 as

"adults who, because they are affected by disability, mental disorder, illness, infirmity or ageing, are—

(a) unable to protect themselves from abuse, or

(b) more vulnerable to being abused than persons who are not so affected."

Leaving aside the fact that that is potentially the entire population at some time or another of their lives, members need to remember that we are talking about people with full capacity. The bill includes the right to enter someone's property even against their will, as well as the right to remove them from their own homes or to remove a third party from the home. That was a particular cause for concern.

I direct members' attention to the sharp divisions of opinion between different representative bodies on the power to override consent, which is contained in section 32. A discussion of the evidence is contained in paragraphs 163 to 182 of the Health Committee's report. Members will note that paragraphs 173 and 174 cover the most vocal opposition from Kevin Morris, on behalf of National Union of Students Scotland disabled students. He castigated the bill as "patronising". He said:

"The bill will take back a lot of what we have worked long and hard for for disabled people."—[Official Report, Health Committee, 19 September 2006; c 3040.]

Capability Scotland reported that its clients thought that the bill was fine—until they realised that they were included in the definition, at which point they became somewhat less enthusiastic. Andrew Reid of Inclusion Scotland indicated that disabled people should not be getting treated differently from able-bodied individuals.

Other groups such as Age Concern Scotland and the National Autistic Society Scotland were more positive. However, the division of opinion was expressed throughout the committee's proceedings, to a greater or lesser extent, and it was the principal reason for the committee's having such difficulty coming to a final view. Ultimately, however, the committee had to come to a view. Parts 2 and 3 were deemed generally pretty uncontroversial and gave the committee little concern. We are content with the provisions there. However, we had significant reservations about part 1, in particular the new powers in sections 3 to 38. The bill raises fundamental questions about the limits to state intervention, as set against the individual's right to personal autonomy—the right to be wrong; the right to be different.

We took the view that, on balance, the bill has the potential to fill a gap, although we had difficulty pinpointing what that gap was. I am still not entirely clear about that. We welcomed some provisions. However, we felt that key definitions were seriously flawed. There were also concerns about the relationship between the powers under the Adult Support and Protection (Scotland) Bill and the powers contained in existing legislation. Which would take precedence?

Our main concerns and recommendations can be grouped as follows. First, they are to do with the definition of adults at risk in section 3, which we considered to be inadequate. It should not be so all-encompassing and should not effectively discriminate against particular groups. The definition should be capable of being operationally effective. We were particularly concerned that such a central provision should not be amendable by subordinate legislation. Indeed, that echoes what the Subordinate Legislation Committee had to say on the matter.

The term "abuse" is discussed in paragraphs 111 to 121 of the committee's report. We felt that it was an unhelpful term. During evidence taking, it became crystal clear that it was expected to encompass not just specific acts of commission but also inadvertent actions and actions that might broadly be categorised as being carried out with the best of intentions, albeit misplaced. The term also covers neglect and self-neglect. The committee was of the view that the terms "abuse" and "abuser" might inhibit complaints rather than encourage concerns to be raised, particularly if the so-called abuser is a carer who is unable to cope with the situation in which they find themselves. The committee therefore recommends that the term "abuse" be replaced with phrasing that is less emotive and value laden, such as "at risk of serious harm".

On the interrelation between the bill and existing legislation, the committee felt that the bill should contain the same rights to advocacy services as exist under the Mental Health (Care and Treatment) (Scotland) Act 2003 and that it should be clearly indicated that advance statements similar to those covered by the provisions of the 2003 act should not be able to be overridden by the powers under the bill. There was a concern that there would be a bit of what one might call "legislation shopping", with officials deciding to apply the principles of one bill because it did not provide the same protection as the other.

Council officers' entering premises was also discussed by the committee. Apparently, as it stands, any council official can enter premises to undertake an assessment. The committee feels that the bill should be a tad more specific in that regard.

The committee considered appeals against orders. There is no appeal against an assessment order: the removal of an individual who is deemed to be at risk so as to assess the situation. That may just happen in the course of a day—we accept that; however, we are not convinced that it is appropriate for people to be removed from their homes against their will without a right of appeal. No such right of appeal is currently provided for in the bill. I do not accept that the fact that there is a seven-day limit on such orders bars an appeal. The courts are accustomed to immediate hearings—for example, interim interdict procedures can be triggered literally overnight. The courts are well capable of dealing with that kind of scenario.

The overriding of consent was perhaps the single most controversial aspect of the bill to be discussed by the committee. We believe that it should be an absolute last resort, to be used only when all other options have demonstrably failed. However, much of the case-study evidence unfortunately suggested that intervention would be contemplated in situations in which it was not a last resort.

The reciprocity and resources argument has been mentioned and was discussed in the Finance Committee's report. We believe that, if someone is to be removed from their home, there is an obligation to place them in equivalent and appropriate care and accommodation. The committee believes that that should be stated in the bill, although it is mindful of the concern surrounding the availability of resources—including financial resources—to implement the bill properly.

All those concerns have been raised directly with the minister, who has said that he is willing to narrow the definition of "adults at risk" to make it clear that it will not necessarily relate to all people with disabilities. He has also said that he will reconsider the use of the term "abuse", to reflect our concern that it is unnecessarily stigmatising to those causing unintentional harm.

The minister has said that he accepts the importance of advocacy. I may have missed it, but I hope he said that that will be stated in the bill. He has also stated that he would accept the primacy of an advance statement, and I hope that that will be stated in the bill. He has said that he will clarify that protection orders will genuinely be used only when they are absolutely necessary. I ask him to clarify, in his closing speech, that that means after all other measures have failed. Finally, he has said that he will seek to limit the definition of "council officer" to those who are at least competent in terms of their qualifications and experience.

Those assurances from the minister go some way to alleviating the committee's concerns, although he has not accepted all our recommendations.

I thank all members of the committee for their participation, and I thank the clerks for all the hard work that was done in the background. I also thank all those who gave evidence on the bill. For obvious reasons, some of them had a more difficult time than others in the process, but I hope that we made it as positive an experience as possible.

No doubt, we will engage in further dialogue in respect of the various issues that have been raised, but for the present I can say that the committee will endorse the principles of the bill.