After section 2

Education (Additional Support for Learning) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:45 am on 1 April 2004.

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Photo of Trish Godman Trish Godman Labour 10:45, 1 April 2004

Group 3 is on children and young persons who lack capacity. Amendment 8 is grouped with amendments 8A, 16 to 19, 21, 24, 26, 27, 29, 31, 34 to 37, 39, 41, 43, 46, 54 and 59.

Photo of Euan Robson Euan Robson Liberal Democrat

Amendment 8 and amendments 16 to 19, 21, 24, 26, 27, 29, 31, 34 to 37, 39, 41, 43, 46, 54 and 59 are all intrinsically linked.

We lodged the amendments in response to the Education Committee's concerns that the bill's use of the term "incapable" is presentationally insensitive and possibly pejorative. We consulted Sense Scotland, which had also expressed concerns about the presentational impact of the word "incapable", and I believe that Sense Scotland is pleased with the amendments.

Amendment 8 sets the scene for the other amendments because it defines children who lack capacity and moves that definition up front. The other amendments will replace the term "incapable" with "lacks capacity", but amendment 8 is important because it sets the context for each and every time that the term is used.

I hope that members will agree that the amendments are a satisfactory solution to the concerns that were rightly expressed by the Education Committee. The Executive has taken those concerns on board, so I recommend that all those amendments should be accepted.

I ask Parliament to resist amendment 8A, which would include children and young people with developmental disorders in the definition of those who lack capacity. My main concern with amendment 8A is that the term "developmental disorder" is very broad. In practice, the term can be used to describe delayed development of language and of communication and social skills and delayed physical growth. Ken Macintosh provides no further definition of what is meant by a developmental disorder in this context. That means that, for example, a child or young person who is dyspraxic or who has not physically grown as expected might be considered to lack capacity when that might not be the case. I ask members to reject amendment 8A primarily for that reason.

Frankly, I would be concerned if the scenario that I have described were to become a reality, given the potential for the assumption to be made that, because someone has a developmental disorder, they automatically lack capacity. Clearly, that is not always the case. I doubt that it is Ken Macintosh's intention to suggest otherwise and invite him not to move amendment 8A.

I move amendment 8.

Photo of Kenneth Macintosh Kenneth Macintosh Labour 11:00, 1 April 2004

Before discussing amendment 8A, I will deal with the other amendments in the group. Two concerns about capacity were expressed during stage 2. The first was that the language of the bill is pejorative. Like all other members, I am grateful to the minister for the series of amendments that the Executive has lodged to tackle that issue. The second concern, which was floated by my colleague Scott Barrie, in particular, was that we are not consistent in offering children with capacity the opportunity to make decisions that affect their future. The Executive amendments do not address that issue and I would welcome comments from the minister on how it will be addressed as we move forward.

Having seen Executive amendment 8, the National Autistic Society contacted me to point out that the amendment names different groups of disabilities but that autism does not fall into any of the categories that are specified. Autism is a developmental disorder, not a mental health problem or a learning disability. I say in response to the minister that it is recognised as a developmental disorder in the 10th edition of the "International Statistical Classification of Diseases, Injuries and Causes of Death" and in the fourth edition of the "Diagnostic and Statistical Manual of Mental Disorders". I have lodged amendment 8A to ensure that the bill recognises children and young people with autistic spectrum disorder and does not leave them in a legal black hole when it comes to issues relating to capacity.

I was not persuaded by the minister's argument that there could be confusion and that anyone with a developmental disorder would automatically be assumed not to have capacity. There is no such presumption, just as there is no presumption that anyone with a mental health problem will not have capacity. It is not possible for the logic that applies to the minister's definition not to apply to mine. I would welcome further comments from the minister. In particular, I would like to hear from him how he intends to address the situation of children who have autistic spectrum disorder and do not appear to be covered by Executive amendment 8, but who would be covered if the minister accepted amendment 8A.

I move amendment 8A.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I want to address the issue of extending rights to children under 16. I appreciate the amendments that the Executive has lodged, which take on board concerns that the Education Committee, in particular, has raised. However, the Executive recognises that the issue of how we treat the rights of children aged 12 and over is outstanding. The minister has suggested that it may be addressed in a proposed children's services bill. This is not necessarily just a children's issue or a matter for the Education Committee—perhaps the justice committees should consider the spectrum of legal rights in relation to capacity and age. I recognise that the bill makes provision for consultation with children and young people throughout and that the Executive amendments help to address the matter in the bill. However, this is an outstanding issue to which I hope the Parliament will return in future.

Photo of Lord James Selkirk Lord James Selkirk Conservative

We support the minister's amendments. Amendment 8A, in the name of Ken Macintosh, is designed to ensure that children with autism do not fall into a legal black hole and has the support of the National Autistic Society. There is grave concern among people who care for those who suffer from autism. We are sympathetic to amendment 8A and hope that the minister will accept it.

Photo of Scott Barrie Scott Barrie Labour

Ken Macintosh indicated that at stage 2 I lodged a series of amendments that sought to address the issue of capacity, with particular reference to children's and young persons' rights. The aim of those amendments was to ensure that a child or young person with capacity should be able to initiate the process through which decisions are reached about his or her additional needs. It is particularly important that the principle contained in the Standards in Scotland's Schools etc Act 2000 should be reiterated in the bill. Too often in the past, children's and young persons' rights have not been consistently dealt with throughout our child care legislation.

I am grateful to the minister for the assurance that he gave at stage 2 that he would meet me and for the series of meetings that we have had. It is clear that we need to ensure that the bill is consistent not only with the Standards in Scotland's Schools etc Act 2000 but with other major pieces of legislation, such as the Age of Legal Capacity (Scotland) Act 1991 and the Children (Scotland) Act 1995. I agree that it is essential that the principle is established across the range of our child care law and thank the minister for his recent letter, in which he reiterates that point. I assure him that I look forward to working with him and the Education Committee to address the issue and to ensure that all our child care and child welfare legislation is consistent on the important point of children's rights.

Photo of Robert Brown Robert Brown Liberal Democrat

Like other members, I support Executive amendment 8. I want to comment briefly on amendment 8A, in the name of Ken Macintosh, which does not hit the nail on the head. There may or may not be an issue, but there is not a legal black hole. If we inserted the reference to "developmental disorder" where the member suggests, it would not meet the objective that he has set himself. As the minister said, that would mean placing people with developmental disorders automatically in the situation of incapacity, which is not Ken Macintosh's intention. The issue may be to do with the point in the bill where the member seeks to insert the term. It may be possible to deal with the matter in another way and I do not think that amendment 8A is the right way of dealing it.

Photo of Elaine Murray Elaine Murray Labour

I welcome amendment 8 and acknowledge the work that Scott Barrie, in particular, has done to bring this matter to the attention of the Education Committee. I am grateful that the Executive has taken his arguments on board and has dealt with the issue in this way.

I, too, am not convinced by the minister's arguments against amendment 8A. Neither am I convinced by Mr Brown's arguments. I admit that "developmental disorder" is a wide term and can cover all manner of things. However, "mental illness" is also a wide term—someone does not necessarily lack capacity because they have a mental illness or, indeed, because they have a learning disability. If someone has a developmental disorder, they will not necessarily fall into either of those categories. If a young person has an extreme form of autism that makes them unable to communicate their wishes, they may fall into category 1. However, if they have a condition such as Asperger's syndrome they will not fall into that category, any more than a child with a mild form of mental illness would. I do not follow the logic of the minister's argument and would like to hear a little more.

Photo of Robin Harper Robin Harper Green

I rise to support the amendment in the name of Ken Macintosh. I have received a large mailbag on this issue, mostly from parents of autistic children who feel that their children have been excluded from the bill and who have urged me to vote against it. The Executive will be glad to know that I do not intend to take that course. However, it is very important that the parents to whom I refer should be able to see that the bill addresses their concerns in some way. I urge members to vote for amendment 8A.

Photo of Karen Gillon Karen Gillon Labour

I am sympathetic to the amendment in the name of Ken Macintosh. The minister needs to provide further explanation of why amendment 8A is not necessary, because I do not accept the arguments that he has made to date. The amendment is one way of addressing the position of children with autism. I hope that he will reconsider the matter.

Photo of Euan Robson Euan Robson Liberal Democrat

I will respond first to the point made by Scott Barrie, whose amendments were an important contribution to the work of the Education Committee at stage 2. I appreciate that he made that contribution in the form of probing amendments. We have made it clear that we will examine in more detail the issue of children's and young people's rights by working with the Education Committee and interested members such as Scott Barrie. We were concerned that if such an amendment were made to the bill we would be making piecemeal legislation when a more comprehensive view of the existing body of statute is needed. Scott Barrie was right to refer to the relevant provision of the Standards in Scotland's Schools etc Act 2000, which does not, however, appear in other pieces of legislation. Consultation on and wide discussion of the matter is needed. We would be pleased to undertake such consultation.

I turn to the important issue that Ken Macintosh has raised. I am sensitive to the point that he made about autism, but I do not believe that there is a legislative black hole. Although we acknowledge his concerns about this matter, we are concerned that amendment 8A might have unintended consequences in certain areas. For example, a child who has dyspraxia might not actually lack capacity; however, amendment 8A would affect a child in that particular circumstance.

We feel that we can cover members' concerns on this matter in the regulations and the code of practice. Although I understand the point that Ken Macintosh is making and acknowledge that amendment 8A is very well intentioned, it is not our view that one particular group will be affected by some black hole in the legislation. That said, if members still have doubts, I am prepared to consider Mr Macintosh's specific points in the regulations and the code of practice.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I welcome some of the minister's comments. Indeed, I welcome many of the comments that members around the chamber have made and the support that they have expressed for amendment 8A. I also generally welcome the Executive's amendments on capacity issues.

That said, I am still not persuaded by the Executive's argument. I do not accept that adding the term "developmental disorder" does anything other than cover a condition that is not currently covered in subsection 1 of amendment 8. After all, the Executive clearly does not intend to exclude children with autism from these provisions.

Robin Harper made the very good point that many parents and children with autism are anxious about the bill and have many reasons why they feel that the bill does not address their needs. I think that they are wrong and that their anxiety is misplaced. In fact, I hope that the bill's provisions will mean a huge improvement for all children with autism. However, if amendment 8A is agreed to, we will send out a strong message that children with autism and developmental disorders are included in these provisions. As a result, I will press the amendment.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 8A be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Adam, Brian, Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Gillon, Karen, Goldie, Miss Annabel, Gorrie, Donald, Grahame, Christine, Harper, Robin, Home Robertson, Mr John, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Macintosh, Mr Kenneth, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Mundell, David, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Pringle, Mike, Robison, Shona, Scanlon, Mary, Scott, Eleanor, Scott, John, Smith, Elaine, Sturgeon, Nicola, Swinburne, John, Welsh, Mr Andrew
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Glen, Marlyn, Henry, Hugh, Hughes, Janis, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Peacock, Peter, Peattie, Cathy, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Iain, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Smith, Margaret

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 56, Against 50, Abstentions 1.

Amendment 8A agreed to.

Photo of Murray Tosh Murray Tosh Conservative

There is very little time to speak on this matter, but I have to ask the minister whether he intends—

Photo of Murray Tosh Murray Tosh Conservative

I think that that might be a bit excessive at this stage. At the moment, I am interested only in knowing whether he intends to press amendment 8, as amended.