Adult Support and Protection (Scotland) Bill

– in the Scottish Parliament at 3:45 pm on 15th February 2007.

Alert me about debates like this

Photo of Trish Godman Trish Godman Labour 3:45 pm, 15th February 2007

The next item of business is a debate on motion S2M-5362, in the name of Andy Kerr, on the Adult Support and Protection (Scotland) Bill.

Photo of Lewis Macdonald Lewis Macdonald Labour 3:47 pm, 15th February 2007

I am delighted to move the motion in support of such an important bill. It is important because it sends a clear message that abuse or neglect of the most vulnerable in our society is not acceptable. It is also important because it will mean that adults can benefit from similar levels of protection to those that are currently afforded to children when they require that protection. Above all, it is important for people in our communities who are at risk of harm—intentional or otherwise—and who are unable, for whatever reason, to safeguard themselves or their interests.

The road to this point has been a long one. Back in 1993, the Scottish Law Commission published a report that highlighted an increasing awareness of the abuse, deprivation and exploitation that can be experienced by some vulnerable adults and a lack of appropriate legislation to tackle those things effectively. That report was followed, in 1997, by a draft bill that sought to provide solutions to the concerns that were raised in the report. Since then, there has been significant legislative action by the Scottish Parliament in the form of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. Those ground-breaking pieces of legislation have improved the lives of some of the most vulnerable people in Scotland. However, gaps in legislative provision remain.

Although the existing legislative framework achieves much, it does not offer any additional protection for those who are mentally well and who are capable, but who are, nonetheless, frail and at risk of harm. The bill is designed to address that gap in protection; to complete the suite of legislation to support the most vulnerable in our society; and to remove any uncertainties about the duty to act when an adult may be at risk of harm. It signals a step change in the way in which we view adult protection.

Sadly, we know all too well that abuse can and does happen. It can happen in regulated care settings, such as care homes, but it can also happen in family homes. It can happen in relationships of trust, when it can be difficult for those who are suffering harm to speak out and get the help that they need to improve their situation. In such circumstances, individuals can feel pressurised into retracting allegations of abuse, harm or neglect—sometimes because they rely on the person who is harming them to provide for their everyday needs; and sometimes because of fear of reprisal or a fear that they will not be believed.

The bill brings together a range of measures that will complement the existing legislation. It clarifies roles and responsibilities, and it removes uncertainties about the duty to act. That means that, if harm or abuse is suspected, practitioners will have a means of getting through the door to assess the reality of an individual's situation. The bill will help practitioners to investigate circumstances in which individuals may have capacity to choose but, for a variety of reasons, are unable to exercise that choice. Moreover, it will mean that, if carers are under stress, their needs will be recognised and they will be supported. More widely, the legislation creates obligations on public bodies to co-operate and provides a statutory basis for adult protection committees across Scotland.

The sensitive nature of adult protection has been highlighted throughout the passage of the bill, which seeks to strike a difficult balance between respecting the rights of individuals to choose how they want to live and offering appropriate support and protection to those who need them most. Although it will not turn difficult decisions faced by practitioners into easy ones, the legislation will give them, for the first time, a full range of options to take appropriate action to protect those who are at risk of being harmed.

Local authority interventions will not always be made in the form of the various orders that can be made under the bill. However, in the few cases that require more robust action, the local authority will be able to take it, subject always to the safeguards that are built into the bill. I expect that the very fact that the powers in the bill are available will ensure that, in the majority of cases, they will not need to be used.

The bill's helpful amendments to the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) Act 2003 and the Social Work (Scotland) Act 1968, some of which were agreed to this afternoon, will enhance the operation of those pieces of legislation and, in many cases, will clarify and confirm original policy intentions. For example, one of the amendments to the 1968 act clarifies the rules on ordinary residence. In parallel, we are working with colleagues in the United Kingdom Government and in Wales and Northern Ireland on regulations and revised guidance on cross-border placements.

Although the bill's firm focus is on the needs and safety of victims of harm or abuse, it complements the Protection of Vulnerable Groups (Scotland) Bill, which is currently going through Parliament and is directed at keeping unsuitable people out of the care workforce. That will further strengthen our overall commitment to appropriate protection for adults.

I thank all those who helped to shape the bill in its early stages and throughout its parliamentary passage, including the Adult Support and Protection (Scotland) Bill steering group, which worked with Executive officials and guided the bill team from the outset; the many organisations and individuals who took time to work with the Executive through consultations and meetings, in particular service users who contributed through existing national policy groups; and members of committees, particularly the Health Committee, which carefully scrutinised and considered the bill and recognised the sensitivities inherent in legislation that seeks to balance rights and protection.

I also acknowledge the hard work of Executive's bill team and of the committee and parliamentary clerks, who enabled members to consider the issues and to have the background information that they required. The bill as a whole has greatly benefited from that combined input and will now achieve its intentions in a balanced and proportionate way.

I move,

That the Parliament agrees that the Adult Support and Protection (Scotland) Bill be passed.

Photo of Shona Robison Shona Robison Scottish National Party 3:53 pm, 15th February 2007

Although the bill arose from the very tragic Miss X case in the Borders, it has—in the minds of the public, at least—focused on abuse of the elderly. As the minister pointed out in his speech, that problem certainly needs to be addressed. Indeed, I know from my previous experience as a home care manager that too many elderly people are too often at physical, mental or financial risk.

However, the question that many of us have asked—and, to an extent, are still asking—is whether the bill will address that problem. I hope that it will, but it will work only if the system backs it up and only if hard-pressed social work staff are able to pick up whether a problem exists and can act accordingly. In that respect, I welcome the establishment of the adult protection committees, which will give a focus to important work surrounding the protection of vulnerable adults and will allocate responsibility.

If the system does not work, that is a fundamental weakness—we know that system failure is often highlighted in the high-profile, tragic cases that come up regularly and are put under the spotlight.

There are other questions about whether support packages to keep people safe in their own homes will be put in place and whether carers who are at the end of their tether can be supported to continue to care safely and appropriately. Those questions will be answered only when we see the legislation in action.

Many issues had to be addressed during the bill's passage. The minister referred to the debate about balancing the protection of the individual against their liberty and rights, including the right to be unsafe and to take risks. We are talking about individuals who have capacity, and the idea of overriding someone's consent in such a situation makes many of us feel uneasy. We will certainly watch the implementation closely, and we would suggest careful monitoring by the Scottish Executive Health Department in the first year of operation, especially if we are to satisfy some of the on-going concerns of certain groups—groups representing those with a disability were particularly concerned about the bill.

The definition of an adult at risk has been amended and tightened up, with the three-limb definition, as the minister describes it. In essence, that means that being disabled in itself does not necessarily make someone an adult at risk but that other factors, such as being unable to safeguard one's own interests or being at risk of harm, have to come into play. We were pleased that the definition was changed at stage 2.

Similarly, the term "abuse" has rightly been changed to "harm" to avoid stigmatising carers who may have caused harm unintentionally and who, with the right support, can continue to provide care to the person concerned. Such people are often the main carer and, if the person wants to remain in their own home, a support package must exist to take away some of the pressure that may lead to problems arising.

The rights to resources and reciprocity underpin some of my previous comments and are vital to how effective the bill will be. We have to avoid giving the impression that the bill will, at the stroke of a pen, put an end to the abuse of elderly people and other adults at risk. It will not do that; it is what comes with the legislation that counts. The bill has to be backed up by changes in attitude and in the priority given to the protection of adults at risk. It also has to be backed up by adequate resources to ensure both that care packages are in place to maintain people safely in their own homes and that carers get the necessary back-up, so that the frustrations that can lead to people lashing out at the person for whom they care are avoided.

That is a challenge, given the situation in many parts of Scotland, where we know that budgets are under pressure, particularly in social work, in relation to fulfilling child protection responsibilities. I hope that we do not have to enter into a trade-off locally where competing priorities mean that adults who need to be protected come further down the list. Child protection responsibilities are very important, but we need to ensure that the resources exist so that social workers can also give priority to adults who are at risk.

The bill will deliver people's expectations only if it has the right back-up and resources, and only time will tell whether that happens. With those caveats, the Scottish National Party is happy to support the Adult Support and Protection (Scotland) Bill at stage 3.

Photo of Nanette Milne Nanette Milne Conservative 3:59 pm, 15th February 2007

As we know, the reason for the bill is the need for an overall framework of support and protection for adults who are at risk of harm. It is complementary to the Adults with Incapacity (Scotland) Act 2000 and to the Mental Health (Care and Treatment) (Scotland) Act 2003, and it should plug the gaps that have been identified in those acts.

Like others, I was at the outset rather sceptical about whether the bill was needed, but the evidence that was given to the Health Committee at stage 1 convinced me that it is necessary, so I supported the general principles of the bill at that time but shared the committee's concerns about many aspects of part 1. In such legislation, there is clearly a need to strike the right balance between the state's power to intervene in a person's life—as part of its duty to protect vulnerable people who are at risk—and the right of those people to their chosen lifestyle. As a result, the committee highlighted several areas in which changes were essential if the bill was to become acceptable and effective legislation.

I am grateful that the minister paid heed to the committee's concerns and, as he promised, lodged at stages 2 and 3 acceptable amendments to take account of most of those concerns. In particular, he has tightened up the definition of an adult at risk of harm; that has been done in response to the concern that was expressed by representatives of people with disabilities that the proposed legislation could threaten the autonomy of people who have fought hard for their independence and who fear losing it if it is perceived that they are unable to cope. Enable Scotland does not think that the minister has gone far enough in tightening up the definition, but I am satisfied that it is unlikely that the amended bill will compromise the autonomy of people with disabilities who live independently. I am also pleased that the amended bill will not allow the definition to be amended by subordinate legislation.

The replacement of the word "abuse" by the word "harm", the inclusion of the same right to advocacy services that exists under the Mental Health (Care and Treatment) (Scotland) Act 2003, the tightening up of the definition of a council officer who can gain entry to premises and the clarification that granting an order against the consent of an adult at risk is indeed a last resort, have all dealt with the committee's concerns and made the proposed legislation acceptable. One of my remaining concerns is that the minister has not so far responded to the Health Committee's recommendation that no one should be removed from their home without appropriate care and accommodation being available. I would welcome his responding to the effect that he will deal with that matter outwith the primary legislation.

Parts 2 and 3 will simplify and streamline the protection of adults with incapacity in respect of welfare and of management of their finances and property. The bill will significantly benefit that group of vulnerable people.

All in all, I am satisfied that the bill will enhance the protection of a particularly vulnerable section of society and that the amendments to section 1 will protect adults at risk of harm from overintrusion by the state. Nobody wants their privacy to be invaded against their will, or to be removed from their home without their consent, so the safeguards that have been introduced should ensure that the power to override an adult's consent will be used as the last resort only after all other options have been tried and it is necessary to avoid immediate harm. As Shona Robison said, we will, of course, have to see what happens in practice and ensure that systems are in place to cope. However, it is unlikely that the power to override an adult's consent will be needed often. I hope that when its use is necessary, the adult at risk will be treated with respect and sensitivity.

The Health Committee has had to deal with a complex bill, but I am now satisfied that it will fill a gap in previous legislation and protect a group of vulnerable adults who have hitherto been at risk of harm—indeed, some of them have been harmed. During its campaign to expose elder abuse, Age Concern Scotland said that many more elderly people may have been harmed by relatives and carers than is generally realised. The bill should give those elderly people the support and protection that they deserve. It will also allow support services to be made available to those who are at risk of harm through self-neglect or through their inability to cope with the practicalities of daily living. It should give them the help that they need to continue to live safely in their own homes.

In conclusion, I welcome the bill, although its implementation will have to be carefully monitored. The Conservatives will support the motion on the bill at decision time.

Photo of Euan Robson Euan Robson Liberal Democrat 4:04 pm, 15th February 2007

I echo the minister's thanks to the committee's clerks and to the witnesses who came before the committee for their efforts, observations and help in assessing and improving the bill as it has passed through its stages. I am grateful for the way in which the Scottish Executive's bill team engaged with the Health Committee, and I am grateful to the minister for being good enough to act on issues that were raised with him. I think he holds the record for lodging one of the longest amendments that has ever been placed before a parliamentary committee in seeking to replace the whole of part 3 of the Adults with Incapacity (Scotland) Act 2000, on accounts and funds. It is interesting that he was able to do that; it is perhaps a strength of devolution that we have, when we find that we could improve something that we have only recently achieved, the capacity to do it. As was evident today, the minister particularly responded to the issues around the question of being informed about the right to refuse a medical examination. I thank him for those amendments.

It is good to see the passage of the bill. As others have said, it will complement the Mental Health (Care and Treatment) (Scotland) Act 2003 and, of course, the Adults with Incapacity (Scotland) Act 2000. It will introduce appropriate and proportionate measures to protect adults from harm, and will clearly place a duty on councils to make inquiries and to assess whether further action is required. That is the most important point in the bill.

It will also require councils to set up adult protection committees, which is a valuable development that is complementary to the non-statutory child protection committees that are appearing in several local authority areas. It is quite clear that those committees should work together, so it was helpful to have the minister's assurances on that point at stage 2. It is public policy that those committees should work together, although I have to tell the minister that that is not stated on page 13 of the explanatory notes that were revised after stage 2. I am sure that it could be addressed with local authorities through guidance or in another appropriate way.

One of the general principles of the bill is about intervention. It is worth repeating that a person who decides to intervene has to be satisfied that intervention will benefit the person for whom the intervention is taking place, and that

"the least restrictive option of those that are available which will meet the objective of the intervention."

That very important point must be grasped. It is critical that people who will exercise powers under the eventual act recognise those constraints on how the legislation will operate.

The definition of adults at risk has been improved—Shona Robison was quite correct to say that, as was Nanette Milne. Those who are concerned about people with disabilities should take considerable comfort from the fact that there are now qualifications attached to that definition; factors other than disability have to be taken into account. That should offer some reassurance.

The hierarchy of orders in the bill is particularly appropriate. Assessment is followed by removal and then banning. Clearly the latter two orders should be used rarely or, at least, should be considered to be options of last resort. It is important that that, too, be understood.

One subject about which I lodged an amendment at stage 2 was the keeping of proper records. Section 9, on examination of records, is quite important. At stage 2, the minister was good enough to say that he felt that it was particularly important that proper records be kept. If proper records had been kept in certain past cases, they would not have developed as they did. I hope that guidance for or discussion with local authorities will stress the importance of keeping proper records.

The minister listed several developments that have brought the bill—I hope that it will become an act—to Parliament today. There was the 1993 Scottish Law Commission report and a draft bill in 1997. I will conclude by quoting from the social work services inspectorate report on the case in the Scottish Borders. At paragraph 146, the SWSI made it clear why it feels that this legislation is necessary. The report 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 also be particularly relevant for other vulnerable people who do not lack capacity and who do not have a mental disorder."

There have been developments since those sentiments were expressed in 2004, but I think that that remains the fundamental justification for the bill and I am proud to have played a small part in its development.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 4:11 pm, 15th February 2007

Obviously, the bill has potentially far-reaching effects. As I said during the stage 1 debate, the Health Committee had a considerable number of difficulties with the bill. Many members were ambivalent about the bill throughout the committee's consideration of it. That is evidenced in the substantial recommendations that were made at the end of stage 1 following the work that we did, and in the changes that were made at stage 2.

We went out to meet groups of people who would be directly affected by the bill—it was clear that many of those who it is intended will be protected by the bill have significant concerns about the implications of the legislation. In our view, that was unprecedented; we had not come across that before. There has also been a sharp difference of opinion between people who represent the elderly and those who represent some of the other significant groups that are encompassed within the definition of "adults at risk".

The bill confers 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, for obvious reasons, a particular cause for concern to everybody.

The division of opinion on the bill has been, to a greater or lesser extent, expressed throughout our consideration of the bill, and was the principal reason for the committee's concerns. That division of opinion continues today. We have all had the e-mail from Inclusion Scotland and will have heard Enable Scotland express this morning its continuing concerns about what is being enacted. Coincidentally, I happened to be meeting a group of wheelchair users from my part of the world today—they repeated the concerns that other disabled groups expressed to us.

The bill raises fundamental questions about the limits to state intervention as set against the individual's right to personal autonomy. People want to retain their autonomy regardless of their circumstances.

As I said, the minister took on board most of, if not all, the committee's recommendations. I say to the minister that I still have reservations about the lack of full appeal provisions. No doubt one or the other of us will be found to be right in due course. His extensive concessions at stage 2 were extremely welcome, but to my mind we are in effect giving him the benefit of the doubt at this stage.

Some things need to be recognised. First, the bill is called the Adult Support and Protection (Scotland) Bill: the emphasis has, for obvious reasons, been on the punitive measures in the bill, but real support must be put in place if the bill is to work properly. That means everything from support for carers right through to making advocacy services available. We must not merely say that people have the right to go to them—we must actively make them available.

Secondly, I do not think that the serious disaffection of disability groups can be ignored. I hope that the minister will agree that, although there is no requirement to have a representative from disability groups on the adult protection committees, it may nevertheless be politic for local APCs to ensure that there is such a representative on the committee, because the difference of opinion between disability groups and groups that represent the elderly suggests that there may be some real problems if disability groups are not represented on those committees.

Thirdly, although we heard in the briefing today that punitive measures would be used "rarely, if ever", I remind the minister and the rest of Parliament that when representatives from Scottish Borders Council gave evidence, they suggested otherwise. They talked about using the measures once or twice a year in the Borders alone. If we multiply that to get a figure for throughout Scotland every year, it does not count as "rarely, if ever" in my book. I hope that the minister will agree that practice will have to be monitored very carefully indeed.

Once again, I thank all the members of my committee for their participation and all their hard work. I also thank the clerks and various officials for all the work that was done in the background, and I thank the witnesses who gave us evidence. I hope that the concerns that have been expressed throughout consideration of the bill and today turn out to be totally unfounded.

Photo of Dr Jean Turner Dr Jean Turner Independent 4:15 pm, 15th February 2007

I might have said already that the first time I read the bill, I found it very difficult and felt that many things in it ought to have been fixed before it came to the committee. I commend the minister on taking on board all the changes that we proposed.

The bill today is nothing like the bill that I first read. However, that does not mean that I do not still feel uneasy, because any legislation is only as good as the people who implement it. We all know that there are a lot of vulnerable people out there. More and more people will be living on their own in the community and more and more people will depend on services from local authorities. As Roseanna Cunningham said, it will sometimes be the lack of services that puts people at risk, especially if they live alone.

The other day, I spoke to a constituent who is not too well and who is more or less getting into the dangerous tea and toast brigade, which is a slippery slope to be on. Once a person has become dehydrated and does not eat well, they do not manage themselves well and sometimes they become very crotchety and grumpy. The reason why I suggested that it would be better to have a general practitioner enter the home is that most of the work will be medical.

We need only look at our televisions these days to see that the aging population needs protection, even those who live in homes. I saw pictures of people with bed sores on "Panorama" the other night. I remember a time when anyone who was being nursed in hospital or at home by district nurses developed a bed sore, the nurses would have been absolutely ashamed, but it seems to be an ever-increasing occurrence.

I do not want to say much more except that I hope that the people who implement the bill will take the least restrictive approach, because the bill provides for adult support and protection and people need good services. A woman we met at Enable Scotland said that she feels very strongly that her autonomy might well be taken away if neighbours were to decide, in their great opinion, that she needs to be investigated. The thought that she might be taken from her home is abhorrent to her. It would be abhorrent to most of us who could be in that situation if we were to become unwell for a short time.

I congratulate everyone who has been involved in the bill on their hard work, and I thank them for the help that we received in committee. Most of our improvements and significant concerns have been taken on board. I thank the minister for listening to me, although he did not agree with me. I sincerely hope that my uneasiness will go away when the bill's provisions settle in.

Photo of Janis Hughes Janis Hughes Labour 4:19 pm, 15th February 2007

Like my committee colleagues, I thank the clerks to the Health Committee for their support throughout our consideration of this at times rather difficult bill. The work that is done in the committees of Parliament is the cornerstone of what we do. Without the hard work and dedication of the committee clerks, it would be so much more difficult. I very much appreciate their help.

As other members have said, there can be little doubt that the bill's progress has not been plain sailing. Very few bills have engendered such debate and the committee had to deliberate long and hard over its stage 1 report. Initially, there were questions about the need for new legislation, some of which we have heard about today. We were placed in the unusual position of having to debate not only the quality of the bill, but whether it was necessary. However, I am now convinced that the bill is necessary and that, following its substantial amendment at stage 2, it will be good legislation. As Euan Robson said, it complements other legislation that Parliament has passed; the fact that we are now enhancing existing legislation with additional legislation that will go further in protecting people in our society shows how the parliamentary process in Scotland is evolving.

During the stage 1 debate in November, I spoke of the need to amend the bill to ensure that we would protect vulnerable people in our society while allowing individuals the right to live their lives as they choose to. As Roseanna Cunningham said, the bill's title includes the phrase "Adult Support" and it should never be used as a policing mechanism. That is why it was vital that the definition of adults at risk be narrowed. We had to make it clear that not all adults with disabilities will be subject to the bill's provisions. It is to the Executive's credit that it has done that.

Like other members, at stage 1 I was concerned about the term "abuse". Along with most respondents to the committee's consultation, I believe that it is a pejorative term, the use of which implies intentional—or even malicious—harm. We know that that happens and the bill must protect people who suffer such harm but, as we heard in evidence, the situation is often one of benign neglect. In such circumstances, it is most unhelpful to label someone as an abuser. That is why I am pleased that the Executive has amended the bill to replace the word "abuse" with "harm", which I think is a sensible move that will protect precisely the people whom the bill sets out to protect. Nanette Milne lodged amendments in which she sought to remove the word "serious" from the term "serious abuse", but I believe that there is significant legal precedent to suggest that the courts will be able to deal with that concept.

Another concern that I had at stage 1 related to the section of the bill that would have permitted the definition of adults at risk to be amended by subordinate legislation. As a member of both the Health Committee and the Subordinate Legislation Committee, I shared the views of both committees that that was a wholly unacceptable provision that had to be amended before the bill would be passed. Again, I commend the minister for making the necessary change.

The people who are covered under the Mental Health (Care and Treatment) (Scotland) Act 2003 and under the Adults with Incapacity (Scotland) Act 2000 have a right to independent advocacy services, which are vital to ensuring the protection of some of our most vulnerable citizens. At stage 1, such a right was not afforded to the people who will be covered by the bill, so the rectification of that situation at stage 2 was a highly positive move.

Although I am happy to praise the Executive for making most of the amendments that the committee asked for, I do not want to sound overly congratulatory. A note of caution has already been sounded. I am disappointed that such a large number of amendments were necessary at stage 2, including—as Euan Robson pointed out—the longest amendment that has ever been considered by a committee. The bill will be good legislation and will make a significant difference to the lives of many people in Scotland but, in its initial form, it would not have fulfilled that function. I hope that the minister and the Executive will take that point on board: it is not the first health bill that has required significant amendment at stage 2. That should be borne in mind for future legislation.

I believe that the Adult Support and Protection (Scotland) Bill is a vital step forward in supporting Scotland's vulnerable adults. I urge Parliament to support it and I look forward to its safe passage at decision time.

Photo of Robin Harper Robin Harper Green 4:24 pm, 15th February 2007

As someone who did not have the honour of serving on the Health Committee when it considered the bill, I congratulate it on the thoroughness of its work and its many achievements. As Jean Turner pointed out, the bill has been transformed as a result of interaction between the committee and the Executive. It is clear that it is now a much better bill than it was when it was first drafted.

I have always been persuaded of the necessity for some kind of legislation to protect vulnerable groups, particularly vulnerable adults. The minister may recall that, in 2002-03, I began agitating for hate crime legislation to be extended—not necessarily as an interim measure—in order to give the kind of protection that vulnerable adults need and deserve. That was partly the result of research from Enable Scotland which showed the unacceptable levels of harm to vulnerable adults, including disabled people and those who suffer from mental health problems. The sample may have been small, but the results were clear. In those terms, the bill is thoroughly to be welcomed.

As other members said, there is also the recent research from Action on Elder Abuse in which more than 471 incidents were analysed. As other members mentioned, the results show that at least half the harm, theft, fraud and deceptions that those people had suffered was by family members and people who were closest to the older person. Again, the bill is most welcome in that respect.

The Executive would do well to take on board the points that were made in the debate, particularly those from Roseanna Cunningham. My party voted for Jean Turner's amendment 4. If the minister were to further consult social work organisations such as the British Association of Social Workers, I assure him that he would find that those organisations would look kindly on the Executive's setting out, at the least in regulation or advice, a recommended level of experience for social workers who will place orders under section 49.

I welcome the bill. When it comes to decision time, the Scottish Green Party will support the motion.

Photo of Nanette Milne Nanette Milne Conservative 4:27 pm, 15th February 2007

I understand that I have to be brief, Presiding Officer. In fact, I will be exceedingly brief. As I said earlier, the Conservatives will support the bill at decision time. We look forward to its implementation in the interests of vulnerable adults.

It has taken a lot of work for the bill to become the acceptable bill that it is today. But for the minister's willingness to take on board the many concerns that the Health Committee expressed, particularly at stage 1 and about part 1, many members would not be giving their support to the bill at decision time.

As Shona Robison and other members said, if the legislation is to be effective in practice, it is necessary that proper systems be put in place. Clearly, it is incumbent on the local authorities to ensure that the systems work.

All of us know about the huge pressures in many local authority areas on our demand-led social work services—particularly our children's support services—that make a hugely disproportionate demand on budgets and staff. It is imperative that the legislation be monitored carefully in practice to ensure that the systems do not let down the vulnerable people whom we are legislating to support. I hope that the minister agrees that monitoring is essential. As I said, the Conservatives will support the bill at decision time.

Photo of Christine Grahame Christine Grahame Scottish National Party 4:29 pm, 15th February 2007

When Dr Turner referred to the "tea and toast brigade", Roseanna Cunningham and I found ourselves competing with each other to meet the test, although we thought that she had also used the word "tetchy".

More seriously, the Scottish National Party welcomes the recognition—as I think all members do—of the vulnerability of some adults and some elderly people; I chose those words carefully. It is extremely difficult to legislate on what is proportionate, or on the difficult balance between state intervention and individual autonomy, to which Roseanna Cunningham referred.

We must always remember that not only is capacity variable, it is not absolute. When someone says, "No, I don't want you to come into my home" or "No, I don't feel threatened", the authorities have a very difficult decision to make. Somebody has to judge whether that is the case, which is extremely difficult.

It was important that the Health Committee took a hold of the bill and made it workable. However, I say to the minister that some of that work should have been done before the bill even reached the committee, as it was self-evident that parts of it needed to be amended. The committee should not have had to do that, bearing in mind that we have a unicameral system. That issue should be considered during the next session of Parliament.

I will touch on some of the hot spots in the bill, against the backcloth of the issues of balance and proportionality and the fact that capacity is variable and not absolute. Section 13 deals with removal orders. I have faith in Scotland's sheriffs, who have a great deal of experience in dealing with intricate matters such as interdicts and interim responsibility for the care and protection of children. Sheriffs know what they are doing, so section 13 provides a terribly important protection.

Euan Robson referred to section 9, which is on keeping records. I agree that that is important, but the problem is with people reading the records. In the Borders case, the information was on record, but nobody read it or passed it to somebody else.

Photo of Euan Robson Euan Robson Liberal Democrat

The records in the Borders case were incomplete and, to a degree, inaccurate. The issue was not that they were not available; it was that they were not kept correctly. The issue is about keeping proper records.

Photo of Christine Grahame Christine Grahame Scottish National Party

I do not want to get into that specific incident, but there was information on record that was not followed up. I know that, because I had that information before me. The issue was not just that the records were incomplete, but that there were warning signs that nobody followed up. I see that Euan Robson is agreeing with me on that. The issue comes back to people.

The issue of urgent cases is difficult. It will be difficult for somebody to decide to ban a person when no sheriff is available and they have to go to a justice of the peace. I accept that there will be a time limit, but much will depend on judgments and the implementation. The introduction of adult protection committees is to be welcomed. They should have been set up before now and they have already been set up elsewhere. The issue is about the interaction between agencies.

Section 45 is on the code of practice. We have said over the years that codes of practice and regulations are where the meat is in legislation. The code will be enforceable in court. That is where the issues of operation come in. It is extremely important for the Parliament to pay attention to those issues. We have passed primary legislation before, only to find difficulties on the ground in following the codes of practice. Sometimes, such difficulties cannot be discovered until legislation is implemented. However, as many members have said, we need monitoring processes.

Roseanna Cunningham commented on the appeals procedure. I am a bit concerned about section 48, which states:

"No appeal is competent against the granting of ... an assessment order, ... a removal order, or ... a warrant for entry."

That is it. End of story. No appeal procedure is competent. Issues may arise that relate to the European convention on human rights. I hope that the minister is right on that issue, but there may be issues about having no appeal procedure whatever in those instances.

Legislation—whether primary legislation or regulations—and the guidance that is produced under it are mere tools of the trade. At the end of the day, we come back to the people who use those tools. However, I do not want to encourage a blame culture, because being a social worker today is a thankless, complex and ever-demanding task that is underresourced and underpaid. Social workers continually have to make choices about what comes to the top of the pile on their desk and what does not. We ask an awful lot of our social work departments and their management. That is why, although I agree that we should pass the bill because we all accept that it is probably a good thing—my history teacher used to say, "It is either a good thing or a bad thing"—I argue that funding and personnel resources must be put in place.

The Scottish National Party generally supports the bill, but we have caveats to do with the operation and interpretation of the legislation in what is a sensitive area and on the provision of staffing and funding. At the end of the day, I return to Roseanna Cunningham's point that the bill is not about policing; it is about adult support and protection. We must ensure that we get the balance right between support and protection and that we do not go too far down the road of protection, which can sometimes mean shutting the stable door after the horse has bolted.

Photo of Lewis Macdonald Lewis Macdonald Labour 4:35 pm, 15th February 2007

We have reached the conclusion of the parliamentary consideration of the Adult Support and Protection (Scotland) Bill. The process has worked as it should. Members, ministers and the Health Committee have sought ways to improve the bill and have achieved a high level of agreement on how to do so.

I welcome the support for the bill from all those who have spoken this afternoon. Euan Robson was right to emphasise that the ability to improve legislation as we learn from experience and practice is one of the dividends of devolution. The parliamentary process exists to enable legislation to be improved before it is enacted as well as after it has been in operation for some years. Rather than seeing the improvement of legislation by the parliamentary process as a failure of Government, we should see it as a success of Parliament and as a good example of how the Scottish Parliament was always intended to work.

The bill puts in place a range of measures to address the needs of many of those people who most need protection from harm. As has been said, the sensitive nature of the personal circumstances that give rise to harm or abuse has understandably resulted in a wide range of views about when it is appropriate for the state to intervene in an adult's affairs. We have sought to clarify the boundary between the reach of the state and the right of the individual to choice and privacy. Above all, though, we have sought to be on the side of individuals who, for a variety of reasons, are unable to exercise choice.

The parliamentary process has highlighted the need for agencies to work closely and thoroughly in identifying, assessing and responding to risk. Throughout that process we have sought to emphasise the rights of the adult at risk: the right to exercise choice and the right to be safe. As a number of members have said, the legislation must now be backed up with a code of practice to provide clarity and consistency for those agencies with duties to act, and for those who will rely on such action. The code of practice will need to be very clear about the application of protection orders. In particular—a point that has been made in the debate—it will need to emphasise how the most restrictive actions should be taken only in the last resort, when there is a risk of serious harm and when all other options have been exhausted.

The code of practice will provide an opportunity to set out an overview of the links between this bill, and existing legislation that supports and protects adults. In particular, it can offer signposts to relevant provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000, both of which have been referred to in the debate. Both of those acts have been amended by this bill to ensure that their provisions deliver what they set out to do.

The code of practice will also provide a steer for the development of adult protection committees, so that due consideration is given to ensuring that the right people are at the table. It is expected that those committees will include service user and voluntary sector representation. We do not wish to place an onerous duty on the committees before they begin to function, but it is reasonable to expect that the broad range of service users will be represented on them. More detailed guidance about the structure and operation of the committees will be provided in the code of practice. There will be a convener, independent of the council, in each case, and there will be sufficient flexibility to build on existing practice, and to share expertise with child protection committees where that is appropriate.

The code of practice will be the framework of the general principles on which decisions should be founded. In relation to protection orders, the principles of the bill are that intervention should always be the least restrictive to the adult and that the decision to override an adult's consent should always be taken when other steps have been exhausted. Of course, in every case the authorisation of a sheriff is required. It will be for the sheriff to weigh up the interests of the adult at risk when considering when to allow an intervention. The sheriff may make or refuse a protection order. We will still give adults at risk, subject to a removal order, the full guarantee under article 6 of the ECHR. Before a removal order may be granted, a hearing must take place before an independent and impartial sheriff or JP, who must be satisfied that the adult is at risk of harm.

A number of members mentioned the importance of monitoring and being aware of how the bill operates in practice. Adult protection committees will be asked to review the use of all protection orders and to report their findings in their biannual reports to ministers. That will give us the necessary evidence of how the bill is operating.

One issue that has been debated throughout is the role of the professional. I have distributed a draft of the order restricting the definition of council officer under the bill and I assure members that we will consult further on that order before we bring it back to Parliament. The next steps will include development of any other orders that need to be in place for the bill's commencement. However, I believe that the definition that is in the draft order strikes the right balance and provides the right guarantees that the appropriate professionals will act under the bill and implement the measures that we have put in place.

From the initial consultation on protecting vulnerable adults until today, our work has involved discussion with the people whom the bill sets out to support and with their representatives. We are committed to ensuring that that engagement continues as we consider the need for guidance and information not only for professionals, but for adults at risk who need to know about their rights and responsibilities under the bill.

We already have a commitment from our bill steering group members that they will continue to provide support for the implementation of the bill and we will actively seek input from people who have appropriate skills and knowledge as we consider future training and service development needs. Work is already well under way to develop risk assessment tools in Scotland. A project supported by the Executive's joint improvement team has taken a multi-agency approach to the identification of risk. We will build on that work to provide practitioners with practical guidance and set the bill's provisions within the context of a wider range of options for managing risk.

Adult protection committees will have a key role in developing the skills and knowledge of practitioners at local level. Their reports to ministers will allow implementation to be monitored and ensure uniformity of delivery throughout Scotland.

The bill does not stand alone in supporting those who fall within the definition of adults at risk from harm; it stands with existing legislation and existing policy. People are influencing more and more the design and delivery of the services that they use. With an increase in the take-up of self-directed care, people will be ever more able to exercise choice and control in finding support that suits their individual needs.

Photo of Christine Grahame Christine Grahame Scottish National Party

I am interested in the adult protection committees' reports back to ministers. The minister talked about uniformity throughout Scotland. Is there a role for the Social Work Inspection Agency in that?

Photo of Lewis Macdonald Lewis Macdonald Labour

There is, in the sense that the Social Work Inspection Agency has a role across the range of policies in any case. I expect that, when it considers a local authority's actions in fulfilling its social work responsibilities, the agency will consider how the authority has fulfilled its adult protection duties under the bill.

Advocacy was mentioned in the debate. It has an important role in helping people to have their say. We will consider carefully how advocacy resources can be made available to people who are at risk of harm when they need such support The bill will not eradicate the risk of harm, but it will reduce it, bring adult protection in Scotland in line with child protection and take a lead on adult protection in the United Kingdom. It will also demonstrate our refusal to tolerate harm and the risk of harm to our most vulnerable citizens. We recognise that adult protection is a sensitive issue, as it concerns the circumstances of vulnerable individuals. Therefore, it is important for the implementation to be sensitive, and we will seek to achieve that as we implement this important new legislation.

Photo of Trish Godman Trish Godman Labour

As we have finished early, I suspend the meeting until 5 o'clock.

Meeting suspended.

On resuming—