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Policy responses and statements
- Name of organisation:
- Scottish Parliament: Health Committee
- Name of policy document:
- Call for Written Evidence on the Adult Support and Protection (Scotland) Bill
- Deadline for response:
- 18 August 2006
Background: The Scottish Parliament’s Health Committee agreed to call for evidence seeking views from all interested parties on the general principles of the Adult Support and Protection (Scotland) Bill, which was introduced by the Scottish Executive on 30 March 2006. The Committee intends that evidence received will inform its consideration of the Bill at Stage 1.
The main purpose of the Bill is to:
- Set up new multi-agency Adult Protection Committees to oversee adult protection policies locally
- Place a duty on a range of agencies to investigate suspected abuse
- Provide new powers to carry out assessments of the person and their circumstances
- Create a range of options for intervention to address and manage instances of abuse
The Bill also extends powers which exist already in the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. The policy background to this part of the bill can be traced back to the work of the Scottish Law Commission, which in 1997 published a position paper and a draft vulnerable adults bill, which followed on from a discussion paper in 1993.
It recommended a new legislative framework, with a variety of measures aimed at protecting all adults who are vulnerable, not just those who have a mental disorder. Further impetus for change came with the Scottish Borders inquiry into circumstances surrounding the long-term abuse of a woman with learning disabilities by her primary carer and others.
The Committee had access to a summary of material gathered by the Scottish Executive in its consultation on the proposals for the Bill, and was looking for additional submissions relating only to the Bill as introduced.
The Committee invited the views of all interested parties, organisations and individuals, in written evidence on the following points:
- Do you support the general principles of the Bill and the key provisions it sets out?
- Are there any omissions from the Bill that you would like to see added?
- Have you any comment on the practical implications of putting these provisions in place and the consideration of alternative approaches?
- Are the definitions of an “adult at risk of abuse” and “abuse” itself in the Bill sufficient?
- What views do you have on the role, structures and powers of the proposed Adult Protection Committees?
COMMENTS ON
SCOTTISH PARLIAMENT HEALTH COMMITTEE
CALL FOR WRITTEN EVIDENCE ON THE ADULT SUPPORT AND PROTECTION (SCOTLAND) BILL
The Royal College of Physicians of Edinburgh is pleased to respond to the Scottish Parliament on its request for written evidence on the Adult Support and Protection (Scotland) Bill.
The College has consulted with interested Fellows and is pleased to give evidence in response to the questions posed regarding this legislation.
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Do you support the general principles of the Bill and the key provisions it sets out?
Overall, the principles described are sound and the legislative changes should improve the situation for vulnerable adults who are not protected by the Adult with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003. The second part of the Bill which provides amendments to the Adults with Incapacity (Scotland) Act and subsequently the Social Work (Scotland) Act 1968 suggests useful amendments which will help in the application of the existing legislation. These measures are proportionate to the Scottish Executive responsibility to protect adults who lack capacity, and we are happy to support them as they stand.
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Are there any omissions from the Bill that you would like to see added?
No omissions were identified.
- Have you any comment on the practical implications of putting these provisions in place and the consideration of alternative approaches?
We will make comment on the definition of “Adults at Risk of Abuse” below.
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Evidence of Abuse
In terms of the practical implementation of the legislation, it is unclear what evidence local authorities will require to have to determine whether the person is an adult at risk. It would be important that the amount and quality of information required to determine whether a person is at risk is clearly defined.
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Use of Powers
The powers of the proposed Bill are extensive with regard to protecting Adults at Risk and may affect many other people. It is not hard to imagine that the powers could be used disproportionately. This would be less problematic if all of the powers required the approval of a Sheriff.
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Access
There are extensive rights of access. However, in practice these are likely to be ineffective since entry may be refused if a Sheriff is not authorised to visit by a Warrant of Entry. We feel that best practice would be to obtain a Sheriff order in each case.
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Removal Orders
The legislation does not define where an ‘at risk’ adult would be removed to (“a specified place”). Previous experience suggests that both psychiatric and medical or care of the elderly wards may become default options for the care of such individuals in the absence of other residential facilities. Whilst this, at times, may be appropriate, there are other occasions where this will not be the case and will add to the already considerable pressure under which acute medical and psychiatric services operate.
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Disclosure of Medical Records
The disclosure of confidential medical records to a council officer is stated to be so that they can be determined to be health records. It is unclear how the council officer will determine this without reading at least part of the record. There is implicit provision for such health records to be inspected by another health professional. It appears unnecessary, therefore, to release confidential health records to a council officer. Instead, those people holding health records should be obliged to inform the council officer of their existence and release them only to another health professional, preferably at the direction of the Sheriff.
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Protection of Property
The question as to what are “reasonable steps to prevent property being lost or damaged” may be difficult in practice. This results from the Bill’s principle of removing the abused person from the situation in preference to removing the person responsible for the abuse whilst investigations are underway. Perhaps the likelihood of loss or damage to property should be considered as one criterion in deciding whether the alleged abuser or the ‘at risk’ adult should be removed from the situation.
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Banning Orders
Concern has also been expressed as to how easy it will be for banning orders to be implemented in practice, as the present system of interdicts for patients with other disorders has not been particularly easy.
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Definition of Health Professional
In Section 8 the bill states “a health professional may conduct a private medical examination”. To us the phrase medical examination implies a doctor carrying out the examination, whereas “health professionals” could cover several professions. There should be explicit guidance on whether the health professional carrying out the examination needs to be a doctor.
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Are the definitions of “Adult at Risk of Abuse” and “Abuse” itself in the Bill sufficient?
This question resulted in most comment from our Fellows. A key driver of this proposed legislation was the report from the 2004 Mental Welfare Commission into abuse that occurred to adults with learning disabilities in the Borders. The main issue was “lack of understanding of the legislative framework and its capacity to provide protection” (policy memorandum, paragraph 16); hence the proposed Bill aims to clarify procedures for people who lack mental capacity. However, in addition, adults with “physical disabilities” (policy memorandum paragraph 15) are mentioned, although it is unclear whether these people also had learning difficulties. The Bill thus addresses not only the issue of mental capacity but the wider issue of loss of autonomy (ie being unable to act on one’s wishes despite having the mental capacity to consider those wishes rationally). Unlike the Adults with Incapacity (Scotland) Act 2000 in which the principle of optimising mental capacity is at its heart, this Bill does not explicitly state the principle of optimising autonomy as its basis, although this is one of the guiding principles. In the case of “Adults at Risk of Abuse” autonomy may be impaired by:
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The actions of some other agency to prevent a person exercising their autonomy. This would be considered as active abuse.
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The failure of another agency to provide the care for which they are responsible to optimise the person’s autonomy. This would be regarded as neglect.
In many situations, both these factors influencing autonomy coexist. The Bill, however, focuses its attention on active abuse rather then neglect which can be equally pernicious. The Bill’s failure to focus on the principle of autonomy has resulted in a very arbitrary and wide definition of “an adult at risk”. Within the wording, proposed mental disorder is already legally defined, but there is no clear indication of what is meant by “disability”, “illness”, “infirmity” or “ageing” eg someone with myopia corrected by glasses can be said to have a disability and, indeed, is it at risk of abuse should someone take away their glasses. There are no clear thresholds for any of these categories. It is unclear how ageing increases risk if it is not accompanied by either disability, mental disorder, illness or infirmity. Given the wide-ranging powers offered by the Bill, there is real risk of disproportionate implementation and a risk that the legislation would fall foul of European Human Rights Charter. A suggested improvement would be to introduce a test of autonomy, much like the Adults with Incapacity (Scotland) Act 2000 which introduced a test for mental capacity. The cause of the loss of autonomy should be a secondary matter. The definition of autonomy should, like that of mental capacity, relate to the perceived risk to the adult. The Bill does acknowledge this balance between risk and autonomy with respect to persons who may be removed by the order of the Sheriff, when it allows this only where there is a likelihood of serious abuse. However, again serious abuse is not defined and left to the Sheriff’s arbitrary judgement.
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What views do you have on the role, structures and powers of the proposed Adult Protection Committees?
There is some lack of clarity in the section on adult protection committees as to what the membership of the committee should be. There is a perceived difficulty that this may create a huge local authority bureaucracy and this must be avoided. The committee should be kept as small as possible and function as simply as possible eg no maximum number of co-opted members to the adult protection committee is stated. It would be unreasonable for councils to appoint co-optees who would outnumber the members appointed by right according to the Bill. In the section on associated costs, we note that the impact on the NHS in Scotland is judged to be low. However, although this may be the case, time will be required for administration, professional examinations, collecting and interpreting evidence, attending Protection Committees etc. It would therefore be useful if these resource requirements could be quantified for NHS Boards.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[17 August 2006] |
