A Scottish bill to protect service users from alleged abuse may compromise human rights. Mithran Samuel reports
Scottish legislation to improve the protection of vulnerable adults was roundly condemned in a recent report by the parliament’s health committee.
Among the criticisms was that the Adult Support and Protection (Scotland) Bill might compromise the human rights of alleged abuse victims. Such fears have split charities representing the very groups the bill is intended to protect.
The bill allows for a sheriff, on the application of a council, to make orders requiring that an adult at risk be taken from their home for an assessment (an assessment order) or temporarily removed from their home (a removal order).
It also includes powers for a sheriff to ban alleged abusers from the home or a specified place (a banning order).
However, it states that sheriffs should not make such protection orders, nor should council officers implement them, if the adult at risk refuses consent. But it then says consent can be overridden if “the adult at risk has been unduly pressurised to refuse consent”, notably in cases where the alleged abuser is a family member or carer.
Crucially, the bill is not directed so much at people who lack capacity – who may be deemed to be unable to give consent – but at those who possess it.
The committee said this was the bill’s biggest problem. Generally, it has been backed by older people’s groups and councils and opposed by groups representing disabled people and those with mental health problems or learning difficulties.
At Community Care LIVE Scotland this month, Ann Ferguson, elder abuse project manager at Age Concern Scotland, said intervention without consent, as a last resort, would reduce the burden on victims to take the initiative to help themselves.
A Convention of Scottish Local Authorities spokesperson also welcomes the idea, saying it would be a “useful tool” used only “rarely”. However, Norman Dunning, chief executive of learning difficulties charity Enable, asks: “How would you react if someone said you were under undue pressure and you didn’t feel you were?”
He says the executive has been driven down this path by older people’s groups who feel it will protect older people who are vulnerable to familial abuse.
But Gary FitzGerald, chief executive of UK charity Action on Elder Abuse, says he is opposed to having a carte blanche law to override older people’s will.
Cosla supports an amendment that would respond to the concerns of human rights groups, while retaining the possibility of overriding consent, although Dunning says Enable will table an amendment to remove this.
The committee stopped short of this, instead saying the bill should be amended to ensure councils demonstrate they have attempted all other options before seeking to override people’s wishes.
The Scottish executive has promised to reconsider parts of the bill in light of the committee’s report.
The principles of the bill will be debated and voted on in the Scottish parliament this week. The bill will then return to the committee for scrutiny over the next two months.