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BUSINESS BULLETIN 8 / 2000 

Tuesday 18 January 2000

Section G -   Bills, amendments to Bills and proposals for members’ Bills

 

  

Names marked with an asterisk (*) are new names of support. Proposals that have attracted 11 supporters have those supporters’ names shown in bold. The member who lodged such a proposal has the right to introduce a Member’s Bill to give effect to that proposal under rule 9.14.

 

Tavish Scott: Proposed Sea Fisheries (Shellfish) (Amendment) Bill—Proposal for a Bill to amend section 7(4) of the Sea Fisheries (Shellfish) Act 1967 to permit Scottish Ministers to authorise the use by fishermen of non-damaging types of fishing gear such as creels in areas covered by Several Fisheries Orders. (lodged 16 December 1999)

Supported by: Dr Winnie Ewing, John Munro, Maureen MacMillan, Rhoda Grant, Mr Mike Rumbles, George Lyon, Allan Wilson, Jamie Stone, Mr Jamie McGrigor, Mary Scanlon, Ben Wallace

 

Mr Brian Monteith: Proposed Tuition Fees Bill—Proposal for a Bill to ensure that students at higher education institutions in Scotland normally resident elsewhere in the UK are not required to pay tuition fees for a fourth year of study; and that any student normally resident in Scotland who qualifies or is accepted for any UK higher education course is granted a scholarship equal in value to the tuition fee for that course, payable for at least four years. (lodged 22 December 1999)

Supported by: David McLetchie, Lord James Douglas-Hamilton, Bill Aitken, David Davidson, Jamie McGrigor, Phil Gallie, Miss Annabel Goldie, Mrs Lyndsay McIntosh, John Young, Nick Johnston, Alex Johnstone, Mary Scanlon, Keith Harding, David Mundell, Murray Tosh, Alex Fergusson, Ben Wallace

 

 

New amendments to Bills lodged on 17 January 2000

Adults with Incapacity (Scotland) Bill – Stage 2

Section 1

Dorothy-Grace Elder

122 In section 1, page 1, line 21, after <adult> insert <(consulting, where the adult has no close relative or primary carer, the charitable or voluntary organisation most appropriate in view of the adult’s condition)>

 

Dr Richard Simpson

123 In section 1, page 2, line 4, at end insert—

<( ) Any person determining if an intervention is to be made and, if so, what intervention is to be made, shall encourage at all times the development and maintenance of the adult’s skills in relation to the management of their welfare, property and decisions on treatment whether or not with the assistance of an independent advocate appointed under section (Independent advocates).>

 

Robert Brown

124 In section 1, page 2, line 17, leave out from <by> on line 17 to end of line 21 and insert <in relation to any particular matter if, at the time that a decision needs to be taken, he or she is so incapable in relation to that matter by reason of mental disability or of inability to communicate because of physical difficulty;

"mental disability" means any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental funtioning; and an adult is unable to make a decision by reason of mental disability if, and only if, the disability is such that, at the time when the decision needs to be made, the adult is unable to understand or retain the information relevant to the decision, or unable to make a decision based on that information;

"retaining the memory of decision" means retaining memory thereof to such extent and for such duration as may be appropriate in relation to the decision in question.>

 

Dr Richard Simpson

125 In section 1, page 2, line 17, leave out from <mental> to <disability> in line 18 and insert <an impairment or insufficiency of their personal faculties whether permanent or temporary>

 

Dr Richard Simpson

126 In section 1, page 2, line 21 at end insert <, in particular by the use of an independent advocate appointed under section (Independent advocates)>

 

Robert Brown

Supported by: Mrs Margaret Smith

127 In section 1, page 2, line 23, at end insert—

<"communication" includes non-verbal communication by any means whatsoever; and a person shall not be treated as incapable of communication by reason only of a lack of deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or or otherwise).

( ) An adult shall not be treated as incapable of acting, making decisions, communicating decisions or retaining the memory of decision in relation to any matter unless the adult remains so incapable after appropriate efforts have been made to encourage, assist and facilitate them doing so, including through appropriate use of advocacy.

( ) An adult shall not be treated as having no wishes or feelings in relation to any matter unless no wishes or feelings in relation to that matter have been ascertained after appropriate efforts have been made to encourage, assist and facilitate the expression and ascertainment of the adult’s wishes or feelings, including through appropriate use of advocacy.>

 

After section 1

Dr Richard Simpson

128 After section 1, insert—

<Independent advocates

(1) Any adult with partial capacity may appoint an independent advocate.

(2) An independent advocate shall notify the local authority of his appointment.

(3) The independent advocate will have the duty of assisting the adult in reaching decisions in those areas where the limitation of capacity is not to a degree which may require the appointment of a guardian or attorney or where the power of an attorney is not exercisable by virtue of section 14(4)(b)(i).

(4) An adult shall not be treated as incapable of acting, making decisions or communicating decisions, understanding decisions or retaining the memory of decisions in relation to any matter unless the adult remains so incapable after appropriate efforts have been made to encourage, assist and facilitate them doing so, including through the appropriate use of advocacy.

(5) An adult shall not be treated as having no wishes or feelings in relation to any matter unless no wishes or feelings in relation to that matter have been ascertained, after appropriate efforts have been made to encourage, assist and facilitate the expression of the adult’s wishes or feelings, including though the appropriate use of advocacy.

(6) An independent advocate shall keep records of the exercise of his powers.

(7) An independent advocate may with the agreement of the adult apply to the sheriff to be appointed under section 3(4)(a).

(8) Any appointment of a safeguarder, guardian, continuing attorney or welfare attorney shall not prevent an independent advocate continuing to assist the adult in reaching decisions in those areas not covered by an order of the sheriff.

(9) Any person, or persons, referred to in section 1(4)(b), (c) or (d) may apply to the sheriff to have any assisted decisions set aside on the grounds that the decisions failed to meet any criteria laid down in this Act for the protection of the best interests of the adult.>

 

Section 3

Dr Richard Simpson

129 In section 3, page 4, line 16, at end insert—

<and any person appointed under this subsection shall be known as a safeguarder.>

 

Mr Jim Wallace

130 In substitution for amendment 4

In section 3, page 4, leave out lines 25 and 26 and insert—

<(c) any person entitled to apply for the order,>

 

After section 3

Mr Jim Wallace

131 After section 3, insert—

<Power of Court of Session or sheriff with regard to "nearest relative"

(1) On an application by an adult, the court may, having regard to section 1 and being satisfied that to do so will benefit the adult, make an order that—

(a) certain information shall not be disclosed, or intimation of certain applications shall not be given, to the nearest relative of the adult;

(b) the functions of the nearest relative of the adult shall, during the continuance in force of the order, be exercised by a person, specified in the application, who is not the nearest relative of the adult but who—

(i) is a person who would otherwise be entitled to be the nearest relative in terms of this Act;

(ii) in the opinion of the court is a proper person to act as the nearest relative; and

(iii) is willing to so act; or

(c) that no person shall, during the continuance in force of the order, exercise the functions of the nearest relative.

(2) An order made under subsection (1) shall apply only to the exercise of the functions under this Act of the nearest relative.

(3) The court may, on an application by an adult, make an order varying the terms of an order granted under subsection (1).

(4) No application shall be made under this section by an adult who is not incapable within the meaning of this Act at the time of making the application.>

 

Mr Jim Wallace

132 After section 3, insert—

<Safeguarding of interests in Court of Session appeals or proceedings

(1) In determining any appeal or in any other proceedings under this Act the Court of Session—

(a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the interests of the person who is the subject of the appeal or other proceedings; and

(b) without prejudice to any existing power to appoint a person to represent the interests of the second mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).

(2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views so far as they are ascertainable to the court; but if the court considers that it is inappropriate that a person appointed to safeguard the interests of another under this section should also convey that other’s views to the court, the court may appoint another person for that latter purpose only.>

 

Section 7

Mr Jim Wallace

133 In substitution for amendment 6—

In section 7, page 6, line 33, at beginning insert <where they are not satisfied with any investigation made by a local authority into the complaint under section 8(1)(c), or where the local authority have failed to investigate the complaint,>

 

Section 9

Mr Jim Wallace

134 In section 9, page 8, line 23, leave out <sheriff> and insert <court>

 

Mr Jim Wallace

135 In section 9, page 8, line 24, leave out <sheriff> and insert <court>

 

Section 11

Phil Gallie

136 In section 11, page 9, line 6, leave out from <and> to <approval,> in line 7

 

Dr Richard Simpson

137 In section 11, page 9, line 12, at end insert—

<( ) independent advocates;>

 

Phil Gallie

138 In section 11, page 9, line 18, at end insert <; and shall from time to time revise, or cause to be revised for their approval, all such codes of practice.>

 

Section 13

Phil Gallie

139 In section 13, page 10, line 18, leave out <solicitor or by a member of another> and insert <member of a>

 

Section 14

Dr Richard Simpson

140 In section 14, page 11, line 13, after <decisions> insert <, including assisted decisions,>

 

Section 18

Phil Gallie

141 In section 18, page 12, line 43, leave out <the supervision of> and insert <monitoring by>

 

Section 20

Mr Jim Wallace

142 In section 20, page 13, line 40, at end insert <and shall notify the granter (in the case of an event mentioned in paragraph (a) or (d)) and, where the power of attorney relates to the personal welfare of the adult, both the local authority and (in a case where the incapacity of the granter is by reason of or reasons which include mental disorder) the Mental Welfare Commission.>

 

Mr Jim Wallace

143 In section 20, page 13, line 40, at end insert—

<( ) If, after a document conferring a continuing or welfare power of attorney has been registered under section 17, the attorney dies, his personal representatives shall, if aware of the existence of the power of attorney, notify the Public Guardian who shall enter prescribed particulars in the register maintained by him under section 4(2)(b)(i) or (ii) as the case may be, and shall notify the granter and, where the power of attorney relates to the personal welfare of the adult, both the local authority and (in a case where the incapacity of the granter is by reason of or reasons which include mental disorder) the Mental Welfare Commission.>

 

Section 28

Mr Jim Wallace

144 In section 28, page 18, line 14, leave out subsection (3)

 

Section 34

Mr Jim Wallace

145 In section 34, page 21, line 35, leave out subsection (5)

 

Section 58

Dr Richard Simpson

146 In section 58, page 38, line 6, at end insert—

<( ) Notwithstanding section 60(1), where an adult regains capacity or partial capacity a guardian shall take into account the expressed wishes of the adult, whether or not assisted by an independent advocate, in granting authority to the adult under subsection (1)(e).>

 

Section 67

Mr Jim Wallace

147 In section 67, page 46, line 4, at end insert—

<( ) Notwithstanding subsection (1), an application which seeks to vary a guardianship order or an ancillary order so that—

(a) a guardian, appointed only in relation to the personal welfare of an adult, shall be appointed also or instead in relation to the property or financial affairs of the adult; or

(b) a guardian, appointed only in relation to the property or financial affairs of an adult, shall be appointed also or instead in relation to the personal welfare of the adult;

shall be made under section 51.>

 

After section 72

Mr Jim Wallace

148 After section 72, insert—

<Repayment of funds

(1) Where—

(a) a continuing attorney;

(b) a welfare attorney;

(c) a withdrawer;

(d) a guardian;

(e) a person authorised under an intervention order; or

(f) the managers of an authorised establishment within the meaning of Part 4,

uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or power to intervene in the affairs of the adult or after having received intimation of the termination or suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.

(2) Subsection (1) shall be without prejudice to sections 62 and 73 .>

 

Section 76

Dr Richard Simpson

149 In section 76, page 49, line 31, at end insert—

<"independent advocate" shall be construed in accordance with section (Independent advocates);>

 

Mr Jim Wallace

150 In section 76, page 50, line 8, after <means> insert <, subject to subsection (1A) below,>

 

Mr Jim Wallace

151 In section 76, page 50, line 11, leave out <53(4)> and insert <53(3)>

 

Mr Jim Wallace

152 In section 76, page 50, line 29, at end insert—

<(1A) Where—

(a) an adult has no spouse or where an adult has a spouse but subsection (1B) applies; and

(b) a person of the same sex as the adult—

(i) is and has been, for a period of not less than six months, living with the adult in circumstances which are characterised by, amongst other things, mutual affection, commitment and support based on a subsisting or previous sexual relationship between them; or

(ii) if the adult is for the time being an in-patient in a hospital, had so lived with the adult until the adult was admitted;

then that person shall be treated as the nearest relative.

(1B) This subsection applies where the adult’s spouse is permanently separated from the adult, either by agreement or under an order of a court, or has deserted, or been deserted by, the adult for a period and the desertion persists.>

 

Section 45

Scott Barrie

153 In section 45, page 28, line 8, leave out from <any> to end of line 11 and insert <medical treatment of mental disorder by means of—

(a) any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue;

(b) hormonal treatment for libido by means of an implant; or

(c) the administration of electroconvulsive therapy.>

  

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