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Introduction
9.1 When our legislation is introduced in the Scottish Parliament, it will be accompanied by a Financial Memorandum setting out the costs arising from the provisions of the Bill, indicating the bodies which will incur these costs and when resources will be required. This chapter gives a general account of the effects of our proposals, some but not all of them financial, on a number of different bodies. It also looks briefly at the consequences of the proposals for equal opportunities and human rights, bearing in mind the importance that the Parliament attaches to these issues.
9.2 In general, our proposals will introduce a modern, flexible framework of legislation that will improve both the rights and protection of adults with incapacity. Individuals and organisations will save time and resources that are spent now in working with the current statutory framework that is cumbersome and expensive and that fails to meet clients' needs adequately.
Impact on individuals
9.3 People who have never had the capacity or who have lost capacity to make decisions, and those who anticipate that they may do so at some point, will be affected by our proposals. So will their families and those who care for them. As explained in chapter 1, there may be up to 100,000 people in Scotland who lack capacity. In general, the government's policy of full cost recovery will apply to the new measures under our proposals where the Public Guardian and the courts are involved. Legal aid will be available in the normal way. People granting a power of attorney will, as now, meet their own legal costs.
Impact on Scottish Court Service
9.4 Additional resources will be required, to expand the office of the Accountant of Court to form that of the Public Guardian, and also to cover new court proceedings. There will be an initial cost, for setting up the Public Guardian's registers, for providing information and training for sheriffs and court staff, and for producing information for the public. In the longer term, the intention will be to cover running costs through fees, once the level of take-up and demand for the new measures have been established.
Impact on local government
9.5 Local authorities are already heavily involved in matters relating to the welfare of many adults with incapacity. Our proposals will give local authorities some new duties and powers, in particular where no one else is looking after an adult's welfare. Our proposals will also allow local authorities to discharge their duties towards adults with incapacity in a much more appropriate and efficient manner than at present. In particular, we are aware that a considerable percentage of residents in local authority residential homes currently have their finances managed by the home without a statutory basis. Local authorities will need to co-operate with the other statutory organisations involved: the Public Guardian and the Mental Welfare Commission.
9.6 Our proposals will have particular implications for:
9.7 There will be implications for management and support, and for the training of staff involved. There may also be implications for staffing levels once our proposals have been implemented. The greatest impact will be in terms of registration and inspection duties. As at chapter 5, the White Paper Aiming for Excellence proposes that the responsibilities for Registration and Inspection teams will transfer to the Scottish Commission for the Regulation of Care. The costs of registration will continue to be recoverable in the usual way. We do not expect these proposals to generate significant additional costs for local authorities. Any additional costs should be manageable within existing resources.
Impact on the NHS
9.8 Our proposals will have implications for:
9.9 Many of the assessments that NHS practitioners will make under our proposals are already carried out in the course of routine care of patients. Hospital managers already have systems for the daily management of patients' funds. Health board Registration and Inspection teams will extend their regular examination of nursing home records to include review of the management of funds held by homes on behalf of residents. The cost of the registration and inspection process will continue to be borne by the home owners and operators. It will be for each home owner to decide whether any additional administration costs that arise should be reflected in the costs charged to residents. The additional costs falling on the NHS are not expected to be substantial.
Impact on the Mental Welfare Commission
9.10 The Mental Welfare Commission will retain its general protective functions towards people suffering from mental disorder and will be given some new powers and duties in relation to welfare and treatment functions of guardians, attorneys and others. Its powers and duties in respect of guardianship under the Mental Health (Scotland) Act 1984 will be superseded as this form of guardianship is replaced. Some additional resources will be needed for the Commission to enable it to carry out its functions effectively.
Impact on the voluntary sector
9.11 Many voluntary organisations are involved in providing services for people who will be covered by our proposals and in representing their interests. We expect that the latter function will become much more straightforward under the new statutory framework. Any costs, such as registration, falling on service providers as a consequence of our legislation would be recoverable, through the contract price for the service where relevant.
Impact on other bodies
9.12 Our proposals will clarify the position of banks, building societies and other similar organisations in the management of the financial affairs of people with incapacity, through clarifying who is entitled to act. As now, the cost of specific banking and financial services will fall on the account-holder. In general, third parties dealing with those representing an adult with incapacity will have much more reassurance in future about the legality of transactions in which they are involved. This will be helpful for all concerned and no additional costs should be involved.
Impact on human rights
9.13 We have considered very carefully the effect of our proposals on human rights, since the Scottish Parliament will require to be satisfied that our legislation is in line with the European Convention on Human Rights. We do not think there will be any difficulties in meeting this requirement.
Impact on equal opportunities
9.14 The Scottish Parliament will require an assessment of the effects, if any, of our proposals on equal opportunities. We consider that our proposals will considerably improve equal opportunities for people with a legal incapacity. The Bill's purpose is to allow people with incapacity to exercise the same legal rights as other adults in a way that meets their needs and protects their interests. For example, the general principles set out in chapter 2 will ensure that every effort is made to communicate with people before they are considered incapable of taking a decision. Their present and past wishes will be taken into account and they will be encouraged to use the skills they have and to develop new ones. In choosing the sheriff court as the judicial forum for proceedings under our legislation, we have been very aware of the need for easy accessibility throughout Scotland, so that issues can be dealt with quickly and, wherever appropriate, informally.
9.15 Our proposals will affect older people both as adults with incapacity and as carers, simply because of the nature of the client group with which we are concerned. We have made efforts to ensure that the statutory framework is accessible and appropriate for clients and we shall need to continue to bear this in mind in implementing the proposals, for example, through providing good, targeted public information.
9.16 Our proposals are likely to have more impact on women than men, both because they live longer and because they are more likely to be involved in care-giving.
9.17 We do not think that our proposals will operate differently, according to the race, culture or religion of those concerned. We have built in the need to communicate appropriately and we shall need to make sure that information about the new measures is made available in a variety of languages, as is already the practice within the Scottish Court Service.
Impact on rural areas and island communities
9.18 We have considered carefully whether our proposals meet the needs of people living in these areas. They may already experience difficulties in gaining access to statutory services, to the courts and to appropriate sources of advice and information. While we cannot tackle all the wider issues in the current set of proposals, we believe that our plans for a more flexible statutory framework and the use of the sheriff court will improve access to appropriate forms of protection for clients who live outside the main centres of population.
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