Age of Legal Capacity (Scotland) Bill (Hansard, 22 July 1991)

§ Lord Macaulay of Bragar
My Lords, I beg to move that the Bill be now read a third time.
I should like to remind your Lordships, even at this late hour, that this is a thoroughly useful Bill based on a very full report prepared by the Scottish Law 633 Commission. The main function of the Bill, as indicated at an earlier stage, is to update and clarify the rules governing the ability of young people to enter into legal transactions. It replaces a system which over the years has become increasingly complex and difficult to understand, and which has on occasions worked against the interests of the young person.
I also wish to thank the Scottish Law Commission for the characteristically helpful and detailed report on which the Bill is based. I am sure that if the Bill receives its Third Reading tonight, the very passing of the Bill will encourage the staff of the law commission. It is difficult for the law commission staff who produce many reports but not much legislation results.
I should also like to thank noble Lords who spoke during the Second Reading debate and ensured that some of the matters affected by the Bill could be scrutinised by your Lordships' House. I am particularly grateful to the noble and learned Lord, Lord Fraser of Carmyllie, the Lord Advocate, for his helpful assistance during the passage of the Bill.
It was unfortunate that the noble Lord, Lord Robertson of Oakridge, was unable to be present during the Committee stage of the Bill to move the amendment which he had tabled relating to a child's right to consent to medical, surgical and dental treatment, and the relationships between that right to consent and parental rights. Had the amendment been moved, I should have sought to persuade your Lordships that it was unnecessary and technically deficient. The noble Lord is unable to be here tonight, but I understand the noble Lord, Lord Ashbourne, will be making a contribution on his behalf.
The question of consent for surgical, medical and dental treatment has, to my knowledge, evoked a response of seven letters - five from doctors, one from the Church and one from a lay person. The general view is that the Bill does not alter the present situation; indeed, it clarifies it. I have studied the latest professional advice to medical practitioners issued by the General Medical Council which requires doctors in treating young people under the age of 16 to seek to persuade them to involve their parents and obtain parental consent wherever possible. As I understand it, that advice applies in Scotland, as in other parts of the United Kingdom and will no doubt continue to be valid after the enactment of the provisions of the Bill. It is important to record that advice in the Official Report. I quote from the council's booklet, Professional Conduct and Discipline; Fitness to Practice, dated February 1991. Paragraph 81 states: If the doctor is satisfied of the child's maturity and ability to understand, he must nonetheless"— note the word "nonetheless", my Lords— seek to persuade the child to involve a parent, or another person in loco parentis"— which goes beyond what Lord Robertson's amendment would have covered— in the consultation. If the child nevertheless refuses to allow a parent or such other person to be told, the doctor must decide, in the patient's best medical interests, whether or not to offer advice or treatment. He should, however, respect the rules of professional confidentiality". The issues in the Bill have tended to become—if I may use the phrase—bogged-down on the question of contraceptives, abortions and so on.
634 I should also say that the British Medical Association expressed a view on 11th May on the report of the Scottish Law Commission on which the Bill is based, although the letter seems to be in error because it speaks of the legal capacity of young people under the age of 18. The letter states that: This matter was considered by Scottish Council of the Association at its meeting on 11th May. Scottish Council considered the recommendation on consent to medical treatment only, since members did not feel qualified to comment on the wider aspects of the recommendations. Scottish Council supported the Commission's recommendation in respect of consent to surgical, medical or dental procedures or treatment and considered that it was flexible enough to take account of the age and understanding of the particular patient, the complexity of the treatment and the seriousness of the risks involved". I hope that with these views expressed by the medical profession, some of the fears that have been expressed will to some extent be allayed. I understand from my talks with the Scottish Law Commission that, in the course of the present review on parental rights, it will monitor, in so far as it is possible, cases of consent by young persons under 16. I hope that I have satisfied any doubts about the Bill. I beg to move.

§ Lord Ashbourne
My Lords, it is late and so I shall not detain your Lordships for long. However, I would be failing in my duty if I did not apologise to the House on behalf of the noble Lord, Lord Robertson, who cannot be here as he went on holiday at the weekend, a holiday that had been organised many months ago, and also on behalf of myself for failing to move the amendments that we put down in the normal way at the Committee stage.
Without wishing to make any excuses for us or to shift any blame, I should like briefly to explain to the House exactly what happened in the hope that it may evince just a tiny amount of comfort to us. We had been following the progress of the previous business very carefully. We had discussed how we should be on our toes to get into the Chamber quickly because we realised that the business would move with great velocity. Noble Lords may think that it was particularly stupid of us not to make it having alerted ourselves to the problem. In the discussion of the previous Bill, Amendment No. 10 was on the screen for about 25 minutes. After that there were four more amendments—two groupings of two—which went down rather like skittles in a skittle alley. I imagine that they were all "not moved". By the time I looked again at the screen—I was only in the Peers' Lobby—it showed the name of the noble Lord, Lord Robertson of Oakridge. I plunged in to find that, unhappily, the noble Lord was not in his place and certainly was not speaking. By that time the noble Lord in the Chair had reached Clause 6 or 7—he was going through the Bill, clause by clause. I was ahead both of the noble Lord, Lord Robertson of Oakridge, and the noble and learned Lord the Lord Advocate, who was representing the Government.
I am not making excuses for the noble Lord, Lord Robertson, and myself. We accept responsibility for what happened. We are big boys now and should have reached the Chamber in time. Nevertheless, noble 635 Lords will judge for themselves. I suspect that many noble Lords will take the view that the most useful function of your Lordships' House is the refining and revising of legislation. In our case we had tabled carefully thought-out amendments which we believed were reasonable and ones which could easily have been considered in a constructive way. If our procedure does not permit that to happen, is that really in the best interests of the House? I put that thought to the Government's business managers. However, I do not wish to make any excuses. I know that the noble Lord, Lord Robertson, would not wish me to make excuses on his behalf.
I am most grateful to the noble Lord, Lord Macaulay of Bragar, for what he said. It certainly gave me some comfort. Our primary concern is that parental responsibility seems to have become sidetracked. At Second Reading, the noble Lord, Lord Macaulay, said: It is of course true that the Bill leaves untouched the question of whether any treatment given with the effective consent of a child infringes on parental rights".—[Official Report, 1/7/91; col. 869.] A few minutes later the noble Lord said: I am afraid that we have to face up to the realities of life and say that if the child consents and is capable of understanding the consequences, it is up to the doctor to consider what should be done". [Official Report, 1/7/91; col. 880.] It appears to us that the doctor is taking the place of the parent. That is not reasonable because the doctor is not accountable in the same way as the parent is and never can be so. In addition, the doctor does not have that ongoing relationship which the parent clearly does have.
Finally, I should like to conclude by asking the noble Earl, Lord Strathmore and Kinghorne, to confirm that, under the Bill, the procedure will be for the doctor to consult the parents and that only in exceptional cases—by "exceptional cases" I mean something relatively minor like a cut leg; or, possibly, a case where the parents cannot be contacted or are not available for one reason or another—would consent be sought from a child. If the noble Earl could reassure the House on that point, I am sure that we would all be very much in his debt.

§ The Earl of Strathmore and Kinghorne
My Lords, on behalf of the Government I wish to thank the noble Lord, Lord Macaulay of Bragar, for bringing this Bill before us and for his skill in guiding us through the complexities of the Bill's provisions. I should also like to thank my honourable friend the Member for Perth and Kinross (Sir Nicholas Fairbairn) for his endeavours in steering the Bill through the other place. I can only express regret about what happened to the noble Lords, Lord Ashbourne and Lord Robertson of Oakridge. However, I have to point out that your Lordships' House has rules which must be 636 obeyed. Unfortunately, the kind of incident he described has happened before and will no doubt happen again.
The noble Lord, Lord Ashbourne, asked for an assurance that when the Scottish Office Home and Health Department issues guidance to doctors, such guidance should continue to stress the importance of seeking to persuade a child—even where it understands the nature of the treatment or procedure being prescribed—to involve its parents and to obtain parental consent to the treatment wherever possible. On behalf of the Government, I am happy to give your Lordships such an assurance.
The Government support the Motion that the Age of Legal Capacity (Scotland) Bill be read a third time.

§ Lord Macaulay of Bragar
My Lords, I am grateful to the noble Lord, Lord Ashbourne, for his constructive contribution to the debate. Perhaps I may reassure him that it was not a plot on the part of this side of the House to exclude him and the noble Lord, Lord Robertson, from the Chamber. It was regrettable. I believe that we could have had an interesting debate, as the noble Lord indicated by the observations he made, without being disrespectful, while trying to argue the case for an amendment on Third Reading.
The parental responsibility in Scotland is not changed. I think that we have to look at the realities of life. The amendment of the noble Lord, Lord Robertson of Oakridge, would have placed an absolute duty on the doctor to consult the parent. Perhaps I may give one example. What would happen if a young child under the age of 16 years who has been rendered pregnant either by an outsider, or by her father in the course of an incestuous act, went to the doctor to consult him on the matter? The amendment of the noble Lord, Lord Robertson, would force the doctor to go to the very man who not only is responsible for the child's condition but has also committed a criminal offence.
Those are the kind of issues which might have been decided in the course of any discussion on the amendment. However, I am grateful for the observations which the noble Lord made, for the support which the Bill has received from the Government and for the undertakings given by the noble Earl.

§ Lord Macaulay of Bragar
My Lords, I beg to move that the Bill do now pass. I do not wish to add anything to what has already been said.