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Miller Samuel Hill Brown Solicitors Blog

From time to time we will post news articles and announcements relating to the firm and to various legal issues that may be of interest to you.

Named Person Scheme Update

With Mother’s Day fast approaching, it would seem an appropriate time to revisit the Named Person Scheme and reflect upon how this legislation may affect families in Scotland.

After a rather a contentious launch, the Scottish Government hope to implement the Named Person Scheme by August 2017 under the auspices of the Children and Young People Act. In accordance with this scheme, every person in Scotland under the age of 18 will be appointed a state named professional ‘guardian’ who will oversee their on-going interests from birth. This professional will initially be a health visitor and as the child grows and progresses through various educational milestones the ‘Named Person’ baton will be handed onto primary and then secondary school head teachers or guidance instructors.

Following the Supreme Court’s ruling against the Scottish Government on this matter, in which the Court held that the Scheme would risk breaching rights to privacy and family life under the European Convention on Human Rights, legislation enacting the Named Person Scheme has now been amended to comply with information sharing and data protection laws. Nevertheless, there remains strong opposition from a coalition of groups including the Family Education Trust, Christian Institute and Care (Christian Action Research and Education), among others.

What impact will the Named Person Scheme have on families in Scotland, should parents be concerned or reassured by this legislation?

Privacy Lost?

The Named Person Scheme is intended to safeguard the well-being and security of children by creating a cohesive and streamlined service in which there is one single point of contact for a parent seeking support or advice in gaining access to service provision for families. This ‘cohesive service’ will be underpinned by improved data sharing between professionals. In conformity with information sharing and data protection laws, confidentiality and respect for the rights of families are now guiding principles for Named Person service providers. Only in exceptional circumstances, for example where there is the risk of harm present, will a Named Person be permitted to consider departing from their core commitment to seek the consent, engagement and empowerment of families.     

Despite these reassurances and the Scottish Government’s reaffirmed commitment to compliance with data sharing laws, there are nevertheless concerns regarding confidentiality. Will the sharing of information between professionals undermine the trust that young people have when disclosing information to adults? Will young people be discouraged from confiding in adults when such information may be revealed to numerous unspecified professionals?  Parents have also raised concerns about the appointment of a Named Person and their right to receive copies of children’s confidential medical records among other extremely sensitive information. What safeguards and checks will be in place to prevent misuse of this information? 

It remains to be seen how the Named Person Scheme will be implemented in practice and the way in which data sharing responsibilities will be managed. The test will undoubtedly be the extent to which this Scheme in practice affords greater protection to and safeguarding of children’s interests while at the same time respecting the rights of families.

Intrusion into Family Values?

One of the most emotive criticisms of the Named Person Scheme is the argument that it will undermine the privacy of families across Scotland and afford the government excessive powers of intrusion into family life.  Critics have also argued that the Scheme is effectively a ‘snooper’s charter’ that will ultimately subvert the traditional concept of family and the role of a parent or guardian in a child’s life.

These views should be contrasted with the intention underpinning the Scheme, to prevent any child falling through the cracks of the existing system. The Scheme seeks to establish an early warning framework and extend protection to the most vulnerable in our society.

Both criticisms and commendations of the Named Person Scheme raise important points of consideration for families who will be required to adapt to this new system. Health and education workers who take on the role of Named Persons will equally be required to adjust to new working practices and the greater obligation of responsibility placed upon them. The extent of the extra administration burden across health and education services remains to be determined, how this Scheme unfolds will be watched closely by all concerned.    

Who’s your person?

The Named Person Scheme and the appointment of a professional to safeguard a person’s interests on their behalf raises important considerations for adults in both a personal and business context. There is a general misconception that in the event of illness or incapacity, a partner, adult child or sibling may act on behalf of the individual concerned. This is not the case. Relatives, partners and friends do not have automatic authority to make decisions on behalf of an incapacitated adult.

Ensuring that an appropriate person is appointed to manage a business or oversee personal affairs in the event of incapacity will act as security against the unknown. Such security can be achieved through the drafting of a Power of Attorney. There are three main types of power of attorney in Scotland; general, continuing and welfare power of attorney, of which each confer different types of powers respectively.

General power of attorney is used when a person is temporarily unable to manage their own affairs. For example, an unexpected commitment overseas or a momentary illness at a time when a transaction is due to settle could give rise to unimaginable problems in both business and personal circumstances. By granting a general power of attorney, a person of your choosing will be appointed to manage the transaction on your behalf thus mitigating possible costly consequences of inaction by virtue of an unscheduled or unforeseen absence.

Continuing power of attorney and welfare power of attorney can be granted separately or can be amalgamated as a combined power of attorney. Continuing power of attorney will afford the appointed person authority to manage your property and financial affairs and welfare power of attorney, only exercisable in the event of the granter’s incapacity, will allow the appointed person control over matters concerning your personal welfare, including medical care.

A power of attorney will be tailored to the individual needs of the granter and will act as a communication and instruction to the attorney appointed. Through instructing a solicitor to draft a power of attorney, your wishes will be correctly conveyed to avoid ambiguity and future misinterpretation. By planning ahead in this manner and seeking legal advice, a power of attorney can effectively lessen the uncertainty of the future and provide peace of mind for you and your family, friends and business colleagues.        

Power of attorney should be seen as an umbrella on a rainy day, an invaluable accomplice making even the stormiest of days manageable. Comparable to the Named Person Scheme, a power of attorney is intended to safeguard your interests and security when you are most vulnerable.

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Our sympathetic and professional family law team can assist you in all areas of family law in Scotland. For legal advice on power of attorney and issues involving children or any other legal problems you may have, please complete our online enquiry form or call us on 0141 221 1919.

 

 

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