Seòmar agus comataidhean

I thank both Ross Greer and Miles Briggs for very thoughtfully setting out the thinking behind their amendments. I found myself nodding along to much of what they had to say. I may turn to their amendments after addressing my own.

My amendments 44 and 44A would require the Scottish ministers to make information available about the lawful provision of assistance, in an accessible and understandable format, to terminally ill adults, to health, social care and social work professionals, and to the wider public.

Section 23 of the bill allows ministers to prepare and publish guidance on the bill. Section 23(2) sets out the particular guidance that may be included. Having given further consideration to the issue during and since stage 1, I believe that that guidance should be strengthened and that there should be a stand-alone requirement for the Scottish Government to ensure that all relevant persons—terminally ill adults, medical, social care and social work professionals, and the general public—have the information that they require made available to them. That may, for example, be via a website that provides information, as well as a central contact point where inquiries can be made and information signposted.

Amendment 44 relates to my amendment 27, which requires a registered medical practitioner who is approached by a terminally ill adult who wishes to make a first declaration, but who is unable or unwilling to assist, to direct the person to a practitioner who may be able to or be willing to assist, and to a source of relevant information. Amendment 44 ensures that such relevant information will be available in an accessible and understandable format and can be easily pointed to by the professional.

I turn to the other amendments in the group. First, Miles Briggs’s amendment 197 would require the Scottish ministers to make regulations to provide for an independent service that would provide information and support to those who may seek assistance and, where requested, to support a person in navigating the process. I was interested in the exchanges with Patrick Harvie, because one of the issues that I too wrestled with was the extent to which that would be about the provision of information and the extent to which it would be about providing advice and guidance, which may be more appropriately picked up in the amendments that Ross Greer lodged earlier around advocacy. Miles Briggs’s amendment 212 would require such regulations to be subject to the affirmative procedure. I think that my amendment, combined with Ross Greer’s amendments, perhaps address that sufficiently. However, if there are gaps in provision following today’s votes, I will be happy to work with Miles Briggs on those.

Jackie Baillie has not had a chance to speak to amendment 56, but I will offer some thoughts, and will respond in due course to what she says. I note that section 23 of the bill allows the Scottish ministers to make guidance relevant to the bill’s provisions and, in particular, allows for guidance to be made about the assessment process, which includes determining that an adult has a terminal illness in line with the definition in section 2. It is further expected that organisations such as the GMC will issue guidance relating to some of the clinical aspects of the bill, such as the terminal illness definition. I hope that, on that basis, Jackie Baillie feels that the bill already covers the issues that she has raised. She is shaking her head, so that hope has been frustrated.

Miles Briggs’s amendments 261 and 262 would amend section 23, so that the Scottish ministers “must”, rather than “may”, prepare and publish guidance on the act. Although I do not foresee a situation in which ministers would not issue guidance where there is a clear need to do so, I have absolutely no objections to those amendments.

Ross Greer’s amendment 263 would provide that the guidance that is provided for in section 23(2) of the bill may include provision on training and quality assurance to ensure the effective implementation of the act. I note that the list that is provided in section 23(2) of areas on which ministers may bring forward guidance is not intended to be exhaustive and that there is nothing to prevent guidance on training and standards being issued. I also note that, if Ross Greer’s amendment and those of Miles Briggs are agreed to, such guidance would be required, rather than being at ministers’ discretion. I also consider that the GMC and other professional bodies will have a role here. All that said, I have no objection to amendment 263.

I turn to amendments 264 to 268 and 278, lodged by Miles Briggs, Ross Greer and Paul Sweeney.

Miles Briggs’s amendment 264 would provide that the guidance should also set out

“how the provision of assistance to terminally ill adults in accordance with this Act should be arranged by Health Boards, including the development of patient pathways”

and

“where legal and professional accountability lies in relation to the provision of assistance”.

Miles Briggs’s amendment 266 would provide that the guidance in amendment 264 relating to legal and professional accountability should be developed in consultation with and approved by the Lord Advocate. I have no objection to the first paragraph of amendment 264, but I am wary about stipulating where legal and professional accountability lies. As with other amendments in the group, professional bodies will have a role in providing guidance and there may be a risk of duplication or confusion. That was acknowledged by Miles Briggs in relation to the acceptance by the RCN. Although there are challenges here, that is not to say that they cannot be addressed. However, I thought that it was important to flag that to the committee.

The bill requires ministers to consult with relevant persons when preparing guidance and Miles Briggs’s amendment 265 adds to that by requiring consultation with relevant trade unions and professional bodies. Again, I am not opposed to the amendment, but I draw attention to the existing requirement in section 23(3) for the Scottish ministers

“to consult such persons as they consider appropriate.”

I cannot foresee circumstances in which ministers would not consult such bodies.

Section 23(4) provides that a person carrying out a function under the act “must have regard to” the guidance. Ross Greer’s amendment 267 would add to that by requiring that a person

“who is otherwise involved in the process”

by which a terminally ill adult requests and is provided with assistance must also have regard to guidance. I think it likely that the provision as drafted would ensure that everyone who is involved in the requesting and provision of assistance, who would need to follow guidance from ministers, would be covered, meaning that the amendment is therefore not essential, although, once again, I have no strong objection to it.

The situation with Paul Sweeney’s amendments is the same as the situation with Jackie Baillie’s. I have yet to hear him speak to them, but I will offer the following thoughts in relation to his amendment 268 and consequential amendment 278. Amendment 268 would require ministers to

“prepare and publish guidance for coordinating registered medical practitioners and authorised health professionals”

regarding

“the provision of assistance under section 15.”

Amendment 268 also sets out what should be included in that guidance and would provide that ministers must consult such persons as they consider appropriate and that those carrying out functions in relation to section 15 must have regard to the guidance. That guidance should also address

“the management of cases where a terminally ill adult has used the substance, but has ... not died within a reasonable period”.

The amendment would also require ministers to set out in regulations what is meant by a “reasonable period”.

I believe that the existing guidance provision in the bill, which makes specific reference to the section 15 provisions regarding the use of a substance, is sufficient and I have some concern, as I have said in debates on previous amendments, about including a reference to a “reasonable period” in statute. I appreciate that there is a sizeable list on the agenda for my further discussions with Paul Sweeney ahead of stage 3, but at the risk of overloading it, I will add that issue to it.

I conclude my remarks, convener, by offering further thanks to the committee for its painstaking work. It has allowed detailed scrutiny and probing of a range of issues that were raised at stage 1. I know that it has been a pretty herculean task, but I thank you very much for your forbearance, not least in allowing me far more time than you probably felt was necessary.

I can respond to your questions, Ms Webber, or you can continue to intervene.

The point that I was making was in response to your point about the budget allocation in New South Wales, which was a Government decision. If there is a feeling that the hospice sector—or indeed palliative care more generally—requires more resources, that is an argument that we can make. As I have said, it has been encouraging over the past two or three years to see not only the profile of the issues going up but more of a cross-party endeavour to highlight them and to press for additional resources.

As I have said, on the last part of amendment 23, it is not clear how the methodology would show a direct correlation. As sympathetic as I undoubtedly am to the arguments that have been put forward, I ask members to reflect on the extent to which the bill is the most appropriate place for the sort of process that amendment 23 sets out. Certainly, the first two parts of it seem distinct from the assisted dying process.

I am not opposed in principle to Daniel Johnson’s amendments 18 and 19, but I question how necessary the proposed commission would be, given the provisions that are already in the bill and the level of Scottish Parliamentary Corporate Body resource and MSP capacity that are likely to be involved. The bill requires data gathering, reporting and review. There will be opportunities for the Parliament to consider monitoring and scrutiny through existing structures, such as the relevant committee considering the annual reports or undertaking any other scrutiny of the act that it wishes to do. Thus, I do not believe that a commission is necessary. I also note the drafting issues highlighted by Scottish Government, not least in relation to the interaction with the Public Finance and Accountability (Scotland) Act 2000 and the Interpretation and Legislative Reform (Scotland) Act 2010.

Murdo Fraser’s amendment 199 is similarly well intentioned. Ahead of introducing the bill, I gave lengthy consideration to the issue of how best to provide for proportionate oversight. However, I am not convinced of the extent to which such an oversight body would provide an additional safeguard. I also note that its remit appears to overlap with that of the General Medical Council. As I did for Daniel Johnston’s amendments, I would argue that the balance is always to ensure that safeguards do not act as an unnecessary obstacle without providing any meaningful added protection. I am also mindful that various amendments have been lodged that propose different models of oversight.

In that context, I reiterate what the bill provides for and the processes that exist currently that would ensure that the act can be implemented safely and transparently. I have previously referred to the stage 1 evidence from the Crown Office and Procurator Fiscal Service’s Scottish fatalities investigation unit. The bill also provides for the collection of data, a publication of annual reports and a five-year review of the legislation—which amendment 199 also provides for.

Stephen Kerr’s amendment 129, which relates to his amendment 126 that was debated before, would provide for capturing information relating to the time between a person using the substance and dying, and to any complications. Amendments 183 and 184 in relation to that were passed last week, and I would expect the issues to be captured by those provisions.

Stephen Kerr’s amendments 201 and 204 to 206 would establish a rolling review period every two years. I consider that allowing for five years before a review of the legislation strikes an appropriate balance and allows the assisted dying process to have been operating for enough time to gather meaningful data, identify trends and draw conclusions or, if necessary, make recommendations.

I certainly will.

I agree entirely with the point that Stephen Kerr makes. In relation to the five-year review, there is a balance to be struck about the timeframe within which sufficient data can be gathered to make informed decisions about the way the act is operating: whether it is performing as intended, who is accessing it and for what reasons, what the experience is of medical professionals who are engaged with the process, and so on.

There is always going to be a balance—I recognise that. However, alongside that, there is also the requirement for annual reporting of data. As I said earlier, future health committees can look at the data annually and take evidence on it as required. I think that it is problematic to set on a two-year time horizon a full-scale review of how the act is operating in practice, not least because of what we know from other jurisdictions that have implemented similar legislation, which is that the number of people who access it in the early years is relatively small. It takes a number of years for the number to increase, and then even out.

There is a balance to be struck in relation to when we carry out the review. However, I have concerns that doing so after two years would leave a dataset from which some erroneous conclusions could be drawn about the way the act is operating in practice. As I said, the review also sits alongside the annual reporting requirements, which provide sufficient safeguards to address the concerns.

I understand the point that Pam Duncan-Glancy has made, which is why I am supportive of the assessments being carried out. However, the assessments will not necessarily speak to the specific circumstances of any individual who is going through the process. As I have said, it is incumbent on ministers to ensure that all the requisite steps are being taken in relation to aligning health, social care, social work and other services to ensure that the provisions under the bill can be safely provided for and delivered. On that basis, I am content to support amendment 54 and consequential amendment 64 but urge the committee to resist amendments 57 and 61.

On Jackie Baillie’s amendment 55, as with amendment 57, I note that the Scottish Government has made some points in relation to data gathering responsibilities and resource implications; I share those concerns and do not support the amendment.

On Pam Duncan-Glancy’s amendment 258 and consequential amendments 280 and 284, although I am fully supportive of anything that would assess and support the social care sector, I question whether that is best placed in my bill, the primary purpose of which is to allow mentally competent, terminally ill eligible adults to voluntarily choose to be provided with assistance by health professionals to end their lives. Again, the Scottish Government has identified the need for new processes and investment, and investment in supporting social care is almost certainly better targeted elsewhere.

With regard to amendment 284, which would prevent the bill being commenced before an assessment of social care services had taken place, I refer members to the previous concerns on such provisions in the bill and the comments that I have just made in response to Pam Duncan-Glancy’s intervention.

On Stuart McMillan’s amendments 259, 281 and 285, if the Parliament passes the bill after rigorous, thorough debate and amendment—which has been anything but rushed—I cannot see the case for holding a costly and time-consuming referendum on the act. As I recall, there was no call for such a referendum during stage 1. It is not a feature of our legislative process and would come at considerable cost while also delaying the ability of those terminally ill adults who meet the criteria and wish to access the choice of an assisted death from doing so.

If this is any consolation to Mr McMillan, I point him and members of the committee to the recent Scottish Parliament information centre briefing, which stated that

“public opinion polls and surveys”

since 2005

“have generally shown that a majority of adults in Scotland and the rest of the UK support a change in the law to allow assisted dying for someone who is terminally ill.”

On Miles Briggs’s amendments 21, 22 and 23, the bill provides for the collecting and publishing of data. It is crucial that the assisted dying process be transparent and that relevant anonymised data be made publicly available. The collected data will help to inform understanding about the impact and effect of the bill. Amendment 21 might aid transparency and provide useful information, but it and amendment 22 appear not to link to the data-collecting requirements under the bill, which provide that declarations, doctor statements, cancellations and the final statement after a person’s death are recorded in the adult medical records. That is the information that is then drawn on by Public Health Scotland, as per section 24, for the purposes of the reporting provisions of the bill.

I am not opposed to amendment 22, but I note that it might place added burdens on healthcare professionals to research for themselves or even patients to assess what is available. There are some questions to consider, such as how quality would be judged and how healthcare professionals would investigate the distribution. Medical records might be useful in providing some of that information. Although I am not opposed to them, I feel that amendments 21 and 22 would benefit from further refinement ahead of stage 3.

I turn to amendment 23. Section 27 of the bill provides that the Scottish Government

“must, as soon as reasonably practicable”

after a review period, review and report on the operation of the act. That period is set at five years, beginning with the day on which section 1 of the act comes into force. Amendment 23 sets out that the report must include “the Scottish Ministers’ assessment” of matters relating to palliative care services, as described.

As I have stated, the bill provides for the collecting and publishing of data that is focused on the assisted dying process. That will assist the Scottish ministers in assessing how the legislation is operating. As for the last part of amendment 23, it is not clear how the methodology would show a direct correlation—that is, the impact of assisted dying on palliative care—given so many variables. That point has also been picked up—

Very briefly, yes.

I begin where I concluded at the last meeting by reminding the committee of my declaration of interests. I am supported by Dignity in Dying Scotland, Friends at the End, and the Humanist Society Scotland.

With regard to Jackie Baillie’s amendments 54, 55, 57, 64 and 61, I wish to express in general my support for any work that is undertaken to assess the status of palliative care, hospice and end-of-life services, and anything that seeks to support such services. With regard to the potential impact of the bill on palliative care, I again refer to the report on assisted dying that was published by the House of Commons Health and Social Care Committee just under two years ago, which concluded:

“In the evidence we received we did not see any indications of palliative and end-of-life care deteriorating in quality or provision following the introduction of”

assisted dying. It goes on to say that

“indeed the introduction of”

assisted dying

“has been linked with an improvement in palliative care in several jurisdictions.”

Amendment 54 would require the Scottish ministers,

“as soon as reasonably practicable after Royal Assent, to carry out an assessment of”

and publish a report on

“the likely impact of the provisions of this Act on hospices and providers of palliative and end of life care services.”

Amendment 57 would require the review of the act to set out the impact of the act on hospices and palliative care providers.

An assessment of the likely impact of the act may be difficult at such an early stage but, from my engagement with Hospice UK and Jackie Baillie, I understand and am sympathetic to amendment 54. On amendment 57, I believe, and evidence suggests, that the bill will not negatively impact palliative care, hospice and end-of-life services. However, the existing provision requiring a five-year review of the operation of the act is intended to deal specifically with the function of the act—in other words, supporting terminally ill adults in being lawfully provided with assistance to end their own lives. The bill also provides that any concerns with the operation of the act that have been raised must also be covered in the report, alongside the Scottish Government’s response. That would allow for any concerns about palliative care, hospice and end-of-life services in relation to the act to be raised, reported on and for a response to be provided.

I am mindful that amendment 57 would add aspects that are not directly related to the legislation to the review of assisted dying legislation. Bringing in other matters may risk diluting the review process. I am also mindful that amendments 54 and 57 duplicate each other to a certain extent. I note the Scottish Government’s view:

“From a delivery perspective, it would be challenging to measure the impact of the Act on hospices and palliative care.”

It notes that that would be reliant on data from Public Health Scotland that it does not currently collect in the necessary manner. Furthermore, the Scottish Government adds that

“if any data collected were to show changes in relation to hospices in and palliative care, it may not be possible”

to attribute those changes to the act

“rather than other factors such as delivery of actions outlined in the Palliative Care Strategy Deliver Plan, the ageing population in Scotland, changes in the palliative care workforce, etc.”

Amendment 61, which seeks to prevent the substantive provisions of the act being commenced by the Scottish ministers until they publish a report as outlined in amendment 54, could delay implementation, even though all necessary measures are otherwise in place. Therefore, it would prolong suffering for people with terminal illnesses who wish to access the choice.

As I have said about other similar amendments, the bill provides for the Scottish ministers to commence the substantive parts of the bill by regulation. The Scottish ministers will have the necessary oversight, and I expect them to commence the various substantive parts of the act only once all relevant health, social care, social work and other services are appropriately prepared and all necessary measures are in place to allow assistance to be requested and provided in that way. Singling out in statute particular steps that must happen before the act can be commenced risks undermining that process and potentially delaying the availability of assistance for those who wish it.

I am sorry, Mr Kerr.

My view is also informed by the experience in other jurisdictions. Two years would be too short for the first review, and a recurring review every two years thereafter would be excessive, particularly given the bill’s requirement—as I said—for annual reporting data. I do not think that a perpetual state of review is in anyone’s interests.

With regard to Brian Whittle’s amendment 202, I can see that the requirement in it could pose a number of difficulties. For example, who would carry out such a review, on the basis of what information, and from whom? I know that Brian Whittle has been rightly concerned to ensure input from, and the confidence of, medical professionals. However, I worry that the amendment may work against the latter.

In relation to Stephen Kerr’s amendment 130, I have already set out the purpose and scope of the provision in my bill that requires a five-year review on the operation of the act. I also refer members to my earlier comments in relation to amendment 57.

Murdo Fraser’s amendment 203 appears consequential to amendment 189, which has already been debated. Again, I refer members to my earlier comments.

On Stephen Kerr’s amendments 131 and 132, I observe that the bill does not prevent the Scottish Government from consulting any organisations or individuals that it considers relevant in undertaking the five-year review, and I would expect it to do so. As such, I do not believe that those amendments are necessary.

With regard to Daniel Johnson’s amendments 14, 15, 271 and 272, I am wary of adding a sunset clause to the bill, which could impact on both the engagement of health professionals and the views of some people who wish to request assistance to end their own lives. For example, people may feel that they need to make a more hurried decision based on a belief that assisted dying may be available for only a time-limited period. Evidence from other jurisdictions, such as California, has indicated that sunset provisions in assisted dying legislation are not helpful and end up being further amended or, indeed, removed—as has been the case in California this year.

Sunset clauses are not a feature of our legislative process, except in very limited circumstances that often relate to issues that are felt to be time-limited and over a short period. That is demonstrably not the case in this instance. I believe that it is imperative that the legislation be subject to detailed review, and I have provided for that to happen after five years. That is in addition to annual reporting, as well as any additional scrutiny that Parliament wishes to undertake.

I note that Mr Johnson’s amendments offer a range of timeframes for such a sunset clause—five, 10 and 15 years. The first of those timeframes would certainly be far too soon, but even the longer time periods appear problematic for a mechanism that is, so far, confined to matters affecting Parliament as an institution, such as MSP pensions and lobbying—as the Scottish Government has observed.

I understand the rationale and accept that such provisions have been a feature of similar legislation elsewhere, but we would be interested in the views of committee colleagues on the principle. For much the same reasons, I do not support Stephen Kerr’s amendment 218, which includes a three-year sunset provision and might also conflict with the rolling review envisaged in Mr Kerr’s earlier amendments.

On Michael Marra’s amendments 280, 282 and 286, I note the Scottish Government’s view that, from a delivery standpoint, the timing of the review could be challenging. Should the bill pass, there would need to be a substantial implementation period and consultation with relevant stakeholders to develop the policy framework for the bill, during which the Scottish Government would undertake its own assessment of the financial impact of the bill. The review proposed by Mr Marra, therefore, could result in duplication and would be curtailed by decisions needing to be made on implementation. As far as I can tell, it is also out of step with the approach to any other piece of legislation, and it would have significant financial implications.

With regard to Paul Sweeney’s amendment—

I had a lengthy exchange with the Finance and Public Administration Committee on my financial memorandum about my understanding of costs. I know that the Government has taken a different view, and it is for the Government to explain its rationale.

Paul Sweeney’s amendment 269 appears to relate to amendments 245 and 275 and the issue of complications, which we debated in the previous meeting. Although those amendments were not agreed to, others were. If I can do more on that particular issue ahead of stage 3, I will be happy to work with Mr Sweeney on that.

Finally, Pam Duncan-Glancy’s amendment 287 seeks to delay the commencement of the act until legislation is introduced to remove charges for non-residential social care for terminally ill adults requesting assisted dying. I note and echo the Scottish Government’s concern that, from a legal standpoint, it is unusual to prevent provisions of any bill—other than provisions that come into force the day after royal assent—from being brought into force until some other action has been carried out. I do not believe that that would be appropriate in this instance.

With that, I bring my remarks to a close.

That exchange was, if somewhat unusual for stage 2 proceedings, very helpful. It is probably worth reiterating that the bill is predicated on a terminally ill adult requesting assistance to begin the process. On the point about Dignitas that Miles Briggs referred to, in relation to his amendment, because that is not a procedure that is covered by the bill, there would not be a protection in relation to that. Therefore, to some extent, that issue remains pertinent. We need to allow discretion and medical judgment to apply and to avoid creating an environment in which assistance under the legislation becomes stigmatised or is not subject to free, open and transparent consideration.

As it stands, the bill almost certainly covers that. To some extent, Miles Briggs’s amendment might be more for the avoidance of doubt, but the debate that we have had on it has, if nothing else, perhaps demonstrated the need for greater clarity on that, and I am certainly sympathetic to that.

Turning to Jackie Baillie’s amendment 53 and Daniel Johnson’s amendments 53A and 53B, I note that Sandesh Gulhane’s amendments to change the eligibility age from 16 to 18 have been agreed to, which means that no person under the age of 18 will be eligible to request assistance under the legislation. I have previously set out why I do not support changing the age limit to 25.

As I have made clear, the bill does not require, nor does it actively permit, any health professional to raise assisted dying with a person. It is predicated on a terminally ill adult requesting assistance to start the process. That said, I absolutely accept some of the arguments that Jackie Baillie and CHAS have been making about how the process for younger people will almost certainly be very different, in every instance, from the process for somebody in later life with late-stage cancer or whatever it may be.

That said, I ask members to consider whether amendment 53 is necessary, given that those under 18 are not eligible to be provided with assistance. I suppose that the same factors apply in relation to Daniel Johnson’s amendments. The rationale for introducing them relates to a point that I have accepted before: the training that will be required for the practitioners involved is likely to be different from that relating to patients at a later stage, and some of how the process works in practice will almost certainly be different, not least because a wider team is likely to be involved—not just medical practitioners but social work and other experts in particular fields.

Aside from those observations about the age limit, which we have already discussed, I have no strong views on the amendments in this group.