Seòmar agus comataidhean

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 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—

I start by expressing the hope that Stephen Kerr has not gone the same way as Ross Greer and lost his voice, too. I thank Brian Whittle and the other members who have had an opportunity to set out the rationale for their amendments in this group, and I look forward to hearing the comments from others who have lodged amendments, too.

I must apologise at the outset, convener, with regard to your plea to be brief. I have only one amendment in this group, but I am conscious that there are many amendments in it, lodged by many members, so my remarks will probably be lengthy. I will do my best to recoup some of that time in later groupings.

I will start with my amendment 33, although it is probably worth acknowledging at the outset that all the amendments in the group relate to section 15, on the provision and use of an approved substance. I again remind members that all the bill’s provisions must be within the competence of the Parliament. I am aware that the Scottish Government is working with the UK Government to ensure the full operation of the bill, should it be passed. The Scottish Government will consider many of the amendments in the group in the context of those discussions, and we certainly urge the cabinet secretary to keep the committee and other members updated in that respect.

Amendment 33, in my name, requires the co-ordinating registered medical practitioner or authorised health professional who attends on the day that the person intends to take the authorised substance, and who will provide the substance to the person, to stay with the person in the same room until the substance has been used. As introduced, the bill states that the attending co-ordinating registered medical practitioner or authorised health professional must be on the premises but need not be in the same room as the person while they decide whether to be provided with, and use, the substance. Where the person has chosen to use the substance, the co-ordinating medical professional or authorised health professional must stay on the premises until the substance has been used and the person has died.

Amendment 33 responds to questions that were raised by Police Scotland, and which were echoed by Douglas Ross and, I think, Brian Whittle, by amending section 15(6) to the effect that the attending co-ordinating medical practitioner or authorised health professional must remain with the person in the same room until such time as the person has decided to take, and has taken, the substance. As before, it will then be at the discretion of the attending medical professional as to whether they remain in the room after that point or be elsewhere on the premises. That is intended to address any potential concerns as to whether the substance has been self-administered.

Amendments 178, 180 and 179 offer alternative approaches to the same issue, and I thank Brian Whittle and Douglas Ross for lodging them and for allowing this debate to take place. Brian Whittle’s amendments 178 and 180 seek to ensure that the co-ordinating registered medical practitioner or authorised health professional remains in the same room as the terminally ill person throughout. In addition to what I said in speaking to amendment 33, I believe that it is important that, after the substance has been taken, the terminally ill adult and any attending loved ones be afforded some privacy, if they wish it, while having the attending health professional close at hand.

Section 15(5) sets out that

“The coordinating registered medical practitioner or ... authorised health professional must remain with the adult until the adult decides whether to use the substance ... and, if they decide to do so, until the adult has died.”

Amendment 179 would add to that by requiring the co-ordinating registered medical practitioner or authorised health professional to remain with the person until they have died or the attending

“health professional determines that the substance has failed to take effect.”

I understand what Mr Whittle and Mr Ross are seeking to achieve. They are motivated by a concern that I fully recognise, but I believe that amendment 33 deals with the issue more proportionately, allowing privacy for a terminally ill adult where necessary and appropriate.

I thank Pam Duncan-Glancy very much for lodging the amendments and for walking me through the rationale for opening up the debate that we absolutely need to have on the issue. I reflect that the one change that I made subsequent to the consultation on my proposals all those years ago was to beef up the requirements on data gathering, because it is crucial. To some it might feel a bit dry or bureaucratic, but data will be critical in understanding how the act is operating, who is accessing it and in what circumstances, and so on.

Data gathering also has wider implications, which Brian Whittle spoke to very pertinently. Those who are eligible for assisted dying under the provisions of my bill will have an advanced and progressive terminal illness, with there being little doubt that the terminal illness will lead to their death. We have had the debate about a prognosis period, and I am certain that we will come back to it at stage 3.

It is a fair point. In my engagement with the RCN, it has made requests, which I have been happy and able to accede to. I think that the requirement for a second nurse to be present is disproportionate. There is nothing in the bill that would prevent that from happening, and I am sure that that would happen. We discussed at stage 1—and the committee will have heard—that, in other jurisdictions, over a period of time, one has seen an increase in the number of people who are able to access this, partly through increased public awareness but also through the growing familiarity of medical professionals with the process and procedures, and a willingness to engage with that process.

I would not be at all surprised if, in the early stages, nurses sought to have an additional nurse present but, as we have seen in other jurisdictions, that tends to cease to be the case over time. The current provision would allow for that to happen; my concern is that amendment 79 would mandate it in every instance. That is disproportionate and would certainly have an impact on access to this choice for some terminally ill adults.

I will address my amendments before I turn to the other amendments in the group. Amendments 37 and 38 alter the death certificate requirements in section 17 to require the death certificate to record—secondary to the primary cause of death, as covered by section 17(2)—that an approved substance was self-administered under the bill’s provisions. Amendment 36 is a consequential drafting amendment.

The bill requires that the death certificate for a terminally ill adult who has had an assisted death under the bill’s provisions must record the terminal illness as the primary cause of death. The explanatory notes add that it is expected that the substance that the person used would also be recorded on the death certificate as a secondary or additional cause. My policy has always been that both the terminal illness and the substance that is used should be recorded on the death certificate. I note that the committee’s stage 1 report concluded that

“both the illness, disease or condition which led to an individual requesting assistance to end their life, and the approved substance provided to enable them to do so”

should be

“detailed on the death certificate.”

My amendments will ensure that that is the case.

After further consideration following discussions with the chief medical officer and others, I have lodged my amendments to ensure that my policy is reflected in the bill and that death certificates capture both the underlying terminal illness as the cause of death and the fact that an approved substance was used. That will ensure appropriate transparency.

I note the Scottish Government’s confirmation that that will require consultation with Public Health Scotland, National Records of Scotland, Healthcare Improvement Scotland and health and social care services to ensure that deaths continue to be recorded in an accurate, consistent and helpful manner, that new processes and investment will be needed to support that level of data collection, development and reporting, and that alignment with other UK jurisdictions will also need to be considered. I welcome that helpful clarification and am keen to work with the Government if further work is required ahead of stage 3.

Pam Duncan-Glancy’s amendments 246 and 247 would change the death certification provision so that the approved substance used is listed as the primary cause of death and the terminal illness is recorded as an underlying condition. I certainly acknowledge the different perspectives on the issue, and although I remain of the view that the right and most transparent thing to do is to record the primary cause of death as the terminal illness, with the substance also being noted on the death certificate, I want to hear what Pam Duncan-Glancy and other members on the committee have to say when speaking to her amendments before deciding whether to press my amendments.

I move amendment 36.

It is a fair point. In my engagement with the RCN, it has made requests, which I have been happy and able to accede to. I think that the requirement for a second nurse to be present is disproportionate. There is nothing in the bill that would prevent that from happening, and I am sure that that would happen. We discussed at stage 1—and the committee will have heard—that, in other jurisdictions, over a period of time, one has seen an increase in the number of people who are able to access this, partly through increased public awareness but also through the growing familiarity of medical professionals with the process and procedures, and a willingness to engage with that process.

I would not be at all surprised if, in the early stages, nurses sought to have an additional nurse present but, as we have seen in other jurisdictions, that tends to cease to be the case over time. The current provision would allow for that to happen; my concern is that amendment 79 would mandate it in every instance. That is disproportionate and would certainly have an impact on access to this choice for some terminally ill adults.

That there is interaction and interplay between assisted dying, palliative care and hospice care in jurisdictions in which similar laws have been passed is undeniable. The evidence that the committee took, however, suggests that assisted dying led not only to additional funding for palliative care, but to improved engagement with palliative care. That was a similar finding to that of the House of Commons Health and Social Care Committee, which undertook an 18-month inquiry. We came up with similar evidence that there was no sign of a detrimental impact on palliative care.

I am grateful to Brian Whittle for taking my intervention and for his generous comments about the approach that I have taken to the bill. That remains the case, and I observe that I have been supportive of amendments from pretty much every member who has lodged an amendment. That is not to say that I have supported every amendment, but I have, in many instances, accepted the point that has been made.

I ask Brian Whittle to reflect on the fact that, even if the principle behind an amendment could be supported, it is in nobody’s interest to pass amendments that may have unintended consequences, or an amendment that would not do what it is that the member who has lodged that amendment would wish it to do. That is why, at stage 2, we have an opportunity to explore those issues, and at stage 3, we will have an opportunity to refine amendments, which I have committed to doing in many instances.

This bill is like any other bill. A lot of amendments are lodged at stage 2 to allow a debate to take place; they will not all necessarily be accepted, but that process should strengthen and improve the bill as it moves on to stage 3, where it can be further strengthened and improved, as I have committed to doing.

I thank Patrick Harvie for setting out the rationale for the amendments and wish Ross Greer a speedy recovery—he is lined up to speak in a few debates this week.

It is fair to say that I fully support folk being available to help people to understand and navigate the process. That is why section 23 of the bill allows ministers to make guidance on matters relevant to the bill. It is also why I have lodged an amendment to strengthen that provision by requiring ministers to provide or ensure the provision of information about the process in an accessible and understandable format, for the benefit of terminally ill adults, certainly, and of medical, social care and social work professionals, as well as the wider public.

I am also aware that structures exist to ensure patient safety and supported decision making. Health boards in Scotland must observe equal opportunity requirements. Although not strictly advocacy, the patient advice and support service provides support to patients, while the GMC provides guidance to doctors on supporting patients in their decision making.

Under my bill, proxy arrangements can be made to support a person in accessing assisted dying services and the Patient Safety Commissioner will also have a role to play. However, through my engagement with third sector organisations, I am aware that many stand ready to provide assistance, advice and support through a navigation service. That would be my hope. As Patrick Harvie rightly said, we have seen that in other jurisdictions that have assisted dying legislation in place. As with some other amendments, the Scottish Government might be best placed to comment on how the provision would fit with existing structures, policies and services.

Ross Greer’s amendment 283 would provide for the Scottish ministers to commence the substantive parts of the bill by regulation. That reflects that ministers are responsible for ensuring that all aspects of the assisted dying service are workable and that they tie in with all other aspects of health and public service delivery in an integrated and safe way. The Scottish ministers will have the necessary oversight, and I expect them to commence the various substantive parts of the act only when all relevant health, social care, social work and other services are appropriately prepared and all necessary measures are in place to enable assistance to be requested and provided. Singling out in statute particular steps that must happen before the act can be commenced risks undermining the process and further delaying the availability of assistance to those who need it.

I note that the Scottish Government has highlighted that it is unclear from the amendments whether the conditions will have to be met by the individual advocate or the service provider, and how the service would be funded or monitored. That said, I am sympathetic to what Ross Greer is seeking to achieve through his amendments in this group. I will be happy to speak with him once his voice returns and, ahead of stage 3, to see what more the bill can provide to address the concerns that he rightly raises.

At this stage, however, I urge him, through Patrick Harvie, not to press the amendments, but I am pleased that the committee has at least had an opportunity to engage with the issue, which reflects what we see in other jurisdictions. There is a balance to be found as to whether we put the provisions in statute or allow the process to develop organically, as has been the experience in many of those jurisdictions.