Seòmar agus comataidhean

Good morning. I start with a declaration of interests and remind the committee that I receive support from three separate campaign organisations—Dignity in Dying, Friends at the End and the Humanist Society Scotland—that have helped in supporting the costs of a website during the consultation on my bill and of a staff member who works on the bill.

As I did last week, I will start with my amendments before moving on to the considerable number of other amendments in the group.

My amendment 65 seeks to allow the Scottish ministers to regulate any training that the co-ordinating registered medical practitioner, the independent registered medical practitioner and the authorised health professional must have completed in order to carry out their roles under the bill. I made clear throughout stage 1 that training will be required for those health professionals who are directly involved in the assisted dying process. A specific requirement for training was not included in the bill because I believe that the profession is best placed to devise, develop and roll out the training that it considers most appropriate and that training does not require to be mandated in the bill. Further, the bill already sets out qualifications and experience requirements for medical professionals, which I am seeking to extend to authorised health professionals. It is also worth acknowledging that the Health and Care (Staffing) (Scotland) Act 2019 already places a duty on health boards and the Scottish health service to ensure that staff are suitably trained.

However, after further reflection ahead of stage 2, I have lodged amendments 65, 67, 34A, 35A, 35B, 46A and 47A to add the provision of training to the existing regulating powers that the bill confers on the Scottish ministers with regard to the qualifications and experience that the co-ordinating registered medical practitioner, the independent registered medical practitioner and, if my amendments 34 and 35 are agreed to, authorised health professionals should have. That would allow the Scottish ministers, after consultation with relevant partners, to regulate the training, qualifications and experience that those health professionals must have in order to participate in any assisted dying scheme.

Amendment 65 therefore seeks to add training to the matters that the Scottish ministers may make regulations on, in addition to the qualifications and experience that are required to take on the role of co-ordinating registered medical practitioner. Amendment 67 seeks to do likewise for the role of independent registered medical practitioner, and amendment 34A seeks to do the same for the role of authorised health professional by adding the word “training” to my amendment 34, which seeks to allow the Scottish ministers to make regulations setting out the qualifications and experience that a registered medical practitioner or a registered nurse should have in order to take on the role of authorised health professional.

Amendments 35A and 35B are consequential. They seek to add the word “training” to amendment 35, which requires regulations that are made under amendment 34 regarding the authorised health professional to be consulted on before they are laid or made.

Amendments 46A and 47A are consequential. They seek to add the word “training” to amendments 46 and 47, which require first sets of regulations to be subject to the affirmative procedure and subsequent regulations to be subject to the negative procedure.

Amendment 48, which is also consequential, clarifies which regulations under section 15(8) are which, as there are two regulation-making powers in that subsection.

I note that amendment 47 would be pre-empted by amendment 59, which we will come to in a later group.

Paul Sweeney’s amendment 34B seeks to amend my amendment 34 to change the word “may” to “must” and require the Scottish ministers to make regulations. That links to certain other amendments in the group, which I now turn to. Although I have always considered those who work in healthcare to be best placed to determine training factors and I therefore want to allow some flexibility as to whether that is determined by Government regulation, I am open to amendments 34B, 224 and 230, which would make it a requirement for such regulations to be introduced.

I note that the Government suggests that amendment 34 might be defective, so Mr Sweeney might wish not to move it at this point, pending further discussions with the Government ahead of stage 3.

Ms Duncan-Glancy’s amendment 225, in relation to the co-ordinating registered medical practitioner, sets out that Scottish ministers

“must, in particular, specify training or qualifications related to”

a range of matters, namely:

“knowledge of palliative care and alternative care options to providing terminally ill adults assistance to end their own lives ... understanding of independent living, in accordance with article 19 of the UN Convention on the Rights of Persons with Disabilities ... awareness and identification of coercion, pressure or undue influence”

and

“equality and non-discrimination principles, with specific reference to the rights and experiences of persons with ... disabilities ... terminal illness, or ... socio-economic disadvantage.”

I note that that provision would extend only to the co-ordinating registered medical practitioner and not to the independent registered practitioner.

Again, I am of the view that those who work in healthcare are best placed to determine what training would be required and most useful. I agree with Ms Duncan-Glancy on the importance of doctors being appropriately trained on all relevant issues, including in areas such as palliative care and the rights of disabled people, but I do not consider that that sort of detail would be appropriate in the bill.

With regard to a request for an assisted death, if it was evidenced that someone was experiencing financial difficulties, issues around housing or whatever else, there would be an opportunity during those discussions to make interventions that would allow those issues to be addressed. However, I think that it would be problematic to introduce subjective judgments to that assessment process, which would cut across the relationship between doctor and patient. Doing so might even make the individual reluctant to declare that they have concerns, whether about their financial situation, their housing situation or otherwise. That would not be in the interests of protecting those who are vulnerable. As I said, I understand the intention behind the suggestion, but medical judgment would need to be applied in such a case, with the practitioner deciding whether they were comfortable with proceeding with the process in such circumstances, as opposed to seeking to engage with other professionals who may be able to provide support—which, as Pam Duncan-Glancy suggests, would not necessarily always be medical.

As I said to Mr Doris, I am happy to have those discussions. It would probably be helpful to see where the bill is at the end of stage 2 and what further refinements are necessary. I would be happy to work with Mr MacGregor and the Scottish Association of Social Work, which I have, as he suggested, had the benefit of speaking to on a couple of occasions.

In relation to the required social work assessment, I have lodged amendments that, if agreed to, would see assessing doctors being able to make inquiries and seek the views of health, social care and social work professionals, as well as those who have provided, or are providing, care to the person. I believe that those are appropriate safeguards that will ensure that only those with the capacity to make the decision are deemed eligible to receive assistance.

I would urge caution against adding processes that duplicate what is already in the bill and risk adding burdensome processes that could delay those seeking assistance from accessing it while not necessarily offering meaningful additional protection. I appreciate the attempt in subsection (5) in amendment 226 to set out reasonable timescales, but I again caution against mandating additional processes that could potentially add undue delays to the process.

I also consider that, in line with existing clinical practice, health professionals can—and do—undertake such approaches to the local authority where that is warranted. Nothing in the bill would prevent that practice from continuing should it be felt necessary in relation to particular patients.

Should amendment 226 be agreed to, it would be sensible that the registered medical practitioner must take account of any assessment made by the local authority, as is set out in amendment 233. I also note that aspects of the amendments in this group overlap with processes and requirements that are already considered and provided for in the bill.

As I said, I am happy to continue to work with Bob Doris and Fulton MacGregor, at the end of stage 2 and ahead of stage 3, to see whether we can make further refinements and improvements. I thank them for lodging and speaking to their amendments.

Some of that will have to be captured in training, but, as I said earlier, it is unreasonable to expect all GPs or consultants to be specialists in the areas that have been referred to. That is why the option to refer on is available under the bill, the need for which would emerge from discussions with the individual. To an extent, there is a balance to be struck between what a medical professional believes that an individual should take forward, in their own best interests, and the right of the individual to say, “I understand that, but that might not be for me,” for a variety of reasons. It is about getting the balance right, and it is an uncomfortable balance for legislators, because it leaves the option open. However, patient-centred care is at the heart of the principles and ethos of the bill.

On the other amendments in the group, although, for the most part, I understand the reasoning behind them, many appear to duplicate each other or ask for very similar information to be included, as both Daniel Johnson and Bob Doris acknowledged.

Pam Duncan-Glancy’s amendment 229 would require that, in carrying out their assessment, the co-ordinating registered medical practitioner must ask the person who they are assessing what their primary reason is for seeking an assisted death. If it is determined that the reason is not related to the person’s terminal illness or otherwise falls outwith the bill’s provisions, the assessment must cease immediately and not proceed. I understand the reasoning behind the amendment, and I again remind the committee that section 7 of the bill requires discussions to take place with those requesting assistance about their illness and available care and support, so that they can make an informed choice.

Amendment 69, in my name, would further strengthen the safeguards in that regard, and section 24 already addresses the reasons for choosing an assisted death or, indeed, the reasons for withdrawing that request. I am concerned that amendment 229 might go further than is desirable in placing subjective eligibility judgments in the assessment process; therefore, I do not support that amendment.

That is a helpful issue to raise, and that is why we need the training requirement to be developed by those who are operating in the area. There will be areas where face-to-face engagement is crucial and areas where it will not be felt to be essential. Ultimately, we need to ensure that the professionals who have the relevant expertise inform the way in which guidance will be taken forward.

The amendments in this group, which have a great deal of overlap for wholly understandable reasons, have facilitated a useful debate, if not about what will be in the bill then, certainly, about what the Parliament should expect in subsequent elements of the process. I press amendment 65.

Amendment 65 agreed to.

Amendment 224 moved—[Paul Sweeney]—and agreed to.

Amendment 66 moved—[Daniel Johnson].

I thank Daniel Johnson for taking the intervention and for setting out a reflection on the hospice sector that I fully recognise. I understand the concerns that have been expressed, but would he accept that the hospice sector is made up of hospice communities that do not simply include those who are directly employed in those hospices but stretch rather wider? Within those communities, there will invariably be those who are very concerned about what is proposed in the bill and would not want to participate at all; there will be others who are very comfortable with it and see it as an extension of the sorts of patient-centred support that they already provide; and there will be others who are uncertain, as I know many colleagues are, and who will want to see the detail of the bill and how it might impact on them before they make a decision one way or the other.

The risk in introducing an institutional or organisational conscientious objection is that we would remove from individuals in the hospice community the choice to participate, if they wish to, with the strict safeguards that are in place, and we would allow, essentially, a veto on that choice by those who are opposed to it, for reasons that I fully respect, who would be under no duty to provide anything that is set out in the bill. Does the member accept that that cutting across individual choice is something that we should steer clear of if at all possible?

There are deliverability challenges, but the other issues that the Government has raised in relation to the interaction with the existing adult support and protection system go beyond simply technical issues. I am always happy to work with Bob Doris on those and related issues. However, as I will come to suggest, the amendments that I have lodged in this area open up the potential for much of what Bob Doris and Fulton MacGregor are seeking to achieve, and in a proportionate and appropriate way.

Mr Doris earlier made a point about the non-medical nature of assessments relating to coercion—and, I would argue, capacity—that aim to provide a better understanding of the full range of options that are available to an individual who may be seeking to make a request of this nature. The point is well appreciated and well understood, but that will not be appropriate in every instance, which is the slight issue here. If there is a blanket approach, the way in which we target and support those assessments will be diluted, which will potentially put individuals at risk in a way that would not be the case with my amendments.

Again, I understand the intention behind the suggestion. My concern is that putting such a provision in the bill would make it more likely that individuals would be reluctant to declare, or be open with the medical professionals about, such circumstances. Therefore, the amendment is unlikely to provide the very protection that Pam Duncan-Glancy—understandably and justifiably—seeks to pursue.

I will turn to amendments 88, 89, 92, 101 to 103, 109, 110, 113 and 114, all in the name of Bob Doris, some of which set out what information should be included in the co-ordinating registered medical practitioner’s statement as set out in schedule 2. I understand that the amendments relate to his amendment 100, which would require an assessing registered medical practitioner who is carrying out an assessment under section 6 to request a statement from the relevant local authority as to whether the person seeking an assisted death is a known adult at risk. In the interests of time, I will not rehearse the concerns that were expressed in relation to similar amendments in the earlier group, but, for many of the same reasons, I urge the committee not to support those amendments.

Bob Doris’s amendments 90, 106, 100, 111 and 115 provide that, in carrying out an assessment under section 6 of the bill, RMPs must

“enquire about and discuss the person’s reasons”

for seeking an assisted death and that the reason must be recorded in the appropriate statements in schedule 2. I appreciate the reasons for lodging those amendments, but I am mindful of the need to respect privacy and to avoid placing pressure on those who wish to request assistance. Section 7(1) requires discussion of a person’s diagnosis and prognosis, as well as other treatment options, making it likely that what those amendments provide for is already covered. However, I am content to support Bob Doris’s amendments, which might help to reinforce those provisions.

I am less convinced by Mr Doris’s amendments 91 and 94. The bill allows for discretion to be applied by assessing doctors in line with their professional judgment in explaining and discussing certain matters that are set out in section 7(1). The BMA has strongly advocated that approach in the context of similar amendments tabled in relation to the bill at Westminster.

Regarding Mr Doris’s amendments 95, 96, 98 and 99, again, the bill allows assessing doctors to exercise their professional judgment and discretion in determining whether to seek input from specialists regarding assessment of a person’s illness and/or capacity. The amendments would require the assessing doctors to make such referrals if they had doubt about a person’s illness or about their capacity to make the decision. I believe that that would be the consequence of the existing provisions in the bill, but, on balance, I see no harm in supporting the amendments.

I am afraid that that is not the case with amendment 116, which would provide that, at first declaration, the co-ordinating registered medical professional must refer the person to a palliative care specialist for a palliative care and social needs assessment. The bill requires options to be discussed and would not prevent the registered medical practitioner from recommending a palliative care assessment. However, for the reasons that we have already discussed, including last week in relation to earlier amendments, that must remain a choice for the terminally ill adult, so I urge the committee to reject amendment 116 if it is moved.

I am conscious of the time. I will take Brian Whittle’s intervention and maybe let Mr Doris in later.

I thank Bob Doris and Fulton MacGregor for setting out their rationale for amendments that would add elements to the assessment process. I understand very well, not least from my discussions with the SPPC and the Scottish Association of Social Work, the intention behind the amendments.

Amendments 100 to 103 and 92, and consequential amendments 133 and 134, in the name of Bob Doris, would require a registered medical practitioner who is carrying out an assessment under section 6 to request a statement from the relevant local authority as to whether the person who is seeking an assisted death is a known adult at risk. Amendment 101 sets out the circumstances in which the assessing practitioner would be required to refer the person for an assessment by a registered social worker, and amendment 92 would require that the person be informed that they can request to be referred for such an assessment.

The Scottish Government commented on amendment 100 and related amendments, stating:

“The proposed amendments, taken together, present deliverability challenges as drafted, and issues with their compatibility with the existing Adult Support and Protection system, including the legislation underpinning it. They seem to conflate a general social work assessment/referral with an Adult Support and Protection (ASP) referral, which is only triggered under specific statutory criteria. Requiring that medical practitioners ‘must’ refer or request statements from local authorities may also create legal and operational issues considering, in particular, interaction with existing duties to co-operate with ASP processes under the ASP Act, in particular as they apply to GP independent contractors.”

As I said, the Government also points to deliverability challenges.

Similarly, Fulton MacGregor’s amendments 226 and 233 would require that, at the point of the first declaration, the co-ordinating registered medical practitioner must request information from the relevant local authority as to whether the person who made the declaration is vulnerable, lacks capacity or might be experiencing coercion or abuse. The Scottish Government noted its concerns with those amendments, stating:

“There may be technical issues with this amendment, for example it provides for ‘vulnerable’ to be determined with reference to a number of other Acts not all of which make reference to such terminology”.