Health and Sport Committee

Meeting date: Tuesday, January 31, 2017

Official Report 527KB pdf

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Transplantation (Authorisation of Removal of Organs etc) (Scotland) Bill

The second item on the agenda is an evidence session on the proposed transplantation (authorisation of removal of organs etc) (Scotland) bill. We will hear from Mark Griffin MSP, who is the member in charge of the draft proposal. Andrew Mylne, who is clerk team leader of the non-government bills unit at the Scottish Parliament is also in attendance.

I invite Mark Griffin to give an opening statement.

Good morning, everyone, and thank you very much for having me along to the committee. You have in front of you my proposal for a members’ bill on a soft opt-out process for organ donation, and the statement of reasons that goes along with it, in which I have explained why I think I should not have to go out to consultation before introducing a final proposal.

I have strong personal reasons for proposing a members’ bill. When I was 12, my father was diagnosed with a heart condition and was told that he needed a heart transplant. He waited 10 years for a transplant and got one, but after 10 years of being on the appropriate drugs and so on, his body had been through such a decline that he was not strong enough to make it through the operation, and he died. I was 22. Members around the table—for example, Richard Lyle—will know exactly the situation that I and my family were in and why I have proposed the bill.

Aside from the policy behind the proposal, a wealth of information and research is already out there and a number of consultation exercises have already happened. Nothing that I would do would add anything new, and might actually be counterproductive. People might be fed up of being consulted and instead just want us to decide whether we are going to do something. Anne McTaggart, who proposed the previous bill, went out to consultation in 2014 and in October 2015 this committee’s predecessor consulted on the issue. Meanwhile, the Government is running a consultation, which started in 2016. That is three consultations in three years. I do not see the need to have a fourth consultation of my own. The list of organisations and individuals that the Government has consulted is fantastic—there is no one that I would add to the list, so if I consulted I would not get any more information than the Government has received or will receive.

If the committee were to approve my statement of reasons, that would give me permission to lodge a final proposal in Parliament. However, I do not think that that would be appropriate yet; I will not lodge a proposal until the Government has concluded its consultation and decided whether it will develop legislation. I do not want to short-circuit the process. Instead, I hope to be informed by the Government’s consultation. I am happy to take questions on my statement of reasons.

Thank you very much indeed for your presentation. None of us can fail to have been moved by your personal reasons for proposing the bill. You rightly point out that we will have had three consultations in as many years. In the first two, was there much variance in what came back from the public?

11:45  

Anne McTaggart’s consultation had almost 600 responses, and the committee’s consultation had almost 900 individual responses to its survey. Responses came back broadly in favour of the proposal. A number of public opinion polls that have been conducted by the British Heart Foundation have all come back in favour of a move towards an opt-out system. Today, we are talking about whether there is a need for another consultation.

Exactly.

I think that another consultation would be counter-productive.

I am certainly of one mind with you on that. You rightly point out—in particular, in respect of the moving case of your father—how important time is in this matter. Any delays in possible legislative change will be measured out in human lives, so I am very much minded to support your case. Should there be no further questions, I would like to move that we back Mark Griffin on this.

Good morning. You mentioned three consultations—two that have already been conducted and one that is being done by the Government. Are there any organisations or persons that are not being, or have not been, consulted in those three consultations, in particular the one by the Government, that you think should be consulted?

No. There have been three extensive consultations. By virtue of this being a member’s bill, if I carry out a consultation it would be with just the resources of my office. When that is compared with the Government, with its range of civil service advisers and its publicity budgets, I cannot see how any consultation that I would conduct would have as big a reach: mine would inevitably be smaller and less far-reaching and would not gain as many responses and as much information.

I know your personal reasons behind all this; I was a good friend of your dad’s, as you know, and went through the pain that your family went through at the time. When you launched your bill proposal, did you know that the Scottish Government was planning a consultation on the issue?

I launched my proposal on 19 December, along with the statement of reasons. I knew that the Government was carrying out a consultation.

I hope and believe that the Government will develop legislation on opt-out; it will have my full support in that. I hope that the Government does not decide, after conducting its consultation, not to proceed with legislation. I am going through this process so that if the Government decides that it is not right to develop such legislation, I will be in a position to pick up the ball and move forward with my proposal.

In the previous session, I introduced the British Sign Language (Scotland) Bill in my first year after being elected. It took four years from its being introduced to its being passed and becoming legislation. If the Government were to decide not to progress with opt-out legislation, and I were to start afresh with a member’s bill more than a year into the parliamentary session, there might be difficulty in respect of time and its being passed in this session. That is why I decided to run my proposal in tandem. If, when the Government’s consultation concludes, it decides to bring forward its own legislation, that will be fantastic and it will have my full support. I will give the Government the time to come to its own conclusion. However, if it decides not to proceed with legislation, I will, because I have run the process for my proposal in tandem, be ready to take it forward.

I say with the greatest respect to members of the committee now, that I was on the Health and Sport Committee last session, and we basically went through this process then. I travelled with Duncan McNeil to Madrid to see the Spanish system. There were quite a lot of concerns about Anne McTaggart’s bill. Anne McTaggart is a very nice lady, but unfortunately the bill was not passed. When it was voted on, the Government committed to bring forward a bill.

Knowing that, and given your personal history in relation your father—I am sorry to bring up that pain again—why did you feel that you had to pick up the issue? Was it mainly because of your father? I apologise for asking, but I am interested to know because in the previous session the Government gave a commitment that it would introduce a bill in this session, and it has launched a consultation. To reiterate, you are basically saying that you will hold back and wait to see whether the Government introduces a bill, and that if it does you will then work with the Government on it. To be quite honest, we all want legislation—I want it, you want it and, I am sure, everybody in the room wants it. However, I say with the greatest respect that Anne McTaggart’s bill in the previous session was flawed, which is why I did not vote for it. I totally agree with carrying on with legislation, but that is why I did not vote for the bill in the previous session.

In the previous session, the Government made a commitment to go out to consultation, which is what it has done. I am not aware that it made a commitment to legislate on an opt-out system. If the Government introduces a bill, as you suggest it will, that will be fantastic and I will get right behind it. That will end any involvement from me through a member’s bill, and I will support the Government in any way I can. My proposal is almost purely as a safeguard so that, if the Government decides not to proceed with legislation, I can come in with my member’s bill. However, I hope that the Government introduces a bill; it will have my full support if it does so.

Thank you, and sorry for putting you through that.

On that point, irrespective of whether the Government made a commitment to consult or to legislate, I fully endorse Mark Griffin’s position that his proposed bill is a kind of backstop. In 2012, in “Do the Right Thing”, the report to the United Nations Committee on the Rights of the Child on the implementation of children’s rights in Scotland, the then Minister for Children and Early Years made a commitment to legislate on the age of criminal responsibility in the previous session of Parliament, but that did not happen. Therefore, it is absolutely right that Mark Griffin is taking that twin-track or belt-and-braces approach, albeit that he is doing so in good faith that the Scottish Government will make good on its commitment and will work alongside him. I absolutely endorse his position.

Thank you for coming along today, Mark, and thank you for explaining why you are doing this now, which was going to be one of my questions. You say that there is sufficient evidence and that sufficient consultation has been done. Obviously, the Scottish Government has put the issue out for consultation, so we cannot use that as evidence that we do not need consultation on your member’s bill. I am looking at the issue from a health professional’s point of view. You said that there were two previous consultations, one of which was for Anne McTaggart’s bill.

Anne McTaggart carried out a consultation, and the previous Health and Sport Committee carried out its own consultation.

From what I understand, the Health and Sport Committee carried out a self-selecting online survey of about 900 people. From the information that I have, that survey was very much promoted by organisations that were actively campaigning for an opt-out bill.

Am I correct that there were 559 respondents to the previous member’s bill consultation?

Yes.

They included 529 individuals and 30 organisations. From my reading of the consultation, the organisations, which included church organisations, professional bodies and organisations involved in transplantation, were split over the proposal. Can you give me a flavour of your rationale for saying that those consultations are sufficient and that you do not have to go back and consult the public?

My proposal is the same as Anne McTaggart’s, so I would be going out to consultation on the same proposal to the same people and would, in all likelihood, get the same responses. The previous Health and Sport Committee carried out an online survey, which we could say was self-selecting, but any such consultation is self-selecting. The Government consultation will have a self-selecting audience.

It was not just individuals who responded to the call for evidence from the committee. The organisations that responded included six health boards, the General Medical Council, the UK Donations Ethics Committee, the Scottish donation and transplant group and the Nuffield Council on Bioethics. Some pretty big organisations that have a lot of experience in the field responded.

I cannot quite follow the logic in asking the same questions as resulted in a flawed bill. Would you consider exploring other areas? Since 2015, there have been advances in medical technology—for example, in tissue and limb transplant. Would you consider also covering some of those areas in a consultation, if you had to do one?

I have made a one-line proposal. Its being the same as Anne McTaggart’s proposal does not mean that the bill that would be introduced would be the same as hers. Obviously, I would look to take advice from the committee, and look at the evidence that the committee in the previous session received and the debate that we had in Parliament. I am already discussing with the Government the particular issues that it had with Anne McTaggart’s bill, so I would seek to introduce a different one. The same bill certainly would not be introduced again.

Okay. I apologise. I thought that you said that the information would be the same. We need to ensure that a bill on the matter that is placed before Parliament is 100 per cent right; it would be too important not to get right, and we would need to get it right first time.

For clarification, if the committee voted against your proposal not to consult, we would ask you to carry out a further consultation. There seems to be some discussion about whether two or three consultations have already been carried out. In effect, we would be asking for a fourth consultation. You have said very reasonably that you are very happy to absorb the Government’s on-going consultation.

That is correct. Technically, if the committee does not agree with me, I would have two months to go out to consultation and go through the normal member’s bill procedure, and I would not conclude that consultation by the time the Government had concluded its consultation. It would be the fourth consultation in three years.

There would probably be some repetition and duplication in that, and it is clear that progress would be delayed. I am concerned that the Minister for Public Health and Sport, Aileen Campbell, said in her letter to the convener:

“The Scottish Government intends, subject to the outcome of the consultation ... to bring forward legislation”.

Therefore, there is no guarantee. If members of the committee are determined to see great progress or guaranteed progress, we should support your proposal.

Yes. There is certainly no guarantee with the Government consultation. However, I guarantee that I will introduce a bill at some point if the Government does not. If the committee is minded to see opt-out legislation, the only way to guarantee that is through that process.

Thank you very much for coming to the meeting. I think that we all sympathise with you and commend your aims in bringing forward your proposal. For the record, can you categorically guarantee that you will not lodge a formal proposal until the Scottish Government’s consultation has been completed and it has published the results and an analysis?

Yes—I guarantee that 100 per cent. The Government consultation is due to end in March. I expect that it will be a month or two after that when it publishes responses.

The date 14 March has been referred to. I want clarification of whether that is when the consultation will close or when the Government will publish the results.

I would not plan to introduce a bill until even later than that: I would plan not to do so until the Government came to a firm decision on whether it will introduce a bill.

Thank you. I just wanted to clear that up.

The Government’s consultation is not specifically on an opt-out system; it is about how we can increase organ donations. Obviously, it is a broad consultation that includes consideration of opting out, as Parliament mandated in February last year. Were the consultation to come back and the evidence and analysis to suggest that your proposal would not, in the view of the Government, lead to an increase in organ donation—which is what this ultimately about—would you still introduce a member’s bill?

12:00  

There will be responses to the consultation that support an opt-out system and there will be responses against it—similar to Anne McTaggart’s consultation and the previous session’s committee’s consultation. In my view, an opt-out system would increase the number of organs that would be available for transplantations, which would save lives. Based on that, I am committed to taking forward legislation in the Scottish Parliament.

I appreciate that. In your statement of reasons you cite a consultation, but you have indicated that you will proceed regardless of the outcome of that consultation.

On the same basis, the Government will take a view at the end of the consultation as to the merit and weight that it applies to each submission. It will agree or disagree with the consultation responses and will plot a course from there. I will be in the same position: I will agree or disagree with the responses and, as I have said, I will plot a course to introduce legislation if the Government does not do so.

I appreciate that, but you seem to be prejudging the consultation. You would decide not to lodge a final proposal only if the Government indicated that it was going to legislate. You have not stated that you would withdraw your proposal if the consultation and analysis demonstrated that an opt-out system was not the best way to proceed. If you cite the consultation as evidence for your bill but you are not going to use the consultation because you have already made your decision, is that really adequate for the statement of reasons? The point that I am making is that the process is being prejudged.

The statement of reasons relies on the consultations that Anne McTaggart and the Health and Sport Committee carried out. I am simply pointing out that asking me to consult at the same time as the Government is consulting—

That is the point that I come back to. If you accept that the Government consultation is under way but you will use its results only if they support your proposition, we come back to the consultation that Anne McTaggart carried out in the previous session, which led to a bill that was flawed in the view of the then committee and Parliament.

We have exactly the same aims, but I raise the questions because I want to ensure that we get this right. Why are we being asked to waive the requirement for a consultation? Why are you citing the Scottish Government consultation if it will have no impact on whether you proceed with your proposal?

The process for a member’s bill is that a member takes the view that legislation is needed to change a situation and goes out to consultation to seek the public’s view on whether a particular mechanism or avenue is appropriate. However, at the end of the day, the member in charge will still be of the opinion that legislation is needed. The consultation is on the mechanisms. Almost every consultation on a member’s bill in the history of the Parliament will have been prejudged, because the member who proposed the bill believes strongly in the course of action. The member consults on the mechanism for that course of action.

I appreciate that and, given that time is moving on, I will let that point rest.

Your explanation for lodging the draft proposal was to expedite the process—what Alex Cole-Hamilton described as a belt-and-braces approach. That was on 19 December, but it is only the end of January and the proposal is already before the committee. If the committee accepts your statement of reasons, you will be free to go ahead and lodge a final proposal. If we factor in the recess, the process has taken a matter of weeks. Why did you lodge the proposal before Christmas rather than wait until the Government had concluded its consultation, when you would have all that analysis and evidence available? Why not wait to lodge your proposal until you have an indication from the Government of whether it wishes to legislate?

After the election, I came back to Parliament with the intention of lodging a proposal straight away. I would have done so, but I had asked for a meeting with the minister and I did not want to take anything forward without speaking to the minister first. I wanted to see what the lie of the land was and whether there was any way that the Government and I could work together.

I did not get the meeting with the minister until November. We sat down and talked through where we thought that things could have been changed in Anne McTaggart’s bill and how the Government broadly supported the proposals.

The reason why a proposal was not lodged in May or June, before the summer recess, is that I thought that the best thing to do was to sit down with the Government first. The timing was determined by my wish to meet the minister and to go ahead only after that discussion.

It is worth putting on record the work that Anne McTaggart did on the issue, although her bill was not successful.

It is concerning that you received no assurance that the minister would take forward a bill. Has there been a delay on the Government’s part? If you and the Scottish Government worked on the issue at the same time, would that help to eventually deliver a strong bill that could be supported across the parties?

Within the year following the election, the Government has pulled together a consultation document and started the consultation process. It has taken the time to get that right, as is appropriate. I hope that it will take the time to get things right throughout the process and will bring forward good, strong proposals on an opt-out system.

In a recent article, the minister said that the Scottish Government has a presumption in favour of introducing legislation after the consultation, which is excellent. If the Government decides to take forward the legislation, it will have the full weight of the civil service behind it, which represents much more resource than is available to me in my private office. I simply say to ministers that, if I can do anything to help, they can give me a call—that is the extent to which I, as a back-bench member, can offer support.

I will ask specifically about the purpose of the consultation process. I am conscious that the previous bill failed. I imagine that, in any new round of consultation, there would be an opportunity to consider the specific areas in which that bill failed, so that we could use that information to inform the development of a new bill that would be stronger and more robust, and therefore more likely to succeed. Is that not the purpose of consultation?

I would not be consulting on a draft bill, so there would be no bill that people could look at to say whether they agreed with section 1, section 2 or whatever. The consultation would be simply on the one-line proposal. The previous committee and the Scottish Government have already said that they commend the aims of Anne McTaggart’s bill, which are, in effect, contained in the one-line proposal. The meaningful discussion of the specific details and content of that bill happened in committee and in the chamber.

At this point, without having a specific bill to ask about, we would not generate the same level of discussion. Any consultation on the one-line proposal would generate broadly similar responses to the responses that we have already had.

So there would be no opportunity to drill down into the particular failings of the previous bill.

There could be pre-legislative discussions with the Government and the civil service, but the way in which the process works is that a member lodges a one-line proposal, which goes out to consultation. The member analyses the responses before sending a policy document to legal draftsmen, who then draft a bill for introduction in Parliament.

I did not look at the consultation that took place in Wales, so I do not know whether that process was more robust, but I was struck by the numbers. Last time, the consultation here got 500-odd responses. In Wales, which has a small population, there were nearly 3,000 responses. That suggests that the consultation in Wales was much more robust, which might be why the Welsh legislation passed. That is my concern. If everyone around the table agrees that we want a successful bill to be introduced, perhaps we could think about that issue.

I agree. The reason why the Welsh consultation got so many responses is that it was on a Government bill, so it was backed by the full weight of the Government.

Would you expect about 3,000 responses to a consultation here?

The Welsh Government would have had a public relations department and a budget for the publication of documents. That is why there were so many responses. If I went out to consultation, I would be using the same resources as you have—that is, two or three members of staff—and would be posting stuff on Facebook and other social media. With the best will in the world, I would not reach as many people as the Scottish Government could. The Government’s consultation is better placed to seek a much wider range of responses, which is another reason why I will not do anything until that exercise is concluded and the Government has decided whether it will go forward with legislation.

I have a question about procedure and timing. I do not know whether you can answer it or whether the committee clerks might have to comment.

You are bringing forward a proposal at this stage, and you will bring forward a final proposal after that, when the clock will start ticking for a month. You have undertaken not to bring forward the final proposal until the Government’s consultation has finished and it has commented on that. My understanding is that, even if the committee agreed to your proposal at this stage, no time would be gained, because you are waiting for the Government’s process to take place anyway. Given the concerns that have been raised and given your commitment not to proceed until the consultation has ended, would it be a good option to defer consideration of the proposal and ask you to come back to us later in March, when the consultation has finished? Procedurally, is that an option?

The clerks can correct me if I am wrong, but I think that, procedurally, the committee has to make a decision within a certain timescale, which I think ends in the February recess. The committee has to decide before recess whether to ask me to go out to consultation. It could ask me to go out to consultation, and I would undertake that exercise but, as Maree Todd pointed out, the Government’s consultation, which is running at the same time, will have a much wider reach, a much bigger budget and, I suspect, a much higher response rate than I would generate through my private office.

That is fine—thanks.

I thank Mark Griffin and Andrew Mylne for coming to the committee. As agreed, we will take the next item in private.

12:12 Meeting continued in private until 12:49.