Chamber and committees

Humza Yousaf must step aside and let someone else step up who has the confidence of the medical profession.

I am sorry that I was late this morning—I was at another committee meeting.

I have a question for Rosemary Agnew and Kevin Mitchell. Many are concerned that the bill gives too much centralised power to ministers, and we have heard today that it will make the ombudsman function toothless and powerless and that, as Rosemary said, it will make the SPSO unable to do its job. What other conflicts of interest do you foresee?

I have two amendments in the group. The main one is amendment 135, which seeks to place a duty on the Scottish ministers to encourage public understanding of not just the act’s provisions but its effects more widely. Amendment 142 requires that the Scottish ministers must prepare and publish a report on how that requirement has been fulfilled,

“no later than 6 months after the day after Royal Assent.”

On amendment 142, during stage 1, we heard evidence that raised question marks over what it means to live in an acquired gender; whether name changes will be required; what it means to make a false declaration; whether GRCs will be recognised by other jurisdictions in the United Kingdom and elsewhere; whether there is a pathway to detransition in the bill; what the bill means for the operation of the Equality Act 2010; and what the bill’s implications will be for single-sex spaces and women and girls. That is just the tip of the iceberg. The number of amendments that have been lodged at stage 2 is indicative of just how little clarity the bill provides on key provisions. One stakeholder described the Scottish Government’s own understanding of the bill as “flawed”.

Of course we seek to improve the bill’s clarity at stage 2, but it remains the case that the public need to understand what the bill will do and will not do once it has been passed; how it will affect people, especially women and girls; how people can use the bill; and what the penalties will be for misuse.

I lodged four amendments in the group. Amendment 143 would create a duty on the Scottish ministers to carry out a review of the operation of the act, focusing on three areas in which we know that its provisions will have an impact—educational establishments, the health system and the criminal justice system. There is potential for unintended consequences in the legislation that we might not be able to foresee at this stage, and reports on those areas every two years would help to facilitate post-legislative scrutiny, which the Scottish Parliament needs to do much more of, especially in relation to the operation of the bill.

Amendment 144 would modify section 15 of the bill to include a duty on the registrar general to report the number of applications each year for a GRC

“where the applicant has previously obtained a gender recognition certificate”.

The Scottish Government has emphasised that the process for detransitioning under the new system will be the same as the process of self-identification, meaning that individuals who seek to detransition will be caught in the data on the generic numbers of applications and GRCs. However, without a specific pathway to detransition in the bill, the challenge is that it will be difficult to capture figures on the people who choose to detransition under the new system, which will make post-legislative scrutiny more difficult.

Section 15, as drafted, creates a new duty on the registrar general to include information about gender recognition alongside the number of births, deaths and marriages in Scotland each year. That provision was drafted by the Scottish Government and it is clearly information that the Scottish Government wants to capture. Amendment 144 would simply modify section 15 to include in the report the annual number of applications made to the registrar general

“where the applicant has previously obtained a gender recognition certificate”.

Amendment 148, which goes hand in hand with amendment 155, would create a duty on Scottish ministers to transparently consult women and girls on how and how often the Scottish Government should report on the impact of the act on that demographic. It would require that regulations be made that set out the details of such a report. For the avoidance of doubt, it would also include a requirement that any data collected for the purposes of a report

“should record the sex as recorded at birth.”

Amendment 148 states that that consultation should take place within six months of royal assent, but the Scottish Government should have started consulting long before the bill becomes law. Women and girls have felt marginalised at every turn during the process. They have been treated as an afterthought; told by Scotland’s First Minister that their concerns about the bill’s proposals are not valid; and vilified on social media for asking legitimate questions about the operation of the act in relation to single-sex spaces and the safety of women and girls. Just last week at this committee, we saw women’s freedom of expression shockingly denied, simply for wearing suffrage colours—the symbol of women’s hard-won rights. I make that point because, in 2018, before the introduction of the bill and the start of public discourse surrounding it, female MSPs from all parties stood together on the steps in the garden lobby, proudly draped in the colours of green, white and purple. We already see the unintended impact of the bill on women and girls and it has not even reached stage 3. That is why amendment 148 is so important.

Crucially, amendment 155 would delay the commencement of section 2 until Scottish ministers have made the regulations that are required to set out plans for reporting on the impact of the operation of the act on women and girls.

I regret that the provisions that I have proposed are necessary. The Scottish Government should have managed the process far better. Nevertheless, I urge the committee to support the amendments.

Presiding Officer, I would welcome any guidance that you can offer on how the Scottish Parliament can play a role in tackling misinformation online and defending the journalistic freedoms of our independent media outlets.

On a point of order, Presiding Officer.

I seek your guidance on how the Scottish Parliament can support the journalistic freedom of our independent media. Yesterday, BBC Scotland was forced to issue a statement in defence of a story that it published that highlighted the fears of NHS Scotland leaders about the future of our health service. The story revealed details of official minutes of a meeting involving national health service leaders that suggested that NHS management has been given the green light to consider a range of drastic reforms. Those included introducing a two-tier system in our NHS that would charge wealthier patients for care—

It is likely that every single one of us in the chamber today either knows someone who suffers from chronic pain or perhaps even suffers from it personally. Paul O’Kane outlined the important work of the chronic pain CPG as a support group. My colleague Miles Briggs paid tribute to his co-conveners, Monica Lennon and Rona Mackay, for the past six years of work in that CPG but stressed that the situation has been going on for far too long and is unacceptable and that he hopes that today is the start of something new.

Pam Duncan-Glancy outlined her own experience and quite rightly is very angry for both herself and the constituent whose experience she spoke about. We have heard that chronic pain affects one in five Scots—a hugely significant number of people who need access to NHS services. Often unseen, this long-term health condition can be debilitating and it can interfere with every facet of someone’s life—from work to raising a family, to socialising, to carrying out day-to-day activities and trying to get a decent night’s sleep.

As colleagues such as Emma Roddick have emphasised, there are mental health implications, with the psychological effects of prolonged and often unpredictable pain further affecting someone’s quality of life and wellbeing. For some, the situation is so unbearable that they consider suicide as a way out. For many sufferers, it is more a case of managing the pain that they are experiencing than resolving it completely. That often means self-management, and that is not always the most appropriate pathway.

The personal cost of chronic pain is extremely high, but so, too, is the economic cost. Jackie Baillie said that the implementation plan is light on detail. She outlined that GPs are struggling to cope and that patients were having to travel to Bath and are now having to travel Doncaster for treatment. Pam Duncan-Glancy said that people are waiting years for follow-up appointments. Rona Mackay said that, sadly, data is lacking on that issue, and that it is vital to have it. The minister, Maree Todd, said that she is aware of that data gap and needs to get the appropriate data in order to manage the situation.

Across the UK, millions of work days are lost due to chronic pain conditions, especially as a result of musculoskeletal problems. Finlay Carson outlined the impact of people who drop out of the labour market. Some people are waiting for three years for injections. Sickness absences in Scotland’s NHS are also often related to musculoskeletal problems, and we know how important it is to ensure safe staffing levels as the NHS struggles to cope with demand.

Chronic pain is a public health issue that requires a coherent policy response. Dr Gulhane outlined a chronic pain crisis, and Monica Lennon outlined the code black situation in Lanarkshire. The number of people who were waiting for their first appointment at a chronic pain clinic soared by 50 per cent between June 2021 and June 2022, from 2,576 patients to 3,853 patients this summer.

As we have heard, delays of not just months but years have been reported for patients who are waiting to receive steroid injections. GPs are often the first port of call for pain sufferers—understandably so. However, many patients do not realise that they can self-refer to allied health professionals such as physiotherapists, because the SNP Government’s public messaging around primary care reform has been so poor.

Bob Doris said that there is a plan in place but that it needs to be implemented, and he has laid down a challenge to the Government. The problem is that vacancy rates are high among AHPs, especially for physiotherapists and occupational therapists. Those two professions account for more than half the total number of AHP vacancies—yet another example of the SNP’s shambolic NHS workforce planning.

Chronic pain is a public health issue and it is also a women’s health issue, as women are disproportionately affected. The UK Government’s women’s health strategy has stated its ambition that

“invisible or undiagnosed conditions where pain may be the primary symptom”

will no longer be

“a barrier to women’s participation ... in the workplace”.

The SNP’s women’s health plan makes no such commitment.

The UK Government’s women’s health strategy also highlights that MSK conditions are more common in women, and that prevalence is higher in areas that are experiencing higher levels of deprivation. It sets out the work that it is undertaking to address disparities in that area related to sex. The SNP’s women’s health plan fails to address that point. I am especially disappointed that the Minister for Public Health, Women’s Health and Sport is responsible for driving forward the chronic pain implementation plan but makes only tokenistic nods to endometriosis in the document.

Alex Cole-Hamilton mentioned that members of the CPG for chronic pain have been ignored and silenced, and we have heard concerns about the voices of chronic pain sufferers being silenced by civil servants. Shocking incidents have been raised in the press about bullying and intimidation by officials that has been directed towards chronic pain patients. Their voices and experiences must be heard.

Gillian Mackay wants shared patient records, while Christine Grahame wants delivery on the ground. The reality is that the SNP Government keeps publishing flimsy policy papers and plans to improve our NHS services. On chronic pain, it is telling that in the 2008 report “Getting to GRIPS with Chronic Pain in Scotland”, the then Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon, said:

“5 previous reports on chronic pain services have been commissioned since 1994, each drawing attention to services that are inadequate and patchy.”

Dr Sandesh Gulhane has said that the Scottish Government has a duty to come up with solutions such as training surgeons to administer injections.

The SNP Government has an opportunity, once again, to improve the lives of people who are in debilitating pain. Success will be judged by implementation, not intention.

I am sorry for missing the first part of the meeting. I have one question. We were in Aberdeen city yesterday. One thing that hit me this morning is the huge disparity between mileage rates—it is 61p a mile versus 45p a mile. I know that, when it comes to aligning terms and conditions, there are huge issues in relation to pensions, sick pay and so on; those costs can be huge. However, people will move even for something small, because they cannot afford to move around on a rate of 45p a mile, but perhaps they could on a rate of 61p a mile. Will you comment on that? It might seem like a tiny amount, but the impact is huge.

The Equalities, Human Rights and Civil Justice Committee’s stage 1 report highlighted that there is uncertainty among stakeholders about what “ordinarily resident” means in practice. Amendment 116 seeks clarity from the Scottish Government on what it means to be “ordinarily resident in Scotland” for the purpose of obtaining a gender recognition certificate. The intention is to provide both clarity and a safeguard to prevent the potential for GRC tourism.

The explanatory notes to the bill state that

“The term ‘ordinarily resident’ is not defined by the Bill and thus takes its normal meaning.”

That normal meaning is determined largely by case law—specifically, the Shah test.

The policy memorandum for the bill suggests that

“a person is ordinarily resident in a place if they”

have lived

“there on a settled basis, lawfully and voluntarily.”

However, it also states that

“Whether a person is ordinarily resident in Scotland will depend on their individual circumstances.”

Although the Scottish Government has emphasised that the concept is used in 17 acts of the Scottish Parliament, as well as in UK legislation, it is clear that the term is not understood more widely.

In her evidence to the committee, I note that Jen Ang, a human rights lawyer with JustRight Scotland, which I understand is partly funded by the Scottish Government, emphasised that

“The term ‘ordinary residence’ is used differently in different parts of legislation, so when it is included in a piece of legislation, it is important to define what it means specifically. It is not even to avoid unintended consequences; it is just to make it clear to everyone who is physically in Scotland whether the procedure is available to them.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 31 May 2022; c 72.]

In Ireland, where self-identification has been in place since 2015, “ordinary residence” is also used to determine eligibility for applying for a GRC. However, the definition of “ordinarily resident” in Ireland is that

“you have been living in Ireland for at least a year or you intend to live here for at least one year.”

My amendment mirrors that approach and I would be grateful if the minister would indicate whether such an approach was considered when the bill was being drafted.

I further note that the Student Awards Agency Scotland website states that the Scottish Government expects someone who is ordinarily resident in Scotland to have made their home in Scotland with the intention of staying and living here, not just to undertake a course of study.

I will briefly address Pam Duncan-Glancy’s amendment 115, which attempts to clarify the definition of “ordinary residence” in relation to refugees. I know that the committee considered that issue during the evidence that it took on the bill and that it sought further clarity from the Scottish Government. I support Pam Duncan-Glancy’s policy intention in the area and urge the committee to consider defining “ordinarily resident” in the bill, so that it is clear from the outset who is able to apply and in order to prevent the potential for misuse.

The concept of “ordinary residence” engages the question of fact and degree, as well as intention. The fact that the Scottish Government chose not to define “ordinary residence” in the bill at the outset does not prevent it from doing so now. I suspect that the Government has pursued the current approach to the concept so that a great deal can go into guidance or its equivalent, which MSPs are unable to scrutinise during the passage of the bill. For that reason, I intend to move amendment 116.

I have a lot to get through, if I may.

Sue Webber raised relevant and revealing inputs to the committee, such as the appalling case of her constituent who was struggling to get an appointment with a cardiologist to diagnose a heart condition and who had to seek private treatment at significant cost.

Maree Todd calls primary care services the front door to the NHS. The Scottish Government feels that it has communicated well with the Scottish public around seeing physios, pharmacists, optometrists and podiatrists. However, as Sandesh Gulhane said, the public, largely, do not know about the changes. That is a huge concern.

Dr Gulhane also tells us that 42 per cent of junior doctors lack access to nutritious food at work, which, obviously, leads to burn-out.

The renegotiated GP contract in 2018 changed the delivery of primary care so that GPs would provide fewer services directly and multidisciplinary team working would be enhanced. However, the committee’s report highlighted concerns that public awareness of those changes is limited. That has certainly been my experience of talking to constituents in the region that I represent. It is heartbreaking.

In his passionate words, Willie Rennie said that we must pray that, at some point, the Government will take some responsibility.

Gillian Martin outlined the need for advertising. I agree with that. Patients are bewildered by signposting to alternative health practitioners when they have simply requested to speak to their GP. They do not understand why their winter vaccinations are being delivered an hour away and their bus has not come again, as they usually just nip down the road to their local surgery. They are getting frustrated with practice receptionists, who are often the faces of systemic change that has been poorly managed and poorly communicated to the public by the SNP Government.

The most recent health and care experience survey should be a wake-up call to the Scottish Government. Only 67 per cent of patients said that they were positive about the overall level of care provided by their GP. That is down by 12 per cent on the previous year and is the lowest level since the survey began.

Primary care needs to be reformed, but that process needs to be clearly articulated to the public. It needs to be patient centred, not just system focused.

As my colleague Carol Mochan has pointed out, the Scottish Government has failed to communicate its vision. She said that the narrative of the SNP Government “is simply not true”. Services are overwhelmed.

We know, of course, that Scotland is in the middle of a primary care workforce crisis. The British Medical Association has warned about that. The minister’s front door to the NHS is off its hinges, and a gale is blowing. The BMA is clear. It has said:

“without additional health professionals across a range of areas it will be near impossible for primary care to offer the range of services communities need or expect.”

The crisis is a crisis of the SNP’s making over many years. The health secretary simply is not doing enough to provide the resources that alternative pathways to primary care desperately need to ease the pressure on GPs.

As winter approaches, the crisis cannot become a catastrophe under the SNP Government. I thank Martin Whitfield, who highlighted the importance of people—people in the NHS who are watching us today and people who are receiving life-saving services. Patient safety and the wellbeing of staff are at stake—and so are people’s lives.