Chamber and committees

I thank Liam McArthur for his broadly constructive and positive comments. I am aware that Ross Greer is keen to press amendment 242, so I will do that. I note that, if the committee is not minded to support amendment 242, there is an intention to work constructively before stage 3. For the time being, I will press amendment 242.

Amendment 242 agreed to.

Amendment 243 moved—[Patrick Harvie]—and agreed to.

Section 15—Provision of assistance

I am grateful to the member for allowing an intervention. I take his point, and I hear his discomfort with some of the discussion, but would he acknowledge that the member in charge of the bill has indicated openness to addressing some of the issues around how, in those rare circumstances that Brian Whittle has described, the correct information can be recorded? Liam McArthur has said that he is not convinced that any particular variant of that, as has been proposed at stage 2, is quite right, but he has indicated a willingness to work towards a consensual way of capturing that information at stage 3. Would it not be reasonable for all the members who want to see change in this area to collaborate in that spirit?

I thank the convener for her flexibility in allowing me to speak on behalf of Ross Greer, who has lost his voice. It is very tempting to abuse the privilege. However, to be clear, I will simply read the statement that Ross has given me, so references in the first person should be taken as referring to him.

As I mentioned at stage 1, I have two primary concerns about the bill. The first is in regard to the proposal for a dispersed rather than a specialist service. My amendments on training, in a later group, are intended to address that concern.

This group of amendments is intended to address, in part, my other concern, which is about the risk of coercion of and undue influence on someone considering making the choice to end their own life.

To summarise my amendments in the group: amendment 242 would create a right to access independent advocacy for those who were considering making a request for assistance under the act; amendment 243 would require the provider of independent advocacy services to comply with minimum standards that would be set by ministers in regulations; amendment 274 sets out that those regulations should be subject to the affirmative procedure; amendment 279 sets out that provisions on the right to advocacy and advocacy service standards would commence on the day after royal assent; and amendment 283 sets out that substantive provisions on assisted dying services could not commence before the minimum advocacy standards were set.

The key amendment is 242, which would create for those who engage with the assisted dying system the right to high-quality, independent and rights-focused advocacy. A neutral third party would be able to support a person through what is a potentially complex system and put their interests first.

That right mirrors other statutory provisions for independent advocacy—for example, in the Social Security (Scotland) Act 2018. As is the case with the 2018 act, which I drew on for drafting purposes, advocacy would be optional and would be intended for those who would benefit from an advocate’s support to ensure that they could make their choice with all the relevant information available to them and with the safeguard of someone whose only role in the process would be to represent their interests and help them navigate the system.

I envisage that the advocate would not already be known to the person and that they would otherwise not be involved in the person’s care. They would be able to advocate for a person from the point at which that person first contemplated assisted dying until the point of their death, should that be the choice that they ultimately make. Among other services, the advocate would support the person in navigating the system, ensure that the person’s rights were respected, and act as a safeguard against coercion or other forms of undue influence.

The intention of amendment 242 is to embed a patient’s rights throughout their interaction with the assisted dying process. In particular, in recognition of the potential increased risk to a patient’s rights from a dispersed rather than a centralised service delivery model, the advocate is intended to protect against potential infringements of those rights and to identify and intervene in cases of potential coercion, pressure or undue influence.

I thank Dr Sandra Lucas and Dr Rhona Winnington from the school of health and life sciences at the University of the West of Scotland for their support with these amendments. Their briefing helped to shape my thinking ahead of the stage 1 debate, and the amendments stem from that briefing and my subsequent discussions with them. They both have invaluable experience of assisted dying systems in Australia and New Zealand.

My advocacy amendments reflect the voluntary assisted dying statewide care navigator service system that is operated in Victoria, Australia. Research, including the Ben White report in the Medical Journal of Australia, which was a qualitative study of the Victoria scheme, has called the advocate—the navigator—the “jewel in the crown” of that scheme, facilitating crucial discussions with compassion and giving people the confidence and knowledge to assert their rights. If the Parliament passes the bill, I want people in Scotland who will access or will consider accessing the system to have that same confidence and knowledge of their rights.

Other jurisdictions that have adopted assisted dying have included navigator or advocacy schemes, such as the Queensland voluntary assisted dying support service. The Victoria model is staffed by trained allied health professionals, but the Queensland scheme is open to social workers, psychologists and lawyers as well. I can see the advantage of the role’s being fulfilled either by medical professionals or by those with a degree of separation from the health service entirely; my amendments therefore do not specify either way. It could reasonably be up to ministers to set that out via regulations, although I would be happy to look at revisions ahead of stage 3 to clarify some details about the advocacy scheme, if colleagues felt that further detail was required in the bill.

I am grateful to various stakeholders for supporting the amendments. The Equality and Human Rights Commission’s briefing for stage 2 supports including a statutory right to access independent advocacy, and I am aware that the British Medical Association has welcomed debate on the issue of advocacy at stage 2.

I clarify that the intention is that everyone who was contemplating or undergoing assisted dying would be entitled to advocacy akin to the care navigator in other jurisdictions. Amendment 242’s proposed subsection (3)(b) is intended to capture that anyone who would benefit from advocacy would be entitled to it.

The intention is not to replace the role of assessing doctors in spotting coercion. The advocates would complement that, providing an additional safeguard. That goes to the heart of my concern about putting on to the doctor, under a dispersed model, the burden of spotting something as complex and contestable as coercion. To me, that feels too much like risking a single point of failure in the system. Part of the training that I envisage for the mandatory service standards would be in identifying coercion and spotting warning signs of undue influence.

I am nearly finished, convener. On interaction between advocacy and a potential information service, my intention is for advocates to take on the role similar to that of the Victoria and Queensland navigators, who are more than just a source of information and signposting; they are a source of fuller support and safeguarding, particularly emotional support for patients and, importantly, their families.

I would be happy to work with the British Medical Association and other interested stakeholders and members ahead of stage 3 to add further details if they believe that that is necessary. I certainly do not oppose provisions for an information service as proposed by others, but I do not think that that would be enough. If we are providing independent advocacy for those accessing social security, for care-experienced young people and others, we should provide it for those who are considering making a decision as significant as this.

I move amendment 242.

I will speak to my amendments 127 and 137. As Liam McArthur anticipated when he commented on them, I lodged them largely as probing amendments for discussion. I was curious about how Liam McArthur and the committee would respond to the issue. As members will be aware, just last year, the Parliament, by an overwhelming majority, passed legislation to allow safe access zones for abortion services.

Abortion services can, of course, be a contentious and divisive issue within society, and they are, like the issues covered in this bill, generally regarded as a conscience matter by most political parties. In places around Scotland, we have seen a significant number of protests targeting the sites where abortion services are provided and impacting in a negative way on those accessing them, as well as on professionals working in those locations.

As Liam McArthur said, there have been protests in some jurisdictions where assisted dying takes place, but they have not necessarily been targeted at specific sites. The one instance where end-of-life issues have given rise to protests in this country relates to different circumstances, and not to assisted dying as such, and I think that it is probably fair to say that it was generated as much by online activity and information that was not necessarily accurate as by the issue itself.

I was mostly concerned that we were going to have this discussion in the context of the possibility that the Parliament might have agreed to organisational opt-outs, if our discussion last week had gone a different way. I was concerned that, if organisations—for example, providers of hospice or care home facilities—were under pressure to make an organisational decision whether they supported their residents in being able to access the assistance provided under the bill, they could become targets of the kind of protests that we have seen in relation to abortion services. Given that the committee, so far, does not seem to have gone down that route, I am minded at the moment not to move these amendments when we come to them. Obviously, though, I will want to see how the debate goes on other amendments and might revisit at least this discussion at stage 3, even if only for the purposes of debate.

I agree with Joe FitzPatrick. In addition, I make clear my strong support for the principle that the Parliament as a whole is compliant with human rights in the broadest sense. The existing means to ensure that is that the member in charge of a bill, as well as the Presiding Officer, have to satisfy themselves in relation to the human rights issues. Any legislation that we pass that is found not to be compliant with human rights is not law. That is the appropriate and strong safeguard against any impact on human rights in the broadest sense, and it is the appropriate way for us to proceed.

I do not think that it is necessary.

If we were to move the question about an element of direct democracy element away from the issue of secession or independence, and towards how the people of Scotland assert their right to make a decision on a matter of importance, that is a question that the political process is failing to engage with. Is that not one way of putting a clear mechanism into the hands of the public, which allows them to force the political process to respond?

I appreciated Adam Tomkins’s frankness about “We will know it when we see it” being clearly inadequate but the best we can do. It might be that, in the interface between the legalities and the politics, it is not possible to have a position that is free of contradictions.

I want to pick up a couple of points in Adam Tomkins’s paper about the use of referendums more generally, and I am interested in everybody’s views on this. Several referendums that are not about secession are mentioned, and you make the case that we should use referendums not to determine or to find out people’s views on an issue but to establish what we think we already know. Among others, you gave the example of the alternative vote referendum as one that successfully settled the question. I would push back against that a bit, because it did not settle the question of whether electoral reform is necessary. The Lib Dems are not here, and they might push back against this, but they skilfully negotiated a coalition agreement that gave them a referendum on a voting system that nobody wanted. The AV system was not anybody’s choice, so it was almost designed as a scheme to put electoral reform on the back burner, but it did not settle the question of whether it was required, and, with the genuine prospect now of a far right Government in the UK, that should send chills down all our spines.

I would ask for your reflections on the experience of other countries that use referendums more frequently on non-secession issues. For example, Ireland has had a range of referendums on issues on which it was not really known how the public would vote. Common sense might have said that the public would have supported doing away with some of the misogynistic language in the constitution in the recent referendums on family and care, but those expectations were confounded, and the public voted quite comprehensively for what I would consider to be archaic language. Therefore, there is surely a case for using referendums to ask, genuinely, what the view is and to establish whether there is a 50 per cent plus one majority, rather than to confirm that there is an overwhelming settled majority that we already know about. Should we learn from Ireland’s experience of having a level of direct democracy as the trigger point for putting those questions to the public? Ireland used citizens assemblies in a number of instances to determine questions that the political process either could not resolve or was in deadlock over.

I see that others want to come in, but, first, one part of what was different between those referendums was that in 1997 there was a very clearly defined proposition being put rather than a general one, and I would suggest that one of the reasons why the EU referendum in 2016 resulted in such chaos was that every flavour of Brexit imaginable was on offer, not a clear, defined and solid proposition. However, had the result been no, I do not think for a moment that the Brexiteers would have gone away and spent the next decade saying, “Oh well, we lost that one. Let’s talk about something else instead.”

I do not think so.