Chamber and committees

As I have said, I echo the concern that the Government has laid out in its commentary on the amendments that the application of that provision across the board could have significant resource implications.

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.

That is a very fair point to raise. It has not been raised with me either in the context of the bill as introduced or in relation to the additional safeguard that I seek to introduce through amendment 33. I am prepared to engage with other members and representatives of the medical profession to see whether any anxieties in relation to that point still need to be addressed. However, as I said, there is a safeguard in the bill. Notwithstanding Mr Whittle’s—rightly made—point about our legal set-up in Scotland, I believe that the safeguard is appropriate. As I said, it balances the need to ensure self-administration and that there is no evidence of coercion with respect for the right of an individual to have the privacy that they wish to have at the end of life.

I turn to the amendments that Brian Whittle lodged on the role of the pharmacist in the provision of the substance under section 15. I remind members that section 15 details that the co-ordinating registered medical practitioner or an authorised health professional can provide the approved substance if specified conditions are met. Amendment 173 would provide that the approved substance could

“only be supplied to a coordinating registered medical practitioner or an authorised health professional”

for that purpose

“by a registered pharmacist, in accordance with the directions of the coordinating registered medical practitioner.”

Amendment 173 is one that I can support on the understanding that it would not add to the competence issues that are being considered by the Scottish and UK Governments.

Amendment 177 would enable the co-ordinating registered medical practitioner or authorised health professional, where they are

“accompanied by any other health professional”,

which, as per section 29, could be a registered medical practitioner, a registered nurse or a registered pharmacist, to

“delegate their functions under subsections (1) and (7)”

of section 15 to that person. Section 15(1) deals with the provision of the approved substance, and section 15(7) deals with the removal of the substance where the terminally ill adult decides against using it.

However, amendment 175, which I understand should be read with amendment 177, would require that the co-ordinating doctor or authorised health professional, as the case may be, has to be present for the provision of the substance.

I believe that Mr Whittle’s intention is that it is the role of a pharmacist to provide the substance to the person. However, I believe that there is merit in retaining the provision that it is for the co-ordinating registered medical practitioner or authorised health professional to provide the substance. I envisage the role of any other health professional attending at the discretion of the co-ordinating registered medical practitioner or authorised health professional to be limited to providing assistance to the CRMP or AHP as they see fit. I am wary of allowing functions under section 15 to be delegated by the CRMP or AHP, who must be in attendance and who will have the relevant skills, training, experience and qualifications to fulfil the functions set out in subsections (1) and (7) regarding the provision or disposal of the substance.

Amendment 185 would add registered pharmacists to the definition of an authorised health professional in section 15. I note that the Government suggests that, in order to fulfil that role, pharmacists would likely need additional training over and above that required by the doctors and registered nurses who fulfil the role. I agree with that assessment, and I note that, if the amendment is agreed to, there would be no distinction between who can be an authorised health professional in section 15(8) and a health professional as defined in section 29, which could lead to confusion.

I turn to Jackie Baillie’s amendments 76 to 79, which would require that, where the substance is to be provided by an authorised health professional who is a registered nurse, they must be accompanied by the co-ordinating registered medical practitioner or another AHP who is a registered medical practitioner. It would be for the CRMP or AHP who is a registered medical professional to make the determinations on a person’s capacity and whether they were being coerced. The registered nurse would have to be accompanied by another health professional for the purposes of subsections (5) to (7) of section 15.

The bill provides for the role of an authorised health professional to ensure that there is no unreasonable delay or barrier to a person who is eligible being provided with assistance. Limiting the section 15 role for a registered nurse in the way suggested might lead to such delays and a loss of access for some terminally ill adults. The bill requires the authorised health professional to be a registered medical practitioner or a registered nurse, authorised by the co-ordinating RMP. The co-ordinating RMP therefore already has a key role in deciding whether to appoint an authorised health professional.

Having engaged with the RCN, I have lodged amendments requiring the Scottish ministers to be able to regulate for any training, qualifications and experience that a registered medical practitioner or registered nurse should have in order to carry out the role of AHP. I believe that, if agreed to, the amendments will help to ensure that the role will be suitably supported. I should note that the amendments that I have lodged to section 18 are also relevant here in that they would ensure that no person would have to participate if they did not want to for any reason. I therefore do not believe that amendments 76 to 79 are necessary or would strengthen the bill—in fact, they could limit the availability of relevant health professionals who are able to provide the substance and be with the person on the day of death. The Scottish Government also appears to have noted that, while observing that such an approach

“may set a precedent of health and care professionals being accompanied when they have to attend people in their homes to deliver other services.”

The resource implications of that could be significant.

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.

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 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 thank Douglas Ross for that intervention. The committee took evidence at stage 1 from witnesses in Australia that went some way to allaying many of the concerns around the efficacy of the substance, but I certainly appreciate that complications might arise in some instances. That is why it is important that the medical professional remain present on the premises. There would be a discussion ahead of the self-administration of the substance about what is expected to happen.

In other jurisdictions, there are instances where the medication is not provided in person by a medical professional and concerns do not appear to arise as a result. My bill has an additional safeguard that does not exist in other jurisdictions. The fact that the medical professional would be there and available allows us to balance, on one hand, the need to ensure that there is no coercion or undue influence being brought to bear and that self-administration takes place, with, on the other hand, respecting an individual and their family members’ wish for additional privacy, while maintaining the robustness of the safeguard.

Yes.

Let me respond to that intervention first, Ms Baillie, and then I will come back to you.

The member makes an entirely fair point. As the convener and Jackie Baillie have intimated, there are examples in which there is such a requirement at present, but it would be wrong to assume that, from those instances, one could draw parallels with the actions being undertaken by nurses acting independently in a person’s home. I suspect that that is the point that the Scottish Government is making in its commentary on the amendments.

Will the member give way?

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.