Chamber and committees

On the point about holding a child’s hand, I contend that that would not constitute restraint on the basis of the definition, but it is an important point.

First, I reiterate that the definitions are literally just about providing scope—there are no prohibitions or prescriptions. Secondly, the definitions are very much in line with the guidance that the Government produced in 2024. I would argue that not only is that compatible with what the Government has already produced, it is narrower. If you read the current Government guidance in its entirety, you will see that it provides for restraint to include physical actions that constitute supporting a child, but the definition of the bill is narrower than that.

There is a real need to look at one area that the Government has raised with me in private and through correspondence and oral evidence with you, which is the relationship with reporting. I spoke about providing a scope for the guidance, which can then be further refined and focused. As it stands, the guidance on reporting may be too expansive, and I am open to narrowing the definitions in the guidance if that would be helpful and, in particular, to providing further clarification about the reporting requirements in the bill. For example, that might focus on the reporting of more sustained uses of physical intervention, such as when a practitioner uses such an intervention over a period of minutes rather than seconds.

I have a final point. The bill certainly does not define all physical contact as restraint. It is about physical intervention that deprives an individual of the ability to act independently. That is why I am not sure about the example of holding a child’s hand because, when you do that, the child can usually withdraw. There might be an issue when that is more forcible. It is important to me that a supportive hand on the shoulder, or perhaps even a hug from a teacher, especially for a younger child, is not restraint—it is physical communication.

There is a final category of interventions that might protect a child, such as the example of pushing a child out of the way of a moving vehicle. We need to look at that, which is why looking at duration might be in order, but there is also another way of looking at that. If my child was on a school trip and had to be pushed out of the way of a moving bus, would I want to be told about that? Yes, I would. Would I want that to be recorded and for there to be some reflection on how that had happened? Yes, I would.

I understand that there are nuances but, overall, those things should be captured and reflected on.

That reporting would be collated and published by local authorities at that level. The data would exist at a school level. The member is right to flag the changing nature of inspection regimes and the fact that some schools go for long periods between inspections. However, the inspection regime is meant to be responsive so that, when concerns are raised, there can be inspections on that basis.

We are in the realm of speculation here—I would hope that, in conjunction with the guidance, the reporting regime and some consideration by the inspectorate of how it should proceed, we would see that forming part of an inspection regime and that, if there are specific concerns, the inspectorate might reflect and be able to engage on that basis. That is speculating about where this might end up, but it could and should be part of the role that the inspectorate sees for itself.

That is exactly why there needs to be national reporting, and it is why the bill is not overly specific about the precise arrangements. Ultimately, it is a matter for the Government to resolve. It is for local authorities to collect the data, and it is then for the Scottish ministers to determine how to report the data. The Government would need to resolve that level of detail. As I understand it, the suggestion is that the information relating to such schools would be reported separately. In a sense, all that we would be asking local authorities to do is to collate that information. We might simply ask them to be clear about the nature of each of the schools that Mr Mason has identified and where they are.

Yes, but, again, there is the question whether introducing such assistance in care homes puts pressure in the other direction, on people who do not wish to consider an assisted death. At the very heart of this is the personal nature of hospices, many of which are very small, which means that assisted dying almost becomes the assumption that they are introduced to. I recognise the point, and the stress that might be caused.

I am sorry; is that an intervention?

I understand the point and I recognise that this is complicated and delicate, but the flipside of that coin is that there is a very real concern among those in the hospice sector that, if what is proposed in the bill is undertaken, especially in small, intimate settings, the practice with regard to palliative care for those who do not wish it will be affected. That would essentially be impossible to avoid, given the nature of many of those settings. It would not be the case in every setting, and it may well be that the regulations would make specific considerations. However, I ask the member to understand that, if his argument is correct, there is a very real flipside to the same coin, which is that one practice would be unavoidably affected by the other.

That is very much at the heart of why I lodged amendment 20. It is one thing to propose a notional opt-out, either for individuals or for organisations but, especially for hospices, it may be that the practice becomes such that opting out would not be a financial practicality, especially given the precarious financial circumstances in which hospices find themselves—they get only partial funding through the NHS. Again, we need to tread carefully. I recognise that it is a matter of balance but, given the very personal nature of the situation, it is important that we allow that flexibility, especially for hospices and care homes.

It is useful to follow Bob Doris. My amendments fall, like his, in multiple parts of the bill, so I ask for the committee’s forbearance.

This group of amendments is very important. It is entitled “Assessments of the terminally ill adult”, and those are at the heart of what the legislation is about. Indeed, they are critical to its operation. We have already heard that there will be a need for careful consideration by the co-ordinating medical practitioner, who will not always be able to deliver everything by themselves and will need to refer to other professionals or seek other information. It is important that we are clear about how that will work, and not just with regard to what is in the bill. Ultimately, we must recognise that it will need to be based on professional judgment, no matter how good the legislation, the guidance or the training might be. It will all boil down to medical practitioners and doctors making careful decisions in consultation with the person concerned and ensuring that that happens in a fully informed way.

The first set of amendments that I will speak to has been prepared in conjunction with CHAS. As we have already discussed with regard to previous sections, when it comes to situations involving young adults, there needs to be more careful consideration both of the nature of their illnesses, which can look very different, and of their vulnerability.

Amendment 50 provides for amendment 51, which sets out that, when someone is under the age of 25, there will be a referral to a registered social worker and a registered medical practitioner who is a specialist psychiatrist. That is to ensure not just that there is a vulnerability assessment, but that the young adult is making the decision in an informed way. It is important that, in such situations, there is referral to those specialists, because the decision involves a critical judgment, and such referrals will be critical in ensuring that the young person has capacity and understands fully what is inevitably going to be a very complex decision.

CHAS’s judgment is that the current assessment process does not make sufficient provision for assessing that capacity or providing the safeguards that it believes are needed for young people. I know that the numbers are likely to be very small, but it is important that we take the proposed approach, which I do not think would put undue pressure on social work or psychiatry systems.

Critically, the approach would not change the decision-making process, which will ultimately rest with the medical practitioner; there is simply a request that those referrals be made and those additional points of information be sought. As I set out at the beginning, these will be delicate judgments that are based on the relationship between the patient and the co-ordinating practitioner, but it is important that, in particular circumstances, additional points of information and professional judgments can be brought in.

Like some of the amendments that Bob Doris has lodged, amendment 93 has been prepared in conjunction with another organisation—in this case, Hospice UK. It is absolutely essential that anyone who requests an assisted death be fully informed of all the options, not just the one that they are requesting. In other words, when they make their request, they must be fully informed of the palliative options that are available to them. There can often be complex issues, and there might be other connotations that people might not have perceived in advance. In particular, not all doctors will have expertise in such care, which is why Hospice UK has asked that anyone who makes such a request be provided with that information and have the option of being referred to palliative care.

Amendment 75, which has been prepared in conjunction with the Royal College of Psychiatrists, is, in a sense, an extension of the amendments that were previously debated on the proposal for a register. In the royal college’s view, it is important that, where there are questions about capacity and in any borderline cases—especially complex cases such as those involving dementia or other complex mental health disorders—there is an avenue for further exploration of those issues and further consultation.

Finally, I turn to my own amendments, 5 and 6. We have heard a great deal from Bob Doris about the nature of the decision that is to be made by the co-ordinating practitioner and what that will look like. For me, that judgment is absolutely at the apex of the bill. As Bob Doris put it, we need to take great care that we do not turn this into simply a tick-box exercise.

My amendments are probing amendments. The fact is that we can put as much as we want in the bill, but we must ensure that the relationship in question is as effective as possible and that any judgment is made in as full a way as possible. To achieve that, I ask members to explore the nature of that relationship.

At the moment, co-ordinating practitioners are asked to sign the form in schedule 1, and they can literally just put their name and a date at the end of a block of text. The form does not ask any questions about the nature of the relationship or what has been explored, and it does not ask for an assessment. Bob Doris’s amendments are interesting, because they require a report, but I am simply asking the committee to think about whether we want to ask co-ordinating practitioners to declare any other information. The length of time for which a physician has known a patient is not a terribly good or accurate way of measuring the relationship, but—this is why amendments 5 and 6 are probing amendments—it is one way of getting a sense of how well the practitioner knows a patient.

Let me draw in some other examples from a health context. It is important that, although we are discussing a particular situation, the wider health system is not divorced from the discussion. I have been in a situation in which a physician whom I have known for only a very short time has provided me with an excellent level of in-depth information, which has allowed me to understand it. In particular, when my daughter was born, I was dealt a medical situation that I found quite overwhelming. However, I have also been in a situation in which I had surgery and, to this day, I am not clear about which physician performed the procedure on me.

I have also been in situations in which I have had to fight to get physicians to understand the full, broad range of circumstances, because they have been so busy. It might be that a physician ultimately signs off or authorises a procedure but, actually, a team of physicians is involved and the overstretched nature of the system means that no one person has a relationship with the individual.

We need to ensure that that is not the case under the bill—there must be a positive relationship that is well understood. The physician must not only take the time to understand the individual, their needs and why they are seeking to make this decision, but draw in other professional opinions and ensure that the person has the information that they need.

Amendments 5 and 6 do not ensure that. I am asking whether the declaration and the duties and obligations that we set out are sufficient. More needs to be done to ensure that they are, which cannot be a tick-box exercise, as we have seen happen time and time again. We can create a pro forma and a set of tick boxes, but that does not always mean that a relationship of the quality that we want, the information that we require people to have and the empowerment that we seek are provided. More needs to be done in the bill on that point.

Again, I would just say that the reverse could also be true. By not permitting that, you are, in effect, creating a mandate and therefore there is a concern that practice in palliative care will be inextricably altered by that practice. We need to listen to that concern.

The amendments that I will speak to in this grouping fall into three substantive sub-categories: the first is on individual opt-outs, the second is on organisations and particular views in relation to hospices and care homes, and the third is on a register for psychiatrists.

First, it is important that we ensure that individual opt-outs are as straightforward as possible. That speaks to amendments 11 and 16, in my name in particular. I will not reiterate the arguments that Miles Briggs set out very clearly.

Amendments 52 and 60, with regard to hospices, were also drafted in conjunction with CHAS. I listened carefully to what Liam McArthur said and I understand the broader point about an institutional and organisational opt-out. However, hospices require a particular degree of care and attention with regard to the bill. We are not talking about large, faceless institutions. Any of us who has visited a hospice will recognise that they are often small and very personal contexts, and they are not clinical environments. This is not necessarily about an ideological opt-out; it is about allowing hospices to look at the implications of the bill and get their care right for the people who are in their care, and I—