Chamber and committees

I support the amendments that have been lodged by Jackie Baillie, which have the support of the Royal College of Nursing. We must have clarity on roles. The final provision of the substance is particularly sensitive. It is also important that we have clarity about not only the role of the registered medical practitioner but those of other medical professionals and in what combination those roles take place. The role of nurses and the points about accompaniment and supervision are very important.

I voted for the bill at stage 1 on the basis of the principle that people should have bodily autonomy, and because the bill is very much about people whose death is imminent and enabling them to make the final decision and to carry out the final act.

That last point is very important to me, which is why I have lodged amendment 10. Although I note the intent of the legislation and what is set out in the policy memorandum, I am concerned that there is not sufficient clarity that the final act will be that of the individual. My amendment seeks to specify that, for similar reasons to those that Marie McNair pointed out.

Throughout the discussion, great care has been taken about the language—whether this is assisted dying or suicide—and the bill very much rejects any notion that this could be viewed as euthanasia. I understand that. Those are important distinctions. It is important that this is about enabling someone to act for themselves and do this to themselves. It cannot be about enabling an act in which one person is administering a substance to another.

There is a big difference between enabling someone to end their life and enabling others to end others’ lives. One is about enabling one’s own death. The other is, quite simply—as a matter of moral distinction—killing another person. I use that word advisedly because there is an important moral distinction. It is easy in these settings to highlight the complexity and say that, in practical terms, there are not necessarily those distinctions, but the moral differences are important.

I also think that, practically, it is essential that an individual has the ability to withdraw their consent to ending their own life up until the very final moment, which is why self-administration is so important. My amendment seeks to clarify that, because there are also sensitivities about a person’s physical capacity to undertake that.

The amendment specifies that the act would be for the individual to carry out, and specifies that the co-ordinating registered medical practitioner may

“prepare that substance for use by the adult ... prepare a medical device which will enable the adult to use the substance”

and assist the adult for the final ingestion of the substance.

My amendment further clarifies that, those points notwithstanding, the final decision must be made by the individual themselves and, further, that the co-ordinating registered medical practitioner may not administer the approved substance to the individual directly.

Those are important clarifications that state clearly and specifically what the bill would authorise. As I have stated, I think that it is important that we have that moral clarity and that moral distinction, but, ultimately, it is vital that it is the individual’s choice and that they can withdraw their consent right up until the final moment. That is the reason for my amendment 10.

I wonder whether Brian Whittle would agree with me that there are two fundamental points here. First, it is important that safeguards are put in place, especially where those issues have been raised by the people who would be delivering the bill. Secondly, as we proceed, given the sensitivity of the issues, we have to be seen to be providing those safeguards. Those are two very important purposes. The second point is about providing strong signals and clarifying principles that we want to see if the bill is to be enacted safely with the confidence of the people who we are going to ask to deliver it. I wonder whether Mr Whittle would agree with those two distinct points.

I thank the committee for its forbearance in allowing me to speak remotely. I have had to do a bit of juggling this afternoon.

With regard to the amendments, I say up front that I think that Jackie Baillie’s amendment 53 is very important. Having previously spent some time around the sick kids hospital in Edinburgh, I realise that, for many families, healthcare settings are home. They are part of everyday life and the medical teams are part of the extended family, and discussing matters with them seamlessly and on an on-going basis is very much part of the day-to-day norm. The prospect of assisted dying being discussed with a young person in that context is hugely problematic, which is why amendment 53 is so important.

My amendments seek to extend the age limit in amendment 53 a little further. Under previous groups of amendments, we discussed the differences for those who are facing terminal illness earlier in life. There are different considerations for them and there are questions regarding the capacity of people up to the age of 25, when brains are still forming.

My amendment would not withhold treatment for those aged under 25; it is just about recognising that such treatment needs to be dealt with differently.

In that regard, I am careful to state that Jackie Baillie’s amendment is important in its own right. My amendments are simply about exploring whether there is a lighter-touch way to address the point about those aged under 25. They are not about preventing treatment or providing that people aged between 18 and 25 would be precluded from having an assisted death; they would merely provide that the options could not be proactively raised with them. Amendments 53A and 53B would give effect to that.

I note what Liam McArthur is saying, and in a sense, he is right, but would he also observe that those amendments were lodged following the RCN requesting them, so the profession itself is asking for those restrictions? Why does he think that those observations—and, indeed, requests—should be rejected?

That is why training does not exist on its own. It would be for the guidance to set out good practice and the point at which someone would need to use the training from training providers. That is not to say that it would be the only training available to help people who were dealing with such situations.

In broad terms, yes. I have thought for a long time that initial teacher education should focus far more explicitly on additional support needs. Within that, there should be real clarity about elements of cognition and executive function and, by extension, de-escalation. It should be a core topic for anyone embarking on a teaching career.

I can respond in a number of ways. In essence, my bill does not alter that situation. If those things are occurring, we want to know about them. If people are making interventions, we want them to happen when the people concerned have already been properly informed and appropriately trained.

In a sense, there is a tension here for me, in that I almost do not know who to believe. On one hand, I am being told that everyone is already complying with the guidance. If that is the case, I would say, “Great, so what is the issue with putting it on a statutory basis?” On the other hand, people tell me that the bill will have massive resource implications. In that case, I would say, “I thought you said that everyone was already complying with the guidance.” You cannot have both going on.

Most fundamentally, let us be clear that there are different cohorts and different dynamics. Overall, when looking at education policy, you have to consider everything all at once. What I am looking at is the situation for children with additional support needs, who are often of primary-school age and often have quite profound needs. The wider issues of behaviour and violence in schools are a much bigger topic, which extends through the age range, and that is reflected in the evidence that we have had from people working in education. That was also quite clear from Lynne Binnie’s contributions.

The fact that there are other issues and problems—and even ones that are connected—does not mean that we should do nothing. The bill can provide clarity and will provide support and training to practitioners who really need them. Ultimately, it is also about providing clarity for parents.

My other response, especially on the point about violence in schools, is that that is a different situation, but that, as a parent, if my child is involved in an altercation in school, I would want to know. I would want to know if they were on the receiving end of that; I would want to know if they were the instigator. If that situation involved a teacher, I would want to know, and I would also want schools to have a clear understanding of such situations and what they are doing about them and to have a clear plan to deal with that. My bill does not detract from that; in fact, it might even help.

Let us again be clear about what the bill would and would not do, and what the definitions would and would not do. The definitions are simply about providing the scope of practice around which there needs to be guidance from the Government. The bill does not state that anything would be prohibited, nor does it provide for any penalties. The bill literally states that the Government must provide guidance for actions that fall within that scope of practice. It is then for the guidance to provide the sort of clarity that the member quite rightly seeks.

That is a normal way for the Parliament to proceed. Jackie Dunbar is here—we had a similar discussion yesterday about the Assisted Dying for Terminally Ill Adults (Scotland) Bill. There is a balance between the boundaries that we create in legislation and the things that we leave as a matter for guidance. What I am saying is that there is a scope of activities that need to be regulated by guidance. It is then for the guidance to specify precisely what those activities look like.

I, too, recently visited Donaldson’s, which is a really fascinating place and does excellent work.

I will first thank the committee; I know that you are very busy and looking at multiple pieces of legislation, so I really thank everyone for taking time to look at my bill. I also thank the Scottish Government. This has been a long and engaged process, and I have had a number of constructive meetings with the Cabinet Secretary for Education and Skills. I thank the non-Government bills unit, too, and cannot overemphasise the excellent work that it does and what an excellent aspect of the Scottish Parliament the unit is.

I will speak briefly because I really want to get into the questions. My first point is that the bill arrives at the end of a long process. In 2015, Beth Morrison lodged a petition with the Scottish Parliament, seeking to restrict the use of restraint and seclusion. Then, in 2018, the Children and Young People’s Commissioner Scotland produced an excellent report on the use of restraint and seclusion in schools, looking particularly at data. The subsequent “in safe hands?” report from Enable Scotland came to similar conclusions, which resulted in a meeting with the Government that led to a five-point plan in 2019 that called for urgent issuing of guidance. However, the guidance was produced only last year. There was also guidance in 2011, which was updated in 2017, but, as part of the 2019 meeting, the Equality and Human Rights Commission wrote to the Government saying that, in its view, the 2017 guidance was not compliant with human rights and that there was the prospect of judicial review. The bill is not something that has just come about; it is part of a long process.

It is worth highlighting the findings of the report from the Children and Young People’s Commissioner. It found that there were 2,674 instances of restraint but that only 18 local authorities were reporting on that. Only 18 authorities—but not the same 18—were able to provide data; only 13 of those 18 could actually provide the number of children restrained and only 12 could provide any insight into the use of restraint for pupils with additional support needs.

The issue affects hundreds of children but we do not have sufficient data or clarity, so that is what my bill seeks to address. It would provide guidance about something that, however you seek to look at it, is a serious intervention that can occur at school, and it would put that guidance on a statutory footing so that it must be complied with. Importantly, there would also be recording so that we can understand the situation; parents and guardians would be informed; and there would be a reporting mechanism so that we can have a national understanding of restraint and seclusion.

However, over and above the bill, or the numbers, there is a fundamental insight. I took the time to read every single one of the submissions to my consultation—it was, I have to say, a very difficult thing to do. Through the testimony of people reporting what happened to their child, I read about their anguish and about the sheer frustration that they went through just to find out what happened to their child at school and why they came home with bruises. It had often taken them weeks, if not months, to find out precisely what happened. That is not something that any parent would want anyone to go through.

It is also, ultimately, about this point. Everyone around this table who is a parent or who has children in their extended family will be familiar with the little slip of paper that comes home from school with a child when they graze their knee after falling down in the playground, and which has to be countersigned and handed back. That is the level of recording and reporting that goes on when things happen at school that are a matter of accident. Why is it not the case that the same is required when injuries happen as a result of deliberate intervention? I think that that should be required.

With that, I am happy to take questions.

In a word: clarity. Although we would wish such instances to be avoided, we all understand that they will occur. When they do occur, from a parental perspective, it is important that parents are informed promptly so that they understand what has happened to their child and do not have to piece it together or try to figure out why a bruise has occurred. It is also about parents having clarity, more than retrospectively, about the sorts of things that might be going on at school and that might form part of their child’s care.

As a country, we need clarity on the pattern of how restraint and seclusion occur and in what circumstances, so that we have some oversight.

Clarity is important for practitioners, too. At the moment, there is a lack of statutory guidance, and there has been criticism of the current guidance from some quarters about the lack of practical help that it provides. If there are situations where practitioners need to use restraint or seclusion, it is really important that they have clarity about when it is appropriate to do so and, critically, what form that should take. That is why we need the training element.

In essence, all those things boil down to clarity: for the individuals, for parents, for practitioners and for all of us as a country.