Chamber and committees

Although I very much appreciate having a group entirely to myself, I think that, in some ways, these amendments should be considered with the amendments in the previous group.

To my mind, there are two hugely important elements to the bill. The first is the judgment that will be made by medical practitioners as to whether an individual meets the criteria set out in the bill: that they are terminally ill and unable to recover. In those circumstances, they would meet the criteria for assisted dying.

The other really important element is that individuals will have to fully consider all the options that are available to them. To that end, the 14-day period is doing an awful lot of work, and I am not sure whether it provides a sufficient safeguard. It is an arbitrary time period. It is neither short enough, if death is imminent, nor is it long enough to provide a genuine period of reflection if an individual’s death is not imminent and they are planning ahead of time.

I will not move the amendments, which are probing. I wanted to draw to the committee’s attention the fact that the 14-day period is doing an awful lot of work. There need to be more safeguards to ensure that the individual makes a clear decision. Facing the end of life is clearly going to be difficult and, as human beings, we often find it difficult to make fully rational judgments.

I note that the committee has rejected a large number of amendments that seek the provision of additional information. This is an area that needs to be considered at stage 3 to ensure that people have full information, can reflect and can make a careful and considered decision.

I will not move the amendments at this time.

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 will be speaking to three sets of amendments in this group. Amendments 260, 282 and 286 are in Michael Marra’s name, amendments 18 and 19 are in my name, as are amendments 271, 272, 14 and 15. I should say at this point that I have spoken to more amendments in my colleagues’ names than I have in my own. Members should intimate to them rather than to me whether that has been effective—it would be simply upsetting if they did so directly.

Michael Marra lodged amendment 260 with a view to the resource implications of implementation of the bill. The amendment is modelled on amendments that have been tabled in the Lords to Kim Leadbeater’s bill, which is proceeding through Westminster. The aim is to ensure that there is robust financial oversight and scrutiny before the act is implemented.

As we have seen throughout stage 2, should the bill pass into law, it will establish a number of duties, considerations and undertakings in respect of the many individuals and services that might be involved. Members are also very much aware that those self-same services are not always overburdened with finances and resources. Indeed, in many cases, they are stretched. It is therefore important that we look at what the impacts will be on public services, such as the health service, local government and social services. Amendment 260 seeks to establish those duties for making those assessments and for the Government to provide a report on the findings of that review. Amendments 282 and 286 are consequential to amendment 280.

Amendments 18 and 19 seek to set up a commission to provide oversight of the implementation of the bill, were it to become an act. Again, there has been much discussion about what it is right and proper to put in the bill and to what extent things should be left to practice, procedure, training and guidance. Quite rightly, many of those details are a matter of judgment and practice and it is right that much of the implementation should be left to that sort of approach.

However, as has just been alluded to, the bill is not a normal bill and it is not normal public policy. Some of the detail, subtlety and nuance is incredibly important. We in this place know that scrutinising, let alone amending, anything that is in the form of guidance or secondary legislation is incredibly difficult. Amendment 18 would therefore require the setting up of a cross-party commission, to sit independently, that would provide oversight and guidance to Government when it is drawing those things up. It would not provide a veto, but it would provide a mechanism whereby there is oversight of those important details in the legislation, which is particularly sensitive in that regard.

My amendments 271, 272, 14 and 15 relate to the creation of a sunset clause. I note that the committee recommended that such a sunset clause should be considered during the amending stages of the bill. I think that it should be an important feature of the bill. I do not normally have much time for thin-end-of-the-wedge arguments, but it is very important that, in such important legislation, we provide some guarantees to people that, should a situation arise where the legislation ends up leading to unforeseen circumstances or expanding in ways that we had not intended when passing it, there is an emergency break, or in other words, a release valve.

That said, I was not entirely clear on precisely what length of time would be appropriate. The original amendment 14 sets a time period of five years, but I recognise that that might be too short, so I have tried to create a set of options for the committee. In terms of sequencing, amendment 271, which provides the option of a sunset clause set at 15 years, should be taken first; followed by amendment 272, which would set it at 10 years; and then finally by amendment 14, which would set it at five years. Amendment 15 would apply the affirmative procedure, in other words, that there would have to be a Parliamentary vote in order for the legislation to continue. That would be a one-off decision by the Parliament; it would not reoccur or repeat. I hope that it would provide the Parliament with the ability to have a say, to ensure that what was intended is what has come into effect, and to provide reassurance to people who have concerns about what effect the bill might end up having in future years. I will close my remarks there.

Forgive me, convener. I move amendment 7.

I have nothing further to add.

Amendment 7, by agreement, withdrawn.

Amendment 112 not moved.

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?

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.

I will bring in Roz Thomson to cover the methodology of the bill’s financial memorandum in more detail. I have met the Scottish Government about every six months during the bill process. There has been an extensive level of engagement. It was important for the Government to be aware of the bill, especially given its concurrence with the issuing of its guidance.

Critically, as I said directly to the cabinet secretary, it was really important to me that the bill did not contain any surprises for the Government; that is the approach that I have sought to take. As I understand it, the Government broadly agrees with the numbers that are set out in the financial memorandum. The costs are not overly significant. Mr Kidd is absolutely correct to say that the measures do not add up to nothing. There will be costs of around £3 million in year 1, with similar on-going costs each year, which is not the biggest amount of money in the context of the education budget.

Let us also be clear that we have guidance and that all actors say that the guidance is being complied with. I do not envisage a requirement for any huge alterations to the guidance. There will be a need to revise and reissue the guidance, and there will be some additional implementation costs, but we are taking at face value the assurance from both providers and the Government that there is already compliance.

Roz, do you want to provide some clarity about the more detailed elements of the methodology?