Official Report 427KB pdf
Good morning. I welcome everyone to the seventh meeting in 2010 of the End of Life Assistance (Scotland) Bill Committee. As usual, I remind everyone to switch off any electronic equipment that might interfere with our sound equipment. Michael Matheson has sent an apology for lateness; unfortunately, he has found himself in the middle of a traffic jam. He hopes to join us just as soon as he can.
I have a question about the Nursing and Midwifery Council’s submission, in which it says that we should
As you will appreciate, the Nursing and Midwifery Council is a United Kingdom-wide body. We cover all four countries of the UK. We have a responsibility for setting standards, first for the education and training of nurses and midwives and secondly for the performance of nurses and midwives once they go on to the register. We also have a responsibility for setting the standards of professional practice that we expect of those registrants once they are in practice and, as far as possible, those standards are UK wide. Only last week, in Belfast, we launched new standards for pre-registration nurse education, which will apply across the whole of the UK. That is what we mean by UK-wide standards.
How will your role be different in the Scottish context? What particular problems will that present for you?
As a regulator, our only concern is to ensure that our registrants operate within the law. Within the law, we would want them to function with great care, with professionalism and, most of all, with compassion for the people for whom they care. We recognise that if certain issues were different in one part of the UK, we would need to respond to that.
Would it be a great problem in the longer term? Once you had given thought to and established such guidance, would it simply be a question of monitoring it and ensuring that it worked? You would have a big piece of work to begin with, but once it had bedded in, that would be it.
All our standards are reviewed regularly because things can change extremely rapidly and quite dynamically. The guidance that we issue for nurses and midwives is reviewed regularly to take account of changing circumstances. That is particularly emphasised in the context of the devolved agenda because although our standards are UK wide, we recognise that the nature of the delivery of care by nurses and midwives varies, depending on the policy in that particular devolved Administration. We try to be sensitive to those differences.
I have a question for the GMC about a registered practitioner who does not want to take part in furthering a request for end of life assistance. I would like to get the GMC’s view on record, for the avoidance of doubt, because there was a little bit of misunderstanding yesterday. As you said in your submission, the policy memorandum states:
Essentially, our position is that patients must be informed as much as possible in their own care, so if a doctor holds an extremely strong view in relation to an issue such as abortion or assisted dying, for example, he or she should make that known. It is important that the patient has all the information that is necessary to make an informed choice, so they should be allowed to go on and see someone who will assist them. If, in exceptional circumstances, they are not in a position to do that for one reason or another, it is acceptable for the doctor to assist the patient in doing that. However, under normal circumstances the only obligation is to provide all the information so that the patient can seek out appropriate advice.
That is helpful; thank you.
I have a question for the GMC that follows Nanette Milne’s point about conscientious objection. What is the difference in standing, in the profession and in law, between the Abortion Act 1967, in which there is a specific clause that recognises conscientious objection, and the GMC guidelines?
I will defer from answering a question about the law—you would need to take your own legal advice. The GMC is an ethical body and we set the standards of medicine—in other words, the ethical principles to which doctors must adhere in order to practise medicine. It is possible that we may deal with a purely ethical issue and not a legal one according to what we call our fitness to practise arrangements, under which doctors may be disciplined for various reasons. That is particularly the case with regard to evidence. We often take action against a doctor for breaching our ethical guidance when the relevant prosecutors in law have decided not to do so. Although it is a matter of ethics and not law, it is clear that ethics cannot be unlawful. Our primary advice to doctors is that they must follow the law. That is why we have no view on assisted dying: because it is unlawful in this country we do not provide guidance on the subject to doctors.
I understand the position that you stated earlier about GMC guidance on abortion and other issues of conscientious objection. There is always a possibility that such guidance could change in the future because it is exactly that—guidance. The difference would be that if a point is stated in law then the GMC is not at liberty to change anything.
That is correct. If the legal position is that it is unlawful, there is nothing that the GMC could or should do about it. Our ethical guidance is updated regularly and every couple of years we hold full consultations on how we should iterate our guidance, but if something is unlawful we have not and will not produce guidance on the subject.
I am interested in Paul Philip’s statement that ethics must always be subordinate to the law. Do you not think that, sometimes, a profession’s ethical structure could be opposed to the law? I offer an extreme example: I imagine that the law in Nazi Germany allowed doctors to take part in all sorts of experiments that were subsequently condemned. Some of those doctors were executed or sent to prison for many years for obeying the law. From a philosophical point of view, is it always the case that ethics must be subordinate to the law? Before the Abortion Act 1967 was passed, a doctor who procured an abortion and was found to have done so would get a punishment under the law, but he would also get the enormous punishment of being struck off the register by the General Medical Council because he disobeyed the ethics of the profession. Yet the ethics changed in 1967. By contrast, journalists sometimes go to prison for maintaining their ethical stance of not telling the judge who gave them their information. Do the medical and nursing professions have lower standards than journalists in that regard?
I will let Tony Hazell speak for himself on that one. It is a good point and by its very nature a philosophical one. Our body is a creature of statute that was set up under the Medical Act 1983. The bottom line is that we exist because of the will of Parliament—the Westminster Parliament in our case—and as such we are obliged to follow the law. I suggest that it would be unethical for us to advise doctors not to follow the law.
I can add to that from our point of view. It is interesting that we are often on the receiving end of what we would regard as unethical behaviour by journalists but, as I am sure that you are aware, we have to live with that.
If the legislation were to be passed in Scotland, both of your organisations would advise the people who register with you in Scotland that it is perfectly legal to take part and that they would not get into any trouble with their regulatory body. If a person in England did exactly the same thing, however, not only would they be in trouble with the law but they would be guilty of conduct that is unethical in Carlisle but not in Glasgow. Is that correct?
That is exactly the dilemma that we would face, but it is one that we would have to confront. As the regulator, we are clearly obliged to give guidance and support to our registrants, wherever they work, in the context of the legal framework that exists in that country, and we would not shirk from that responsibility.
But ethics has nothing to do with that—it is purely law.
Again, it is difficult to separate the two things out. From our point of view, we would advise only on the legal position, and we would rely on our registrants’ professional body perhaps to express a view about the ethical side. Whether we agree with that position is of no matter to us because we can advise only in the context of the legal situation.
So you would leave the ethics to the Royal College of Nursing, for example, and forget about it yourself.
Not exactly forget about it. We would want to work closely with the colleges, as we do all the time, because it is really important that we do not give confusing messages. We have 660,000 members and they have about 440,000 members. It is really important that we do not confuse those members unnecessarily, so we work closely in order that, wherever possible, we give the same message. If we are giving different messages, we need to give the reason why.
I would like to come back on that to clarify what I think the General Medical Council’s position would be. I agree with Tony Hazell that the law is the law and I think that, if it were to become lawful in Scotland to assist an individual to die, the General Medical Council would be obliged to provide ethical guidance on that. The issue is hugely complicated and the challenges that Tony highlights would exist in the extent to which we could provide that guidance. It would be difficult for the council to grapple with, but I think that we would be obliged to provide guidance. Now it is easy: we say that such assistance is unlawful and, because it is unlawful, we will not provide guidance. If it becomes lawful, we will be obliged to provide guidance.
You have confused me even more.
I agree.
So, if the law changes, the ethics change—otherwise the ethical guidance would be, “Don’t obey the law”, and it could not be “Don’t obey the law” because, as you have already said, you have to obey the law. If we had a committee that brought in a law to massacre the first born, would you give ethical guidance on that?
It is clear that, if the law were changed to place obligations on medical practitioners in Scotland, as the regulator we would be obliged to provide some degree of ethical guidance to doctors acting in that situation.
But the ethics would be different on either side of the border.
No, we have made no pronouncements in relation to the ethics of something that is unlawful in England. That does not mean that there are not ethical issues there, as you pointed out in your example a few minutes ago, but we are saying that if it is unlawful, we are not obliged to provide ethical guidance and therefore we do not. If it were to become lawful, my personal view, subject to the view of the council, is that we would wish to provide some degree of ethical guidance for doctors in that situation.
I am bound to say that I find it intellectually extraordinarily difficult to get my head round that argument. I cannot now understand why a number of witnesses from medical backgrounds appeared to be exercised about conscience clauses if there is no ethical issue and one would arise only if the law changed. I do not follow the intellectual rigour of that argument. You either have an ethical position or you do not. If the law changes, you express your ethical position. When the law changes you do not say, “Gosh, I must think of a new way of expressing my ethics.” This is the first time that I have heard that argument advanced in a committee for a while.
I have obviously failed to make myself clear. There are clear ethical considerations; I am not suggesting that there are not. At this point in time, the General Medical Council does not provide guidance and is not obliged to do so because the act that we are talking about is unlawful. If the law were to change to make the act lawful, the General Medical Council would need to consider what advice, if any, it gives to doctors. That advice may well be that the act is unethical, but we have not turned our mind to it; we do not have a position on it at the moment and we do not need to have a position on it. If Scotland were to develop a legal position in relation to the matter, we would be obliged to consider it, but that would be a matter for the council, which has not considered the issue to date.
I am trying to access from memory the various documents that come from the GMC. Is it always the case that you do not give ethical guidance on something that is illegal? Have you never given ethical guidance on something that is illegal?
Not that I am aware of.
I think that there are some overriding ethical considerations that underpin everything that nurses and midwives do. I referred earlier to the fact that, whatever it is, if it is within the law we would expect our nurses and midwives to practise safely, effectively and with compassion. Those are ethical considerations that must pervade everything that our registrants do. Therefore, should the law change, we would still emphasise that, within that legal context, they must operate safely, effectively and compassionately and with a clear concern for the views of the person for whom they are caring. Those ethics do not change, as I would say that they underpin the profession of nursing, midwifery and medicine, although I am not really qualified to speak for the medical side.
In the evidence that we have received there has been some discussion of opting out. I am interested in nurses and midwives, because in many cases they are simply doing the second stage, if you like, and the decisions may well have been made. How difficult would it be for nurses and midwives to opt out? What sort of discussion, if any, has there been of those issues?
One has to look at that in two ways. First, theoretically and secondly, realistically. Theoretically, that is clearly an acceptable practice. We know that that practice exists in other parts of the UK, so a nurse who begins practising in England, Scotland or Wales and moves to Northern Ireland needs to understand the different context. Even in England and Wales, nurses have the right to opt out of certain things.
You have in front of you the General Medical Council’s booklet “Treatment and care towards the end of life: good practice in decision making”. Paragraph 10, on page 12, is headed “Presumption in favour of prolonging life”. The first sentence of the paragraph states:
The guidance that you mention is General Medical Council guidance, and that is what it says. I was trying to make the point that, if the legal position changed in Scotland, the council would be under an obligation to provide doctors with a degree of certainty. A change in the legal position would create a new experience or ethical dilemma for them, because hitherto in this country they have not been able to do what is proposed. I suspect that the council would wish to say something to provide doctors in that difficult position with guidance. The booklet sets out the GMC’s ethical position. This morning we have already covered the point that physician-assisted suicide is unlawful in the UK at this time.
In its submission, the GMC suggests that
It is merely a technical clarification. In November last year, we issued licences to doctors in the UK for the first time. Hitherto, if someone was a registered medical practitioner, they could be a doctor in all of the senses that you or I would understand. Now, if someone is only registered and does not have a licence to practise, they cannot practise medicine in any sense that you or I would understand. Registration merely acknowledges someone’s identity as a doctor. The vast majority of doctors who are only registered are older doctors who are not and can no longer be in clinical practice.
If the bill were to be enacted and an unlicensed practitioner were to give the treatment for which it provides, would that be an illegal act?
It would. A licensed medical practitioner would have to give the treatment.
I want to pick up on that last point. I presume that an unlicensed person could not prescribe medicine for bunions or anything at all, and that somebody has to be registered and licensed for every service that they accord to a patient.
That is correct. If somebody treats patients at all, they need to be licensed.
Right. Let us go back to the presumption in favour of prolonging life. Your publication that the convener mentioned states:
That particular piece of guidance, which was widely consulted on, is designed to provide doctors with guidance on what is perhaps one of the most difficult decisions that they will ever make, which is about when to withhold treatment and/or nutrition for someone who is in a terminal state. So, implicitly, what you say is correct, but that is in a very specific circumstance.
Oh yes—I do not deny that. I am trying to drill down into all the circumstances.
We have given no guidance on that. I said that, as far as I am aware, we have never given guidance on something that is unlawful. However, we did not give guidance on that circumstance.
Why not?
Because it related to something that was and is unlawful in England and therefore we did not feel the need to give guidance.
So, if a doctor perpetrates an act to bring about the end of life and the DPP decides that it was motivated by compassion, care and love, you would not take out a sanction against that doctor as, for those reasons, he was not prosecuted by the DPP.
Our fitness to practise arrangements work completely independently of the criminal process, so if someone were to bring to our attention unethical behaviour by a doctor, we would consider the various bespoke circumstances of that and decide whether to take action.
I infer from that that Keir Starmer’s instructions can encompass unethical behaviour, as far as you are concerned.
I am sorry, but I do not—
The DPP says that he will determine when something should be prosecuted in the public interest and he has already decided against prosecution in several cases that we know of. Is that unethical?
I have no idea, because I have not looked at the ins and outs of what the DPP has said. All I am saying is that, in relation to a regulatory function, if a matter is brought to our attention, we are obliged under statute to consider it. We consider all the circumstances and decide ourselves—we do not rely on what the DPP thinks—whether the doctor’s actions or omissions have been unethical.
You said that you wanted to give clear guidance to doctors. Do you think that this is an area for legislation, rather than guidance?
I am sorry, but what area are you referring to as one for legislation rather than guidance?
I am talking about whether there should be assisted killing, death or suicide. The DPP has said that he has a variable attitude towards that, depending on the motivation. Do you think that the area requires legislation?
It would be useful if the legal position on assisted suicide were clarified, although I am probably not the best person to comment on whether that should be done through case law in the higher courts or through legislation.
Do you envisage the sort of difficulties to which your colleague Professor Hazell referred in relation to the different jurisdictions on either side of the border?
Yes, I do. Tony Hazell made a good point on that. Regulating across borders when different primary legislation is in place is complicated. There are complications, but they are not insurmountable, which, in all honesty, was what I was trying to get at a bit earlier.
On that business of borders and the universal application of humane standards and standards of professionalism, Belgium and the Netherlands adjoin and have different legal systems. Are you aware of any difficulties that those countries have had? They have different rules, if you like, but I assume that they must have European Union standards in certain areas of practice.
I am not aware of any such difficulties. There are EU standards that apply but I point out that standards for medicine are set on a country-by-country basis, not EU-wide.
I see a terrific likeness between the provisions in my bill on the eligibility of requesting patients and the section in your guidance headed
Yes, except that that guidance was clearly written against the backcloth of the fact that assisted suicide is unlawful in England, Wales, Northern Ireland and Scotland. As such, what we are dealing with here are the ethical principles that Tony Hazell espoused a minute ago about compassion, quality of life and making difficult decisions about individuals who might not have the capacity at that point.
If my bill parallels your guidance and the intention behind both is the same, do you see any compatibility between the two?
There is some compatibility but there is a big difference between acting palliatively in an individual’s interests and acting intentionally to end their life.
What is the difference?
From both an ethical point of view, which we have made clear in our submission, and a legal point of view, the act is unlawful. We do not provide guidance for doctors on that basis. Instead, our guidance seeks to provide some certainty in difficult situations. After all, one of the most difficult situations that a doctor can face is how to treat an incapacitated person who is dying and we have tried to identify some guiding principles for doctors who find themselves in such a situation.
That is certainly what your guidance—which you have called ethical guidance—says and does. You agree that that guidance parallels what is in the bill, and I am merely asking about the difference in that respect.
We do not provide guidance for doctors on assisted suicide. Instead, we give doctors guidance on providing treatment and care towards the end of life. We believe that there is a difference.
So it is just a happy coincidence that what we have tried to do in the bill coincides with your intentions and guidance.
There are huge overlaps, but the fundamental difference between the two is intention. The intention for doctors and that behind our guidance is that life should be prolonged—or, indeed, that its end not be hastened—and that the people involved are made comfortable.
Your guidance says:
That is right. It is always a balancing act to ensure quality of life and provide the palliative care required to give the best quality of life.
I accept that it is a balancing act and a question of conscience.
Mr Philip, I have a final question. You have frequently referred to uncertainty in the law and Margo MacDonald invited you to comment on the guidelines issued by the Director of Public Prosecutions. Given that the law of Scotland is involved, can you clarify for the committee what you believe to be the uncertainty in that respect? Moreover, if you are going to refer to a public prosecutor, could you refer to comments made by the Lord Advocates rather than by the Director of Public Prosecutions?
I have referred to uncertainty on a number of occasions this morning. I hope that, for the most part, I expressed myself correctly in saying that our guidance attempts to clarify any uncertainty in the practice of medicine, rather than in the law. As I understand it, the law in England and Wales on assisted suicide is fairly clear: the practice is unlawful. Our guidance is ethical guidance—
I am sorry—I do not wish to interrupt you. Even I gathered what you were referring to. However, this committee is considering a bill that will, if passed by the Parliament, become the law of Scotland. I am interested in the GMC’s view on any ethical or legal uncertainties that might arise in that respect.
I do not think that I am qualified to talk about any uncertainties in relation to the law of Scotland. The GMC has not provided any ethical guidance on assisted dying mainly because it is not lawful.
I thank the witnesses for their written and oral evidence.
We move to our second panel this morning: the Rev Dr Donald MacDonald, retired professor of practical theology, Free Church of Scotland; Major Alan Dixon, assistant to the Scotland secretary, Salvation Army; the Rev Ian Galloway, convener of the church and society council, Church of Scotland; Dr Bill Reid, connexional liaison officer, Methodist Church in Scotland; Dr Salah Beltagui, convener of the Muslim Council of Scotland; Leah Granat, public affairs officer, Scottish Council of Jewish Communities; and John Bishop, secretary to the Humanist Society of Scotland.
I have a question based on what other witnesses have put to us in their evidence. The submission that we received yesterday from the British Psychological Society in Scotland states:
Obviously a moment of theological reflection has taken place before we even begin.
The belief in the value and dignity of any individual’s life is not simply a religious belief; it is held by a wide range of people. I question the statistics that Helen Eadie has quoted. In the 2001 census, which gave people an opportunity to identify as having a religious belief, more than two thirds of the population of Scotland—67 per cent—identified as such. I question the assertion that religion is in decline. For example, there was no comparison between the number of people who turned out to welcome the Pope on his visit last week and the number who turned out to protest.
Let us go back to the original question. I call Mr Bishop.
I am surprised to be on early, convener.
I thank the committee for the opportunity to give evidence, which is a privilege that we hold very dear in our democratic system.
I will try to respond to the statistical question. I am grateful to Dr MacDonald for his comments.
I come from a small denomination in Scotland, consisting of only 3,000 or so folks, but we are part of a larger caring society. The main function of the church, as well as being an institution of religion, is to be a caring fellowship. That is the context in which we come to the table to discuss the bill and where it might take us in the future.
I make a similar observation to Ian Galloway. My denomination is an international one that works in 121 countries. Our approach to life in the western world might be very much an individualistic one, but the vast majority of Salvationists live within communities where community is very strong. We need to remember that. We might have that emphasis on the individual, but at the end of the day we are all part of a community. The decisions that I make affect the community. We need to emphasise that rather than just emphasise the individual.
Muslims in Scotland are a minority—1 per cent or something—but many of the principles that we believe in are common with what we have heard from most sides. We believe in God. We believe that life is given by God, that it is the most important and precious gift that is given to man, and that it is not in our hands to stop it and start it. Otherwise, life would be quite confused.
One of the central principles on which the bill is based is the concept of individual autonomy. That has already been touched on, but I would like to explore it a bit further, because the issue of individual autonomy within society is an interesting one. I note from John Bishop’s submission that one reason why the Humanist Society of Scotland supports the bill is:
Yes, we do. Individual freedom is not limitless; it must be related to responsibility towards others, particularly to responsibility to future generations. That is our philosophy. We talk about the development and use of autonomy within an agreed or social framework. The interesting thing about the bill is that it is an attempt to get a new settlement on where autonomy sits, because we all, whatever our faith or non-faith, face changing technologies. Our medicine, knowledge and science have changed, and we now have a new situation that was certainly not available to my grandfather. Doctors are being asked to handle new dilemmas.
My understanding of my tradition’s perspective is that life, including human life, is fundamentally relational. I have to be careful about using the word “fundamentally”; I will use the word “basically” instead. Life begins with the individual. How relationships get worked out has been a tension in the story of faith and in scripture right from the beginning. Human life has been described in relational terms right from the beginning. There is responsibility for the other in relationships. Autonomy exists within that relational framework, but limits to what an individual may desire have to be seen within that framework.
I would like to pick up on John Bishop’s comment about the power going back to the individual to make the choice. I will compare that with the situation in the Netherlands, which has gone along the line that Margo MacDonald is trying to take with the bill. My understanding is that although it started off as being the individual’s choice, in practice the power has not remained with the individual but has gone to the doctor. The medical profession in Holland has moved more and more to having the power of decision making at the end of life. Individuals have not made the decisions. From what I gather—this is anecdotal evidence—the doctors can sometimes make the decisions without any reference to the person whom they are caring for. For me, that is one of the dangers of going along the line in the bill. As I said, in Holland it seems that in practice the power lies not with the individual but with the medical profession.
Following on from the previous speakers, I am thinking about what autonomy actually is in relation to society as a whole. None of us acts with complete autonomy; we all base our actions, beliefs and thoughts on society around us. The bill would change the views and actions of society around us to the extent that a patient would have to discuss with their practitioner
In simple terms, autonomy means to me that we become more selfish in our relations. The bill would break a lot of the trust between the patient and the doctor and medical staff in general, and between the patient and family, because they would all be suspicious of why the idea of ending life was being pushed—we have heard about examples from other countries. There would also be the commercial side. We know about the Swiss example—people go there for this procedure. All those things mean to me that we would be creating a society in which we were breaking the relations between individuals and their families and the wider society rather than bringing them together.
In a sense the bill does not help individual autonomy, as it does not make us more autonomous. It mentions assistance, so there is a reliance on whoever or whatever is assisting. It does not help with regard to the autonomy of the people who must make judgments against the eligibility requirements that it sets out; in some ways, the requirements are quite ambiguous, or a line is drawn at a certain point with regard to age, therefore people are left to judge.
I agree with most of what has been said with regard to the limitations on our human autonomy. I appeal to those who support the bill to consider whether the exercise of their autonomy infringes on the rights of other people and whether, as has been suggested, it would change society’s attitudes towards death and dying, and support for those who are dying.
In a sense this is not an issue for the future—although the future is of concern—but an issue for now. A number of humane doctors already assist their terminally ill patients on their way while necessarily publicly denying that they do so. I quote Helen Watt of Callander, who wrote to us to say:
One of the confusing aspects of the bill is that its central principle is autonomy but, as Major Dixon indicated, it places a lot of authority in the hands of doctors, who are the gatekeepers in the process. People have to approach a doctor who is willing to participate; there is then a competence test by psychiatrists. You are correct to say that in the Netherlands physician-assisted suicide is the preferred option by a significant margin. Again, that places a lot of authority in doctors’ hands.
I was asked to address issues relating to the bill. Your question raises a number of issues that go beyond the bill. I do not wish to speculate; I wish to develop a practical answer to a current, very difficult problem.
With all due respect, the central principle on which the bill is based is that of individual autonomy—the right for someone to be able to end their life when they are terminally ill. We have explored that. As you mentioned, the bill is trying to reset the way in which society views individual autonomy. On the basis of your definition of individual autonomy, why should someone have to wait until they are terminally ill to exercise that right?
It may be helpful if I say a little about the way in which we have approached this difficult ethical matter and in which we approach other ethical matters. We look at what science and reason say about a matter; we do not use a fixed creed or text to determine our position on it. I have come here today, after discussion with my colleagues in the Humanist Society of Scotland, to talk about the bill, and I have done so. I am happy to continue to talk about it, but the question that I am being asked to answer does not have the relevance that the questioner believes it to have.
That is something for the committee, rather than for you, to judge. I am surprised that you are trying to evade the question. If you believe in the central proposition of individual autonomy—which you have already recognised—why should someone have to wait until they are terminally ill to be allowed to exercise that right? I do not understand the intellectual logic of your position.
I will repeat my evidence, which is that we as humanists believe that our individual autonomy is constrained by our social responsibility to others.
Does that mean that someone should have the right of autonomy to end their life only when they are terminally ill?
We are talking about assisted death, voluntary euthanasia and assisted suicide. In that context, we are in favour of autonomy to make decisions with the support of medical practitioners.
Both of you have made your points clearly.
Those of you who represent religions or faith groups will correct me if I am wrong but, to put it in crude shorthand, I interpret the feeling among you, no matter which religion you come from, to be that God put you on this earth and God will decide when you leave it. I am sure that there are subtleties around that, but that is roughly the position.
I could turn that round and say that we are not trying to impose anything. Like the humanists, we are simply responding to a potential change in legislation that has been created over hundreds if not thousands of years. We are not evangelising here; all we are doing is addressing the status quo against this proposal.
Clearly, a view of how life is has developed over a long time within the faith traditions. It is not a view of how life is for me alone but of how life itself is, of the relationships within it and of how, in the midst of all that, we are our brother and sister’s keeper. We are the inheritors of that faith tradition and its particular values and have to struggle and wrestle with how that tradition applies in today’s society, which is not always an easy thing. Your faith is not about you and how you impose yourself on others; instead, it is about your understanding of the best ways for us all to live together.
There is a simple quick legal answer to your question—according to human rights, people should have the right to live according to their faith. We are saying not that faith should be imposed on others, but “Don’t impose this on us.”
To return to the question, it misrepresents Judaism and, far be it from me to speak for my colleagues, probably other religions too, to say that religion requires people to suffer great pain and anguish towards the end of their lives. Certainly in Judaism, although deliberately hastening death is not permitted, all measures to provide comfort and pain relief are not only permitted but encouraged in the awareness that there might sometimes be a double effect—for example, in providing pain relief. There is no obligation in Judaism to prolong life, either. A patient is completely an individual and at liberty to reject treatment even if it might be considered by a doctor a good chance for prolonging life. If an individual wishes not to accept that treatment, that is completely within their choice. Pain and anguish are not rejoiced in or encouraged by religions.
Rev MacDonald?
Thank you, convener—
Sorry, Margo, but I said “Rev MacDonald”, although I understand your wish to be so elevated.
Keep it in the family.
To answer Dr McKee’s question, we are not imposing our views; rather we are stating what we believe is best for society. We have to persuade people and argue the case—it is not a question of imposing.
Major Dixon?
I have nothing to add to what has been said.
I apologise for the somewhat provocative nature of my questioning, but I was trying to elicit a response. I say for the record that I fully acknowledge the many good works that faith groups do in Scotland and beyond. I reassure Dr Beltagui that there is no intention in the bill to make people of his religion end their lives. The bill is permissive, rather than about making people do anything. I reassure the Rev Ian Galloway that I am well aware of the way in which his church and others have played a leading role in the development of hospices and palliative care. However, with that good lead, as things have developed, an awful lot of people who are involved in palliative care belong to different religions or to none at all.
Sometimes you have to do something that you think is evil to stop something that is more evil. When we talk about just wars, we speak of people defending their country against, for example, invasion by others who want to occupy or take over the country. Nowadays, some countries do not approve of capital punishment, but it has always been in history. The idea is that it is a strong deterrent. It is traditional; it is part of the faith. We are saying not that we need to apply it every day and encourage it, but that we will apply it in difficult conditions. I am thinking of people having to defend their country or times of big mischief when the only way to stop things is to take strong action—action that becomes a deterrent. The sanctity of life remains.
Life is not perfect. As our scriptures teach us, we are sinners. There is sin in the world. Unfortunately, it affects human behaviour, which means that there is evil. We account for that and try to explain it in our different ways. The Bible explains it by saying that, early on in human existence, there was a fall away from God’s standard and since which time, there has been murder, war et cetera.
If we were to go on for another two hours on the concept of the just war, it could be called a misuse of the committee’s time. I just wanted to introduce the concept that the sanctity of life that many of you express is a qualified issue, not an absolute. Some of you have agreed that there are circumstances when life can be taken ahead of when God wanted it to be taken. I just wanted to introduce that point for discussion.
Yes. It would certainly not be very fruitful if I were to try to defend everything that had shown up in the name of the church in every society. In humility, we need to say that all our expressions—whether of faith or of church—are human and do not get us to where we would want to be.
I am not sure that I fully understand the question, but my response is that there have been some societies in which suicide was accepted—in ancient Greece and in Japan, suicide was part of what life was all about. We have never taken that line in our society. Here, suicide has been tolerated, but it has never been encouraged. In Scotland, suicide has never been a criminal offence—although for a while it was in England; our attitude has been that although we have tolerated it, we have not encouraged it. For me, part of what the bill is about is encouraging suicide. That is a line that I do not want to go along.
I am not much of a theologian, but we have not mentioned the basic Christian view that life is eternal and that death is only one part of that journey; that it is a transition point rather than a terminus. We all live our lives in different ways and we all reach different transition points through life. Life is sacred, but life as we live it is lived in parallel with many other people living their lives. When we look at life from a Christian point of view, how our lives impact on those of others is just as important as how we live our lives in their own single stream.
The intention of the bill is to allow people to maintain dignity up to and through the process of death. How do the witnesses see human dignity in the context of the bill?
We have already referred to the fact that most of us, because of our faith and traditions—though not necessarily just because of those—have cared for people at the end of life.
I think that dignity for the person who is in that situation and knows that he is about to die is about care, attention and compassion; it is about feeling that they are still wanted rather than that that is enough. That is real dignity at the end of life; the person is still wanted by his children, his relatives, his friends and so on. That is what we have been doing, as far as I know.
Another word that is closely related to dignity is respect. Respect for an individual—every individual—means that their life and they themselves have an intrinsic value regardless of their external condition, whether we are talking about wealth or poverty, incapacity, intellectual attainment or whatever it may be. Respect for a person’s life is closely tied up with dignity. If somebody feels respected and receives respect—there is an onus on us all as a society to give every individual respect—they are enabled to feel that they have dignity.
I share the sentiments of my colleagues in almost every respect in relation to their definition of dignity. It can be a subjective matter as well as, if you like, a commonly agreed term, but is it then disrespectful to follow the wishes of a competent adult who, in their own subjective judgment, decides that life has become undignified? Can I not define for myself when my dignity has gone? Who are we to dispute the interpretation of dignity by another human being who is facing death?
Over the years I have worried about the fact that our society too often leaves people with little dignity at the end of their life because the level of care that has been given in some settings has been far short of what we would want it to be. I have seen an enormous qualitative difference between death for some people and death for others in our society. Partly, it comes down to whether you are lucky, where resources are and who is on duty and that kind of thing—it is not an exact science—but it also shows up the social inequality in our society. If you are middle class—a professional—you are likely to get better care than if you are not. That is not a comment on individual GPs, but time and again I have seen how much longer it has taken other people to get diagnoses, treatment plans and so on. Also, quite a lot of the people I have accompanied have not been easy patients—they have been difficult to work with—and the response to that is often not good enough.
I was going to say much the same as that.
There is an inherent dignity that we cannot lose as human beings who are made in the image of God. If it just depended on our capacity—physical or mental or whatever—there would be unfortunate individuals who would perhaps be accounted worthy of less dignity. No—all we human beings have an innate human dignity that we cannot lose. We can perhaps lose our subjective sense of dignity. As someone who is disabled and getting more disabled because I have a progressive disease, I can envisage the day when I will lose many bodily functions and have to rely on other people more and more, but, perhaps because of my medical background, I do not find bodily functions undignified; they are just part of what it means to be human, in the same way that animals are dignified in the way they conduct themselves.
Can I move us on a bit? Dr MacDonald talked about the rights of other people. Other people, such as family members, doctors and medical staff, will be involved. They will have, or should have, a right to opt out. Have you discussed that? What are your views on it? What support do you think churches or faith groups may be able to give people on the right to opt out of these decisions, or their role in caring?
Putting that decision and that responsibility in the hands of medical staff is an unfair burden on them. It is such a huge issue, and asking them to make that decision makes things really difficult for them. The issue of abortion is another example. People could be forced to work against their ethical values or religious beliefs. As in other cases, they should have the right to opt out of practising this.
There is a clear difficulty here for a lot of people who are involved in caring for those who are approaching the end of their life. As a society, it would be unfair of us to expect people to end the lives of their patients. The vast majority of medical professionals and those who work in the various welfare services did not go into those services to end life, but to care for people in all conditions and to provide dignity to those people, whatever condition they are in.
I know that the bill does not force any doctor to be involved, but with any medical procedure nowadays doctors have to be trained—and quite rightly so. Are we to introduce into medical schools training in killing people? That is the logic of the whole movement. We cannot separate it out from other things—people will have to be trained in it. Nowadays, people cannot perform any medical procedure or operation unless they have been fully trained, accredited and so on. I believe that that would have to happen in this case, which would change the whole way in which the medical profession—and the other caring professions—are viewed. As the committee has already heard, others, including nurses, paramedics and pharmacists, would be involved. There is no end of it—we should consider the change that the bill would mean for society.
I was present at the evidence session earlier this morning. Professor Hazell was discussing the sort of pressures that nursing staff are under. I suspect that procedures for doctors would be made very clear, and it would work quite well—people would either participate or not, and that would be clear. One level down—for nurses—it would get slightly more complicated. Most of what they do they do because the doctor, the manager or whoever tells them to. In the case of most people who care for others in any kind of institutional context, there will not be any choice. Care assistants, for instance, do not have professional bodies looking after their interests or telling them that they can look after some patients but not others. People will go on caring because they do—as they should—but a great many will find it difficult. We would play that particular support role for people—the role of the church is to support anyone who wants its support in whatever difficulties they find themselves—but we would prefer not to.
If someone in a first-class Church of Scotland care home that I know of in my constituency requested end of life assistance, what role would the home, the practitioners or those involved in the person’s care play? Would that person be evicted? Have there been any discussions about what would happen in such circumstances?
I do not think such discussions have taken place—I have certainly not been involved in any. I point out, however, that people do not have to have a particular faith position to be accepted into a care home and that everyone has the same rights as everyone else. Of course, it would be very difficult for the people in that establishment to be involved in such activity, but people with a specific faith commitment work only in reserved occupations and would have their own conscience procedure. For most people who care, what they do is care and they simply have to deal with whatever comes their way.
I agree with most of what has been said about conscience, but one point that has not been made is that most of us hold our conscience deep inside us and do not always express it. When people seek a doctor’s advice on such matters, they do not know at what level of conscience he or she is working when giving advice. Depending on what their conscience says—something, I repeat, they might never publicly express—there might well be an imbalance in the advice and direction that GPs give.
We need to differentiate between the bill’s provisions and the care that the churches provide. In most of our homes for the elderly, we provide care; however, the bill is about those who need medical care, which most of our homes are not set up to deal with. Some homes provide that kind of care but most of us are involved in the general care of people. Yes, people die in our homes but the big difference is that they are not the intolerably ill people who are the focus of this bill.
But people of a particular age in one of those care homes might well find themselves with a terminal illness.
When people come into our homes, most of them are capable of looking after themselves but it is true that, after 10 years, the situation can change. Nevertheless, that is more about the provision of professional medical care than it is about the provision of general care for people. There is a subtle difference between the two.
This brings us back to the first question about the percentage of people who practise religion. There is a difference between those who go to church, mosque and so on and those who believe in a certain religion but do not practise it. A lot of people are now in the latter category but, when faced with a difficult moral situation, they will go back to the religion on which their life and moral values are based. There are more believers than the statistics show and, again, it would be unfair to ask those people to do something that would be against their values even though they might not actively practise their religion.
The final questions this morning will be put—for the avoidance of doubt—by Not the Rev Margo MacDonald. [Laughter.]
Although we agree—I hope—to differ on this issue, I am glad to live in a society that pays such attention to faith and the part that it plays in society. I may not share it—I am not required to—but I like the fact that we still listen to churchy men. That was until this morning—we have heard quite a lot this morning.
I agree with that.
Does anyone disagree?
I would not express it in that way.
That is the choice that is before you—is the bill morally repugnant and ethically unacceptable?
It is ethically unacceptable, but it is not necessarily morally repugnant.
Your acceptance of even one of the phrases suggests that you could never accept legislation such as this.
No.
So we know where we are starting from. There are one or two delicious philosophical points for debate, but I will not deave the committee.
The chair will be most grateful.
I hope that I will get the chance to do it at some other time.
Yes, because it is a deterrent—not just in this society at this time, but for humanity in general.
I am talking about the instructions that the Qur’an gives to people of the Muslim faith. I am thinking about how people react when they are faced with a dilemma.
The issue is not straightforward. The difference is that capital punishment is in the hands of the authority that makes the decision. The people who suffered as a result of the killing have the right to forgive—they are always asked to forgive and to do something different. However, the Qur’an provides for capital punishment, because it is a deterrent.
So it is difficult to say that life is sacrosanct in all circumstances.
The punishment is carried out not on an individual basis but by the whole of society. If one or two members of society are causing a problem to the whole of society, you can get rid of them. Such punishment is not carried out on an individual basis and is completely different from the case that we are discussing. If an individual wants to take his own life, it is a sin. In addition, no one else is allowed to interfere with his life.
One of the witnesses said that every human life was worthy of respect. Is that true of a suicide bomber?
We do not condone suicide bombing.
I am not asking you to do that. I am trying to get to the root of the issue.
Islam does not condone suicide bombing. Suicide bombers’ aim is not to commit suicide but to do something active—that is their understanding.
Is motivation important in judging the effect?
No. Capital punishment may be used only where someone has killed another person—cold-blooded murder—and where society decides that it is the appropriate punishment. In such cases, the benefit to the whole of society supersedes the benefit to the individual.
At present, doctors are enabled under the law to prescribe an opiate that has the double effect of both relieving pain and hastening death. Is that permitted by the Jewish religion? Leah Granat’s comments suggested that it is not.
The intention is very important. If an opiate or any other form of pain relief is administered with the intention of providing pain relief and comfort to the patient, that is permitted, regardless of any double effect.
Does that mean that, if the patient requests that of the doctor, the patient has autonomy?
Obviously, the patient’s medical care must be discussed with the doctor. The intent is very important. If the patient’s intent in asking for something and the doctor’s intent in administering it are purely to relieve pain, even with the knowledge that there may be a double effect, that is permissible.
How is the doctor to judge what the patient truly believes? What if a patient actually wants to finish their life at that point for whatever reason and requests a double dose of an opiate for the relief of pain? In other words, how is the doctor to know whether the patient is lying? You wanted plain language.
The doctor will use his or her professional judgment to determine what dose is appropriate for any patient. Obviously, we are in a society in which some people have a faith and some do not, but a patient may want to involve a religious leader in their discussions on their care towards the end of their life. They could ask for assistance to convey their views to the doctor, but the doctor and the other medical professionals will use their professional judgment.
Right. In your evidence, you seem to say that the bill will make murder easier. Can you indicate the part of the bill that will make murder easier?
If there is greater acceptance of the taking away of life, it is difficult to limit that acceptance to a particular field and to put barriers or borders around the acceptability of one form of taking life. The slippery slope that has been referred to in previous evidence could lead to a doctor thinking that he knows that a patient wants to die, even though they have not told him so.
Can you show me the part of the bill that would allow for the doctor to take the decision?
The doctor’s obligation to include “end of life assistance” as one treatment in a range of treatments would take away the patient’s autonomy to a great extent. We talked about autonomy earlier. The bill frequently refers to patients making decisions “voluntarily”. We referred to that in our written evidence. Somebody may well do something entirely voluntarily, but that does not mean that it is being done without pressure or fear of the expectation of society.
If your fears—they are only suppositions, because you have led no proof to that effect—are to be taken seriously, should we not see that effect in the jurisdictions in which assisted death has been the norm for a decade, say?
There are many different experiences in those jurisdictions.
Research has been done on that. There is evidence, and it does not support your fear.
As I said, the fact that a request for hastening death is voluntary does not mean that it is a completely free choice. In jurisdictions in which hastening death is permitted, people might be asking for their death to be hastened without somebody standing at their shoulder saying, “You will do this.” However, legislating and saying that that is permissible changes the view of society and the view of an individual who is in that position of their duty and what is expected of them.
Do you have an explanation as to why death rates in Oregon, for example, have not gone up and have not followed the pattern that you describe?
I do not have enough knowledge of the situation in Oregon to be able to comment on that.
But would you agree that we learn from one another and that, if Oregon has experience, and not merely a theory, perhaps we should place more reliance on that?
I certainly agree that we learn from one another and therefore that we learn from the expectations of others towards us. If we believe that people’s expectations are that we will request an early death, we might do so when that would not be our choice.
We will need to disagree on that.
It changes society. Once we make a fundamental change and cross the rubicon, that undoubtedly changes the way in which societies view the issues of life and death.
Are Dutch reformed church people any less pious than you?
I cannot speak for the Dutch reformed church.
Before you say that society is changed by legislation such as I am proposing, should you not be aware of what it has done in those societies?
There is evidence in those societies. I believe that since the introduction of such legislation in Holland, there has been a certain amount of pressure on physicians. As one of my colleagues has said, there has been a movement towards more and more physician-assisted death and what is effectively almost euthanasia.
Do you believe that no effective euthanasia is practised legally in this country?
In this country?
Yes.
Euthanasia is not legal in this country.
I asked about effective euthanasia being practised legally.
I am sorry, but I do not understand the question. You are saying that there is effective euthanasia in this country.
Well, we heard from the pharmacists yesterday about the double effect of giving a large amount of opiates. Do you agree that that happens?
I take the point. Undoubtedly, there is a grey area where people are being assisted to die in the sense that the level of medication probably hastens it.
Yes.
But it would be illegal if that were the conscious intent.
No. It would be illegal if someone admitted to it.
Good palliative care practice shows us that, in gradually incremental doses, morphine or another opiate does not hasten death and, in fact, prolongs life, provided that it is used skilfully and in the proper way. Obviously, if someone is given a sudden massive dose, it will bring about early death. Proper usage does not hasten death.
We all have our crosses to bear and I do not want to be a
I made my point earlier when I said that I would not comment on the details of the bill. That is a reflection of what I heard from people whom I know and to whom I spoke. They do not want to discuss it.
I have one last question—
No, we must try to contain the discussion. You have asked the question, and we must try to get the answers. John Bishop can go next.
I want to make it clear that we support the bill in principle, and we look forward to providing support by suggesting amendments. I thank the committee for allowing us to present evidence; it is quite rare that a Bishop provides evidence next to his religious colleagues.
I was talking only about the principle, and not the details, of the bill. That is not my own personal opinion but a reflection of the way in which the people from my tradition to whom I have spoken have presented their value that life is life, full stop. They do not want to go into the details of the bill.
What does the Qur’an say about abortion?
No, I am sorry—I cannot allow three questions to run. We have had a fair run already.
It would be very difficult to draft a bill that did not open the door much wider than was intended. I appreciate that Margo MacDonald’s intention is limited, and that she seeks to permit death to be hastened in certain circumstances and not in others. However, we cannot support the bill in principle and we would deplore its passage into legislation.
Margo MacDonald pointed out that some doctors have perhaps been hastening death intentionally. It would be unfortunate if the bill was seen as retrospectively legitimising the actions of people who break the law and who have carried out things that are, in principle, against the ethics of their profession.
I agree.
I think Margo MacDonald will have a copy of our written evidence. The opening sentence in response to question 1 simply says that we
I have one query on that. We award medals to soldiers who kill other soldiers, and that is the taking of human life.
We have already discussed the concept of a just war, and the rest of that argument, and we do not need to go there again. That is a different context.
On that point, I do not think it is a good idea that we do that. It is terrible and we should change it.
What—no medals?
Absolutely.
Like Colonel Jones in the Falklands.
Killing in war is tragic, and the fact that wars happen is tragic. If it is a societal necessity that we do those things, I have a problem with the way in which our value system holds them up.
I said that I would not indulge, although I would love to pursue those questions.
We are getting close to being overindulgent, so I will bring the session to a close.
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