Section 12 deals with capacity and takes a two-stage approach. A person has capacity to make a request if they are not suffering from any mental disorder, as defined in the Mental Health (Care and Treatment) (Scotland) Act 2003, that might affect the making of the request, so there is a qualification there; and they must also be capable of making a decision, communicating that decision, understanding the decision, and retaining the memory of the decision. That is the reverse of the definition of incapable in the Adults with Incapacity (Scotland) Act 2000.
It is not clear, at least to the faculty, why the decision has been taken to yoke those two sources together if what is important is to determine whether an individual has capacity to make a decision. The first of the two tests—the requirement that the person not be suffering from a mental disorder—would exclude anybody with a mental illness, whether that mental illness was the principal focus of their desire to have assisted suicide or was just incidental.
I would have thought that it must be common for someone who believes that their life is of an unacceptable quality, due to a physical illness such as Parkinson’s, MS or any of the other progressive neurological illnesses, to become depressed and therefore to develop a mental illness. We do not usually assume that everyone who has a mental illness of whatever severity is incapable of making decisions, yet that seems to be what the bill sets out to establish. That might be because whoever drafted it, or Margo MacDonald, was very keen to be seen to exclude people who are mentally ill. However, the committee might want to consider the consequence of that in some detail. Is it really the intention that all of those with any degree of mental illness are to be excluded from the provisions of the bill?
Yes.
A conscience clause could have two purposes. It could allow people to say that they are not prepared to participate. It could also go on to require them to say why they are not prepared to participate, so that the person who seeks assistance knows that they are being declined assistance not because they do not meet the requirements of the legislation, but because the individual whom they have consulted has a conscientious objection to involvement.
If the conscience clause goes on to say, as the faculty has suggested, that if someone is going to exercise their right of conscience they must then also tell the person that that is the ground on which they are refusing them assistance, that enables them to understand that they can go somewhere else and seek assistance from someone who does not have conscientious objections. So, that would be a second purpose of a conscience clause.
Good morning. I will ask a specific question and a more general one.
I was surprised by the views, in the written submissions of the Law Society of Scotland and the Faculty of Advocates, on section 24, which is headed “Savings for certain mistakes and things done in good faith”. The faculty said that section 24 as drafted might expose
“a person to the risk of prosecution.”
Both bodies suggested that section 24 be changed. Can you elaborate a bit on what you mean?
It would provide more certainty than we are looking at in the bill. I will give an example of what I mean about some of the tensions in the bill. As the earlier panel said, there is no definition of assisted suicide or assisting a suicide. I understand that the intention is to give as much flexibility as possible but, when we look at the interplay between that intention and section 18, which says that
“Nothing in this Act authorises anyone to do anything that itself causes another person’s death”,
that demonstrates to me that everything has to be looked at and dealt with in its own context. Various definitions could be brought to that.
What is something that itself causes suicide? I take the intention to be, for example, directly causing someone to ingest medication that they might be using, but the bill is not entirely clear that that is what is intended. Together with the lack of definition of what it is to assist suicide, that still means from my perspective as a prosecutor that there is perhaps a lack of clarity and that discretionary judgments would have to be made.
The thing to emphasise about the bill, as with the current law, is that I am sure that the cases would be very fact sensitive. The specific facts of any case would be important. However, the way in which the bill is set out does not provide a framework for what is and is not criminal. There is still an extent to which that has to be read into the provisions.
11:00
I am happy to start. I think that we are almost back to a discussion on clarity. As soon as sections such as section 24 are included, you leave room for a broad range of practices, whether they be actions or omissions. Anybody who is involved being left in uncertainty about what they have or have not done that might render them criminally liable, is not in the best situation. It is almost a catch-all provision that is trying to provide enabling or flexible legislation to deal with the complexities and the moral, personal and legal issues that the bill brings. To leave people uncertain until a mechanism is brought in subsequently might not be the best way forward.
Patrick, I will let you in now.
It sounds as though it would be more appropriate for the role to go somewhere else.
Thank you very much, convener.
Are you moving on to something else?
That would also absolve one from having to pass the lesser test of civil liability.
That is helpful.
To go back to the idea of licensed facilitators, I note that the legislation as drafted suggests that anyone over the age of 16 could take on that role. That is rather young. Does the panel agree with the provision?
I suppose that the difficulty for us is that, as the Justice Committee, we are looking only at what can be put down legally without really going into the medical consequences. The depression might be short term in nature but would still be termed a mental health issue. A person might have a reversal in how they feel about something at another time. That goes to the heart of this particular provision.
I return to the 14-day time limit between the issue of a prescription and the act of suicide, if I have understood that properly. A number of submissions expressed concern about that. It was felt that it might be too short a time limit and that there might be pressure on the individual. In Oregon, figures associated with the Death With Dignity Act 1995 show that just over a third of people who initially get prescriptions change their mind and choose to extend their life. Do panel members have any comments on that? I know that there is a three-stage process. I am talking about the very last hurdle.
I want to follow up on that. In some ways, it is a will—it is a very important decision—although it might be a rather strange will to make. Either the solicitor can say, “I’m not taking your instruction,” or they can take it, having assessed capacity. I am still not convinced that there is a distinction between capacity when someone is making a will, where the solicitor has to make a judgment and can say no if there is any doubt, and capacity when someone is making a contract about life.
Does Patrick Harvie want to join in on that issue?
I think that it is a matter that requires medical assistance. On reflection, it occurs to me that just because the requirement for a proxy is not reflected in the bill, that does not necessarily lead to the conclusion that there is not the opportunity, say in another jurisdiction, for a proxy to act. For example, it might be contained in common law or other legislative provisions. It is arguable whether section 16 of the bill would prevent someone from having a proxy act for them, because of the provisions that are available in the 1995 act. However, from the Law Society’s point of view, the concern is that solicitors do not have the experience or knowledge to assess capacity. They see that as a significant decision, so they would seek some medical training or assistance to enable them to make it.
You do not have a handy amendment with you then?
I agree. We have alluded to the question of age and have said that 16 would seem very young to have that experience. Some facilitators may have some form of medical training and experience, but others will not. There will be great diversity in the experience of licensed facilitators, which may affect how they manage the situation in which an individual who is trying to ingest medication becomes distressed. Some might need to call for assistance from other medical sources, whereas others might have the ability to deal with the situation. We still come back to the issue of what form that assistance might take. If an attempt is made to ensure that the individual ingests substances with the least amount of distress, that certainly seems to me to involve the crossing of some line within the parameters of the bill as it stands.
I am sorry—I should have stressed that I am not asking particularly about the medical aspect. I am asking about the proposal to report to a constable as distinct from the medical authorities reporting directly to you.
I have just a couple of questions. I can see that there could be implications in respect of life insurance. Do you want more clarification in the bill regarding the consequences, particularly on whether the life insurance benefits could be for the licensed facilitator, which could happen without the licensed facilitator knowing about it?
Mr Harvie’s point about decisions to prosecute is valid, but it is worth pointing out that there is a great likelihood that people would be subject to an investigation, which in the circumstances might be very traumatic and likely to introduce all sorts of difficulties and anxieties. It is worth saying that the issue is not necessarily just about the impact of the decision to prosecute; the associated investigation would be fairly significant for the individuals involved.
I know that it will be difficult to answer such a general question at this stage, but we have talked a lot about clarity and, indeed, what seems to be a lack of it in this bill. Is it simply a matter of making some amendments to the bill, or is it the case, as different people have suggested in evidence, that the bill contains a lot of omissions and that a lot more should be drafted? I do not know whether the volume of the omissions can be addressed in amendments. Does the bill need to be redrafted altogether because it contains not enough clarity and too many omissions? I know that it is difficult to make such judgments at this time, but I would like to hear your point of view.
The question is a very good one. I do not have an answer. I suggest that we ought to be able to find an answer in the bill but, at present, we cannot.
I point out that, although someone has to sign a declaration that they have arranged to have the services of a facilitator, there is no express requirement in the bill that the facilitator be involved. Therefore, if someone has made an arrangement to have a facilitator but then decides, for whatever reason, that they will not bother having one, there seems to be nothing in the bill that would impose any consequence of that. To my mind, the bill does not set up a system that requires the assistance of a facilitator when the lethal drugs or the lethal injection are administered, and that is a matter of concern. Perhaps the process should involve a form of compulsory supervision, albeit that one can see why an individual might not like that sort of intrusion at what would be one of the most personal moments in their life, for them and their friends and family.
If that were to remain the case, the likely consequence would be a police investigation, which would by its nature be intrusive. The driver for the bill is the dignity of the person’s last wishes, but we might end up with the very people who assist in the process being investigated for their actions.
I appreciate that, and I appreciate the context within which you raise that concern. I think that we are all concerned to minimise the risk of unnecessary stress or anxiety for such people. However, I again suggest that the small number of people who feel the need to assist in a suicide without a legal basis for doing so, and in the absence of legislation or a well-regulated system, are already subject to the possibility of prosecution. They will often anticipate that prospect in making the decision in what are difficult circumstances at the end of a loved one’s life. People in that circumstance face that situation at present. In the absence of legislation, people are not protected from the possibility of investigation or prosecution: far from it.
You see—you get the opportunity to speak first and you are not ready.
That still implies a medical test of capacity, which I do not think is suggested in the text of the bill.
I will pick up on some of the points that Professor Miller has made and ask one or two of the other witnesses to respond. He has raised questions about clarity and the definition of, for example, what counts as reassurance and what would be a step beyond that and would count as assistance. The seeking of clarity is understandable, but this is clearly a complex area. Difficult concepts will always be involved and it seems to me that guidance that would flow from the legislation—for example, on training, the responsibilities of licensed facilitators and even on what to do in the context of someone’s having not requested assisted suicide or having not made a preliminary declaration—would leave medical practitioners with a clearer sense of what to do when it comes to some of the decisions that Professor Miller alluded to.
It seems to me that the questions of clarity are currently open and that the bill gives us the clearest opportunity to begin to fill in the gaps—in particular, through guidance on the role of facilitators. Do you agree?
Anyone?
It seems young when one considers the purpose of the role that they would be undertaking. I do not know whether this is a legal point, but one would hope that they would have experience of life and a certain empathy, so that they could understand the circumstances in which another individual might find themselves. Although many 16-year-olds might feel that they possess those qualities, they would more usually be found in someone older.
If no one else wants to come in, let us return to licensed facilitators. Should there be a definition of those, or the function performed by them, in the bill?
That is possible. You would have to exclude it as a possibility and the decision would have to be made by someone with the appropriate level of qualification. One of the concerns that we expressed in our response in relation to capacity was whether the way in which it is phrased drives one to the conclusion that the only person who is properly in a position to make that judgment is a psychiatrist.
I welcome to the meeting our second panel of witnesses on the Assisted Suicide (Scotland) Bill: Chief Superintendent Gary Flannigan, head of major crime in the specialist crime division, Police Scotland; and Stephen McGowan, procurator fiscal, major crime and fatalities investigation, Crown Office and Procurator Fiscal Service. As I said to the previous panel, I thank you for your submissions. We will go straight to questions from members.
Yes—that would simplify matters and be consistent with the role of the police, which is to act on behalf of the Crown in investigating deaths and to take instruction. That approach would certainly be easier to adopt.
I wonder where the single repository of the documentation will be. In a medical case, we know where the medical records will be and what form they take. However, nothing in the bill specifies where the single record of a person’s intention and the various steps that were taken will be. It is perhaps envisaged that the facilitator will hold that information, but the bill does not say that, so there perhaps is a gap, which could mean a police investigation. As Gary Flannigan mentioned, there is an element of invasiveness in any police investigation. I am not sure that that is what the framers of the bill had in mind when they drafted it.
That is really a matter of Parliament’s intention. I cannot, as a prosecutor, comment on whether people should still have the benefit of life insurance and whether there should be sections on that. I know that other jurisdictions that have similar legislation have clauses in their legislation that allow people to have the benefit of life insurance that must still be paid out in such circumstances.
I am very grateful, convener. I suppose that the question is whether the decision is interpreted as a medical assessment of capacity or a commonsense test of understanding, which is common in other contexts.
Coral Riddell used the phrase, which is also included in the Law Society’s written submission, that the decision is “irreversible and terminal”. Clearly, the act of a person ending their own life, or the act of someone who is assisting them to do so, is terminal and irreversible, but none of the three documents that we are talking about here—the preliminary declaration, the first request or the second request—is irreversible. Throughout the bill, there are clear steps to ensure that those steps are all reversible; in fact, it is easier to cancel each of those steps than to take them in the first place.
I ask Coral Riddell to explain a slight ambiguity in the submission. It suggests the Belgian model, which allows the proxy to be anyone who is of a minimum age and who does not stand to gain from the person’s death. However, two pages later, it argues that the proxy should be a medical practitioner. That seems odd, given that each of the three documents—the preliminary declaration, request 1 and request 2—already require approval by a medical practitioner, which includes an assessment of capacity.
Not today.
It is on the same point, convener.
Yes.
I am particularly interested in whether it is possible that ignorance of the law could be a defence in relation to the bill.
Yes, it would. Let us say that someone is given pills to end their life, but the attempt is unsuccessful and they are left severely brain damaged and are no longer in a position to exercise any subsequent decision to kill themselves. If the person is relatively young, cannot earn income and will have care requirements for the rest of their life, are they to have no remedy against the person who has negligently given them the wrong medication or medication of lesser strength?
Quite a lot of studies have been done in Oregon. It was shown that once people knew that the option of assistance with death was available to them, they almost took a step back and made other plans. Some went on to utilise the provisions and others did not.
I know that we have been arguing for clarity, but it is a difficult thing to measure. We need to get a balance. On the one hand, these will be very difficult times for the individual and there are things that he or she may or may not want to achieve. You do not want to rush them in any way. A time limit is a very arbitrary thing to try to impose. Some people will need a great deal of time; others may not have time, due to the nature of their illness and infirmity. Like most things, it is probably a case of trying to get a balance. One would err on the side of protecting the individual’s life, and we would want to ensure that any decision that is made is fully informed and that requisite time has been given to the individual to make the decision.
10:30
Thank you very much, convener. An awful lot of ground has been covered, but I wonder whether it might be appropriate for me to write to the committee before it reaches its conclusions to cover some of the issues that there might not be time to cover.
If the death was sudden and the person was under medical care, depending on whether the treatment was a factor in the cause of death, and if there were concerns among the family, the nearest relatives or anyone else about the cause of death, I would expect matters to come to our attention.
Sorry, I have slightly lost your two points there. The last point—
I was giving them a moment to gather their thoughts after that peroration, Patrick.
This is a new role or function that an individual will undertake, so we need clarity around what the role involves and its parameters. You are moving responsibility for something that was originally very much the preserve of medical and clinical decision making. If the role is being entrusted to another individual, it must be made clear what the role involves for them.
We are very flexible.
My final question is a general one that applies to this section as well as the section on savings and several issues that have arisen over the course of the discussion. It is about the balance between specificity and flexibility, or the ability to take account of circumstances and case law, which is required with or without legislation in this area.
Several times today, people have said that there must be greater clarity. As the member in charge, I will be happy to discuss constructive amendments that are intended to improve the bill. However, is there not a danger that, if we get into that kind of discussion, at the other end of the spectrum, an overly rigid approach would also give rise to problems in applying the law and to an inability to take account of circumstances? We need a balance between clarity and an overly rigid approach. Is there not a danger that we might end up going too far in the other direction?
What about the police?
Okay. I know that John Finnie, too, has a question.
I do not know whether this is helpful, but as an aside I say that I think that one should consider the consequences of any sanction. In England, the Suicide Act 1961 contains a sanction of 14 years’ imprisonment for the charge of assisted suicide. Under Scots law as it stands, the sanction could be life for a charge of murder or culpable homicide. The consequences for people who are sanctioned under current Scots law are very serious indeed.
On the question of a facilitator, section 21(1) says:
“A licensed facilitator may not act as such for a person in relation to whom the facilitator is disqualified under schedule 4.”
Your submission raises the point that paragraph 2(g) of schedule 4 talks about
“anyone who will gain financially in the event of the person’s death whether directly or indirectly and whether in money or money’s worth”.
That is an issue, as a person might not know whether they are in somebody’s will. Is there an issue there, or would the fact of not knowing be sufficient?
The bill is drafted to define something as not being a crime in a variety of circumstances. Does the approach of defining something as not being a crime create any difficulties with investigation or prosecution? Are there any associated difficulties for you as investigators or prosecutors?
That would happen if a member of the public raised a concern.
We have considered the issue in a medical context. Section 20 goes down a certain route, and it should be easy—well, it would not be easy, but the provisions should at least point to certain people who will be dealing with the issues. However, when a doubt was expressed, consideration would move to the possibility of a suspicious death. Will you comment on the savings provision and on the potential breaches and penalties?
Would there be any similarity with the situation in which a conscious decision is made not to resuscitate someone?
Yes. I agree with that.
Yes, that is how to start off a Monday morning—sorry, I mean a Tuesday morning; I do not even know what day it is.
I thank all the witnesses very much for their submissions, which, as someone without a legal background, I found enlightening, although I must admit that it took me about two days, including this morning, to read through them all.
My first question is on the role of solicitor as proxy. One of the submissions states:
“We are of the view that solicitors should not undertake this proxy function.”
It also mentions the Belgian model. Will you elaborate on that aspect?
We can come back to that, if members wish, but for now we will move on.
09:45
Does anyone have one? What about the Faculty of Advocates, which also had concerns about the term “life-shortening”?
I am sorry. Can you say that again?
As representatives of the Law Society of Scotland, we are not in a position to comment on the bill’s aims and purposes. We confine ourselves to any legal and practical issues that might arise.
I have a quick query about the fact that the bill does not contain a conscience clause, which both the Faculty of Advocates and the Law Society commented on. Would I be correct in assuming that that is not necessary, as the bill defines what is not a crime? Therefore, if someone refuses to take part in what is not a crime, they are not committing a crime. Is that why it is not necessary to put a conscience clause into the bill?
Yes—answers could be found more quickly if things were as you suggest.
I think that that question is for Ms Riddell.
By the way, I ask the witnesses to indicate to me when they want to answer a question that is not specifically directed at them, and I will then call them. The microphones should come on automatically—you are being broadcast when the wee red light comes on, so do not say anything untoward that you do not want recorded.
My concern is that there would be a danger that individuals would fall through the gaps and would, due to uncertainty, find themselves exposed to prosecution. The reality at present in Scotland seems to be that there has historically been very little in the way of prosecution of people who have assisted suicides, and there have been very few such cases. We do not have a statutory offence such as there is in England, which is the focus of prosecution there. However, it seems to me that if the bill were to be passed and cases were scrutinised—as they would have to be were a new system to be introduced—individuals would suffer if you do not get it right. It would be better to get it right now than to get it right through a process of a series of criminal prosecutions in the High Court, when individuals would be at risk of losing their liberty.
I am not sure that I have the knowledge to be able to answer that fully, but I believe that a conscience clause addresses more than criminal liability. It is called a conscience clause because it addresses someone’s attitude towards their profession, their moral standing and their ethical beliefs and values. I do not feel able to comment on the criminality aspect, but I think that a conscience clause definitely covers more than just criminal behaviour.
That would depend on the circumstances. We have dealt with such cases that have been brought to our attention over the years.
Absolutely.
I simply add that I do not want to go into the legislative side of this, but clearly another family member might raise a suspicion if it was thought that someone would benefit from such events. Other than to say that, I would not like to comment.
The first point was that the three documents—the intention and the two others—can be revoked. They are not irreversible.
The faculty has concerns about the way that that is defined. However, it is worth noting that, in addition to having a “terminal or life-shortening” condition or illness, the person would have to be able to show that they had an unacceptable quality of life. For the purposes of the bill, it is not sufficient that a life-shortening condition exists; it has to have a current impact on quality of life.
That might go some way towards restricting what is otherwise a fairly general provision in relation to the condition.
I saw Professor Miller shaking his head when the witnesses were being drawn on the definition of “assisted suicide”. Our second panel of witnesses this morning comprises representatives from the Crown Office and the police, but I note that Professor Miller’s submission suggests that because there is no such definition and because under Scots law helping someone to commit suicide cannot be brought as a criminal charge
“there is no way of knowing how the prosecuting authorities might respond to a relative who assisted the death of another individual.”
Can you expand on that?
The witness from the Faculty of Advocates mentioned pills. I have seen a lot of evidence—from the Law Society and the faculty—about the lack of clarity in the bill about the types of pills that should be administered, and who should decide how they should be administered. The bill also contains no indication of when such pills should be given. That seems to be a huge omission.
That has not been tested so ignorance might not be a defence. It would just have to be tested against the facts and circumstances, the capacity in which the person acted and whether or not they were aware of being in the will.
That provision gives rise to another issue of a solicitor’s proxy.
Wonderful. Thank you.
I will just pick up on one or two of the issues that have been touched on. Briefly, on the conscience clause, it is a great convenience for those legislating in Westminster that they do not have to consider the question of devolved and reserved competences. Perhaps if there was a reciprocal legislative consent mechanism at some future time, we would have that flexibility as well. Clearly, however, there is a requirement for guidelines for professional bodies to address the issue of a conscience clause. Would that be an appropriate means of doing it, given that the regulation of medical professionals is not something that we can legislate on in this Parliament?
Sorry, but are you agreeing—
Could ignorance of the law be a defence in relation to the bill if people are prosecuted?
Forgive me, but I think that that was Christian Allard’s point. We are dealing not with the ethics but with the processes and whether there is a real lack of definition in the mechanisms and legal tests.
Does anyone else want to comment on that?
A balance must always be struck. There is an advantage to having a simple system, if for no other reason than that people who are not lawyers or are not regularly engaged in the process of considering assisted suicide can understand it. I would suggest that clarity does not necessarily involve complexity. For example, Lord Falconer’s Assisted Dying Bill seems to me, as a lawyer, to be more clearly expressed. I think that I understand it more easily than I understand this bill. However, it is no longer than this bill—in fact, I think that it is shorter.
If passed, the legislation would be unusual, because it defines something that has been a crime as not being a crime. It is the specifics of a piece of legislation that can cause difficulty. As a general principle, although the approach is unusual, we can deal with it if we have to. Its unusualness causes no specific issues in itself. It is knowing what the law is and applying that law that is important to us as prosecutors.
Yes. I am sure that Stephen McGowan would agree with that.
The minutiae of the law would probably necessitate that that person was suspected of a crime and was therefore a suspect. Things might develop quickly and there might be an adverse impact on what was wanted in the first place.
The savings provision is fairly broad. When we look at sections 1, 3 and 24, we see that the bill’s intention is to ensure that someone is not penalised for a minor error in paperwork, but I am not sure that that is explicit in the bill at present.
Section 24 refers to
“a person ... acting in good faith and in intended pursuance of this Act”.
I am not sure what
“in intended pursuance of this Act”
means. Does it mean following the steps in attempting to follow the statutory scheme, or does it refer to someone who wants to end their life and knows that there is legislation that allows them to do so and allows someone to be assisted in that way? The definition could be tightened to facilitate the legislative intent—if I understand it correctly—and not be quite as wide.
It strikes me as a prosecutor that any step towards trying to comply with the act would cause a difficulty in a prosecution if we were to bring one. The bill may well be intended to do that, but the question for Parliament is whether it provides sufficient protection in the legislative scheme. The definition seems to be quite loose. There appears to be a slight difference between the legislative intent as I understand it and what is in the bill, which seems to be slightly wider.
Absolutely—I will keep that in mind.
The question probably does sit with me. I suppose that, broadly, it is not that solicitors should not act as proxy; the challenge presented by the bill is that underlying what looks like a very systemised process are some very significant professional obligations that potentially conflict with some of a solicitor’s duties, whereas the Belgian model—I have some of the provisions here—does not necessarily require a solicitor. It anticipates a requirement where a person may need physical and mechanical aid and it identifies someone who perhaps understands the process better, or who understands the medical condition. It also requires a medical certificate.
The difficulty for solicitors is that, although they act daily as a notary or an agent, section 16 provides for something other than that, which goes beyond what is reflected in the current legislation.
I talked a little bit about the Requirements of Writing (Scotland) Act 1995 in our submission. I looked at the annotated commentary, and that anticipates just a mechanical aid; it does not anticipate an assessment of capacity. You might say that solicitors assess capacity every day, but the clear distinction is that they do not assess capacity in such a different situation, with such a significant outcome, as assisted suicide. That decision will be irreversible and terminal. That is the challenge for the solicitor, who would not ordinarily have the training, the experience or the knowledge to be able to assess whether a person understood the effect of such a decision.
Absolutely. Were the bill to proceed as it is, I would anticipate enhanced guidance for solicitors that, like the guidance for solicitors who draw up wills, power of attorney and so on, would include the opportunity to seek guidance from a medical practitioner. It is a significant responsibility, and the outcome of assessing a client’s best interests in relation to something as significant as assisted suicide distinguishes it from some other transactions.
Is it not fairly subjective to say that someone’s quality of life is unacceptable? What might be acceptable to one individual might not be acceptable to another. Is that not slightly unclear as well?
I think that ignorance of the bill could absolutely not be a defence. The law tends to state what is a crime, so it would not be a defence to claim ignorance of the law. However, one might not know what one might have to do in terms of assistance, actions or reassurance. Until one is actually in such a situation it is very difficult to measure responses. The nature of what one would be required to do in such situations might not provide latitude, so one could end up in the situation in which only afterwards was one having to try to account for, or respond to, what one had or not done in the circumstances.
I cannot talk about the pharmacology of pills, but we expressed concern about how such prescriptions would be looked after and kept safe when they are stored in people’s homes, because there could be other people there.
There is also a stipulation that, even if the medication is or is not used, it must be removed from the person 14 days afterwards, but how will that be achieved? Will someone come and take it away immediately? Will someone come knocking on the door a matter of hours later? We cannot lose sight of the fact that any legislation that is passed must consider the individual at the centre of it. If they have not taken the medication or if they need, say, another hour or two hours, will that time be given to them or will the stipulation be very strictly enforced? If it is going to be enforced, how will that happen?
The intention behind the bill is very much to set up a dignified, systematic process, and there is something to be said about its simplicity and directness. However, as the Law Society has found, the challenge is that once you start to probe beneath all that, you begin to understand that the absence of definitions does not give the certainty or meet the intention to provide the simplified, process-driven approach that I think the bill seeks to achieve. However, even if it does not provide all the answers or definitions, enhancing the bill with that clarity and certainty would take it a step further towards being effective.
I endorse that point. There are a number of points to make—some have been made already—about section 19, which talks about “comfort and reassurance” and
“such practical assistance as the person reasonably requests”.
It is difficult to know what that means and what the parameters of that are. The role that a facilitator would undertake and its responsibilities would benefit from definition.
I thank the witnesses for their evidence. I emphasise again that where there are areas where evidence suggests that a simple amendment would be beneficial, I am very open to discussing that. The argument around reporting to the prosecuting authorities instead of to the police is certainly an example of where a change to the bill would be pretty straightforward.
The general question that I would like to put is one that I put at the end of the session with the previous panel, about clarity. I ask Mr McGowan, in particular, whether there is a lack of clarity for prosecutors in reaching decisions, given the absence of legislation and of guidance on how a system of assisted suicide ought to operate, and given the great complexity of people’s individual circumstances and in relation to action or inaction? I can accept that perhaps we will never have crystal clarity given the inherently complex nature of the subject, but is it not reasonable to suggest that legislation would increase clarity for both prosecutors and individuals about what they are allowed to do and what is criminal?
One of the differences that the Law Society’s submission points out between the bill that we are considering and the United Kingdom Assisted Dying Bill is that the UK bill defines a maximum life expectancy of six months, whereas the bill that is before us refers to an illness that is “terminal or life-shortening”. A number of illnesses could be life shortening, but the person could still have many years of life.
The Law Society makes the point that although some mental illnesses could be life shortening, they seem to be excluded by section 12(1)(a), which says that the person should not be
“suffering from any mental disorder”.
Could you explore those issues a little more? Is it desirable to define a maximum life expectancy, or is that too difficult?
It is certainly better to get it right than to get nothing.
We are back to that. You were not happy with me earlier.
Yes.
Is there sufficient clarity in the bill to enable you to know who you should not be prosecuting?
Given the new terminology in the Criminal Justice (Scotland) Bill, that person could be arrested.
I have a question for Mr McGowan, who I am not sure was present when I asked Professor Miller about the Scottish Human Rights Commission’s evidence on the omission doctrine.
How have they been dealt with?
I have a question about the Lord Advocate’s submission, which says:
“If the Crown considers there to be sufficient evidence that a person has caused the death of another it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution but each case would be considered on its own facts and circumstances.”
That is fairly black and white. I think that you said that there have not been any cases in the past five years in which public interest considerations arose.
I am not prejudging any individual circumstance. The point was made that, at the moment, people possibly anticipate investigation. I am saying that, in the spirit of the proposed legislation, it would be advantageous to recognise that and to avoid unnecessary investigation.
Yes. As many of you have, I have fond memories of discussing this issue with Margo MacDonald over the years. It is very strange to be discussing it without her.
Roderick Campbell has highlighted a challenging issue. I should say, from a human rights point of view and as a means of zeroing in on the question, that Parliament has a relatively free hand, because human rights law neither requires it to, nor prevents it from, legislating on assisted suicide. There is in Europe no consensus on the issue; it is up to each country to have its own public debate and to make its own parliamentary decision on it.
If Parliament decides not to approve the bill, there is still a problem that has to be tackled: the lack of foreseeability on, and of accessibility to knowledge of, whether any informal action that individuals and families might take to assist suicide would lead to criminal sanctions being taken against them. In the recent United Kingdom Supreme Court case involving Debbie Purdy, it was decided that there was a lack of accessibility and foreseeability in the criminal law, and as a result the director of public prosecutions had to issue quite detailed directions that gave people a better understanding of where they were in a grey situation. Conditions are certainly ripe in Scotland for a challenge with regard to that lack of understanding in the current system. If such understanding does not exist, an individual will simply not know whether they will be in breach of the law. Given the very difficult set of emotional circumstances that such people are in, the last thing that they need is a lack of clarity on the legal position.
The issue is more about certainty. From a solicitor’s perspective, the person would be able to choose not to act, as would any of the parties. That is reflected in the Assisted Dying Bill. It is an option that people can elect to take. In practical terms, it would not change—
I thank our witnesses for their evidence. This has been an interesting issue to explore.
Because we are the secondary committee, Patrick Harvie will not be coming in front of us—
There are two points: the time issue and the complexities of the term “life-shortening”. Who would like to deal with those?
It is a very small point, but a solicitor might be an executor for a will and that would exclude them from acting as a proxy. A solicitor would know that but it does—
Basically, they would be saying that they were not prepared to take part in something that was not a crime, so there would be no chance of their being prosecuted.
There are specific pieces of the bill where further clarity might assist us in our job as prosecutors. The previous panel touched on some of them, and most of what I have to say would be fairly similar to what I heard from it, although I caught only the second part of that session.
Off the top of my head, I cannot think of an example in which a crime has been committed.
I thought that Patrick Harvie’s point was that, although the position now is sensitive and delicate, as we appreciate, and is usually handled accordingly by the prosecution services, if we had something in legislation that required that processes be gone through and recorded, that would surely assist the police and the Crown Office in deciding whether to go beyond a paper investigation and meet people face to face. I think that that is the point that Patrick Harvie was trying to make—we are talking about squeezing it down to processes and recording.
I do not know whether I follow that either, Patrick. Elsewhere, the submission says that if a solicitor gives advice to a client and the client rejects that advice, the solicitor has the option of saying, “I think you should take advice elsewhere,” or, “I’ve given you my advice and I’ve put it in writing, but if that’s what you want, I will do it.”
I take it that by enhancing you mean amending.
Yes.
The last case of this nature that I recall, in which we had to take a prosecutorial decision, was in 2006. It concerned a man whose brother had—I think—Huntington’s disease. A prosecution was raised for culpable homicide, he was convicted and he was admonished by the court.
As far as prosecutorial discretion is concerned, the factors that we would take into account in applying the public interest test are set out in detail in the prosecution code. I think that there are 13 factors, one of which is about the gravity of the offence, and the others are about the impact on the victim. When we speak of the result being a death, the public interest in prosecution is very high. That is what is behind the statement in the Lord Advocate’s submission.
I am not sure that I accept that there is a lack of clarity at the moment. If a person takes steps to assist suicide, they may be liable to prosecution under the law of homicide, depending on what those steps were.
Why should what is being decided be different? A solicitor must do that for contractual matters—they will sign as proxy and make an assessment of capacity. Why should it be any different from entering into an accord just because the decision is about how one ends one’s life? It is a matter of capacity.
Yes. There is a subjective element to that, but in the certificates that require to be signed by the medical practitioner, they have to confirm that there is nothing known to them that is factually inconsistent with the conclusion that the person’s quality of life is unacceptable. It does not do to focus entirely on the phrases that are used in relation to the condition or illness; one also has to take into account that that is the first of a two-step test, and it is qualified by the second step.
In that sense, therefore, there is a positive case to be made for having a go at some legislation, difficult though that might be, instead of simply relying on guidance from the prosecuting authorities.
Yes.
Would the Faculty of Advocates like to comment?
The commission did not make a submission on any of those issues, but I have to say that I find them and the line that is being taken very interesting. No doubt I will be corrected if I have not seen something that is there in the bill, but with regard to the issue of mistakes and savings, I think that from a human rights point of view, we need to ensure that the opportunity for making mistakes is reduced as far as possible, while recognising that it can never be eliminated entirely.
From a human rights point of view, the real test will be whether the person exercised free will and whether the decision was based on information that was sufficient to satisfy us that the person who was seeking to bring an end to their life did so with free will. As we have heard, capacity has to be tested and, of course, medical conditions have to be satisfied. I come from a legal background, but I have to say that if, as a legal or medical professional, I was being asked on behalf of society to affirm that it seemed to be okay for a person to end their life, I would want to be satisfied that I had all the relevant background information and that no other pressure was, for whatever reason, being brought to bear on the individual. They might have capacity and a particular medical condition, but is what is happening really an expression of their own free will? It might well be, but before I made any such decision I would want to be very satisfied that I knew about anything that was lurking in the undergrowth. I do not want to overstate how often such mistakes might happen, but such a mistake need happen only once. After all, it is the most serious mistake that can be contemplated.
10:15
Would you put that in the bill or in guidance for facilitators?
Indeed.
It has been mentioned a number of times that it would be hugely beneficial to have absolute clarity on those points so as not to end up with a police investigation on behalf of the Crown to safeguard the integrity of the process.
I was not here.
Just tell us which pieces you are talking about.
Could I ask Mr Flannigan about ensuring the compliance by licensed—
The commission’s evidence says:
“the Commission is also concerned that there is a lack of guidance relating to the omission doctrine, whereby doctors may withdraw life sustaining treatment in the certain knowledge that this will bring about the death of the patient.”
That issue would not come to the attention of the authorities unless there was any dubiety around the writing of a death certificate. Is that correct?
I asked the previous panel about licensed facilitators. Mr McGowan has alluded to the fact that a criminal prosecution could be brought against a facilitator if a member of the public or a family were to raise concerns. That is a legal concern that we need to deal with. I asked the legal profession whether, if the medicine that was administered did not work completely and the person did not pass away in a certain manner, a criminal prosecution could be pursued against the licensed facilitator. Is there enough clarity on that in the bill?
In its submission, the Scottish Human Rights Commission refers to the House of Lords decision in the Purdy case. It comments that a similar challenge could be made in Scotland and suggests that the Lord Advocate should issue interim guidelines. What is your view on that?
It is, but the bill introduces significant ethical and moral interests that go beyond what happens when a solicitor looks at a transaction or a conveyancing sale. A solicitor would not generally have the experience. Also, because you are bringing a solicitor into the process, you must give some regard to their professional obligations, such as the obligation to act only in areas where they are competent and in the client’s best interest. Assessing whether assisted suicide is in a client’s best interest, and whether a solicitor is the appropriate person to make that decision, is a huge moral dilemma.
I am quite happy to try to answer that question.
It is extremely difficult to attach a time period to a terminal illness. All illnesses manifest themselves in different ways. Rather than trying to be precise about that, it would probably be more sensible to try to ascertain why we would want to do that and what value would be had from attaching a time limit to a terminal illness at that point.
As far as mental illness and disease are concerned, other jurisdictions have taken the view that someone with a mental illness can request assistance to die and, in the Netherlands, that has already been forthcoming. The provisions in the bill do not take us down that road in the interests of protecting those who may lack capacity to make decisions at the time or be vulnerable. Our legal system places great responsibility on the state’s obligation to protect life, particularly when it is vulnerable, and I believe that that is reflected in the bill.
I think that, inevitably, it would be in guidance that would develop as practice and experience dictated the requests and assistance that were required.
Yes, but there is a conscience clause in the abortion legislation. The primary consideration is not whether the individual is taking part in a crime, but whether they wish to be involved in the termination of a pregnancy, which is a personal preference.
However, I suspect that he will be giving evidence to the Health and Sport Committee. Notwithstanding the fact that that committee meets at the same time as we do, members of this committee could ask for permission to attend any meeting of the committee at which legal issues relating to the bill arise, and they could question Patrick Harvie at that point—that is, if they do not wish to be here in our happy hunting ground.
10:48 Meeting suspended.
“May be” implies a lack of clarity, surely.
That is it, and a solicitor—
Anything that makes things clearer and lets individuals know where they stand can be taken forward whether or not this bill is passed. What I am saying is that if Parliament decides not to pass the bill, it still needs to address another issue that is quite apart from it.
Given that the bill is called the Assisted Suicide (Scotland) Bill, would it not assist to have a definition that people who might be involved in this at all levels could understand? If the answer to that question is yes, will you provide such a definition? I want Queen’s counsel advice from the Faculty of Advocates for free. That will be a first.
We have a number of concerns about section 24. The first is that section 24 would considerably blunt the essential requirements that are set out earlier in the bill. That in itself is not necessarily a bad thing, because what is proposed is a complicated system, and you do not want to expose to prosecution people who have made simple errors. If you set up a complicated system, people will make mistakes. It therefore seems to me that there has to be some means of preventing the prosecution of such people.
However, I doubt that the balance has been properly struck here. We are trying to prevent the prosecution, for murder or culpable homicide, of people who assist suicide. For section 24 ultimately to make the test—of whether people will be exposed to prosecution—whether there has been carelessness on their part strikes me as being, at best, unfortunate. The dividing line between a prosecution for murder and a legalised assisted suicide here is, potentially, about carelessness. We are all careless from time to time, but is that to be the test of whether somebody is at risk of going to jail and having a life sentence for murder?
Section 24 needs to be looked at again and should, perhaps, have rather tighter definitions. Even if we are told what “careless” is to be, is it to be measured against the standard of care of the ordinary reasonable man or of the medical practitioner who is involved day to day in the assisted suicide process, or would it be some other standard? I really feel that we have to be told.
For the bill to be effective, it will require amendment. After all, the key to this is certainty.
Yes. Someone would not do it if they were the executor.
Okay. Thank you. On the question of the minimum age of licensed facilitators being 16, is it not clear that that is not simply a voluntary role that one can step up to and acquire the status? A licensing process would be undertaken that would take into account the skills, abilities and experience that people would require to have in order to undertake that role. That said, would it not seem reasonable that, for example, someone who might be very young but who has been a full-time carer for a relative for a long time—perhaps for many years—might have gained the required experience and have a commitment to palliative care and to the dignity and freedom of choice of people at the end of their lives at a surprisingly young age and be regarded by the licensing body as an appropriate applicant?
Yes, I agree with that. The intention is there, and that would be agreeable. Does that make sense?
Agenda item 2 is an evidence-taking session on the Assisted Suicide (Scotland) Bill. The Health and Sport Committee, as lead committee, will examine the bill in its entirety; as the secondary committee, we have agreed to focus our scrutiny on the bill’s criminal and civil liability aspects, particularly the legal and practical application of its provisions and human rights issues.
I welcome to the meeting the first of our two panels of witnesses. Professor Alison Britton, convener of the health and medical law committee, and Coral Riddell, head of professional practice, are from the Law Society of Scotland; David Stephenson QC is from the Faculty of Advocates; and Professor Alan Miller is chair of the Scottish Human Rights Commission. I believe that Professor Britton would like to make some kind of declaration of interests.
The issue has been flagged up in evidence, but you do not think that there is a particular problem with the way in which the bill is written.
But it creates further tension in relation to different responsibilities and roles. Going back to the previous point, people are not necessarily going to be aware. They will be uncomfortable asking whether they are in a will, and the solicitor will not be able to disclose that they are likely to benefit from anything in the will. The approach creates more uncertainty.
Does the abortion legislation deal with the issue in the same way? Does it say that it is not a crime to take part, or does it create an exception from something that is a crime—the alternative approach that David Stephenson has suggested for the bill—if you see what I mean?
I am not sure that it does make sense, on the basis of the current drafting. As I said, some of the definitional elements have to be tightened up. In effect, the bill would introduce a regime of assisted suicide in Scotland, which might, because of some of the definitional aspects of the bill, mean an increase in the number of such investigations.
This is a judgment about the right of the person to decide how they want to end their life. That should not be an issue for the solicitor, if they are satisfied that the person has capacity. I cannot see the distinction between that and other times when a solicitor or advocate acts as proxy.
You touched on issues that I have written down, such as ethics and moral obligations, and you open up another area in that regard. Were the bill to pass with those provisions intact, would solicitors be obliged to act as proxy if they did not feel—morally or ethically—that they could?
If no one else wishes to comment on that point, we will move on. Alison McInnes is next.
Chief Superintendent Flannigan.
It would depend on the circumstances. As I said earlier, cases are very fact specific. Such cases have been brought to our attention, and we have dealt with them under the current regime.
I do not currently have a definition. It would be silly to try and make one up—
Professor Miller has just alluded to the Purdy case. A footnote in your submission says that
“the Commission is also concerned that there is a lack of guidance relating to the omission doctrine, whereby doctors may withdraw life sustaining treatment in the certain knowledge that this will bring about the death of the patient.”
What, from a human rights point of view, can we learn from the current arrangements for withdrawal of such treatment or, indeed, from instances in which people seek an undertaking that they will not be resuscitated?
That was my next question, convener.
I agree that it is about the quality of the person’s experience and their ability to understand what they are about to undertake.
The provisions are those on the definitional aspects of crime and on the essential safeguards and the savings section at the end. When we considered a case, we would have to look at those passages in the same context as we currently have to use. I am talking about sections 1, 3, 18 and 24.
Under the bill as it is drafted and as I understand it, if a facilitator acted in good faith and intended pursuance of the act, their conduct would have to be of a reckless rather than careless quality for a prosecution to be pursued. Carelessness is not defined in the bill but, given the definition of carelessness in other criminal contexts, I would say that the facilitator would have to be reckless for there to be any prosecution. I do not think that recklessness is protected by the bill.
That is not necessary because of the factors that are set out in the prosecution code. The Purdy judgment, which is not binding in Scotland, must be seen in its context. The case was brought because Mrs Purdy wished to travel abroad to end her life, wanted her partner to help her in that and wanted to know whether she was vulnerable to prosecution under the Suicide Act 1961.
Mrs Purdy’s case came shortly after another case. I think that it was the case of Daniel James, who was a 24-year-old rugby player with spinal injuries. His family was not prosecuted by the director of public prosecutions who, unusually, published the reasons for his decision not to progress criminal proceedings in that case. The factors on which the DPP relied in deciding not to take proceedings were factors that, for the most part, were outwith the code for Crown prosecutors in England and Wales. Therefore, when Mrs Purdy said that her rights to a family life under article 8 of the European convention on human rights were being interfered with, the question for the court was whether that was in accordance with law. Because the factors that the director of public prosecutions took into account were not covered by the code for Crown prosecutors, the court said that it was not in accordance with law, which is where the director’s guidance in England and Wales came in.
The judgment is specific to that context in that there was a code that bore on the factors that were taken into account when the prosecutorial decision was taken in England and Wales, but they were not the factors that the director took into account in the James case, which caused Mrs Purdy’s uncertainty as to what the law was in England and Wales.
We can never be entirely certain about anything, but if someone takes steps, they may become—I can put it no higher than that—liable in terms of the law of homicide. If someone is so liable, the factors that would be taken into account are in the prosecution code, which provides a degree of certainty. Any departure from that is a matter for Parliament, and if it legislates for that, then clearly we will work in that system.
There are, in the bill, a number of areas in which I am not certain that it provides more clarity; I suggest that it gives slightly less clarity than is the case in the current position. That is not a comment on the legislative intent; it is simply to say that in the scheme that is set out there are one or two areas in which greater clarity and definition could be given.
Does the panel have any view on the fact that the bill contains no sanctions or penalties for any contravention of its provisions?
No. An abortion that is undertaken under the terms of the abortion legislation is not an offence, but if it does not comply with that, it remains an offence.
The bill is in a pretty raw state, if Patrick Harvie will forgive my saying so. It has a way to go.
In what regard?
I understand that you cannot do so on the spot, but is it possible to produce such a definition?
No matter whether legislation in this or any other form is passed, we must recognise the need to improve palliative care in Scotland. That must happen for obvious reasons; if we are not looking after people in the way we should be looking after them, they are going to be placed in situations in which they will ask, “Is it worth carrying on?” Irrespective of the bill’s merits, there is an obligation to improve palliative care.
Part of that is about recognising the human right to the highest attainable standard of health, which applies as much to older persons as to people at any other stage of life. There is a concern that certain practices are not recognising that right with regard to people who are in need of care, and that some health decisions do not respect people’s free will to determine the kind of healthcare that they will be given. From my experience—I am sure that others around the table know this, too—the approach that we need is not being taken daily in hospitals: decisions are being made without proper consent, without instructions, without information and without free will being exercised by the patient herself, and families are very often being put in situations in which they are making decisions that they are ill equipped to make, for emotional or—as we have discussed—legal reasons. I agree, therefore, that families and legal professionals need much more certainty.
10:00
Thank you.
The question around capacity and mental health has perhaps been misunderstood. It is clear to me from the way in which the bill was drafted—I undertook to promote it subsequently—that section 12(1)(a) does not rule out from the capacity test anyone with a mental health diagnosis, as it refers to someone who
“is not suffering from any mental disorder”
within the context of the 2003 act
“which might affect the making of the request”.
Is that not a clear statement? That final clause is not a commentary on the nature of mental illness; it is part of the capacity test. So, someone who had a diagnosis for a mental health condition that did not affect their capacity to make a request would be able to make a request. Is that not clear?
Although the bill would decriminalise the current situation, it would not preclude a member of the public from raising a concern that might more than likely necessitate an investigation. In effect, engineering out a police investigation at the forefront would be significant for us, because there would be no police involvement unless something came from a member of the public or there was an instruction from the Crown to look at a particular circumstance. That is clearly helpful.
I am sorry.
You spoke about discretionary judgment. Would you envisage using that judgment in such cases?
As a side issue, is either of you aware of any kind of statistical information on the number of people who might leave Scotland for the purpose of ending their life elsewhere?
The question was asked earlier about the potential for medical failure in an assisted suicide. Have you looked into that in preparing your evidence? I am not aware that that has been a problem in other countries, including Switzerland, that already operate assisted suicide. I am a little bit concerned that we might build up the potential for such a problem.
I do, convener. I want to make the personal statement that I was appointed as adviser to the Scottish Parliament committee that considered the general principles of the End of Life Assistance (Scotland) Bill in 2010.
A solicitor would be in a position not to accept the instructions and not to act—that would be a safeguard. We need to address the issue now, rather than have the bill go through as drafted, and my concern is that the matter is untested in the profession, so we do not know how it would react. There may well be solicitors who are well qualified to deal with the role, such as those who work in the sphere of mental health law. However, the average solicitor is not likely to come across such situations. The guidelines anticipate 27 requests a year, so it is not an area in which frequent requests and experience will be built up.
I think—and there is some element of assumption in this—that some of the challenges might be around the condition that the relevant person has and how effectively they can communicate. A solicitor has a duty relating to effective communication and the best interests of the client. The solicitor might not know the person—they might not have met them before—and must try to establish a relationship and communication. The person may not be able to communicate verbally. That is challenging.
The supporting documents on the bill mention training and funding for other professions, but not for solicitors. To protect solicitors and the public, it would be fair if there was some acknowledgement that this is not necessarily something that every solicitor would be equipped or trained to assess, and that further assistance and training would be required.
Except, surely, that an executor would have sight of the will so they would know whether they were a beneficiary.
Sorry.
That view is expressed in submissions that we have received.
Another issue that involves the police and the legal profession is whether specialised training would be required for the police on not just that part of the facilitator’s job but the drugs that were made available, how they were stored, when they were collected or returned to the pharmacy and any records that were kept. Would the police need special training in those things?
I will leave it at that for now, convener.
It should be possible to define the circumstances that are covered by the bill in much the same way as Lord Falconer’s bill in England—which seeks to set up a different system—defines more clearly what is to be legalised and what will be permissible. I think that such a definition is not beyond the wit of man.
I suspect that that is because its approach is not to create any offences but to provide freedom from risk of prosecution for common-law offences that stand outside it. An alternative approach would be that taken in the English Suicide Act 1961, which decriminalised assisted suicides subject to specific offences that were created in the legislation. That approach has not been taken, presumably because of the approach that was taken to drafting and structuring the bill.
The Faculty of Advocates suggested that a different approach might be taken, which might be more common, with a definition of a criminal activity and exceptions in the context of that activity. Would that approach be easier?
It took him a while to get there. He wants to keep the title.
Does Patrick Harvie wish to pursue the proxy issue, or are we moving on?
In terms of the “terminal or life-shortening” terminology. Both the Faculty of Advocates and the Law Society flagged that up. I wondered whether you were flagging it up as an issue, or—
With respect, I do not think that it is, because the last part of section 12(1)(a) reads,
“which might affect the making of the request”,
not “which does affect the making of the request.” I suspect that in practice it is very difficult to exclude the possibility that any mental disorder might affect the making of a request.
The current position is that the law of homicide applies to those cases, so we would look at a case in relation to that law. We look at whether a crime has been committed and whether it has caused the death. If a crime has been committed, the crucial element is the intention. If the intention is to kill, the case could be a homicide. If the intention is not to kill but to treat in terms of palliative care, that would potentially not be a crime.
From a prosecutor’s perspective, it is clear that any such case currently—and, I imagine, if the bill was passed—would be dealt with by specialists. At the moment, such a case would follow one of two routes to the Crown Office—it would come through either homicide teams or the fatalities investigation unit. Both those groups of prosecutors have specialist training. However, ultimately, any decision would be made by Crown counsel and would probably involve the law officers. In such cases, the decisions would be made by a small group of people. If the bill is passed, further training and internal guidance might be needed to ensure that prosecutors are au fait with the bill.
That question would perhaps be better directed at those with medical or pharmacological experience, who know how the mechanics of assisted suicide work and how various medications and drugs work. My comments were simply in relation to my assessment of what the response would be from a prosecutor’s point of view if there was a medical failure in an assisted suicide. I am not aware of any facts, circumstances or specific statistics in relation to that, but I do not think that it is really my area.
Thank you for that.
I thank the witnesses for their written submissions—and, my goodness, it took me ages to read the Law Society’s. The faculty’s submission was much shorter and crisper, perhaps because, as someone aptly suggested, time is money to its members. I also thank the commission for its submission.
Because we have those submissions, we can go straight to questions. If members indicate that they want to ask a question, I will put them on my list. Just to show that I am not vengeful, I will put Sandra White first on my list, and then I will call Elaine Murray, Roderick Campbell, Christian Allard and Patrick Harvie. Off we go.
The executor would, but if a member of the family wanted to know whether they could act as proxy or whether they were going to benefit from the will, that could not be disclosed.
I would feel uncomfortable if that crucial role was developed by ministers after we had passed the bill.
I have another question on the functions of licensed facilitators. Should they have a duty to record what was dispensed and what happened thereafter? A lot of tidying up needs to be done around this crucial role.
So it takes the alternative approach.
I am not.
Indeed. It is subject to amendment and further consideration by Parliament.
I am not going to dwell on this. I think that I agree with you. The fact that someone might not know that they would benefit financially and is a facilitator might not be a huge issue, although it must put a certain unease in people who are facilitators if they think that they are going to be placed in a position of scrutiny, particularly when we go on to the next section about police reporting and so on. Is that something that we should bother about?
Do you have any comments on the provisions in the bill on Police Scotland’s role in ensuring compliance by licensed facilitators? Are you happy with that?
No.
Would that be helpful, Mr Harvie—depending on what the definition turned out to be?
I should not be questioning Patrick Harvie; he will give evidence another time.
They should know the nature of the drug and how much was dispensed. However, there would be 14 days to remove any drug that had not been used, and how would it be disposed of? Who would have that responsibility? Would it go back to the pharmacist to be safely disposed of or would it be the responsibility of the licensed facilitator? In circumstances in which an individual has received assistance to end their life, the priority for the licensed facilitator at the time may rest elsewhere than worrying about what has happened to the pharmacology and writing reports about that.
Okay. Thank you.
I ask to be allowed one final question on proxies.
The point is that solicitors would be entitled to act as proxy but would not be required to do so if they did not feel that they could meet what I would regard as a commonsense test of whether the person understood the effect of the document. However, I am still unclear about what you are asking for. Are you are proposing the Belgian model, in which anyone who does not have an interest and who is over a certain age can act as proxy, or would you simply suggest that we add medical practitioners but do not remove the right of solicitors to perform that proxy role if they felt able to?
I hope that I have answered the point about duration.
The provisions in section 1 are quite unusual and interesting in that they define what is not a crime instead of what is a crime.
It does seem to me that this capacity test, which a medical practitioner with expertise in the field would be responsible for applying in approving a request, would also be applied normally by a medical practitioner in other contexts. For example, someone with a history of a recurring mental health condition that had not recurred for a long time could still have that diagnosis, but it would be reasonable to conclude that, there having been no recurring episodes for a long time, the condition did not affect their ability to make the request.
10:45
There is a fine distinction between a conscious decision not to take an act that would sustain a life and actually seeking to end a life, is there not?
From a police perspective, awareness raising would be required at all levels. I imagine that, as Stephen McGowan has highlighted, the teams that I am in charge of—the major investigation teams—would need more in-depth training.
Mr Harvie, do you want to say any more?
I accept that that is extremely difficult to define.
I note that, in its written submission, the Faculty of Advocates thought it desirable to have some penalties.
I suppose that we have to look at the actual purpose of the provision, which is to prevent abuse. Most of these issues would be judged after the event, as Ms Riddell said, in terms of knowledge or the amount that someone would benefit. They are really not intended to pick up on an acknowledgement or a thank you bequest; they are there to prevent abuse, which is rarely picked up on until after the event.
Yes. There are very few crimes of omission in Scots law.
I simply observe that, for someone who has been caring for a loved one in difficult circumstances through a life-shortening or terminal illness and supporting them in making that decision, and if they had confidence that they had taken proper steps in compliance with the law, the prospect of a conversation with an investigating officer might be the last of their worries, to be frank. It might be a fairly minor thing for people to contemplate if they feel that they have given their loved one the freedom to make on their own terms a decision that was profoundly important to them.
Not quite yet.
Would it be onerous to have a duty to record when the drug was given and what drug was given?
I am. I understand that everything might, in effect, be retrospective. If I am honest, I am not entirely clear about what the role would be. Are you saying that there is a defined role?
Not at all. It would be only right for licensed facilitators to have that duty to record what occurred, but they should be given a reasonable timeframe in which to do it. If they are there to provide reassurance, their priority at the time would surely be the individual concerned and/or any next of kin and family members. However, it would not be unreasonable to expect them to record what happened.
I think that that is one of the points at issue.
As to whether a condition is life shortening or intractable, it is very difficult to come up with a clear definition—it is clearly a subjective decision in every case. It is not only the definition of “life-shortening” that might be problematic; there are many issues that the bill deals with in relation to which it is extremely difficult to come up with an objective definition.
Part of the problem is that everybody would like to know the parameters within which they will operate.
I appreciate that. Perhaps a statement could be made by the parties to the effect that the facilitator is not a beneficiary in any respect. If that could be done, it would be a belt and braces for the facilitator.
Can we learn anything from that in relation to the bill? I asked Professor Miller the same question.
That is a statement rather than a question, but it does not matter.
That brings us to the end of the session, so I thank our witnesses for their evidence.
I suspend the meeting for a couple of minutes, but members should stay put, because we will move quickly on to the next panel.
11:29 Meeting suspended.
We could look again at the savings provision. Instead of throwing people back on to the criminal law of murder and culpable homicide, the bill could say that if people do not get this right—even if they have been a wee bit careless—they will be subject to punishment under the bill itself, rather than under the common law. I suppose that there would be a matter of degree in relation to the error that had been made.
Could the panel comment on the variation and inconsistency in how capacity is defined in the bill and how it is defined in other legislation? The Faculty of Advocates and the Law Society in particular made submissions on that.
It is difficult to say specifically what might be learned. We are straying on to a slightly different topic—the treatment that is appropriate for those who do not want to take advantage of the proposals in the bill.
Is the bill correct in the way in which it addresses the matter, or could it be improved? Is the terminology that is used in the bill as good as it can get, or are there ways in which it could be improved?
Are you asking me whether there should be a defined role?
We would always seek clarity. Given the implications of any outcomes of the bill’s provisions, it would be advantageous to make them as clear as possible, not just for individuals who wish to use its provisions, but for those who have to interpret them.
No. I am specifically talking about the suggested role and whether you are unclear about it. The bill is there, but we are not quite sure. There has been some suggestion that the role should be in the legislation or that it could be left to guidance that was issued later by ministers. However, it would be up to Police Scotland to ensure that, whatever its role, that role is carried out properly and there is compliance. There is a big question mark about that.
Is the bill as clear as it could be?
I am not sure whether there is a precedent in our current role for having so much involvement in something of this nature. Police Scotland has no experience of such a pastoral role.
Section 20 of the bill envisages that, when a licensed facilitator has assisted a person to end their life, the facilitator will have an obligation to advise the police of that fact. That section is slightly anomalous with current practice for what I would broadly call medical deaths. I know that this is not a medical death, but I am talking about someone who dies under medical care when there is a degree of supervision—that is why I characterise the situation in the same way.
Such deaths are reported to the procurator fiscal. There is a Scottish fatalities investigation unit, which deals only with such cases. I suggest that the role is not for the police but for that unit, which would be made aware of the situation. That is typically what happens in relation to a sudden death or a death when the person is under medical care and the death cannot immediately be certified. That would provide the necessary safeguard that the bill attempts to provide. I do not know whether that answers your question.
I think that it could be clearer.
In what way?
I think that the definition of “life-shortening” could be made clearer.
You would like to see that on the face of the bill.
Yes, and I think that whether a condition is life shortening is a medical decision, not a legal one. The law would be guided in relation to what the definition of life shortening would be within a medical context.
I will take Sandra White next and Patrick Harvie last—he can be a sweeper up, as it were, of all the things that we have not asked or followed up.
Margaret Mitchell has asked a couple of the questions that I wanted to ask about the facilitators. Everyone has concerns about the facilitators being appointed by the Government or ministers. What experience is needed and what is the role? Those things are not written in the bill.
I have another question on the back of what Professor Miller and Mr Stephenson have said. If, by chance, a facilitator gave the medicine and the person ended up very disabled, would it be possible to prosecute the facilitator for criminal negligence if that was not written in the bill or part of the contract? The role of a facilitator is clear, but there is nothing in writing that would protect a facilitator if any careless action happened. Should that be looked at as well?
First, I refer to my interest as a member of the Faculty of Advocates.
I want to expand on clarity in definitions and, perhaps, just take that further back to the question whether the bill would be improved by the inclusion of a definition of assisted suicide. What does the panel think?
There is a strong need for clarity about what constitutes assistance in suicide. I am in danger of repeating myself, but I agree that it is a difficult thing to grasp. In the explanatory notes, the bill refers to the idea of a licensed facilitator to provide reassurance but not encouragement. That is just one example. It is difficult to know at what point reassurance ends and active encouragement starts.
Many cases that have discussed issues around assistance to die have been brought to the courts by people who have progressive neurological diseases—multiple sclerosis, Parkinson’s disease and so on. For those people, the issue of assistance is very intense. They envisage a time when their capacity still exists but their physical ability to take their own life is no longer there. The demarcation lines on assistance—putting pills in someone’s hand, or holding up their head to allow them to ingest tablets—are by no means clear. Given the responsibility of a facilitator or whoever is assisting a death, it has to be very clear where assistance stops and being complicit in homicide starts.
Does anyone else wish to comment?
Although I accept the point, there is also the other end of the chronological spectrum where, for example, somebody is prescribing the drugs that they know are to be taken to bring death about. Is that part of assistance and is it covered by the bill? There is enormous potential chronological scope in the bill’s coverage from the initial act by people who simply do what is necessary to allow the process to take place, such as the dispenser or the prescriber, up to the person who might hand over the pills and provide the glass of water at the end of life.
Roderick, do you wish to carry on?
I would like to engage with Professor Miller.
On that point, Chief Superintendent Flannigan, are you content with the evidence that has been received so far on the provisions for recording processes? It seems to me that robust recording processes would make the police’s job much easier. Are you content with what the bill says about recording?
Yes, I am. As Stephen McGowan highlighted, cases would always be treated on their merits, and we would need that particular scrutiny in order to see that conditions had been met. From the information that I have seen, I am content.
The panel of legal witnesses did not seem to be quite so satisfied with the proposed recording processes.
11:15Next
Drink-driving Limit