Official Report 346KB pdf
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The next item of business is stage 3 of the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament bill 46A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak on any group of amendments should press their request-to-speak button or enter RTS in the chat function as soon as possible after the group is called.
Members should now refer to the marshalled list of amendments.
Section 2—Terminal illness
Group 1 is on the meaning of “terminal illness”. Amendment 136, in the name of Daniel Johnson, is grouped with amendment 1. I call Daniel Johnson to speak to both amendments in the group and to move amendment 136.
Thank you, Presiding Officer. It is with a great deal of trepidation that I rise to speak to and move the first amendment.
I begin by paying tribute to Liam McArthur for the way in which he has stewarded the bill through the Parliament. It is not an easy topic, but it is one that everyone in the chamber has considered with a great deal of care. That is why I have lodged amendments 136 and 1 on the definition of “terminal illness”, with a view to tightening the definitions, improving the clarity of their scope and providing clarification.
The provisions that are proposed by amendments 136 and 1 are very much in addition to the existing provisions on the definition, rather than being alternatives to them, because I believe that the Parliament has a choice about the kind of bill that it wants Liam McArthur’s bill to be. Do we want it to be simply about enabling an act—making the act of assisted dying as straightforward as possible, which is an absolutely valid view—or do we want it to provide a dispensation in very particular and precise circumstances?
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At stage 2, the Health, Social Care and Sport Committee undertook its work diligently, but its view of the bill seemed to be that it was much more about the former rather than the latter. As someone who voted for the bill at stage 1 because I believed in the principle, I am very much of the view that, if we are to progress, we must progress with caution, which is why we need clarification, particularly around what is meant by “terminal” and “progressive”. In my view, as the bill stands, it is open to interpretation. That is why, in amendment 1, I seek to provide expanded definitions that would provide greater clarity.
However, over and above that, I believe that simply having a terminal and progressive condition that is likely to shorten someone’s life is not a sufficient condition for the possibility of an assisted death to be extended to them. In addition, they must be approaching the end of their life—I will deal with that in the next grouping, which is on being within six months of death—and the condition that they find themselves in must be intolerable, without the possibility of improvement.
I have great interest in Daniel Johnson’s amendment, for the reasons that he has already set out, but does he share my concern that we would end up with a subjective test that would sit on top of what have previously been, in the main, objective assessments, which would be the same? Can he deal with that point?
I am happy to deal with that point. I actually disagree with it, because I believe that we must be frank about the fact that all the decisions and judgments that we are asking professionals to make in the course of the assisted death process will be subjective. There is no possibility of true objectivity. We could set some standards, expectations, values and conditions, but, ultimately, it will boil down to doctors and other medical professionals making judgments. Those judgments will be based on their experience and knowledge of the person, but they will be subjective judgments. All that we can do is to ask for qualifications in addition to those judgments.
Throughout the stage 2 process, much was made of international comparison. It is important to note what international comparison tells us about this.
I wonder whether Daniel Johnson can tell us a little bit more about his reasoning for choosing the following form of words in amendment 1:
“that treatment that can relieve or improve this condition … is no longer providing relief or improvement”.
It seems to me that that implies that a treatment that could theoretically provide even the most marginal, barely registrable improvement would rule out the individual being able to make their own choice. Surely it is for the individual to decide whether a treatment provides sufficient improvement for them to change their mind.
The member makes a fair point, but I would also argue that, without that, if there is the possibility of a treatment that would improve the person’s condition, would we want to allow them to proceed? Somebody could have a terminal condition and be at the end of their life but have a good quality of life or have that possibility. We need to ask ourselves whether we think that it is appropriate in those circumstances.
I draw members’ attention to both the New Zealand legislation and the Australian Capital Territory legislation, which provide similar conditions. In both sets of legislation, there are additional qualifications in relation to whether someone’s condition could be improved by treatment and whether they are approaching the end of life; those qualifications are both present in the way that that legislation is set out. It is important that, when we make such international comparisons, we are clear about what they involve.
I think that we would all be drawn to the notion of making intolerable suffering part of the criteria—certainly, I am drawn to that—but we are doing more than just legislating for a form of words; it must have a legal interpretation. I see that an attempt is being made to do that in amendment 1. Mr Johnson has referred to legislation from other parts of the world, but is there anything that can be drawn from law here in Scotland in relation to the notion of intolerable suffering? Is there anything else in Scots law that relates to that?
I would simply draw on the legislation in the two jurisdictions that I mentioned for comparison, both of which have similar or comparable forms of wording. In addition, the fundamental definitions of “terminal illness” and “progressive” in the bill would similarly require legal interpretation. I acknowledge that, in many ways, I would prefer that the definitions had been looked at further—indeed, much of the bill could have done with a great deal more deliberation and scrutiny.
To go back to the amendments that I have lodged, amendment 136 would introduce the concept of intolerable suffering. I stress that that would be in addition to the two conditions already in the bill with regard to having a terminal illness that is progressive.
Amendment 1 would provide the expanded definitions, because I believe that clarification is needed, not only of the meaning of intolerable suffering, but of what the terms “terminal” and “progressive” mean. Without clarifying the definitions, we would simply be relying on two lines of legislation. I note that that is considerably less than in most of the pieces of legislation in international jurisdictions that are available for comparison, if members choose to look at them.
I move amendment 136.
I thank Daniel Johnson for lodging the two amendments in this group.
I rise to speak with serious concern about the bill, in particular with regard to its impact on disabled people. For many disabled people, the debate around assisted dying feels not abstract or theoretical, but deeply personal. At its heart, the bill sends a deeply disturbing message that some lives, especially the lives of disabled people, are more eligible for ending than others.
Many disabled people fear that the bill could, implicitly, make them feel that their lives are automatically considered eligible for ending, simply because they live with a disability. That is a message that the Parliament must never, ever send.
Supporters of the bill will point out that it is framed around terminal illness, not disability. I see what Daniel Johnson is seeking to do with the two amendments in this group, but the reality is that many who are terminally ill will also be disabled, and the line between the two can become blurred in practice. Disabled people in Scotland already face serious inequalities and barriers, higher rates of poverty—
I am grateful to Jeremy Balfour for taking my intervention. We had some of these exchanges at stage 2, but I wonder whether he would reflect on the evidence in the detailed research that was carried out by Professor Ben Colburn at the University of Glasgow, which indicated that, across all the international jurisdictions with assisted dying laws of this type, there is no evidence of a disproportionate impact on those in the disability community. Moreover, there have been no detrimental impacts in terms of wider rights or perspectives of disabled people as a result of the introduction of such laws.
I have to say that that is not the evidence that the disability community has presented to me, and it is not the evidence that is coming loud and clear from those with lived experience, in particular in Canada and parts of Australia.
I have to say that I disagree fundamentally with the presumption that Mr McArthur puts forward.
As I was saying, people with disability face higher rates of poverty, limited access to healthcare, social isolation and, at times, a sense that society does not fully value their lives. Against that backdrop, the bill would risk compounding those pressures and subtly signalling that the lives of our most vulnerable are less worthy of protection. How we treat those with terminal illness and disability speaks volumes about the type of people and the type of society that we are, and we should make no mistake about it—we will be judged by that.
I welcome what Daniel Johnson has tried to do, because, just recently, Lord Falconer, who is taking forward the bill in the House of Lords, said:
“Your financial position might be an element in what makes you reach a decision.”
He went on to note:
“The evidence from abroad is that it is people from perhaps more financially secure circumstances who make this sort of choice.”—[Official Report, House of Lords, 16 January 2026; Vol 851, c 2019-20.]
His argument is that assisted dying is framed around choice.
However, again, the disturbing implication is that difficult circumstances, such as poverty, vulnerability or domestic abuse might make assisted dying an option for some. Let me be clear—I believe that that is outrageous and not the type of society that I want to live in. Being poor or living with disability is not a choice, and it should never be used as a reason to facilitate the ending of someone’s life.
Many people have told the Parliament that their fear is not just of overt coercion but of subtle pressure—the sense of being a burden, the worry about consuming scarce resources and the feeling that others might be better off without them. Those pressures, let me tell members, are real, and legislation that treats disability as a factor in eligibility risks legitimising those fears.
We heard from Daniel Johnson about making the legal definition clearer. We all know that, if the bill becomes an act, it will be interpreted by the courts over time, and even the safest safeguards could well be eroded by the courts.
The measure of a society is not only how it protects autonomy but how it safeguards those who are most vulnerable. If the bill is passed, it will define us as a Parliament and Scotland as a society by the way that we treat those who are weakened, most at risk and often overlooked. We have a duty as parliamentarians to ensure that no disabled person ever feels that their life is conditional or less valued, or that assisted suicide could be considered as something that brings economic benefit. Every life must be respected, protected and affirmed without compromise. How we act and how we stand is a measure of the integrity and moral character of this Parliament and our society—not just in the eyes of history, but in the judgment of the people of Scotland and, most importantly, of the most vulnerable among us.
I thank the member in charge of the bill for the way in which he has taken it through Parliament, and I thank other members for the way in which they have engaged in the very sincerely personal debate. I know that members are taking very seriously the weight of these decisions. I also thank the legislation team, which has done a power of work in getting us through many amendments, and Parliament staff for the time that they will put in to help us get through the amendments.
As currently drafted, the bill defines someone as terminally ill
“if they have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death”.
That definition is, as my colleague Daniel Johnson has pointed out, incredibly broad. It includes many disabled people—indeed, as I said at stage 2, it could include me. I recognise that the amendments in this group try to provide greater clarity, but I do not believe that they resolve that fundamental issue. The provisions in them are highly subjective. I acknowledge that the member who has lodged them recognises that, but I will talk briefly about why that is important.
People’s experiences and their views about what they can live with change over time. They are shaped by the society in which we live, as well as our views of ourselves. Absolutely everything that I have, I have had to fight for. I had to fight to get overnight care so that I could go to the toilet, because the council had said that it would be cheaper to use incontinence pads. That fight in particular nearly broke me. I was ill, I was crying daily, and the pain from my advanced stage arthritis, which will likely result in early death, got worse, because I was worn down by fighting. I am one of the most empowered disabled people in the country—one of 129 people who have the privilege of sitting in this Parliament—and I have been broken by how hard it is to live, or to try to live, like everyone else. Even when pain is intolerable, it is the everyday ableism and discrimination that make me feel like I cannot go on.
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When I have the support that I need and when I am not fighting, I and people like me can live well, and we can thrive. We believe that life, at that point, is tolerable and even well worth living. We even believe that in circumstances in which others do not think that a life like ours would be worth living.
I want to take a moment to talk about other peoples’ views on tolerating loss of function and why that is also a complex and subjective concept. People often portray the lives of disabled people or people who have lost function as being intolerable. Paralympian Tanni Grey-Thompson, who members recently had the opportunity to meet, was told by someone that they would rather be dead than incontinent, as she is. They said that to a Paralympian who sits in our House of Lords.
People question daily how people live with loss of function—for example, how I cope. They feel that it is acceptable to assume that a life like ours would be intolerable and not worth living. People question that regularly.
Presiding Officer, someone has to shower me. Someone has to take me to the toilet and help me in the toilet. Someone has to do almost everything for me. Many people find that to be undignified and are not afraid to tell me that. On occasion—for example, if I have no care or the toilet is not accessible—it can be quite undignified.
The point that I hope that I am making is that I have learned to live with the good, the bad and the ugly of my life. That does not mean that I am not scared of loss of function, as I imagine that everyone is—of course I am. I want to keep the little function that I have left, and I am worried about what would happen if I do not.
However, I have seen people face adversity on a daily basis, overcome it and enjoy life. With the right support, people can lead great lives despite otherwise intolerable pain or suffering. What is intolerable for me has moved over time and might not be tolerable for someone else. We must be very cautious about the message that will be sent if help, aids, adaptations, significant care from others and the inability to use the loo or shower by ourselves are circumstances that could be interpreted as indicators that someone’s life has become intolerable.
Others often view disabled people’s quality of life as being lower than the disabled people themselves do. When we ask people to rate their quality of life, even in difficult circumstances, disabled people often rate it higher than the professionals in their lives. That is an important fact for us to remember when we are considering the details in this bill.
From a personal point of view, these amendments are swings and roundabouts. Having listened to Pam Duncan-Glancy’s powerful speech, my question to her is this: would she say that the fear of that sort of unintentional reinforcement by others of an assumption about her quality of life challenges the wording that has been chosen for the amendment? When we consider the issue from a human rights basis, or even when we consider the Children (Care, Care Experience and Services Planning) (Scotland) Bill, which will come before the Parliament at stage 3 next week, should the choice be to try to give dignity and autonomy without such prejudice?
Martin Whitfield gets to the heart of why I am concerned about these amendments. I fundamentally believe that they have been drafted with good intentions and I can see what Daniel Johnson is trying to do. However, an individual’s subjective view of tolerability and suffering can change at any time, and so too can someone else’s view about that person. It would be a difficult objective test to have in law, which is why the amendments in this group will not give the safeguards that I think that Daniel Johnson is seeking, nor will they provide the safeguards that are required make the bill less of a risk.
We know that disabled people’s quality of life—and sometimes that of people at the end of life and people who have lost function, too—is often viewed by others as being lower than they would rate it themselves. We cannot, therefore, rely on those views as an objective measure when considering the bill or, indeed, considering whether assisted dying is safe. It is the subjectivity of quality of life, and all that comes with it, that makes the well‑meaning amendments in the group impossible safeguards.
I ask members to think carefully and recognise that, although the additions appear to offer extra protections, they are fraught with difficulty and would still leave many people at risk.
I listened carefully to Daniel Johnson when he spoke to his amendments. There is concern that they expand rather than restrict the definition of those who would be considered as eligible for assisted dying, which I understand is not his intention.
However, I wanted to share an email from a constituent about his sister. This is what he had to say:
“My sister is in a nursing home in Helensburgh and I have … power of attorney for her so I speak on her behalf. She has had a severe form of psychotic depression, which has caused her much suffering for nearly 45 years. She has been near death at least once from refusing food and drink. She … can be strongly influenced by outside suggestion. However the last eight years have probably been among the happiest of her life. Previous to that … advice as to assisted suicide would have, at times, been accepted by her, and I think that if she had lived in Canada or Holland she would now be dead.”
I am concerned that that person would fit into the definition as proposed by Daniel Johnson, and I would be grateful for his comments on that when he sums up.
I would like to set out to Parliament the Scottish Government’s position on stage 3 of Liam McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill.
The Scottish Government remains neutral on the bill. We also consider that we have a duty to assess the technical, legal and deliverability implications of amendments in terms of whether the bill would be workable in practice if passed. We therefore published a commentary on some amendments at stage 2 and a similar document on the stage 3 amendments yesterday. That approach reflects the Government’s neutral position as we provide no comment on ethical matters; that is for MSPs to decide on.
However, we consider that members should be made aware when there are implications for deliverability or for the public purse in relation to some amendments being agreed to and forming part of the final bill, if passed.
It is my intention to speak only in relation to amendments where the Scottish Government has identified potential issues to do with legislative competence or significant legal or deliverability challenges, including where it is felt that amendments will have major financial implications.
On some amendments, I will speak to where Scottish Government work is already in progress. I will also speak to my amendments, which were lodged in consequence of the section 30 order that the Parliament approved last month.
As Parliament is aware, it is the Scottish Government’s view that the bill in its current form is outside the legislative competence of the Scottish Parliament and that there is a responsibility to maintain the integrity of the devolved statute book. Therefore, in relation to the stage 1 vote and the wishes of this Parliament, and in recognition of the fact that the Scotland Act 1998 order process is intergovernmental, I committed to engage with the United Kingdom Government to try to address the legislative competence issues that were identified. That engagement has taken place in good faith, and the amendments that I have lodged—as well as some that I have provided to Mr McArthur—are the outputs of that.
For my part, I have lodged amendments that I deem necessary and consequential to the section 30 order that has been agreed by the Scottish and UK Governments to cover the identification and regulation of substances and medical devices for use in assisted dying.
I am of the view that section 18 should be removed from the bill in its entirety, as the provision may relate to the H1 employment reservation, and possibly to the G2 regulation of health professions reservation, of the Scotland Act 1998. Likewise, I am of the view that the training provisions in the bill should be removed, as they may relate to the G2 reservation.
In the letter from UK ministers to the Westminster Scottish Affairs Committee, the phrases “training, qualifications and experience” and “qualifications and experience” are used interchangeably. It is the view of some outside this place, including a number of organisations that have engaged extensively on the Assisted Dying for Terminally Ill Adults (Scotland) Bill and have sought legal advice, that training is not subject to the G2 reservation in the 1998 act, although they acknowledge that qualifications and experience are.
Will the cabinet secretary provide a bit more detail as to why the Scottish Government believes that training is covered by that reservation? That certainly was not my understanding before we began dealing with the bill.
I appreciate the intervention from Ross Greer. At this stage, I can say only that provisions in the bill may, or could, be outwith the competence of this Parliament, because ultimately that would be a decision for the Supreme Court to take. I have set out the Government’s position on those areas in the legislation that we feel are beyond our legislative competence, and I will speak to those issues as we go through the bill.
As I will come to shortly, the UK Government has also published its approach to the negotiations around the issue of the requirement for a section 104 order, which will come about if the bill is passed. I am happy to liaise with Mr Greer or anyone else during the course of the debate on the bill with regard to issues of legislative competence.
On the issue of the section 104 order, we have had sight of the letter that went to the Scottish Affairs Committee, which I note was not sent to MSPs directly—I think that it should have been, but that is an aside. The cabinet secretary has already set out that the elements of the bill that relate to medicines can be dealt with through a section 30 order. Can the cabinet secretary set out what reasons the UK Government gave, if any, that this area could not be dealt with through a section 30 order rather than a section 104 order? I think that a section 30 order process would have been much more preferable.
Before the cabinet secretary responds, I remind members that we will come on to these issues, and it is very important that we continue to focus on the issue that is in front of us at this moment.
Of course, Presiding Officer. The issue that Mr Hepburn raises is important, because I know that MSPs are concerned about the elements that are to go through the section 104 process. It is clear that it would have been preferable for all those issues to have been dealt with through a section 30 order. That would have been neater, given what we are wrestling with in relation to some of the elements of the section 104 process.
We negotiated in good faith with the UK Government. Its position was that the elements that are to be dealt with by a section 30 order fall within the ambit of section 30, and it was clear that it wanted the remainder to be dealt with through a section 104 process. It will be for the UK Government to explain why that was the case.
It is important to set out the Scottish Government’s approach to the bill, and, for the sake of transparency and clarity, to set out how I, on the Government’s behalf, will approach these proceedings over the coming days. As Mr Hepburn has already stated, the UK Government has agreed in principle to resolve legislative competency issues via a section 104 order. The UK Government has sent a letter to the UK Parliament’s Scottish Affairs Committee confirming that, and the letter has been published by that committee. Should the bill pass, Scottish and UK Government officials will continue to engage on the final form of the order.
Can the cabinet secretary confirm that the use of a section 104 order means that part of the bill will be subject to secondary legislation?
How the section 104 process is to be delivered depends on the vehicle that is decided on. That could potentially be through secondary legislation, but it could be through other means. It depends on the vehicle that is negotiated on and on what the UK Government agrees to by negotiation, if the bill is passed.
Although amendments that are lodged are not required to be competent, I encourage members to consider our responsibility for ensuring that legislation is within our competence. As members are aware, there will be a gap between the stage 3 amendments being debated and the final debate and vote on the bill next Tuesday. We intend to provide an assessment of the bill as amended ahead of that final vote—as we have done at the stage 2 and stage 3 amending stages—and to provide commentary only on areas of legislative competence, legal or deliverability challenges and major financial implications.
Now that I have given that explanation, I confirm that I have no specific comments on the amendments in the group.
I start by echoing Pam Duncan-Glancy’s comments about the way in which colleagues across the board, irrespective of their position on the bill, have engaged with it over the past four and a half years. I also echo her thanks not just to the legislation team but to the non-Government bills unit, which has been performing heroics. I also thank my own team, which has been supporting me and—over recent days and throughout the process—other colleagues and their offices in relation to the bill.
I reciprocate Daniel Johnson’s generous comments by thanking him for the constructive engagement that we have had on the issue throughout the process. As he has ably demonstrated, he might be able to lay claim to being the only member of this Parliament who has read the legislation not only from the Australian Capital Territory and New Zealand but, I am fairly sure, from New South Wales, Western Australia and Oregon as well. He has lodged amendments at stage 2 and now at stage 3 that have enabled debate and allowed Parliament to take a view on some pretty key issues, and for that I am grateful.
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I say all of that as a preamble to, I hope, softening the blow of confirming that I cannot support his amendments in this group. I remain of the view that the definition of terminal illness as set out in the bill is appropriate. Adding subjective terms such as “suffering intolerably”, as amendment 136 would do, is likely to add confusion. Jackie Baillie’s concerns are probably valid in that respect, too. That is perhaps illustrated by the attempt to define the term in amendment 1. The terms “advanced” and “progressive” are well understood by medical professionals, as the Health, Social Care and Sport Committee heard in evidence, and there are good reasons not to circumscribe those terms.
I understand Daniel Johnson’s intention, but I am concerned that his definition includes a requirement that treatments that are
“reasonably available and acceptable to the person”
must
“have lost … beneficial impact”.
I acknowledge that amendment 1 would place emphasis on what the person finds to be acceptable treatment. However, the requirement that those treatments have lost “beneficial impact” would mean that, if someone wished to refuse treatment such as chemotherapy because they no longer found it acceptable due to the side effects, the fact that the chemotherapy might still have a “beneficial impact” could mean that they might not be deemed eligible for an assisted death. We might be requiring an individual to undergo invasive and risky medical procedures that they had made a conscious decision not to undergo—I know that Daniel Johnson would not wish that to happen.
On the inclusion of the term “suffering intolerably”, I am concerned that the definition is somewhat subjective and appears to be limited to physical pain.
I ask the member to reflect on the evidence from the Royal College of Physicians and Surgeons of Glasgow, which has talked about the subjectivity of diagnosis and the fact that many people who are told that they have, for example, six months to live will be alive three years later. There is a core question relating to subjectivity and objectivity in diagnosis. We will deal with that issue in discussing future amendments, but it is key to the amendments in this group, too. According to those physicians, the terms that Liam McArthur uses are equally subjective.
The assumption that the fact that somebody is going through the process after having made a request means that they would then inevitably and automatically seek to exercise that choice immediately is not borne out by the evidence from other jurisdictions around the world. People go through a process, and it might be many months and possibly even years later that they seek to follow through with a request. At that point, there would still be the requirement to establish that capacity and consent are valid.
People’s motivations are rarely singular, and symptoms that they find intolerable at the end of life might go beyond pain, such as vomiting and fungating wounds. Physical pain is not always the primary concern that is cited by dying people. In jurisdictions where assisted dying is legal, the top three end-of-life concerns that are recorded by the doctor on behalf of the patient are loss of autonomy, being less able to engage in activities that make life enjoyable and loss of dignity.
Taken together, amendments 136 and 1 risk narrowing eligibility in ways that do not reflect the complex and deeply personal nature of suffering at the end of life while potentially requiring individuals to undergo treatments that they would otherwise have refused. Throughout, my policy has been that it should be for assessing doctors, with input from other professionals where necessary, and supported by guidance under section 23, to determine those aspects of the terminal illness definition. As we heard during stage 1 evidence, doctors already regularly make such assessments, and clinical judgment should prevail over fixed definitions.
On that basis, I ask Daniel Johnson not to press his amendments but, if he does, I urge Parliament not to support them.
I thank everyone who has contributed to the debate. We all face a fundamental conundrum. We are being asked to ponder legislation in which the key definition is simply that a person is
“terminally ill if they have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death.”
Save for perhaps that second last word—“premature”—that definition covers a huge range of conditions. One could say—I say this without any glibness—that we all suffer from a condition that is progressive and that will limit our lives: life. A great number of medical conditions fit that definition. Simply the prognosis or diagnosis that someone has a condition from which they will not recover and that will likely kill them is sufficient for them to exercise the capacities that are set out in the bill.
Will the member give way?
I will in a moment.
It is really important that we add some additional protections. I regret that amendments 136 and 1 are not being considered alongside the amendments in the next group. To my mind, having a terminal condition is a necessary condition under the bill, but it is not sufficient. It must be that someone not only has a terminal condition but is nearing the end of their life, and that the condition that they find themselves in is one for which no other medical treatments can provide satisfaction. In the coming days, we will discuss other amendments that ensure that such treatments are extended to people. It is important to capture those points as best as we can in the definitions.
To some extent, and without wishing to give a spoiler alert, it sounds as though Daniel Johnson is teeing himself up for amendments that we are likely to come to very shortly around the prognosis period, which speak to the concerns that he has quite legitimately articulated.
I acknowledge that.
I will deal with the points that have been raised. First, I say to Jackie Baillie that my amendments would certainly not expand the definition. My intention with amendment 1 is that the word “and” in the proposed new paragraphs makes it an additional requirement. It is not intolerable suffering instead of terminal illness or a condition’s progressive nature—it is as well as, which is very important.
Regarding legal clarity, I point members to the definition in New Zealand legislation, which states that a person is eligible if they are
“in an advanced state of irreversible decline in physical capability; and … experience unbearable suffering that cannot be relieved in a manner that the person considers tolerable”.
In the Australian Capital Territory, the legislation states that a person is eligible if they are
“diagnosed with a condition that, either on its own or in combination with one or more other diagnosed conditions, is advanced, progressive and expected to cause death”
and that they are suffering intolerably in relation to the relevant conditions. It further clarifies that individual’s condition is advanced if it has “declined” and is not expected to improve and if
“any treatments that are reasonably available and acceptable to the individual have lost any beneficial impact.”
Those are the definitions in other benchmark bills, and they have been unproblematic.
My amendments 136 and 1 provide additional requirements and clarifications. It is also important to clarify what we mean by “progressive” and “terminal”.
I thank Jeremy Balfour and Pam Duncan‑Glancy for their observations. It is important that we seek to tighten the legislation. I do not wish assisted dying to be the default position, and, most important, I do not wish it to become the norm. As both members rightly pointed out, struggle and suffering are a part of many people’s daily lives—indeed, one could argue that they are a part of everyone’s daily life. Therefore, determining when someone’s condition meets a threshold is incredibly difficult. I acknowledge that it is difficult; I also acknowledge the concerns that might be raised, but if we are to pass the legislation at all, we need to understand that we are dealing with matters of subjectivity. I urge members to take great caution in suggesting that these are matters of objectivity.
Ultimately, as I said in my opening remarks, we will rely on the judgment of professionals and the ability of individuals to make decisions for themselves about what they find acceptable and whether they wish to take such a significant decision. Subjectivity is at the very heart of the matter. To claim that amendments simply introduce subjectivity is to somewhat ignore what the vast bulk of the legislation will ultimately do.
Most important, I say to Jeremy Balfour that he is quite right. I do not believe that this is the last time that we will talk about the possibility of judicial expansion. I am very worried that, unless we define more tightly what we mean by “terminal illness” and “progressive”—indeed, I think that we should put in some additional requirements; it is not just that the person has those conditions, but that they are causing them suffering—we potentially leave ourselves open to something that is essentially discretionary.
It is important that we provide these expansions. I also note that we have a short definition, whereas many other pieces of legislation have far more substantial descriptions of the conditions that make an individual eligible.
The question is, that amendment 136 be agreed to. Are we agreed?
Members: No.
There will be a division.
As this is the first division of stage 3, I will suspend the meeting for around five minutes to allow members to access the digital voting system.
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Meeting suspended.
15:16
On resuming—
We will now proceed with the division on amendment 136. Members should cast their vote now.
For
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Clark, Katy (West Scotland) (Lab)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Golden, Maurice (North East Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
McKee, Ivan (Glasgow Provan) (SNP)
Sweeney, Paul (Glasgow) (Lab)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Ind)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Ind)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don-Innes, Natalie (Renfrewshire North and West) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Duncan-Glancy, Pam (Glasgow) (Ind)
Eagle, Tim (Highlands and Islands) (Con)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Greene, Jamie (West Scotland) (LD)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Gulhane, Sandesh (Glasgow) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Michael (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (Ind)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCall, Roz (Mid Scotland and Fife) (Con)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Minto, Jenni (Argyll and Bute) (SNP)
Mochan, Carol (South Scotland) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
O’Kane, Paul (West Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (Ind)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Davy (Hamilton, Larkhall and Stonehouse) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Reform)
Slater, Lorna (Lothian) (Green)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitfield, Martin (South Scotland) (Lab)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
Abstentions
Gray, Neil (Airdrie and Shotts) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Villalba, Mercedes (North East Scotland) (Lab)
The result of the division is: For 8, Against 111, Abstentions 3.
Amendment 136 disagreed to.
Amendment 1 not moved.
Section 3—Eligibility
Group 2 is on eligibility to be provided with assistance. Amendment 2, in the name of Daniel Johnson, is grouped with amendments 137 to 141, 143, 162, 316 to 318 and 322 to 324. If amendment 161, which is to be debated in group 7, on assessments, including support, of terminally ill adults, is agreed to, I cannot call amendment 162, because of pre-emption.
I assure members that I will not be speaking at the beginning of every single grouping. It just happens that I got my amendments in early on these sections of the bill. In addition, I do not intend to rehearse much of what I said about the previous group of amendments, because much of that logic applies to my amendments in this group—amendments 2, 316 and 322.
We need to tighten the scope of eligibility through the definition. Through amendment 2, I seek to narrow the eligibility for accessing assisted dying to people who are reasonably expected to live no more than six months. What I am attempting to capture in the amendment is not about accuracy of prognosis but about the principle that access should be extended to people who are at the very end of their life. That is important.
One of my fundamental problems with the bill, especially after stage 2 consideration, was that, under the definition as drafted, simply having a terminal progressive condition would be sufficient for eligibility. That could mean that someone could have received such a diagnosis, have it deemed to be progressive and irreversible but still have many years left to live—perhaps even decades. That is simply not what I consider to be acceptable as concerns eligibility.
It is my view that, if the bill is to pass, it must be a narrow one that deals with exceptional circumstances when all other options are exhausted, and that it must deal with the end of life.
I am conscious of the argument that the member puts forward. I have been very struck by the work of Dr Scott Murray, the palliative care doctor who wrote recently in The Times that
“evidence from palliative care, primary care and prognostic research”
paints a picture of the impossibility of making a prediction that someone has only six months left to live. He writes that
“predictions are highly unreliable, and with modern treatments, such forecasting is pure guesswork.”
How does the member square the appearance of a safeguard of a six-month prognosis with the reality that doctors, particularly palliative care doctors, say that that is, in their experience, uncertain?
I thank the Deputy First Minister for raising the issue and note the concerns both from the individual that she cites and from others.
If we are considering passing the bill, we must understand what we are passing. Amendment 2 is not about forecasting and it certainly cannot be about accuracy, because we are dealing with matters that are inherently uncertain. I am asking for which individuals and in what circumstances we want assisted dying to be considered. Do we want it to be considered at any point in someone’s life, simply by virtue of their having a terminal condition that is progressive and irrecoverable, or do we want to reserve it for those we think are very likely to be in the final stages of life?
In other words, amendment 2 is not about providing accuracy or a threshold but about providing a yardstick. We are saying that assisted dying is something that we wish to extend to those whose life can be measured in months, rather than in years. In so doing, we must acknowledge that that is an imperfect and fallible measure but it is the best one available to us and it is one that is used elsewhere.
I have two questions for Daniel Johnson. Why does his amendment call for a period of six months and not 12? Also, what would happen if someone has multiple conditions? For example, they might have a terminal illness alongside something such as dementia that might mean that, within that six-month period, they might no longer have the capacity to make a decision, and so would want to make that decision while they still can, which would be outwith the six-month period.
The member makes a fair and important point, because we are dealing with complexities. We may all need to wrestle with, and accept, the fact that the decision may not be available to all people, because of its serious nature. All members will have to understand that we must have thresholds and standards, which might well mean that we exclude some people. I acknowledge those problems.
The member asks why six months. That is simply the best way of capturing the important intent that assisted dying should be available to someone in the final stages of their life. It is also a measure that we see being used across many similar pieces of legislation in other jurisdictions.
In response to my question, Daniel Johnson said that we need some sort of cut-off point. He used the word “threshold” although he had said earlier that the six months is not a “threshold” but simply a “yardstick”. I am therefore a little confused about how definitive the member thinks the six-month yardstick, threshold or prognosis actually is.
The way in which amendment 2 is drafted is certainly not definitive, because it talks about a reasonable expectation of six months. The idea of reasonableness is a concept that we use and invoke across all manner of legislation. Is that a threshold? It is not. I am saying that there are other thresholds in this legislation that deal with capacity, age or someone’s ability to take the substance themselves. We have many other thresholds and we must acknowledge that we have them.
I have listened with great interest to what Daniel Johnson has had to say. I wonder whether he agrees that, whatever timescale we agree to—if we agree to one—it cannot be open ended. If we agree to six months, it will not necessarily mean that someone who tries to access assisted dying will do so within that time, but we cannot have an open-ended timescale in legislation.
I quite agree. I am happy to give way to Alasdair Allan if he wishes to intervene.
I thank the member. I appreciate the motives behind his amendment, but I wonder whether he has a view on how the courts or others would be expected to interpret the six-month rule. One way that has been used to interpret the rule in the benefits context has been to ask, “Would you be surprised if this patient was alive in six months?” However, Marie Curie found that that measure has an error rate of 46 per cent. I do not doubt the reason why the member lodged his amendment, but does he accept that there are multiple ways of assessing against the criteria that he seeks to establish?
I accept that but, for the reason that Brian Whittle gave, it would be dangerous to pass the bill in a completely open-ended manner. The six-months provision states, essentially, that we wish this to be used by those who are in the final stage of their life, and it is something that the courts in other jurisdictions have been able to interpret. At stage 2, we discussed whether such provisions are prevalent elsewhere. The Colorado legislation of 2016 has a six-months criterion; the legislation in Victoria in Australia has a 12-months criterion, as does Hawaii; and New Zealand has a six-months criterion, as do various other areas of Australia.
The jurisdictions that do not have such a criterion in legislation that has been passed recently are in the minority. The Australian Capital Territory was used as an example of somewhere that does not have a criterion. However, although it does not use a period of six months explicitly, it has a stipulation that, to be eligible, the person must be nearing the end of their life. That is always going to be a difficult decision, but courts in other jurisdictions have been able to interpret the criterion. The most important thing is that it says, “We wish this to be used only by those who are in the final stage of their life.” That relates to Maggie Chapman’s point.
I am glad that Brian Whittle intervened, because I note that we will discuss in later groups his amendments about advance care directives. They are really important in relation to having clarity of intent about future conditions, because we are dealing with people whose capacity may vary. This is not about people essentially making a decision at the time. In conjunction with some other amendments that we will consider today or in the following days, what I propose is a useful yardstick or measure by which we can define who we want to qualify to use the possibilities that are set out in the bill.
I move amendment 2.
I call Stephen Kerr to speak to amendment 137, in the name of Sue Webber, and other amendments in the group.
Sue Webber cannot be here to speak to her amendments 137, 318 and 324, so she asked me to present her remarks in the chamber, which I do gladly. Her amendments deal with a serious omission from the bill, which concerns what happens if a woman who is seeking an assisted suicide is pregnant. Whatever members’ views on abortion might be, pregnancy raises profound legal, medical and ethical questions that the bill simply does not answer. In those circumstances, we are not dealing with one life alone. There is also the life of the unborn child. That alone makes the situation fundamentally different from the rest of the bill.
The problem becomes more acute when we consider the question of viability. In Scotland, a pregnancy beyond 24 weeks is legally understood to involve a viable child, yet the bill provides no clear guidance about what should happen if a woman who meets the eligibility criteria seeks an assisted death at that stage. Would the law allow a doctor to prescribe a lethal substance knowing that it would also end the life of a viable unborn child? Would clinicians be expected to proceed even where the pregnancy was well beyond the point at which abortion would normally be permitted? The bill is silent on that, and that silence is not a minor oversight. It is a fundamental gap in legislation that deals with matters of life and death. Without clarity, doctors would find themselves placed in an impossible position.
15:30
I am interested, because the proposed amendments also do not differentiate between a pregnancy prior to 24 weeks and one post 24 weeks. Why is that? Will Stephen Kerr explain a little more the justification for testing whether women who seek assisted dying are pregnant, as presumably would have to be done? To force somebody who is terminally ill and close to death to go through an abortion beforehand seems inhumane.
I do not think that that is what Sue Webber’s amendments suggest. The amendments as drafted would capture all women who are pregnant, for reasons of lack of clarity in the bill in relation to the subject in total.
As I was saying, without clarity, doctors would find themselves placed in the impossible position of being asked to facilitate an assisted suicide for a pregnant woman while knowing that doing so could also end the life of her viable unborn child. When the law places doctors in an impossible position, it is usually a sign that that law has not been properly thought through.
That concern is not purely theoretical. Serious illness during pregnancy does occur. Medical research suggests that cancer arises in around one in every 1,000 pregnancies. Although not all such cases would meet the bill’s definition of “terminal illness”, some clearly would. If the bill cannot explain how the law would operate in one of the most ethically complex situations imaginable, the legislation that is before us is not ready.
My colleague’s comments seek to provide clarity by making it explicit that a woman who is pregnant would not be eligible for assisted suicide under the bill. Where legislation fails to confront questions of such gravity, we risk passing not careful law but bad law. For that reason, I ask colleagues to—
I have been listening carefully, and I wonder whether Stephen Kerr might respond to the point that I think that Emma Roddick was making. Sue Webber’s amendments in the group say specifically “are not pregnant”, but Stephen Kerr has confined himself to talking about 24 weeks as a crucial part. He did not answer the challenge that Emma Roddick posed. I wonder whether he might do so now.
In taking the intervention from my learned colleague Liam Kerr, I recognise that Sue Webber is trying to make clear the doubtful nature of the law that would be passed if we did not identify the issue of pregnancy as a consideration—hence the simple amendments that she has lodged.
I am a little concerned about the precedents that that would set. It is the case that, if someone is pregnant and is suffering from an illness that requires medication, whether she has medication that could damage the unborn child or refuses it is a decision for that woman to take. It seems to me that Sue Webber’s amendments in the group would take the choice away from the woman, which might be somewhere that the bill does not want to go.
The nature of the amendments cover the viable pregnancy—the viable other life—which is recognised in Scots law. I am not entirely sure that Rhoda Grant’s approach of restricting her view to the issue of a pregnancy before 24 weeks is the right one. My colleague’s amendments seek to create the clarity in law that would be required about a woman who is pregnant and, who would therefore—under the amendments to the bill—not be eligible for assisted dying.
To clarify the question from Emma Roddick, does the amendment mean that a pregnant woman who is in a palliative state would have to take a pregnancy test? Indeed, would any other person—who was possibly someone who identified as a woman but was a 90-year-old man—also then have to take a pregnancy test, if they were in palliative care?
That is an incredibly hypothetical scenario. A 90-year-old man portraying himself as pregnant is stretching the point, if I may say so. The amendment is clear and straightforward, and it deals with women who are pregnant.
The amendments from Sue Webber arise because the bill as it stands fails to confront the grave question—
Will Stephen Kerr give way?
I will happily give way to Jamie Hepburn.
The fundamental point that people are striving to get at is presumably the inverse of demonstrating that a woman is pregnant. Would they have to demonstrate that they are not? The only way that they could do that is by demonstrating that they have taken a pregnancy test. That introduces a whole area that I do not think that we expected to get into with this bill.
I am sorry, but if someone is receiving medical treatment, it will be very clear to the doctors who are treating them whether the woman is pregnant. Again, we are reaching beyond the straightforward nature of a clarification in law that the amendments seek to produce.
I am grateful to all colleagues who have intervened while I speak to the amendments in the name of Sue Webber. For the reasons that I have outlined, I ask colleagues to support amendments 137, 318 and 324.
I call Douglas Ross to speak to amendment 138 and other amendments in the group.
I will speak to the three amendments in my name in this group.
At present, the bill requires a doctor only to inform a patient that they can be referred for a palliative care assessment. Section 7(1)(b)(iv) of the bill states that the assessment would
“explore whether any additional support could be provided to them”.
For those at the end of their life, that is simply not enough. My amendment 138 goes further. It would ensure that a person was eligible for assisted dying only if they had been offered and, in fact, had access to a fully funded and costed palliative care pathway specific to their individual condition.
I agree with the amendment in principle and think that it is really important. However, I am curious as to why the plan would be fully costed and why that information would go to the patient, which would seem to be an unnecessary burden on them.
It is to provide reassurance. I will speak to later amendments during the stage 3 proceedings, but there are people at the moment who do not have access to the palliative care that they clearly require and seek because of location, geography or otherwise. It is very important that that information is made available to the patient, so that they can see it at the point at which they are seeking further help and support. It is unthinkable that anyone should feel pushed into ending their life early because they cannot afford or cannot access the care that they need. If the bill truly values individual care and autonomy, that choice must exist in reality and not only as a theoretical option.
Like Emma Roddick, I sympathise with the outcome that Douglas Ross is aiming for. However, I am concerned that the phrase “fully costed” might have the opposite impact to what Mr Ross proposes in that it might make the patient feel like a financial burden on society. Does Bob Doris’s amendment 23 not reach the same outcome that Mr Ross is aiming for but without the potential disadvantages of using the phrase “fully costed”?
I am listening to members’ concerns about the term “fully costed”. However, I do not share those concerns. We have an option: members can support my amendment or Bob Doris’s amendment. However, if I am ever in such a situation, I would like to know that the work has been done to ensure that the costings have been fully sought, fully understood and fully laid out, and that they are clear to everyone. That is why they are included in my amendment, but there are alternative amendments that members can consider.
Maybe I was misreading it, but I read that line as meaning that it was essentially about having a fully resourced palliative care offering rather than about providing the accounting details to the patient. I wonder whether, in drafting the amendment, the member was struck by the research from Marie Curie that came out last week, which I know Miles Briggs took a particular interest in. The research is about the need to ensure that there is universal equity of palliative care, otherwise people might feel more inclined to opt for relief from their symptoms rather than getting the palliative care that they need.
I will come on to that when I speak to my amendments on the issue in group 18, but the briefing that we got from Marie Curie on it was very important.
I accept what Emma Roddick, Ross Greer and the Deputy First Minister have said. You can read this amendment in different ways. I tried to say in my response to Emma Roddick that the aim is to ensure that people get the palliative care that they should get. If Ross Greer reads the amendment in such a way that it is almost like a bill above someone’s head, which could maybe then prevent their seeking to get that care, that is his interpretation. My view is the same as the view of the Deputy First Minister—the aim of including that phrase is to ensure that people get the care that they need, and there are some individuals who would want to know the cost of that care before going forward in that way.
In debating group 7, we will address some similar amendments, in my name, which Ross Greer has referred to. Under the provisions in Douglas Ross’s amendment 138, what would happen if the person was adamant that they did not want to explore further palliative care options? Could they opt out of a further palliative care pathway? Would that then debar them from going forward with assisted dying, or could they still go forward with assisted dying? I have no view either way; I am asking for clarity on the effect of the amendment.
We simply cannot force someone to do something that they do not want to do. If they choose not to hear, to consider or to accept the points made about palliative care, that is a choice and a decision that they have made. However, by putting it into the bill, we would be providing them with that opportunity. For the one person who did not want it, there could be 99 others who at least should have that information presented and made available to them.
We should ensure that, if the bill is passed, it is as robust as possible in relation to people getting the palliative care that they need. I believe that people should not be presented with a choice whereby they are forced to choose between unimaginable suffering and premature death. The Government must ensure that palliative care is fully funded and accessible, so that those who face terminal and debilitating illness can receive expert support, pain management and holistic care. As the Scottish Partnership for Palliative Care notes, the desire to hasten death can often disappear when the right care is available.
Moving on, I believe that my amendment 143 strengthens informed decision making by requiring that a first declaration include a written statement from the patient confirming that they understand the nature and scope of palliative care and the pathway that is offered to them. Patients must know all their treatment options if assisted dying is to be offered at all. Without that, the bill risks fundamentally undermining the patient-doctor relationship and the integrity of our national health service.
Moreover, mental health support cannot be overlooked. Amendment 139, in my name, would require that those seeking assisted dying be offered psychological counselling and that they have not been treated for suicidal thoughts or self-harm. Without that, individuals whose autonomy is already compromised by depression, post-traumatic stress disorder or other mental health issues and conditions could be funnelled towards a premature death instead of receiving the support that they truly need.
Will the member give way?
Will the member give way?
I will give way to Maggie Chapman.
I am curious about the second half of amendment 139, which refers to people not having previously been screened or treated for suicidal thoughts or self-harm. There is no timescale for that, so somebody who might have had suicidal ideation as a young person and be seeking assisted dying much later in life might be ruled ineligible for that. I am wondering why there has not been some kind of time limitation on that, because those might be completely separate incidents—there might be a whole life lived in between—and yet there is no acknowledgment or understanding of that.
I have never personally experienced suicidal thoughts, but I do not think that they would end at a specific period in my life, so if I tried to put a time bar in the amendment—
Will the member take an intervention?
I will give way in a moment.
If I tried to put in a time bar, Maggie Chapman would rightly ask why it was just 10 years and not 15, why it was 15 years and not 30, or why it was one year and not one month. There would be complexity in putting a time bar or time limit in the amendment. It would suggest that, somehow, someone who has had suicidal thoughts would suddenly, at some point in their life, stop having those thoughts and reset, when actually many people who have who have suicidal thoughts will continue to have such thoughts but will just not take them forward—
15:45
Maggie Chapman rose—
Will the member give way?
I know that Alex Cole-Hamilton wants to come in. I will then give way to Clare Haughey.
We—all of us—have moments of profound mental crisis in our lives, and some of us may have had suicidal ideation. We may have shared that with a relative or even a clinician. The point is that we all have the capacity to get well, recover and move on with our lives. I understand the intent of Douglas Ross’s amendment 139, but I do not think that we can legislate for a stigma that will then follow somebody for the rest of their life when they are as far as it is possible to be from that dark period in their life. I ask the member to reflect on that.
I do reflect on that, but I also say that, without this amendment, people who currently have suicidal thoughts here and now would, if the bill goes through, use the legislation to end their life. I do not think that the member is looking at that. I know that he will go on to talk about the other safeguards in the bill. As someone who opposes the bill, I question some of those safeguards.
Daniel Johnson rose—
Clare Haughey rose—
I will give way to Clare Haughey, who sought to come in earlier.
I am quite astounded by that characterisation of people who have thoughts of self-harm or suicidal thoughts—that they can never get over that and never recover. I am absolutely astonished at the stigmatisation of those people who express themselves in the most difficult moments of their life, or in the depths of mental illness, by saying that they cannot then get on with their lives. To try to use that to prevent people from accessing assisted dying at a time when they are suffering from a terminal illness—I make this point as someone who does not support the bill—is absolutely discriminatory. [Applause.]
I listened carefully to what Clare Haughey said in her role as the convener of the Health, Social Care and Sport Committee, which scrutinised the bill, and in her previous Government role as Minister for Mental Health. My point is that there is a difference between someone having suicidal thoughts at the moment and someone having had them in the past. I did not say—I would never say—that those thoughts could then never be cleared. What I said to Maggie Chapman was that I cannot put a one-year, one-week or one-month—or a 10-year or 20-year—time limit on that. Trying to do that in legislation would, I think, meet with the exact same opposition that I am hearing at the moment.
Members will take a different view on this, but I hope that we can have a respectful debate in which members articulate what other members actually say instead of jumping to conclusions about what was meant.
Sorry—I will go back to Daniel Johnson, who wanted to intervene.
Further to Clare Haughey’s point, we are dealing with extending the possibility of ending an individual’s life. By definition, therefore, we are dealing with people who are contemplating ending their own life, so I fear that Douglas Ross is blundering into a tautology here. We may wish to use different terminology, but there is, in a sense, a real danger that we are talking about good contemplation of the end of life and bad contemplation, and stigmatising one form and one context as opposed to another.
I understand what the member is trying to get at in his amendment 139. We do not want the bill to be used by people other than those it is meant to cover. However, he is trying to create a distinction that might make it incredibly difficult for practitioners in the moment to delineate between someone who is contemplating assisted dying within the terms of the bill and somebody who is contemplating suicide. I think that that might be quite difficult to do.
I think that Daniel Johnson, in accepting what I am trying to do with the amendment, has got the point that there is a deficiency in the bill as it is currently drafted and that, if we do not have amendments that try to address it and at least have a debate about the issue, the bill will be deficient in that area. That is what I am seeking to do specifically with amendment 139. If the bill is to be about compassion and genuine choice, it must guarantee that both palliative care and mental health support are fully accessible and properly understood before any decision about assisted death is made.
Will the member take an intervention?
I will in one moment.
Failing to do so risks pushing people into an irreversible choice simply because care is either too expensive or unavailable.
I will take Mr Kerr’s intervention now.
Please be brief, Mr Kerr, because Mr Ross has been very generous in taking interventions on his amendments.
He has. I will take Mr Ross back to amendment 138. It occurs to me that amendment 138 requires that, to be eligible for assisted death, someone would have to have access to
“a fully costed palliative care pathway”.
Does he not think that that risks making eligibility dependent on the service provision rather than on the person’s illness?
I believe that that service should be available to every single person who needs it in every part of Scotland. The fact that it is not available is one of the concerns that I have about the bill. People will be forced into a choice of taking their life early because the palliative care that they should have is not available, due to the cost, the general availability of people employed in that care or the fact that many of our constituencies do not even have a hospice within their boundaries. People could be forced to move far away from home if they sought that support. On that point, it is absolutely our ultimate aim to have that availability and accessibility of palliative care for everyone who needs it. The fact that we do not have that in Scotland in 2026 is a shame on all of us.
I have outlined my points on the amendments in group 2.
Colleagues who have heard my arguments throughout the bill’s progress will know that, despite wishing that I could feel comfortable with the proposal and knowing that there are many situations in which I would want people to have the choice, my concerns about health inequalities, societal pressure and expectations on disabled people have led me to conclude that I cannot support it. I am concerned that it would remove more choice than it would offer.
I associate myself with comments made by Pam Duncan-Glancy and Jeremy Balfour about the pervasive negative attitudes that exist towards disabled people. I do not think that folk realise how common it is for someone regularly to hear everything from, “How do you cope?” to “I would have killed myself,” when they lead a life that some people will readily describe as undignified.
My amendment 140 seeks to introduce additional safeguards for people with learning disabilities. That is not in any way intended to prevent a person with such a disability from accessing assisted dying if it were available in Scotland. I want to be very clear that I have no wish—and would not support efforts—to remove autonomy from that community, or any group, based on diagnosis.
My concerns stem from the way in which people with learning disabilities are often treated. The lessons that I have learned from those with lived experience have involved terrifying descriptions of individual rights and freedoms being belittled, ignored or even overridden during the Covid pandemic. We must legislate with the worst-case scenarios in mind. Should there be another pandemic at a time when assisted dying was legal, nobody should be in any doubt that people who were at risk back in 2020 would still be at risk then. In that case, the result could be pressure to end their lives early if we do not bake in protections now.
Amendment 140 would require that time be taken to ensure that an individual—not just their carers, advisers and family—fully understands what they are signing up to and that they have all the multidisciplinary support that can be offered ahead of their taking such an important decision.
I am very supportive of the intent behind the amendments in this group that Ms Roddick has lodged. However, I have one concern about her framing of amendment 140, which includes developmental or cognitive conditions. I worry that that might encompass people with attention deficit hyperactivity disorder, dyslexia and other cognitive conditions. Such a provision might compound the stigma that those people face or might require additional support to be put in place for people who do not really need it. Although I totally accept that people with the vulnerabilities that Ms Roddick outlined absolutely need support, I wonder whether amendment 140 is drawn a little too broadly.
I would rather it be too broad than too narrow. An argument could probably be made that amendment 140 would capture me. If I were to be in the situation of seeking assisted dying, I would be happy to have a conversation with a social worker who would make sure that I had everything that I needed to make the right decision, to be confident in understanding the gravity and impact of that decision, and to understand what the other options were.
This is not about making somebody pass a test or making it more difficult for them to access assisted dying. However, if a person has a learning disability or is neurodivergent, they are, in many ways, marginalised and vulnerable to coercion and pressure. It would be better to include more people than fewer as part of an extra safeguard of having a conversation.
Amendment 140 would ensure that people have the time and space that they need, and that they have access to experts who are used to supporting people in difficult situations to have the time to think about their decisions. The amendment would not exclude people, but it would recognise that a vulnerability attaches not to those with learning disabilities but to how they are often viewed and treated. Amendment 140 would also ensure that time and care are taken to ensure that the decision reflects the person’s choice.
Amendment 141 would prevent eligibility where a request is influenced by “financial hardship”. Disability costs money—a lot of money—and, when a person is terminally ill, the costs can be overwhelming and seem impossible for them or their family to overcome. Poverty, loneliness, domestic abuse, bereavement, homelessness, breakdowns of relationships and feeling like a burden are not uncommon experiences for those who are diagnosed with a terminal illness.
I am sympathetic to what Emma Roddick is attempting to do with amendment 141, but I have a question about the process and how the amendment would work. Amendment 141 refers to somebody who is looking for
“assistance to end their own life if it is established that their request is influenced”.
What would be the process for establishing such influence?
Again, it would come down to having a conversation. People who regularly have such conversations are trained to understand the responses that they get as part of their work. I have spoken with social workers about amendment 141, and I understand their concerns about not being too prescriptive or not being prescriptive enough. A lot of this is about making judgment calls. My amendments would simply add a step that provides an opportunity for people to notice when something else is going on or when there is coercion or influence that has not been picked up initially.
I am satisfied with the bill as it is drafted as regards section 3(2)(b), which is about capacity. Capacity is well understood in Scots law. When people make a will or grant a power of attorney, or even when they buy a house, they need to demonstrate to an agent that they have capacity, that they are not being coerced, that they fully understand the consequences and so on.
The definition in the bill is that people:
“are capable of … understanding information and advice about making the request, … making a decision, … communicating the decision, … understanding the decision, and … retaining the memory of the decision.”
That covers the areas that Emma Roddick has quite rightly brought to the Parliament’s attention. However, the definition of capacity has already been well tested in Scots law, and we do not need to—forgive me for saying this—clutter it with the amendments that have been suggested.
I appreciate that Christine Grahame is happy with the section as it has been drafted, but I am not, and I know that many others are not happy with it, either. My amendment is not simply about demonstrating capacity; it is about digging into the individual’s social context. It is not just about ensuring that they are able to understand their illness or what assisted dying involves; it is about ensuring that, mentally, they are in a place where they can accept that there are other options and that they can fully understand what those look like. It is about having somebody—perhaps a person who is separate from their home life—who is able to take another look and make sure that the decision that an individual is making is entirely their own and that they understand the alternatives open to them.
Amendment 141 refers to issues that people with a terminal diagnosis will commonly experience. Our primary response to those issues should be to provide support and to try to tackle them, regardless of how long a person has left to live. Discussions about the reasons for a person seeking assisted dying—which, undoubtedly, will always be complex and multifaceted—might give us the opportunity to ease those burdens. However, I am clear that if they are the primary reason for making such a request, that is not what assisted dying is for.
We must be alive to societal context. For example, there is very strong evidence that, in the event of a terminal diagnosis, marriages and relationships are more likely to end when the person being diagnosed is a woman who is in a relationship with a man.
This is a difficult time for far more reasons than the diagnosis alone, and people may be suffering from elements of some or all the situations that I have listed, yet still genuinely wish to end their lives purely due to their pain and the symptoms caused by their illness. That can be clarified, but it should be clarified as being the primary reason.
16:00
This is my first real opportunity to speak in this afternoon’s debate. I clarify that many of the amendments that I will speak to over the next few days have been developed with the Scottish Partnership for Palliative Care, which is neutral on assisted dying. It has widely consulted its members—who will have their own views on the legislation—but what I am presenting is the partnership’s balanced view on how to improve the bill, while its overall stance remains neutral. I also put it on the record that I am the convener of the Parliament’s cross-party group on palliative care.
In speaking to my amendments 162, 317 and 323, I offer my support for the substantive amendment in this group, which is Daniel Johnson’s amendment 2. It is almost identical to an amendment that I lodged at stage 2, when I sought to introduce a condition that a person applying for assisted dying must reasonably be expected to die within six months. I sought to make the case that that reasonable expectation should sit within a section on eligibility criteria. At stage 2, Daniel Johnson sought to bring the six-month threshold into the definition of a terminal illness, which I disagreed with. I am pleased that the member lodged his amendment 2 under the section on eligibility, which means that I did not have to do so. It is the correct place for such a provision to sit. Therefore, I urge members to support amendment 2.
I remind members that paragraph 32 on page 8 of the policy memorandum that accompanies the bill—this is important—states:
“It is not the intention that people suffering from a progressive disease/illness/condition which is not at an advanced stage but may be expected to cause their death (but which they may live with for many months/years) would be able to access assisted dying.”
That is in the policy memorandum, but the bill says something completely different. That is why, as imperfect as Daniel Johnson’s amendment 2 is, it is very important for realising the policy intent of the member in charge of the bill.
I pose to Bob Doris the same question about the six-month period that I posed to Daniel Johnson earlier. What if someone who seeks an assisted death has other conditions that would limit their capacity to make that decision within the six-month period, but they know full well what is coming and would want to make that decision outwith that period?
Maggie Chapman is right to put that to me. I will answer in this way: irrespective of how the bill is passed—if it is passed—and irrespective of which amendments are agreed to, there will be a whole series of unforeseen, unintended consequences. Maggie Chapman has perhaps identified one, but a series of unintended consequences would also flow from not having some form of time restriction.
I also wrestle with the issue that Maggie Chapman raises, but I must say that, on balance, I do not think that it is appropriate for a bill whose policy intent is to apply to people in the last months of their lives not to specify how long they might have left to live if its provisions are to apply to them. That it is not an appropriate way to pass legislation, if it is to be passed.
It is clear that the current definition and eligibility criteria are not an effective way to identify a narrow group of people who are near the end of life. As those provisions are drafted, assisted dying would likely include some people who would otherwise live for a considerable period, which would be at odds with the stated policy intent behind the bill. That is the point.
I do not pretend that any of this is easy, and, as we have heard, there are also challenges regarding a timeframe for any prognosis. However, I firmly believe that having a timeframe would be preferable to leaving the matter completely open ended. In that regard, my amendment 162 will be crucial if the policy intent behind Daniel Johnson’s amendment 2 is to be fully delivered.
As the bill stands, a registered medical practitioner
“carrying out an assessment under section 6 must … if they have doubt as to whether the person being assessed is terminally ill, refer the person for assessment by a registered medical practitioner who holds qualifications or has experience in the diagnosis and management of the terminal illness involved”.
Amendment 162 would ensure that, if the registered medical practitioner has any doubt that the person
“can reasonably be expected to die within six months,”
they must make a similar referral. Amendment 162 would, therefore, give the full policy intent to the substantive amendment, which is amendment 2.
Amendments 317 and 323 would ensure that both medical practitioners’ declarations include the six-month requirement. I note that amendments 316 and 322, in the name of Daniel Johnson, have a similar policy intent, and I am content to support them. I do not intend to move my amendments 317 and 323, assuming that Daniel Johnson will move his own amendments
It is important that I draw members’ attention to amendment 262, which will be debated when we reach group 19—my goodness, that seems like a long time away. It would require the Scottish Government to prepare and publish guidance on
“how to interpret and apply in practice the eligibility requirement that the terminally ill adult can reasonably be expected to die within 6 months.”
It is important to make members aware of that amendment now—we will discuss the merits of it later, when we reach group 19—because it acknowledges the complexities involved for registered medical practitioners in this area, and the importance of the challenges that specific conditions present for non-specialist practitioners. It also illustrates why amendment 162 is of such importance.
Amendments in this group get to the heart of some of my concerns about the bill as drafted. Without support to ensure the equality and human rights of all, we could end up legislating to make it easier to die than to live and to deepen some already entrenched inequalities.
Some amendments in the group highlight the societal factors that could lead to someone believing that it is easier to die than to go on living: a lack of care, poverty or financial hardship, social isolation or loneliness, feelings of being a burden, breakdown or loss of significant personal relationships, inadequate or unsafe and insecure housing, pain that is untreated, palliative support that is not there, or inequalities denying access to that support.
I recognise that members have lodged amendments in the group with the intention of tightening the criteria and clarifying them in an effort to strengthen safeguards in the legislation. I will address those amendments in turn.
First, I will talk briefly about the amendments in the name of Daniel Johnson and Bob Doris that would introduce a six-month timeframe until death. I would also like to associate myself with some of the comments that Bob Doris has just made on the record about what is in the policy memorandum for the bill, and I would note that, as the bill stands, it does not deliver on that.
I know that the amendments in this space are well intentioned. However, throughout committee scrutiny of the bill, we heard from a number of experts—whose evidence has been repeated in the chamber this afternoon—about the difficulty and indeed, the near impossibility, of accurately predicting how long someone has left to live. In evidence to the Health, Social Care and Sport Committee, Dr Sarah Mills said:
“Any doctor who feels that they are able to adequately predict somebody’s prognosis in months and years is usually mistaken. . . . Until we improve on the precision and accuracy with which we can identify somebody’s prognosis, it is meaningless to include a timescale in the bill”.—[Official Report, Health, Social Care and Sport Committee,19 November 2024; c 44.]
Similar concerns have been raised more widely, including ones that are supported by research from the Association for Palliative Medicine, which says that
“across thousands of prognosis assessments . . . doctors’ assessments of which patients are likely to die in six or 12 months are correct less than 50% of the time.”
Therefore, although we attempt to narrow eligibility—I take on board the points that my colleague Daniel Johnson has made about the need to have something in the bill that does narrow eligibility—it is very difficult to make that happen, so I am left worried that people could still end their lives prematurely.
I move to amendments in the group that seek to address the wider societal pressures that could drive someone to choose to die.
The amendments in the group that make provision available are important. They do not just compel a discussion or a recording of the discussion—as the bill currently provides for and as later amendments, particularly in group 7, suggest—but specifically require the delivery of support or that inequalities be addressed. A discussion or a signpost is not sufficient, and a plan that is not costed or funded—this speaks to some of the debate that we have had earlier about the bill—is not delivery of support.
In a bill such as this, we need a high bar, because it is a matter of life and death. If we do not require those issues to be addressed, we risk making it easier to choose to die than to choose to live. The question facing us is whether we believe that such support—crucial healthcare, social care and psychological support—is likely to be available, and available to all equally.
Amendments 138 and 143, in Douglas Ross’s name, seek to ensure that terminally ill adults are eligible for assisted dying only if they have been
“offered, and have access to, a fully costed palliative care pathway”.
That is really important, given what we know about the significant unmet need that exists and the impact that that can have on quality of life.
The point about the pathway being costed is important, because we know that, often, people have identified what they think are their needs—or had their needs identified by other people in an assessment—but those things are not funded or provided. Support that is identified as needed but not provided is not support at all. That can be the difference between someone choosing to continue and not.
I listened carefully to the intervention from my colleague Liam Kerr about whether the decision should be based on support or illness. We are grappling with that very question throughout the discussion on the bill. Support is often what is needed and can be the difference between someone wanting to continue in a circumstance or not. Support is absolutely essential.
Even if amendments 138 and 143 are agreed to, however, I do not believe that they go far enough. We know that thousands of people have already been assessed as needing support yet are still waiting for care packages to be put in place. We know from all the excellent organisations, hospices, palliative care specialists and many more how unequal access to palliative care is. The “Dying in the Margins” report from Marie Curie gives examples of that.
Amendment 139 would make eligibility dependent on someone having been offered and having access to psychological counselling, and on whether they had previously been screened or treated for suicidal thoughts or ideation, or self-harm. That amendment is crucial. Illness and loss of function can lead to the experience of low mood and mental ill health. That is due to a variety of factors, including societal ones, but they are there nonetheless. We must recognise that there is a relationship between mental and physical health, and we have to support that. Amendment 139 tries to do that.
Particularly given the exchanges that we have heard this afternoon on amendment 139, it is important to remind ourselves of the statement on the issue by the Royal College of Psychiatrists, which has said:
“suicide prevention remains a duty when someone is terminally ill”.
That is incredibly important, and the amendment could help us to ensure that that is the case. The college went on to say:
“For someone given a terminal diagnosis, the inevitable loss and grief associated with the end of life should be acknowledged and supported”.
That is another reason why the amendment is important. However, I am still concerned that it would fall short of making the bill entirely safe.
Does the member share my concern, in listening to the debate, that, if we required people not to have suicidal ideation to access assisted dying, that would encourage people not to be open about the suicidal ideation that they understandably face when dealing with a chronic illness? Should we not be encouraging people to talk about that, so that they can be offered alternative support if that will address the feelings that they are having?
As many members across the chamber will know, thoughts of suicide and suicidal ideation are deeply complex and personal, and they can affect every aspect of people’s lives. Indeed, we rightly spend quite a lot of time looking to support people with such thoughts, including at the end. It is really important that that is considered in the bill.
One of the more upsetting things in our stage 1 debate was hearing examples of people who are unable to access assisted dying and therefore feel that they need to take action to end their lives. That is because they cannot get the medical help that they need, as assisted dying is not legal in Scotland.
Does the member not worry that, if the bill was made too narrow, we would be forcing people to take matters into their own hands and to cause themselves physical harm and increased injury because the medical assistance through the bill would not be available to them?
If we say, “If you try this—if you are so desperate that you attempt this on your own because, for whatever reason, we have not made it available to you—you can then never be eligible for that help,” we risk forcing people down an even more desperate path, because we are pushing them away from the medical support that they want.
16:15
It is incredibly important that, in all aspects of people’s lives, we help them to understand the value of living and support them to continue doing so. That is one reason why the world-leading work that we do in suicide prevention in Scotland is incredibly important. That applies throughout the life course, including at the end of life.
Support at the end of life should not be limited to those who have identifiable psychological conditions, and support for psychological and mental health should not be limited to those who are at the end of life. As all members know from reading their inboxes, and from their families and neighbours, it is difficult for constituents to access the support that they might need for their mental health. Amendment 139 would help some people who consider the option of assisted dying, but it would not protect the thousands of people who need mental health support before that point. It would not give them the help that makes it easier to choose to live.
Amendment 140, in the name of Emma Roddick, would require specialist multidisciplinary information and support to be provided to people who have an intellectual disability or a developmental or cognitive condition. That would be an important safeguard, especially given that people with learning disabilities are likely to die 25 years earlier than others. Their social circumstances and other matters that impact them mean that, if they become terminally ill, they are less likely to access the care that they need.
There is a real risk that the bill creates an inequality that means that people with the most can see that life is an easier choice but others choose to die. The amendments cannot undo such deep-seated inequality, which also affects homeless people, disabled people and people who die early because of where they live—aspects that are related to society as opposed to their inherent health.
Although I urge members to support amendment 140, it would not go far enough to protect people or to ensure that it is easier to choose to live. The amendment is specific to the bill’s provisions, but before someone who is covered by the amendment gets a terminal illness, society has already discriminated against them. They have already experienced significant inequality that will affect their life and their view of themselves, and that will have already shortened their life. To address such issues goes beyond the bill, but that is the risk that it carries: that we pass it in a world that makes it easier to choose to die.
Amendment 140 would provide specific groups with access to clear information, specialist advice and multidisciplinary support, which I welcome, but such support should not be limited to particular groups; it should be available to anyone who considers accessing the assistance that is set out in the bill. It is the general absence of such support that worries me. Until it is made available, it could be easier for people to choose to die than to live.
Amendment 141 recognises that individuals might seek an assisted death not solely because of their illness but because of external pressures of suffering. Although I support the principle behind the amendment, I remain concerned that we can never really be certain whether such factors have influenced a person’s decision to seek assistance to end their life.
Research by Marie Curie highlights the scale of unmet need in Scotland. In 2022, around 18,500 people—roughly 30 per cent of those who died—experienced “unaddressed symptoms and concerns”, while also lacking sufficient access to general practitioner care at the end of their life. Every five minutes, someone in the UK dies without the care and support that they need. Ahead of today’s debate, the British Association of Social Workers said:
“Societal and institutional pressures, including pervasive narratives around being a burden, the cost of care, or the emotional and financial toll on families, can shape a person’s decision in ways that are profound and deeply difficult to detect.”
We will come on to some of those pressures when we discuss the amendments in group 4.
I remind members that rights for disabled people are not yet realised. The amendments in group 2 seek to address the issue, but it is difficult to argue that amendments can do that. Research shows that disabled families are 62 per cent more likely to fall into deep poverty, one in four disabled people do not get the palliative care that they need, and 10,000 people are stuck in their own inaccessible homes.
Taken together, the amendments in this group reflect a clear recognition that stronger safeguards and better support are needed. However, I do not believe that they can address the circumstances that lead to the deep-seated inequality that so many of our citizens face.
I notice that, in her compelling remarks, Pam Duncan-Glancy has not addressed Sue Webber’s amendments 137, 318 and 324. If nothing else, do those amendments not point out how incomplete the bill is in respect of the potential legal and moral dilemmas that we might be placing doctors in?
I thank the member for that intervention. I think that Sue Webber’s amendments highlight the inadequacies across the bill that we are being asked to discuss today.
There are many decisions that we will be asked to make, sometimes in cases where we do not know what the future could hold—and particularly in relation to some of the earlier discussion about the section 104 process.
As I was saying, I do not believe that the amendments in this group can address the circumstances that lead to the deep-seated inequality that so many of our citizens face—inequality that could result in them not getting a fair chance or an equal chance at life or, indeed, the care that they need at the end. Only concerted efforts to create a fair and equal Scotland could do that.
Until then, for me and for many people like me across Scotland, it is inconceivable to suggest that the introduction of assisted dying is about choice, when so many people do not have choice in life, nor indeed in death.
Members will note that we have passed the agreed time limit for the debate on this group to finish. I exercise my power under rule 9.8.4A(c) to allow debate on this group to continue beyond the limit in order to avoid the debate being unreasonably curtailed.
I want to speak in favour of Daniel Johnson’s amendment 2 and the other amendments in relation to the six-month prognosis limit, not because I think that that is a perfect system, but because there is no perfect way to design it. We are trying to balance harms here. There is no option that is free of suffering, even if we vote down the bill. To live is to experience suffering to some extent at some point in our lives. We heard a moment ago from Lorna Slater about the desperate situations that some people find themselves in and the far-from-dignified ways in which their lives end.
Much as the potential flaws and drawbacks of using a six-month prognosis have already been laid out, there was a majority in the Parliament at stage 1 in favour of the principle that people should have more agency over how their life ends, while there was clearly not a majority for the definition that is currently contained in the bill.
I am sure that we have all wrestled with hypotheticals about what kind of people in what situations would or would not be eligible for an assisted death under the bill. More than those hypotheticals, we have all had correspondence with constituents, and most, if not all, of us have met constituents, who have put their situations to us, so we have had to judge whether they would or would not be eligible.
The current definition would capture all those who I personally believe should be eligible to make that choice at the end of their life, but, on balance, it would probably risk capturing those who I do not believe—and, I think, a majority in the Parliament do not believe—should be put at that level of risk. Yes, a six-month prognosis would narrow down the number of people who would be eligible, but it would do so by balancing the risks. It would take out people who, we believe, would be at greater risk of an assisted death in a manner that we would not support.
I am grateful for the balanced way in which the member has outlined those arguments. How would he respond to some of the concerns that palliative care doctors have raised? They have expressed worry and concern about how the legislation might make them find it harder to do a proper prognosis when they know that a six-month prognosis is not accurate and that it might risk somebody accessing assisted dying far ahead of their natural death, even by years?
I take on board the concerns that those palliative care doctors have raised, but I would say that individuals in that situation for whom they made such a prognosis would be eligible regardless, under the definition that is currently in the bill. If we agreed to the proposed six-month prognosis provision, it would narrow the definition and would remove people who would be at risk and who we would not wish to access the service.
I am not claiming that that approach is perfect, but I think that it is an improvement on what is currently in the bill. I think that, without it, the bill would pose an unacceptable level of risk. On that basis, I urge members to support amendment 2 and the other amendments related to the six-month prognosis.
As I set out during the debate on group 1, I will address amendments in group 2 only where there are technical, legal or legislative competence issues that the Government wishes to highlight.
In this group, amendment 138 does not specify who should produce a palliative care package or what is meant by
“this pathway has been … made available”.
The amendment does not detail whether that is a reference to the document itself or to the services and support detailed within it being made available.
More generally, I highlight that the Scottish Government’s palliative care strategy, “Palliative Care Matters for All”, sets out the aim that
“People of all ages with life shortening conditions and their families and carers receive palliative care, care around dying and bereavement support based on what matters to them.”
As part of that, we are working to ensure that person-centred future care planning is discussed as early as possible following diagnosis in a person’s care journey. Where appropriate, that will include planning and making arrangements to ensure that they receive the palliative care that is right for their circumstances.
The cabinet secretary outlined the aim that everyone receives palliative care, which I am sure that everyone would support. Does the Scottish Government have numbers on how many people are actually receiving palliative care?
I recognise the challenges that have been set out in the debate about people receiving palliative care. I point out that there are differences, as Ms Maguire will understand, between palliative care, end-of-life care and wider bereavement support. I hope that a distinction can be drawn as to whether it is an either/or discussion in the bill. We are deciding on the merits of assisted dying, but we as a Government have already set out our work in respect of progress on palliative care.
We recognise that planning ahead can help people to manage or avoid crisis situations and that it improves people’s experiences of urgent or emergency health and social care. We also recognise, however, that people’s wishes often change over time, and it is important that their plans are regularly updated as part of on-going conversations between clinician and patient on their care needs. Our work to deliver on the palliative care strategy, including in relation to future care planning, will continue regardless of the outcome of the vote on the bill.
I understand the sensitivities on amendment 139—we heard about many of them in interventions on Mr Ross—and the difficulties of the subject matter at hand. However, I caution that the absolute restriction that is proposed in the amendment could raise legal issues regarding its proportionality, unless it can be fully justified.
Amendment 140 would introduce provisions that would apply
“Where a person has an intellectual disability or developmental or cognitive condition”.
Although the amendment appears to be intended to capture individuals with learning disabilities or other conditions that affect cognition or development, the terminology that is used does not clearly align with the statutory definition that was used in the Mental Health (Care and Treatment) (Scotland) Act 2003. There is therefore an inconsistency with existing statutory frameworks, which could result in a lack of clarity and might create interpretive uncertainty for clinicians and decision makers applying the legislation.
Likewise, the assessment in amendment 140 closely resembles the functional test of decision-making capacity that is used in the adults with incapacity framework, but the amendment does not explicitly link to it, nor does it state whether that framework is intended to apply. That might create uncertainty as to whether the amendment establishes a separate capacity test or whether the existing incapacity framework is intended to apply. It is also not clear how long the period of reflection and consideration that is cited in the amendment is intended to last.
Will the cabinet secretary give way?
I will come to Mr Hepburn in a second.
There is a risk that amendment 141 conflates eligibility for assisted dying with matters that are currently addressed through existing statutory frameworks, including the Adult Support and Protection (Scotland) Act 2007, which relies on professional judgment, defined thresholds and proportionate intervention rather than automatic exclusion.
I want to pick up on the cabinet secretary’s remarks and on the helpful note that the Government has made available online, which provides explanations of the impact of each amendment. I want to understand what might be felt to be a difference between what the Government has said about amendment 138—the cabinet secretary made a compelling argument for not supporting amendment 138—and what it has said about amendment 143, which also refers to a pathway for palliative care. Does that have a legal definition? Before we decide whether to support the amendments, can the cabinet secretary tell us whether such a thing as a “pathway” is recognised in law?
16:30
It is fair to say that there are similar concerns about amendments 143 and 138.
The Scottish Government has no comments to make about the remaining amendments in the group.
I remind members of my declaration of interests, in that I am supported by three campaign organisations: Dignity in Dying, Friends at the End and the Humanist Society Scotland.
Members will be aware that I was not initially minded to include a period for which a terminally ill adult was expected to live in the definition of “terminal illness” in the bill, for many of the reasons that Alasdair Allan articulated in quoting Marie Curie and to be consistent with previous decisions taken by this Parliament. Instead, I rested on the definition of an “advanced and progressive” terminal illness. However, I have since reflected that including a prognostic timeframe would bring the bill in Scotland into line with other assisted dying laws internationally, as well as with the bill that is currently being debated at Westminster and the one that was recently passed in Jersey.
Many jurisdictions that have undertaken subsequent reviews of the operation of their legislation have not sought to remove that criterion, suggesting that it can be managed in a way that does not present unreasonable obstacles to patients accessing choice and does not lead to unmanageable decisions for clinicians, including palliative care clinicians. I hope that that speaks to the interesting exchange between Bob Doris and Maggie Chapman and to some of the concerns that Ross Greer was wrestling with, which are entirely valid.
I will be brief on the point about prognosis. I was in a similar position of not being convinced that we should include a prognosis period, and so voted against that at stage 2. However, as the debate has continued, it has become clear that there is an expectation across Parliament that we need something to fill that space.
Liam McArthur says that the legislation in other jurisdictions has been reviewed. The bill includes provision for a complete review of the operation of the act once it is in force. Does he agree that we should expect such a review to cover how the prognosis period is being applied and is working in practice, and that the review should give those of us who were sceptical a little more comfort, so that we can be more relaxed about accepting something that we all recognise is imperfect? Does he agree that we need something to fill that space?
That is an entirely valid point and probably speaks to how many other concerns that we will hear being raised in the next two or three days might also be addressed. We can draw on international evidence, but until we implement legislation of this type in Scotland, we cannot be entirely sure of how it will work in practice.
I do not want to cause Patrick Harvie and Liam McArthur any fear by saying that I used to agree with them on that point.
I again raise the point about accuracy. At stage 2, Liam McArthur made some compelling arguments about the arbitrary nature of accuracy. Does he accept that his safeguard might make MSPs feel reassured but that palliative care doctors are still not reassured? Dr Scott Murray, whom I quoted earlier, said that the likelihood of predicting how long someone with advanced cancer has left to live to within 33 per cent of the actual time left was as low as 20 per cent. Is the safeguard for MSPs or for doctors?
Two things can be true at the same time. It is an additional layer of assurance for members in speaking to what has always been the policy intention of the bill, which is to give access to those at the very end of life. I know that palliative care professionals have expressed concern. For the reasons that I set out at stage 2, and at stage 1, I accept how arbitrary a prognosis can be in some instances, but I point again to the experience of clinicians, including palliative care clinicians, in many jurisdictions that have prognosis periods, who seem to be able to work with those in a way that respects the intention of the legislation and allows access and choice where the eligibility criteria are met and which seems broadly to command public confidence.
While I acknowledge the challenges that can arise in some cases, I have carefully considered Daniel Johnson’s amendment 2 and think that it adds to the eligibility criteria and is more appropriate than having a definition of terminal illness. Bob Doris made an important point about that, and I certainly corroborate the fact that he took a more appropriate approach at stage 2.
A terminally ill adult should be considered eligible for assistance only if the co-ordinating doctor is satisfied that they have six months or less to live from the point of the assessment taking place. It is also important that the amendment uses the wording “can reasonably be expected”, for obvious reasons. I am therefore minded to support amendment 2 and the consequential amendments 316 and 322.
Bob Doris’s amendment 162 would require the assessing doctor to refer a person for assessment by a specialist not only if there was doubt about whether they were terminally ill, but if there was doubt about whether they may reasonably be expected to die within six months. Given the difficulties around prognosis, which we have already discussed, that seems a reasonable addition to make alongside Mr Johnson’s substantive amendment.
I note what Mr Doris said about his consequential amendments 317 and 323 and I welcome the fact that he will not move them. Daniel Johnson’s amendments 316 and 322 are more tightly drawn.
I do not support Sue Webber’s amendments 137, 318 and 324, which relate to a person being eligible only if they are not pregnant. As would happen now, any end-of-life decision—for example, a decision to cease chemotherapy—would undoubtedly require detailed conversations with a terminally ill person who was pregnant, but they would depend on the nature of the person’s illness, the stage of their pregnancy and their plans. A blanket prohibition would be too blunt for what will likely be extremely rare but very individual and specific circumstances.
It is also unclear whether those amendments would compel every applicant to provide a negative pregnancy test. That would mean doctors having to assess every person who was seeking assistance to ascertain whether they were pregnant or not—a shock, no doubt, to the 80-year-old gentleman with advanced-stage bowel cancer. The amendments would undermine the bill’s aim to provide compassionate, safe, patient-centred care. I do not believe that they are necessary or even particularly well intentioned and I urge Parliament to reject them if they are moved.
I turn to Douglas Ross’s amendments 138 and 139. On amendment 138, I am fully supportive of people who seek an assisted death having access to palliative care and psychological counselling if required. However, I do not agree that a person should be ineligible for an assisted death if they have not been offered and have not accessed
“a fully costed palliative care pathway … including symptom management, psychosocial support, and specialist palliative care services”,
or have not been offered and given access to psychological counselling. That would risk adding a barrier to a terminally ill adult who could otherwise be deemed eligible and able to access assistance.
On palliative care, the issue is that, if we agree that we want to give people choice, it has to be a proper choice and a real choice, and that must include, if the person so wishes, a basic palliative care package that speaks to their needs. It is possible that they will then decide to choose assisted dying, but it has to be a proper choice.
I entirely agree with Mr Whittle. That is already reflected in the bill to a large extent, but other amendments that I will come on to discuss capture the point that he entirely fairly makes.
Section 7(1) of the bill requires the assessing doctor to
“explain to and discuss with the person being assessed”,
in so far as they consider appropriate,
“any palliative, hospice or other care available, including symptom management and psychological support”.
On amendment 139, adding to the eligibility criteria that the person had not
“previously been screened or treated for suicidal thoughts or self-harm
would mean that a person would be ineligible for assistance in, say, a situation where they had, decades previously, been not even treated but “screened” for suicidal thoughts or self-harm—matters that may have no bearing at all on the person seeking assistance.
I acknowledge what Mr Ross is getting at with his amendments, but I am not inclined to support amendments that would limit eligibility in that way rather than letting such matters be picked up in the already robust assessment process. Eligibility for assisted dying should focus on a person’s current capacity to make the decision, and the requirement for doctors to discuss with the person their reasons for requesting an assisted death provides medical practitioners and terminally ill adults with the opportunity to explore motivations and identify any underlying concerns.
I further note the Scottish Government’s concern that such an absolute restriction could raise legal issues regarding its proportionality unless it can be fully justified. That also applies to Mr Ross’s amendment 143, which is related to amendment 138.
On capacity, when it comes to Emma Roddick’s amendments 140 and 141, the bill already contains strong safeguards. As Christine Grahame identified, a person is eligible under section 3 only if they
“have capacity to request … assistance … are not suffering from any mental disorder which might affect the making of the request”
and
“are capable of … understanding information and advice”,
“making”, “communicating” and
“understanding the decision, and … retaining the memory of the decision.”
Further safeguards are built in throughout the process.
I appreciate that capacity is covered. My amendments 140 and 141 are not simply about capacity. There is a difference between being able to understand information and having that information actively offered. Does Liam McArthur appreciate that?
I certainly do, but the safeguards are there in order to protect those rights. I was expecting Ross Greer in his contribution on the group to talk about the advocacy provisions that he added to the bill at stage 2, which provide very welcome further protections and safeguards in that respect.
To take us back slightly, I have been listening carefully to what Liam McArthur has said across the amendments, and I think that he has made a pretty fundamental shift between stages 2 and 3 in conceding ground on the six-month rule. Having previously called it
“arbitrary, inflexible and in some cases ‘very difficult to establish with any … degree of certainty’”,
he has changed direction. It feels to me that the situation that he set out at stage 2 is probably his view and the view of people who support the bill, and that that ground has been ceded in order to win support. Perhaps he would see that as a legitimate tactic, but does it not talk to the possibility of the slippery slope approach, whereby people will come back again to try to open up eligibility further, given that, at the start of the debate, we talked about whether the question that the Parliament was asking itself was about a closed or an open bill? My question is about how that has been pursued and whether the bill will be opened again in the future.
I am not sure that it is a slippery slope. It is the Parliament doing what it should, which is to scrutinise legislation, engage with those on both sides of the debate—which I think we have managed to achieve—and take on board ideas that reflect concerns that are genuinely expressed. I still hold to the view that there are issues of arbitrariness with a prognosis period, but I also acknowledge, as I have said, that, in international evidence, even in those jurisdictions that have gone through a five-year review, any concerns around arbitrariness appear to have been allayed, such that patients are able to access the choice to which they are entitled and medics are able to operate within that system.
Further safeguards are built in throughout the process. Assessing doctors must refer a person who requests assistance to a specialist if they have any doubts about capacity, and capacity is checked at every stage, including before an approved substance is provided. Contrary to the interests of patients and clinicians, amendment 140 may complicate and confuse that process.
The same can be said for amendment 141, which would add to eligibility 14 further conditions, any of which would preclude a person’s being considered eligible. That would duplicate the provisions on issues of capacity and coercion that are already in the bill, while adding other factors, some of which risk interfering in a person’s autonomous decision making—something that Emma Roddick has a good track record of fiercely protecting.
I support the principle of ensuring that doctors explore a person’s reasons for requesting an assisted death, but amendment 141 risks oversimplifying a decision that is often complex and deeply personal. As I said, people’s motivations are rarely singular, and they may relate to a mix of physical, psychological and existential factors. The ability of a healthcare professional to rule out various influences in accordance with the requirements of amendments 140 and 141 would be unworkable in practice, and those amendments risk policing open and honest conversations between doctors and their patients.
For example, the Scottish Government’s campaign to increase awareness and understanding of autism, which has been co-produced with autistic people, recognises that not all autistic people are the same and that many autistic people see autism as integral to their sense of self. To deem somebody ineligible for an assisted death because of an autism spectrum condition is in conflict with that approach.
The bill already contains strong safeguards to ensure that a person is eligible, has capacity and is acting voluntarily. I will therefore not support amendments 140 and 141, and I ask Emma Roddick not to move them.
The rest of this Official Report will be published progressively as soon as the text is available.
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