Chamber and committees

Will the member give way?

I suppose that my answer to that would be “Possibly”. My general comment to your intervention is that we have to ease burdens in society, challenge the idea of someone who has ill health or a terminal condition or who is old and frail feeling like a burden in the first place, and say that their life is valued, irrespective of all that. A pathway to easing that burden would not be assisted dying but supporting them better as an equal member of society as best we can.

My only amendment in this group that might not be considered as consequential on amendment 139 is amendment 140, which adds to the bill the definition of “voluntarily” as meaning

“not having been coerced or pressured.”

The bill would otherwise be silent on the definition of “voluntarily”. However, the definition makes it clear that an act is not voluntary if coercion or pressure is present. That is important, given that that distinction is not always clear in the bill when the word “voluntarily” is used.

For instance, section 6(2)(c), on medical practitioner assessments, states that a declaration must be made “voluntarily” and must not have “been coerced or pressured”. Something cannot be voluntary if there is coercion or pressure, and therefore, in my view, we have to define the term “voluntarily” in the bill. It is important to make it clear that a person cannot act voluntarily if they have been pressured or coerced, and I hope that amendment 140 clarifies that.

I have no other comments to make on this group of amendments.

Yes.

Will the member give way?

Amendment 139 in my name and the various consequential amendments in this group seek to address concerns about a deficiency in the current definition of coercion in the bill. Coercion in the bill is framed as something that is done by a person, whereas the current professional standard that is demanded by the General Medical Council guidance requires practitioners to consider other indirect coercive factors. It is important to the Scottish Partnership for Palliative Care that that be put clearly on the face of the bill.

There is broad agreement that the assessment of coercion is central to safeguards in the bill, and the definition of coercion to be used is central to the effectiveness of any assessment. The bill’s own policy memorandum, which I have already mentioned, refers to the relevant GMC guidance as key to assessing coercion, but the bill itself currently uses a weakened definition. I cannot see any good reason why the accepted professional standard should be weakened in the context of a life-and-death decision relating to assisted dying.

Therefore, amendment 139 and consequential amendments seek to place in the bill a definition of coercion that complies with current regulatory and professional standards. Practitioners assessing coercion under the revised definition will be clearly directed and able to consider the wide range of coercive factors that we know might lead some people to wish to hasten their death.

I will mention one or two of those factors, although I think that Pam Duncan-Glancy has illustrated very clearly what they might well be, as will other members with amendments in this group. For example, a person might feel that they are a burden to others, and there are also the financial pressures that they might be under. I know from my own lived experience that older people with frailty often feel that they are a burden; in the last year of her life in a care home, my mother in her more lucid moments—she had vascular dementia—would tell me, “Son, get yourself home. Why are you here?” She was worried about me and my work commitments and worried that she was being a burden on me. Before that, while they were still in the family home, my mother and father would dissuade me from visiting them, because they thought that I was busy at my work and what, really, was there for me to go down and visit them. They had a view of themselves, and a view of me, that made them feel like a burden. That is just a personal experience that I would share with the committee.

Clearly, I am disappointed that Liam McArthur is not persuaded by the need for consistency and using the GMC definition of coercion, which is mentioned in the member’s policy memorandum but does not appear in the bill. My amendment 139 seeks to place that in the bill. Will Mr McArthur outline to me what is wrong with the GMC definition of coercion? It seems to be suitable for almost all other areas.

Elena Whitham said that she is not minded to support a six-month prognosis at this stage but indicated that, as the debate goes on, she could be persuaded otherwise. I point out that the next group of amendments, on eligibility, gives her the opportunity to do just that, because it contains an amendment on a six-month prognosis. I draw members’ attention to that, because there are two ways of approaching the issue, and they are not mutually exclusive.

Daniel Johnson’s amendment 4 would change the definition of terminal illness, and there is merit in that. We can also change the qualifying criteria, which is what my amendments in the next group seek to do. For the purposes of the debate on amendment 4 in this group, I should put on record paragraph 32 of the policy memorandum, which 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 seeks to strike a balance, but that balance does not appear in the bill. Daniel Johnson’s amendment 4 seeks to strike that balance in the bill.

There is a disconnect between the policy memorandum and what is contained in the bill. I will say more when I speak to my amendments in the next group.

I thank Patrick Harvie for that insightful intervention. I note that the bill takes quite a broad, permissive attitude in relation to where assisted dying can take place as long as the relevant procedures are followed. Therefore, I seek to bring in regulations that might decide whether it is or is not appropriate for a place to carry out such functions, even if there were to be a stand-alone body. It is important to consider whether an NHS facility or a care home that is run by the public sector could be used. We must also consider anything that might come up in relation to what best practice would look like and whether the process should be inspected when an institution is involved.

My amendment 128 is deliberately broad, Mr Harvie, and, having listened to what you said, I think that that remains the right approach. I will certainly move the amendment. However, given that it is so broad, I might hope to persuade the committee to agree to it at this stage by perhaps suggesting that there should be a super-affirmative process rather than an affirmative process, in order to get full buy-in and ensure that we look through all the possible permutations. As I said, the amendment is deliberately broad because the provisions in the bill are deliberately permissive. One complements—or counterbalances—the other in my view.

I will say a little about the other amendments in the group, particularly Murdo Fraser’s amendment 148, which seeks to set up a designated statutory body outwith the NHS that would be responsible for pretty much all aspects of assisted dying. We have heard some of the rationale for that body from Mr Fraser. As we go forward, we will have to tease out whether the NHS would still have a role and what the inspection and oversight of that body would look like, as well as whether NHS staff and buildings could still be used on a contractual basis. Much more information is required on that amendment. We also need to know how concerns could be raised regarding the operation of the new body’s functions and its carrying out of its responsibilities.

Jackie Baillie’s amendment 62 appears to have a similar policy intent to my amendment 128. It would require the Scottish Government to make regulations about the provision of assisted dying when that takes place outwith the NHS, including in relation to a role for Healthcare Improvement Scotland and the Care Inspectorate. Unlike Ms Baillie’s amendment, mine would make explicit provision for the raising of concerns, if I have captured that correctly. However, there appear to be no pre-emptions, so it appears that committee members do not need to choose between our amendments.

I will turn to Fulton MacGregor’s amendment 256. Actually, I will not progress to that at the moment, Pr—convener; I nearly upgraded you to Presiding Officer—but will rest my comments there, because of the time.

Will the member give way?

I say to Elena Whitham that the point about short timescales brings us back to prognosis issues. The member in charge of the bill and the committee are not really compelled by the arguments on including a timescale for a prognosis of death and fast-tracking the process.

I have later amendments on palliative care. I do not believe that there are safeguards on such care in the bill currently. Having a general discussion on palliative care is not a sufficient safeguard and—