Chamber and committees

I press amendment 117, convener.

Will the member take an intervention?

To make sure that I do not conflate Mr McMillan’s amendments with my own, let me start off with Mr McMillan’s amendments 184 and 187. I make a point that is similar to Mr Harvie’s when he spoke to Ross Greer’s amendments earlier: the words that I am using are Mr McMillan’s views rather than my own—some of them I agree with; others, perhaps not, but let us see how that goes.

The bill gives responsibility for approving substances to be used in assisted dying to the Scottish Government ministers. That sounds simple but, in practice, it creates two serious problems. First, if the ministers of the day are opposed to assisted dying, they could entirely frustrate the operation of the law by approving no substances at all.

The second and more concerning problem is that if substances are approved, the bill contains no mechanism to ensure that they are safe, effective or humane. International experience has shown us the dangers of that omission. It is contended that, in other jurisdictions, poorly monitored substances have led to choking, vomiting, pulmonary complications and tragically prolonged deaths, lasting many hours or even days. Parliament cannot, in good conscience, legislate for assisted dying while leaving the safety of such substances to ministerial discretion alone.

Amendment 187 establishes a framework for proper oversight and accountability. It requires that any substance approved for use under the act must receive parliamentary approval and renewal every three years. Before renewal, ministers would be required to lay a detailed report before Parliament on the safety, side effects and on-going suitability of those substances. In addition, amendment 184 would require co-ordinating registered medical practitioners to record and report any complications or deviations from the expected outcome.

Those amendments would ensure that the Parliament, and not ministers alone, retains responsibility for the integrity of the process. They would also ensure that, where substances have caused unnecessary suffering, action is taken quickly and transparently.

In the light of the reporting and better understanding of the safety of the drugs involved that would be ensured through amendment 184, amendment 187 would require Parliament to undertake a review after three years to ensure that the drugs are being used safely and effectively and that side effects are properly understood and monitored. That is vital to ensuring that deaths are not lingering, painful or distressing for the patient or their families.

From research in other countries, and as the committee heard at stage 1 and last week, the drugs used are potent and can have significant side effects. Monitoring their impact is the only responsible course of action for a Parliament that cares about how the legislation will work in practice. Allowing the Parliament to review after three years would give us the safeguards that we need to ensure that the legislation is working as intended.

Those are the comments from Mr McMillan in relation to amendments 184 and 187.

Do you wish me to move on to my comments, convener?

Unfortunately, Mr McArthur, you will be taking a lot of amendments from me during this stage 2 process.

My intervention is in relation to death happening “within a reasonable period” and the challenges in how we would arrive at that conclusion. Surely to goodness, if someone has ingested a substance and three hours have passed—and then four or five hours pass—there must be some guidance for the medical professional on when and how they should intervene and what powers they have to do it. I will say more about that when I get to my amendments, but there must, surely to goodness, be some kind of framework for medical professionals to operate within.

As keen as I am, I will not move amendment 121.

Amendment 121 not moved.

Amendment 169 moved—[Brian Whittle].

Thank you for reflecting on my heroic efforts this morning. [Laughter.] At this point, I should put on the record that I agree with Brian Whittle, who said that he cannot imagine a situation in which a clinician would raise the option of assisted dying. My view, however, is that to absolutely bar clinicians from doing so would be an undue restriction, which is why I think that the issue is a bit nuanced.

Liam McArthur and Miles Briggs mentioned a framework. The amendments in my name that we discussed this morning were designed to create such a framework but, unfortunately, none of those held sway with the committee. I hope that the exchange that we are having opens the space to include a framework in the bill at stage 3, as it is absolutely required. How does Mr McArthur feel about that?

I will restrict myself to speaking to Stuart McMillan’s amendments—he cannot be here this morning and sends his apologies.

I begin with amendment 117A, which amends one of my amendments in the group. The bill will require a registered medical practitioner to confirm that a person meets the criteria of terminal illness. That provision is essential, but it is not enough. Trust, transparency and accountability are fundamental in healthcare. We cannot legislate for assisted dying without protecting those principles. Mr McMillan is concerned that, without safeguards, a patient who is dissatisfied with one practitioner’s refusal could simply seek another who is willing to provide the statement. Not only would that scenario undermine the integrity of the assisted dying process; it could erode public trust in the health service itself.

A system that would allow repeated solicitation for an irreversible act of life-ending intervention would be unsound. Amendment 117A would introduce a practical safeguard, which is that any refusal by a registered medical practitioner to provide a statement under section 8 would need to be

“recorded in the patient’s medical records”

along with the reasons for that refusal. Furthermore, the amendment would prevent further assessment for the same request for a period of six months.

Stuart McMillan acknowledged Mr McArthur’s comments last week in relation to this issue, which suggested that a six-month time period would be “arbitrary”. However, that could be suggested about any timescale and age that is available throughout the bill. Mr McMillan’s point is that, wherever you draw the line, it will be an arbitrary decision. Mr McMillan thinks that the six months is a reasonable timescale because it would reduce the risk of repeated requests and doctor shopping while preserving existing provisions for referral to a specialist where there is doubt about the patient’s terminal illness or capacity.

Amendment 117A is not about limiting patient choice; it is about ensuring that choice is exercised responsibly, ethically and with integrity. It would ensure that the medical profession can act confidently, knowing that professional judgment is respected and that the process cannot be manipulated.

In the same group, Mr McMillan also lodged amendment 232. Mr McMillan comments that the bill, as currently drafted, would not require a person who seeks assisted death to consult a specialist in their condition to determine whether they truly meet the criteria of terminal illness. That is a significant gap. Prognosis is not an exact science; it varies by individual, treatment and circumstance. Without specialist input, there is a risk that someone with many years of life ahead could be permitted to proceed down an irreversible path. That is why it is essential that every assessment be informed by the most accurate expert knowledge that is available.

Amendment 232 addresses that risk. It would require that, in all assessments under section 6, the medical practitioner must consult a specialist in the person’s terminal condition and take their opinion into account. Mr McMillan notes Liam McArthur’s comments last week indicating that he thought that the amendment mirrored section 7(2). However, Stuart McMillan contests that comment. That is because the important word is “may”, which is not a guarantee that a registered medical professional and the relevant specialist would be involved. Amendment 232 would put that beyond doubt and ensure that decisions are based on the expertise of those who understand the specific trajectory and prognosis of the illness in question.

With that remark, I conclude Mr McMillan’s comments on his two amendments in the group.

I can confirm that I am not Stuart McMillan, but I will nevertheless move the amendment on his behalf.

Amendment 117A moved—[Bob Doris].

I do not agree with Mr McArthur’s intervention because, currently, we have not legislated for assisted dying, and the purpose of ingesting the drug in question would be to bring about death, not to make the individual comfortable while they are still living. Right now, the guidance is silent on that and it has to be developed. I will say more about it in a moment, but my amendment 125 does not propose to include the detail in the bill, but rather to include it in regulation by affirmative procedure. Like Mr McArthur, I accept that it is challenging to include all the information in the bill. A wider consultation would be needed, which an affirmative process would provide for.

I know that we have discussed many amendments over the past couple of committee sessions, but if members recall, one of my previous amendments sought to ensure that the co-ordinating medical practitioners should have a conversation with the person who is seeking the assisted death about various matters, including about the provision of the substance that would be used at the end of their life. Amendment 91, which the committee disposed of this morning, was not agreed to, but would have made that happen. Mr McArthur has suggested that those conversations would not be required, because they are already provided for in section 7(1) of the bill. However, I think that it is important to put on record that section 7(1) includes a whole variety of items for discussion, including the nature of the substance that would be used, as I have just cited, but that it is caveated and qualified by the phrase,

“in so far as the registered medical practitioner considers appropriate”.

There is no requirement under section 7(1), which we would need clarity on. The clinician would be empowered, but not required, to have those conversations: those are two very different things, which it is important to put on record.

If possible, Ms Webber, I will respond to Mr McArthur first.

I would be very interested in the BMA’s thoughts on that. I do not want to rehearse arguments that we have heard before, but in the bill as drafted, clinicians are empowered, but not required, to discuss diagnosis and prognosis; available treatments; palliative care and other available care; and the nature of the substance, including how a death may come about. The outcome could be that an individual clinician does not have to discuss any of those things whatsoever. I think that there should be a framework to support clinicians to have those conversations. Of course, if the person who is seeking an assisted death does not wish to have those conversations, that would be their right. In some respects, my view is that the bill is silent on that, by caveating everything with the phrase,

“in so far as the registered medical practitioner considers appropriate”.