Chamber and committees

That exchange was, if somewhat unusual for stage 2 proceedings, very helpful. It is probably worth reiterating that the bill is predicated on a terminally ill adult requesting assistance to begin the process. On the point about Dignitas that Miles Briggs referred to, in relation to his amendment, because that is not a procedure that is covered by the bill, there would not be a protection in relation to that. Therefore, to some extent, that issue remains pertinent. We need to allow discretion and medical judgment to apply and to avoid creating an environment in which assistance under the legislation becomes stigmatised or is not subject to free, open and transparent consideration.

As it stands, the bill almost certainly covers that. To some extent, Miles Briggs’s amendment might be more for the avoidance of doubt, but the debate that we have had on it has, if nothing else, perhaps demonstrated the need for greater clarity on that, and I am certainly sympathetic to that.

Turning to Jackie Baillie’s amendment 53 and Daniel Johnson’s amendments 53A and 53B, I note that Sandesh Gulhane’s amendments to change the eligibility age from 16 to 18 have been agreed to, which means that no person under the age of 18 will be eligible to request assistance under the legislation. I have previously set out why I do not support changing the age limit to 25.

As I have made clear, the bill does not require, nor does it actively permit, any health professional to raise assisted dying with a person. It is predicated on a terminally ill adult requesting assistance to start the process. That said, I absolutely accept some of the arguments that Jackie Baillie and CHAS have been making about how the process for younger people will almost certainly be very different, in every instance, from the process for somebody in later life with late-stage cancer or whatever it may be.

That said, I ask members to consider whether amendment 53 is necessary, given that those under 18 are not eligible to be provided with assistance. I suppose that the same factors apply in relation to Daniel Johnson’s amendments. The rationale for introducing them relates to a point that I have accepted before: the training that will be required for the practitioners involved is likely to be different from that relating to patients at a later stage, and some of how the process works in practice will almost certainly be different, not least because a wider team is likely to be involved—not just medical practitioners but social work and other experts in particular fields.

Aside from those observations about the age limit, which we have already discussed, I have no strong views on the amendments in this group.

You are not alone, Mr Whittle. Your point is entirely pertinent. In my discussions with the chief medical officer, there was no strong view that this must be done in a particular way. However, there was an absolutely clear understanding that both aspects would need to be captured on the death certificate. My amendments propose one way of doing that, and Pam Duncan-Glancy has helpfully given the committee an opportunity to consider an alternative way of addressing the issue.

At this stage, rather than leave the issue unresolved from my perspective, I will press my amendment, but I give the assurance that I am happy to work with Pam Duncan-Glancy and others at stage 3 to see whether further refinements are needed in order to address the points that she and Brian Whittle raised. It is difficult stuff, but I do not believe that the difficulty is insurmountable. However, it is important that the bill is amended at stage 2 to address what I think is a shortcoming in its drafting.

On that basis, I will press amendment 36.

Amendment 36 agreed to.

Amendment 246 moved—Pam Duncan-Glancy.

I thank Stuart McMillan for setting out the rationale behind his amendments. I echo his point about the importance of the openness of the conversations that ideally should happen. In earlier groups, we had quite a bit of discussion about anticipatory care plans. Underlying all of this is the desire for more people to take more care in setting out their wishes and discussing them with loved ones or family and friends as early as possible.

I, too, have engaged with the Salvation Army, although much earlier on in the process and not specifically in relation to this issue. I am not aware of the issue being raised at stage 1 or in the consultation on my proposals way back in 2021. I note that, in Scotland, unlike in England and Wales, there is no specific statutory offence of assisting somebody’s death. Therefore, I consider that the bill’s provisions are sufficient in providing protection from civil liability, and I urge Stuart McMillan not to press amendment 250 or to move amendment 251.

As I said, I am not sighted on more of the background to the issue, and the Salvation Army might be able to help me with that, along with Stuart McMillan, so I am happy to continue those discussions. However, at this stage, I do not see the need for the amendments.

I appreciate that. As you will be aware, we have added a number of for-the-avoidance-of-doubt provisions to the bill through various amendments, so I am certainly not averse to doing that. However, I would need to have a better understanding of what we are seeking to achieve with the amendments. Even if they are for the avoidance of doubt, there are potential risks that we could cause more confusion in trying to go down that route. However, my offer is there.

I thank Murdo Fraser and Miles Briggs for talking through their amendments. The bill contains offences relating to coercing or pressurising a terminally ill adult into requesting assistance and it also provides that it is not a crime to provide assistance under the provisions of the act and that there is no civil liability for doing so.

It therefore follows, as you suggested in your intervention, convener, that there remains criminal and civil liability if a person is provided with assistance outwith the provisions of the bill. If any person believes that another person has been provided with assistance who has not been eligible for such assistance to be provided, it is a criminal matter and should be reported to the police and investigated by the relevant authorities. I appreciate the point that, more often than not, it might be family members who have such concerns, but I do not think that we should say that the right to call for an investigation needs to be reserved entirely to them.

It is perhaps worth reflecting that, in the stage 1 evidence that was taken on the role of the COPFS Scottish fatalities investigation unit in investigating fatalities on behalf of the Lord Advocate, the view of COPFS was that independent scrutiny would already exist. As members will recall, the committee heard at stage 1 about the role of the unit in investigating all deaths in Scotland that are sudden, suspicious, unexpected or unexplained. Indeed, the head of the investigation unit set out the independent scrutiny of the circumstances of death that currently exists, covering not only potential criminality but wider investigation to establish any systemic issues or issues of public concern requiring further investigation. COPFS also confirmed to the committee that medical practitioners are already provided with guidance on the deaths that require to be reported to the Crown Office.

I note that the Scottish Government highlighted various drafting and resourcing issues with amendment 189, and I urge Murdo Fraser not to press that to a vote.

Miles Briggs’s amendment 200 would establish an assisted dying review panel to review whether the act is complied with in each case and analyse information that is provided. I agree with his points about the importance of learning from the way in which the act is developing, and some of the data gathering that we referred to in earlier groupings will help to facilitate that. I am not opposed to the principle, but I am concerned that any such oversight panel might duplicate existing roles or processes. I have already touched on and set out in detail the evidence from COPFS and the responsibilities of the Scottish fatalities investigation unit.

The Scottish Government also notes that amendment 200

“seems to cover a similar role as the provision under Section 27”,

and that amendment 214 is consequential to amendment 200.

At this point, I do not believe that the review panel necessarily adds an additional safeguarding layer. There might be elements in what Miles Briggs is trying to get at with the review panel that might be helpful in augmenting what is already in section 27, but, at this stage, I encourage Miles Briggs not to move amendment 200, and I urge the committee not to support it.

I apologise, convener—I should have done this at the outset of proceedings. Having listened to Miles Briggs make his declaration of interest, I remind the committee that I am supported by Dignity in Dying Scotland, Friends at the End and the Humanist Society Scotland.

I understand what Sue Webber is saying, but I also note that this concern has been raised as a result of representations made by the BMA, which represents many of these medical professionals. The BMA makes strong arguments about many aspects of this bill, and the other bills that are going through legislatures around the UK, which are about ensuring that we do not cut across appropriate medical discretion and judgment and that we take care about interfering with the doctor-patient relationship.

Sue Webber is absolutely right—Jackie Baillie made the same point—about how integral that relationship can be, particularly for someone who has a terminal illness and who has therefore probably been under treatment with the support of not just one medical professional but possibly a team of medical and other professionals. Those relationships are very important. However, within that, it is important to allow professionals, using their training and experience, to exercise their judgment in an appropriate way.

I do not disagree with the point that Bob Doris has just made, which he made earlier, about the importance of the framework. We perhaps disagree about the extent to which there is a framework, but it is part of the stage 2 and stage 3 processes to decide, even if there is a framework, whether we need to buttress that further. However, whatever framework we set, we need to allow scope for clinical judgment, based on appropriate training. We have covered some of the training aspects that are linked to the bill, and further strengthening might be required in some areas, but that all speaks to the need to allow judgment to be exercised.

As I have said, I know from my direct engagement with the RCN how strongly it feels about the issue. I do have misgivings. Members of the committee will have heard expositions of both sides of the argument, and the points that Emma Harper was—fairly—making. The committee will have to take a view on the amendments accordingly.

Sue Webber’s amendment 176 relates to amendment 158, which has been previously debated, and it would require the co-ordinating registered medical practitioners to inform the terminally ill adult of potential side effects and the risks of complications when providing the substance. I note that it is already a requirement under section 7 that the registered medical practitioners, in carrying out their assessments, explain the nature of the substance to be provided, including how it will take to bring about death.

Marie McNair’s amendment 244 proposes an avoidance-of-doubt provision to confirm that a person cannot administer the substance to or on behalf of another person. I consider that the bill is already suitably safeguarded to prevent that, but I have no strong objections to Ms McNair’s amendment, and I thank her for lodging it.

Daniel Johnson’s amendment 10 adds details to the process of providing the substance. From the outset, I have wanted the end-of-life process to be set out in as much detail as possible, and I have been clear that the approved substance could be self-administered by the terminally ill adult in a range of ways. Given that the bill empowers Scottish ministers to approve the substance that is to be used, it was felt that the best approach was to leave further detail on how the substance was to be prepared and used to regulations and guidance. In policy terms, I have always been clear that assistance must be via self-administration by the terminally ill adult. Ultimately, assistance can be anything that contributes to the person’s own deliberate act but which does not tip over into administering the substance.

I also point members to the guidance provision in section 23(1), which allows Scottish ministers to “prepare and publish guidance” on the act. Section 23(2) lists particular areas on which ministers might wish to issue guidance, including

“the provision of assistance in accordance with section 15”.

Such guidance would be consulted on in advance, allowing input from medical professionals and others, ensuring that any resulting guidance reflects those views.

Part of the amendment seeks to allow the co-ordinating registered medical practitioner to prepare a device to allow the person to take the substance if needed. That issue came up at stage 1, and, as I suggested to the committee at the time, I am sympathetic in policy terms to considering what might be done to enable a person to self-administer in different circumstances.

The Scottish Government states that it recognises that the detail that is set out in the amendment

“is likely to be welcomed by healthcare professionals, based on the evidence provided to the Committee at Stage 1.”

It also noted that the amendment

“does not make any reference to the ‘authorised health professional’, who may also carry out functions under section 15.”

Daniel Johnson might wish to reflect on those comments, but I am supportive of the amendment in principle.

I turn to Sue Webber’s amendment 182, which seeks to insert a new provision into section 15 to the effect that the existing criminal law relating to homicide applies to any act by a person to provide additional substances, treatment and so on to the terminally ill adult after they have used the approved substance for the purpose of bringing about death. Section 1(2) of my bill details that

“Such assistance is lawfully provided if it is provided in accordance with the provisions of this Act.”

By necessity, any assistance that was not in line with those provisions would clearly be unlawful.

The bill’s explanatory notes make it clear that the exemption from criminal liability under section 19

“applies only where the substance of the case against the individual is (or would be) that they provided a person with assistance to end their life under the Bill. It does not apply to any incidental unlawful acts which an individual may have committed”.

Therefore, amendment 182 is not necessary and might, by singling out one specific situation, create uncertainty.

There are, in this group, several amendments from various members that address the issue of recording and notifying instances of the substance not having its intended effect, including Sue Webber’s amendments 181 and 183, Stuart McMillan’s amendment 184, Paul Sweeney’s amendments 245 and 275, and Stephen Kerr’s amendments 126 and 188.

On amendments 181 and 183, the former seeks to cover situations in which the adult uses the substance that is provided but does not die or the substance does not produce its intended effect within a period to be specified by the co-ordinating registered medical practitioner or authorised health professional. It provides that, in such circumstances, the co-ordinating registered medical practitioner or authorised health professional

“must take all reasonable steps to preserve the life of the adult”

or reverse any effects of the substance. It also seeks to require that such incidents be recorded in writing and that details of what is required to be recorded be set out. The amendment also stipulates that no declaration or statements made by the adult under the bill’s provisions can prevent steps to preserve their life, unless the adult refuses any such intervention at the time and has capacity to do so.

As was made clear in the evidence at stage 1, the number of cases in which a person takes an end-of-life substance and does not die or complications arise is incredibly small. Even so, given that the bill provides for the co-ordinating registered medical practitioner or authorised health professional to be present when the substance is used and until a person has died, should any complications arise, the attending health professional would respond in a manner consistent with their skills, training, qualifications and experience, and provide necessary care to the person.

I refer the committee to the detailed evidence that it received from Professor Dooley, which confirmed the Australian experience that, although most deaths occur very quickly, the exact timing can be based on factors such as a patient’s condition, size, weight and overall health. Given that natural variability, Ms Webber’s amendment risks placing unworkable requirements on clinicians and potentially undermining the practical integrity of any medication protocol. I therefore support neither amendment 181 nor amendments 125 and 136, in the name of Bob Doris, which refer to dying within a “reasonable period”.

Sue Webber’s amendment 183 would require that the co-ordinating registered medical practitioner record in the adult’s medical records any complications arising from the used substance and submit an anonymised report to Public Health Scotland. Broadly, Stuart McMillan’s amendment 184 appears to duplicate amendment 183, as do Paul Sweeney’s amendments 245 and 275, along with his amendment 269, in a later group. That amendment also addresses the reporting of any complications, as do Stephen Kerr’s amendments 126 and 188.

I have considered the amendments carefully. Members will know that section 27 requires a five-year review of the operation of the act and is intended to deal specifically with how it is functioning in supporting terminally ill adults with being lawfully provided with assistance to end their own lives. The bill also provides that any concerns with the operation of the act that have been raised must also be covered in the report, as well as the Scottish Government’s response to those concerns.

However, I acknowledge that there is nothing specific in the bill about the recording and reporting of issues such as complications and, on reflection, I agree that the bill might benefit from being strengthened in that regard.

As I have said, I understand the rationale behind the argument, particularly as we are dealing with the introduction of new legislation. I am just concerned about putting in place something that then prevails but which, in turn, reduces access to choice in what I believe is a disproportionate way.

The example that the convener and Jackie Baillie have cited is certainly the case. However, there are many instances in which that provision is not required, and yet additional nurses are still present to provide whatever support is felt to be necessary. Their doing so is not a statutory provision. This is all about striking a balance by allowing this to happen, in the expectation that, in the early stages, it might well be the case more often than not, but without binding it in statute as a requirement that could have an impact on being able to access that choice.