Chamber and committees

As I say, other jurisdictions operate using prognostic periods and issues appear to be manageable within that context. Nevertheless, the argument is about establishing with any certainty the accurate time of anticipated death. It is an issue that the committee heard about in evidence, and it took the view that it did in its stage 1 report.

I agree with Fulton MacGregor’s final sentiment about the way in which we must embed the service. That is crucial. I thank other colleagues for setting out the rationale for their amendments.

Turning to Murdo Fraser’s amendment 148 and the issue of the administration and regulation of assisted dying services, the bill does not expressly establish a system within the NHS. It provides for a process with roles for health, social care and social work professionals; Public Health Scotland also has a role in data gathering and reporting.

My view throughout the process has been that assisted dying services under the bill should be provided predominantly through the NHS, although I can envisage that there might be scope for them to be provided in some private settings as well. I am concerned that the implications of the approach proposed by Mr Fraser would potentially exacerbate inequalities in access and disrupt existing pathways for treatment and care at a point when the individual is least able to cope with that.

In relation to that point on amendment 148 and its consequential amendment 208, I note the Scottish Government’s concerns about competence and about the possible duplication of the roles of Public Health Scotland and the Scottish ministers.

To some extent, that concern also applies to Jackie Baillie’s amendment 62 on the provision of assistance outwith the NHS. Amendment 63, which is consequential to that, proposes that the related regulations be subject to the affirmative procedure. I listened to the comments that Jackie Baillie made and her response to the interventions. I am reassured that she does not seek to set up a service outwith the NHS. The points that she makes about regulation are fair and reasonable. They lead me back to the point that Brian Whittle made earlier: this is one of those areas where engagement with the Scottish Government on the operability of the system would be welcome, especially ahead of and during stage 3. I am committed to such engagement and am happy to work with Jackie Baillie on those provisions and others that may relate to similar issues.

That is correct.

I start by thanking Murdo Fraser for setting out the rationale for his amendments in this group, and for his declaration of interest, which I take in good faith.

The bill requires the signing of a first and second declaration form by a terminally ill adult to be witnessed and signed by the co-ordinating regulated medical professional and another person, which, for the second declaration, cannot be the other regulated medical professional who assessed the eligibility of the person.

Following discussions with the Law Society, which had concerns—to some extent, along the lines of those of Murdo Fraser—about the way in which that provision was framed in the bill, and the potential implication of creating a relationship between solicitors and individuals, I lodged amendment 32, which changes the definition of who can be a proxy.

It replaces the definition in the bill with a definition that requires the terminally ill adult to have known the proxy for at least two years or for the proxy definition to be specified by Scottish ministers in regulations. Amendment 45 sets out that that would be subject to the negative procedure.

Schedule 5 sets out who is disqualified from being a proxy. That includes family members, those who would benefit financially from the person’s death, and a medical professional who has treated the person for the terminal illness. The conditions in schedule 5 remain and should therefore be read with this amendment.

I note that amendment 32 would pre-empt Mr Fraser’s amendment 170. In relation to that amendment, the proxy role should not be limited to a notary public. Doing so might risk making it difficult for a terminally ill adult to engage such a person, who might be needed urgently and at short notice, which could add to a terminally ill person’s stress and anxiety.

Amendment 45 is consequential and it ensures that the regulations that the Scottish ministers make are subject to the negative procedure.

I will discuss the other amendments in the group together. The role of the independent witness to the signing of the forms, in addition to the co-ordinating regulated medical professional, is just that—to witness the signing by a terminally ill adult. I see no reason why a notary public should also be required to witness as set out by the other amendments in the group. As I have said, we need to ensure proportionality and that safeguards are not simply barriers to eligible adults accessing the choice to which they should be entitled under the legislation. I therefore urge Mr Fraser not to press amendment 149, but, if he does so, I urge the committee not to support it.

Thank you for the intervention. You make a strong point, which also came through strongly in the evidence that the committee heard. The committee heard from witnesses who were involved in the process in Victoria, Australia that engagement with palliative care has improved as a result of the change in the law there. Although palliative care discussions are not taking place as routinely as they might, ultimately, the decision about whether to have palliative care and, indeed, any other treatment, has to rest with the individual—that is, with the patient. We need to address areas where access to palliative care is not what it should be, although that cannot be addressed through the bill. Nevertheless, it needs to be a decision for the individual as to whether they access palliative care or have a palliative care plan. However, they absolutely need to be made aware of the options that are available in relation to palliative care—that is why I lodged amendment 29.

In a second, Mr Whittle. I would be concerned that that might create undue delays and prolong the suffering of the person who is seeking assisted death, particularly given that the proposed period of 10 working days following the assessment before the report is produced might pass with no additional protection being provided.

The difficulty is in making eligibility contingent on a person having a care plan in place or having access to social care or palliative care. Ultimately, that needs to be a decision for the individual.

Regarding Ms Duncan-Glancy’s amendment 227, I support people with a terminal illness having access to appropriate advice and support about living with their illness. I urge the committee to support the amendment.

In relation to amendment 146, in the name of Jeremy Balfour, the committee will be aware that the law in Scotland generally presumes that adults are capable of making personal decisions for themselves. The starting point is a presumption of capacity that can be overturned only if there is medical evidence to the contrary. The amendment appears to reverse that, with capacity to be proven, not assumed. I am not sure that Mr Balfour would support such an approach in other circumstances. Consistency with the principles and approach that we take in other areas is important, not least in reducing the risk of confusion but also in respecting the rights of individuals. Mr Balfour takes that enormously seriously and has a strong track record in defending such rights.

Given the complexity and finality of the decision in question, two doctors have to be satisfied that the ability to make the decision is not affected in any way. That is one of the essential safeguards and protections in the bill. Specifically, the bill sets out that, to have capacity to request an assisted death, the person must not be

“suffering from any mental disorder which might affect the making of the request”

and must be

“capable of—

(i) understanding information and advice about making the request,

(ii) making a decision to make the request,

(iii) communicating the decision,

(iv) understanding the decision, and

(v) retaining memory of the decision.”

That the person who wishes to access assisted dying fully understands the decision that they are making, in all its complexities, is therefore a precondition under the bill’s requirements. The bill adopts the established test for capacity that doctors currently apply, which is set out in mental health legislation, and applies it in the assisted dying context.

I note that amendments 146 and 147 appear to present alternative options. On amendment 147, I am not persuaded that capacity should be tied to the person’s reasons for seeking an assisted death, as provided for in the amendment. It could muddy the waters by introducing subjective elements to an objective process, which risks making it difficult for health professionals to carry out assessments. It also potentially discourages open conversations between doctors and their patients.

I support amendments 1, 2 and 3 in the name of Sandesh Gulhane and ask the committee to support them. I am on record as supporting a change in the minimum age of eligibility from 16 to 18. Members will be aware of why I set the age that is contained in the bill at 16. In the interests of time, I will not rehash those reasons.

First, I thank all members for setting out the rationale for their amendments. I have great sympathy with the motivation in every instance; I am particularly grateful to those who are opposed to the bill but who are seeking to strengthen it—in this case, in relation to eligibility.

I have not lodged any amendments in this group, but I will address those that have been lodged. I note that amendment 222, in the name of Pam Duncan-Glancy, is pre-empted by amendment 26 in the previous group on definition of terminal illness, and that amendments 2, 3 and 1 in the name of Sandesh Gulhane are direct alternatives to Claire Baker’s amendments 152, 168 and 215. I will return to those amendments shortly.

On Bob Doris’s amendments 83, 108, 119 and 97, for which he gave us a spoiler alert in the discussion on the previous group, I stated in relation to that group that I have concerns about adding a period of life expectancy to a terminal illness definition, and I have similar concerns about amending eligibility requirements so that someone must be

“reasonably expected to die within six months”.

I will not repeat what I have already said, but I note that the Australian Capital Territory, having learned from other states in Australia and elsewhere, has chosen not to set a fixed timeframe for eligibility. Instead, it requires that a person’s condition be

“advanced, progressive and expected to cause death”,

focusing on the reality of end of life rather than an arbitrary time limit. We see there the evidence of who is accessing this, and the point in their prognosis at which they are accessing it.

That is borne out by the research that the committee heard about by Professor Ben Colburn at the University of Glasgow, which should allay some of the concerns about disproportionate vulnerability or the extent to which those with a disability will access that choice.

I do not know whether Daniel Johnson wants to make a similar intervention on the back of that point. If so, I can try to address both interventions.

To some extent, we need to detach ourselves from the rationale for why somebody would seek to make a request of that nature—it would be very individual to that individual. We need to ensure that the safeguards protect the vulnerable. The safeguards would allow interventions to be made that, as I said to Sandesh Gulhane, are not being made at the moment. Therefore, they would make the situation for many with a terminal illness safer than it is at present.

I acknowledge the fact that there are jurisdictions that have prognostic periods in their legislation. I also acknowledge that, in many instances, those prognostic periods have gone through a review period that has presumably satisfied legislators that, whether they provide an additional safeguard or not, they are not inhibiting those who meet the eligibility criteria from accessing that choice. However, as I said, I also point to jurisdictions that do not have prognostic periods, the reasons why they do not and the evidence of who is accessing assisted dying in those jurisdictions, which bears out the point that it is very much those who are at the end of life and with advanced progressive—