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—

I will in a second, Mr Balfour. The assumption is that, in those jurisdictions, when someone receives a terminal diagnosis, the immediate reaction is to seek to make the choice of an assisted death. That is simply not borne out by the evidence of who is accessing it, when they are accessing it and for what reasons.

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.

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.

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.

I will turn to Claire Baker’s amendments shortly. I fully understand her point. It is problematic in that it could open up the prospect of raising the age at which we allow a whole host of things to happen and for capacity to be assumed in young adults, to a level that I think we would find it difficult to justify in other areas. There are other ways of addressing some of the concerns that Claire Baker has raised, which I will come to in a second.

A point has been made by Claire Baker, and Sandesh Gulhane has also made his point. I support the age being raised to 18 and urge the committee to do likewise.

On the age threshold that Claire Baker proposes, which was pre-empted by Daniel Johnson’s earlier intervention, I am not persuaded by the case that has been made to raise the age to 25, as provided for in amendments 152, 168 and 215. In other jurisdictions with similar legislation, 18 is typically the age at which someone becomes eligible. During stage 1 evidence, many of the witnesses appeared to consider 18 as the appropriate age of eligibility. Claire Baker has clearly set out the Sentencing Council’s views and I am conscious of Children’s Hospices Across Scotland’s concerns, following my interactions with the charity over the past few years on issues pertaining to young adults who are under the age of 25. I believe that those issues will be better addressed through training, which we will discuss in subsequent groups, and by ensuring the involvement of relevant medical and other professionals. Again, those provisions are contained in other amendments.

I urge the committee to back the amendments in the name of Sandesh Gulhane, and I encourage Claire Baker not to press her amendments to a vote.

I appreciate Mr McMillan’s setting out the rationale for his amendments, which do not come as a surprise, as he and others have raised the issue before. Does he accept the points that Bob Doris made about the guidance from the GMC, which includes a firmly established process for assessing coercion? We need to make sure that the bill aligns with that. I believe that it does, but if further work needs to be done to allow that to happen, I am happy to take that forward.

Adopting a different approach is likely only to create uncertainty and confusion and to make prosecutions of offences more problematic. That is not in the interests of patients, their families or the health professionals who we are asking to operate the system.

I thank Brian Whittle for that further clarification. From the discussions that I have had with him, I understand his motivation, which is entirely constructive in intent. My concern is still that that process is likely to delay any decision being taken forward and to allow opportunities for family members—who, as he rightly says, might have their own strong views—to express their views on the decision that the individual is proposing to take. In relation to coercion, during stage 1 evidence, the committee heard from witnesses in Australia that, almost without exception, coercion is applied in trying to influence an individual out of making the decision. Unfortunately, the process—however well-motivated it may be—runs the risk of allowing that to be given effect. I do not think that that is in the interests of the patient, their family members or health professionals more generally. Again, I am happy to work with Brian Whittle to see whether there are ways to tease that out further ahead of stage 3.

I turn to Stuart McMillan’s amendments 216 and 217—I recognise that I am speaking before he has had a chance to present them, so I will bear that in mind and invite him to come in if needs be. Other amendments also seek to define “coercion” and “pressure”. My understanding is that the terms are well understood, both in the medical profession and by the courts, and do not require definition in the bill. The committee heard at stage 1 about the existence of guidance from the General Medical Council on the issue of coercion. There appeared to be general consensus among expert witnesses—and it was acknowledged in the committee’s stage 1 report—that cases of explicit coercive behaviour should be relatively straightforward to detect. However, I recognise some of the issues that have been raised in the context of these amendments. As I said in response to Bob Doris’s intervention, my bill is consistent with the GMC guidance. If more needs to be done in that area, I am happy to work on that ahead of stage 3.

Of course, there might be cases that are not straightforward, which is why the bill also allows for the Scottish ministers to prepare and publish guidance on such matters. That is also why I have lodged amendments to allow ministers to regulate for the training that a “coordinating registered medical practitioner” and an “independent registered medical practitioner” should have in order to fulfil those roles. Those powers would be in addition to those that are already given to ministers under the bill to regulate for qualifications and experience. On that basis, I encourage Mr McMillan not to move his amendments, and, if he does, I encourage the committee not to support them.

Again, I reject the reference to “assisted suicide”. We can have a debate at another point about the difference between the mental state of someone who is seeking to take their own life and someone with a terminal illness who is seeking to take control over that process.

What I have said, and what is set out in the bill as it stands, is that this relates to someone with an “advanced and progressive” condition. Although I understand the argument for setting a prognostic timeframe—and I welcome the fact that we are having this debate—the committee concluded from the evidence that it took that doing so would be problematic. On that basis, I do not support the amendments on that, and I urge Bob Doris not to press them.

On amendments 145 and 207 by Brian Whittle and amendments 25, 30 and 31 by Rhoda Grant, I fully support the principle of a terminally ill adult having available information and options explained to them and having in place appropriate care plans—including for palliative care, where appropriate—if they wish. That is why section 7(1) would require the assessing doctors to explain and discuss the person’s diagnosis and prognosis, available treatment, palliative and other care options, and the assisted dying process and the substance that would be used. It is also why I lodged amendment 29, which aims to ensure that palliative care discussions include available hospice care, symptom management and psychological support.

As Sandesh Gulhane suggested in his intervention, greater use of advance care plans would be welcome and would help to increase the likelihood of people having their wishes respected, but it is important that such plans remain voluntary. I am therefore not supportive of adding to the eligibility criteria in the ways that are proposed in the amendments, which would include a person having an anticipatory care plan or a palliative care plan in place. Doing so would risk adding a barrier to a terminally ill adult who is otherwise deemed eligible being able to access assistance because, for example, they did not want such a plan or did not wish to have palliative care, which can be a matter of personal choice.