Chamber and committees

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.

Will Bob Doris take an intervention?

I echo Brian Whittle’s comments on the Scottish Government’s engagement in the process. My conversations with the Scottish Government have been constructive throughout but, for the reasons that Brian Whittle indicates, notwithstanding its neutrality, there are issues about the operability of the legislation on which members across the Parliament would welcome the Scottish Government’s views—now, and certainly ahead of and during stage 3. That is important.

I will start by addressing my amendments, before I address the amendments that colleagues have lodged. My amendment 42 extends the section 21 offence to cover the day of death when the co-ordinating registered medical practitioner or authorised health professional provides the substance to the person. There is no change to the penalty that is set out in section 21(2). Amendment 43 is a drafting consequential.

Section 21 makes it an offence to coerce or pressure a terminally ill adult into making a first or second declaration. Amendment 42 adds a new offence of coercing or pressuring a terminally ill adult into the act of using an approved substance. The bill as introduced requires the co-ordinating registered medical practitioner or authorised health professional who is providing the substance to the person on the day of the intended assisted death to be satisfied that the person is not being coerced before providing the substance; however, coercion at that point is not covered by the offence in section 21. Therefore, the amendment ensures, in a situation in which a person has not been coerced or pressured into making a first or second declaration but is subsequently coerced into self-administering the substance, or if coercion is suspected on the day, that that is made an offence. If coercion is discovered after the terminally ill adult has died and it can be shown that the person was coerced into using the substance, the offence will remain prosecutable. That may also trigger a homicide investigation. The amendment will further strengthen the safeguards in the bill and bring it more closely in line with the Westminster bill as it stands.

Turning to the other amendments in the group, on Pam Duncan-Glancy’s amendments 220 and 223, I am content that my bill has safeguards in place to ensure that a person who is seeking an assisted death has not been unduly influenced. I am also concerned that her amendments may make doctors hesitant about discussing assisted dying with their patients, thereby limiting the information that is available. I note that the British Medical Association has been unequivocal on that, stating:

“Doctors should be able to talk to patients about all reasonable and legally available options; a provision that limits or hinders open discussion about any aspect of death and dying is likely to be detrimental to patient care.”

On amendments 237 and 238, my bill provides that the co-ordinating registered medical professional’s statement must set out that the person made the declaration voluntarily and is not being coerced or pressured by any other person into making those decisions. I am not convinced that there would be value in adding another similar statement.

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 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.

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 am saying that there is plenty of scope in the bill for instructing or requiring ministers to introduce secondary legislation, and for them to work with healthcare and other relevant stakeholders in doing so, and for requiring professional bodies and others to introduce guidance. I think that the public and we as parliamentarians would expect that to take place in a timely fashion and allow the bill to proceed. I would be reluctant to link the provisions, as set out in amendment 128, to commencement of the bill.

I will give way—very briefly—to Bob Doris.

This is probably more a question for the representatives of the fishing sector, but I will not be here for the session with that panel, so I will chuck it in now.

With regard to the discussions that Phil Taylor and Calum Duncan mentioned, to what extent is there an understanding of the likely impact of displacement of effort on other areas? If there is a displacement, there will be increased effort in those areas, albeit that they might be better able to sustain such activity. Phil or Calum, would you like to address that?