Chamber and committees

It is worth bearing in mind that this is a sensitive issue that needs careful and sensitive handling. From the outset, I was very conscious that I did not want to use the bill as a mechanism to push the boundaries of constitutional arrangements, so, as Ms Bennett has articulated, I have operated in that framework. I am very confident that the mechanisms to resolve those issues exist. Given that a very similar bill is going through the Westminster Parliament, coincidentally at the same time as the bill that we are considering, I think that that enhances the opportunities to ensure that relatively speedy progress can be made in this area once the Scottish Parliament decides whether it is supportive of the general principles, in support of a change in the law.

In response to your question about the doctors being two GPs in the same practice, that would not be permitted. The doctors need to act independently of each other, and one of them must have had no prior relationship with the patient themselves. The second doctor will have the medical notes, but they will carry out their assessment of terminal illness and mental capacity.

Dr Ward, did you want to add anything?

I am minded to reflect on the advice of the chief medical officers from across the UK about those who engage in this debate praying in aid patient experience from other jurisdictions but doing so without the consent of those patients and without necessarily knowing the full facts about what happened.

The bill has pretty robust protections regarding how the request and any assessments will be made. When those eligibility criteria are not met, the process will cease. It would still be possible for any patient who was deemed ineligible to access assisted dying to go to another medic and seek another opinion, but it is not immediately obvious why another medic would automatically come to a different opinion.

We have seen examples in other jurisdictions of what happens to those who are found not to be eligible. That does not stop them making an application, but the safeguards do what they are supposed to do, which is to prevent the patient from accessing the available services. That may be because they do not have capacity or because their terminal illness does not meet the requirements of the legislation. The safeguards in those countries do not stop someone making an application but should prevent them from being able to proceed with it.

We trust our medical professionals to make many life-altering or even life-ending decisions, and we ensure that they have the training to make the decisions that they must make. In this instance, we will require a second medical practitioner to make assessments, too. Ultimately, if the bill were put in place, it would be the most heavily safeguarded end-of-life choice available.

I definitely have that poacher-turned-gamekeeper feeling at the moment. I have sat where you are on many occasions, Mr Sweeney, and made precisely that argument—usually to Government ministers—about the importance of putting certain things in the bill.

I think that a balance needs to be struck. As I said in answer to earlier questions, I absolutely understand the desire to have as much clarity as possible about how the process would work. I do not think that it is in anybody’s interest to put things in the bill that would require to be changed by primary legislation if emerging evidence suggested that change was needed. That is why, through the explanatory notes and the policy memorandum, I have tried to flesh out the details as best I can. A lot of the detail sits more appropriately in either secondary legislation or, as I said earlier, in guidance, because that would allow the understanding of medicine, which is developing at pace, to be factored into how the bill would operate in practice.

No. As I said, the model was built on the assessment of take-up and the associated costs. I understand that the Scottish Government has taken a different approach to the modelling, which probably inevitably results in a far higher cost. However, as I said to the finance committee, the approach that we took to the financial memorandum was a reasonable attempt to assess those costs. I think that the finance committee also applied a degree of pressure on me to estimate the savings that would be made. As I said to that committee, that would be an even more precarious assessment to make, given that that would depend very much on who was accessing assisted dying and the point in their terminal illness at which they accessed it.

I think that it is a reasonable estimate of the financial costs, and I point to the fact that, broadly, the measure would be cost neutral, recognising that those who would access assisted dying are in receipt of treatment and care at the moment.

I was intrigued by that evidence. To some extent, it begs the question whether Police Scotland has the same concerns around double effect, palliative sedation, withdrawal of treatment and other treatments that are legal at the moment. The proposal that is set out in my bill would put in place, as I have said, the most rigorous and robustly regulated end-of-life choice that there is. The assessments around coercion and capacity are as robust as they can be, requiring not just one but two medical practitioners.

In response to the question, I would be interested to know whether Police Scotland has the same concerns in relation to what is legal at present, where there is just as much scope for complaints or legal challenges to be made. In comparison, my proposed system would be far more transparent, with the views of the patient absolutely at the centre and, if there were any concern among the doctors or if there were an onward referral to a specialist, the process would come to a halt. That would provide greater protection not just for the patient but for medics, who, as I said, seem to be put in a fairly invidious position in the choices that they are having to make.

As I say, all treatment and care options need to be discussed for there to be an informed decision. The rationale—that is, the reasons behind the individual coming to their decision—needs to be understood, but it needs to be an informed decision, and it can only be an informed decision where there is an understanding of the various options that are available. Those options would not stop at palliative care but would include social care, and there would be other factors that play on the lived experience of the individual.

Through the process that I propose to put in place, the discussions that would happen would provide safeguards that are not in place at present, for situations in which it is felt that an individual’s care needs are not being met. If an individual made a request of that nature, I am fairly sure that the co-ordinating medical professional would go to some lengths to ensure that those issues were addressed. In a sense, the safeguards that my bill would put in place do not exist at the moment.

As I said, if we do not pass the legislation, there is a risk that the status quo would continue to have outcomes that we, as a society, should not accept. Although the amendment that you are suggesting would probably be competent in the context of the bill, the issue would be better addressed by the requirement under section 7 of the bill that I have introduced, which requires the care options to be discussed and steps to be taken where medics feel that other support is necessary and can be put in place. That assessment will change over time; an original assessment of those options might well be accurate, but over the period of a terminal illness, other options, which were not necessarily considered at the outset, might be deemed to be more appropriate.

There would be an expectation, as there is with the way that conscientious objection works for abortion, for the medical professional to refer the patient on to somebody who can provide support. That is an important principle in the delivery of health and care services. It protects that choice on the part of the practitioner but does not put up unreasonable barriers to patients accessing the choice that they should have to get the support and treatment that they feel that they need.

Given the process that would be gone through before that point, there would be a fairly high degree of reassurance about intent and whether there was any coercion. If there was coercion, that would obviously bring the process to a halt. Those safeguards need to be seen as relevant to the point at which the medication is delivered and the assessment of intent and capacity is made.

I was interested to hear those concerns. I am not necessarily sure that the patient’s wish for a degree of privacy and discretion at the end of their life is something that we would want to see denied, but I am happy to look at any further clarifications that might be helpful in that regard.

As with capacity, the assessment in relation to coercion is made routinely by medical professionals, albeit in other contexts but still relating to treatment and care options. There is probably an argument for adapting the training that medics receive to reflect the context in which those assessments would be undertaken. However, the General Medical Council has set out very clear guidance on how to assess whether coercion is taking place. It has also set out very clear guidance on assessing domestic abuse and controlling or coercive behaviour.

Therefore, guidance is already in place, but I accept that it might need to be reviewed and an assessment made of whether changes are required, given the change in the law that the bill would introduce. However, I am fairly confident that an assessment of whether there is coercion can be made.

I would also observe that, at the moment, the point at which we assess whether coercion was involved happens post-mortem. We know that those who are facing what they feel is a bad and undignified death often take matters into their own hands. There might well be other instances in which coercion is at play, but, because the individual patient cannot have that conversation with their medic or other family members when there is coercion, that information does not emerge and the conversations do not happen. Information might emerge only after somebody has taken their own life.

I understand the concern about coercion, but my bill will put in place protections that currently do not exist for many people who are in a very vulnerable state near the end of their life.