Chamber and committees

I thank Mr Balfour for setting out the rationale for his position. I also thank the committee for the extensive scrutiny that it has undertaken throughout stage 1 and stage 2.

The stage 1 scrutiny included evidence on the bill’s protections for vulnerable groups in the context of the right to life under the European convention on human rights and the rights in the UN Convention on the Rights of People with Disabilities, including article 12.

At stage 2, close to 300 amendments have been lodged, aimed at further strengthening the carefully considered safeguards in the bill. In the interest of time, I will not reprise those.

Stage 2 amendments relating to age, capacity, detection of coercion and palliative care have all already been debated, and many are still to be considered. An amendment raising the age limit for requesting an assisted death from 16 to 18 has already been agreed to. So, too, was my amendment to include a for-the-avoidance-of-doubt provision that no one can be considered as meeting the terminally ill definition only because they have a disability or a mental disorder.

Turning to the question of coercion, I point the committee to the part of the policy memorandum relating to equalities and the human rights issue. Paragraph 99 states:

“There have been various cases brought before the European Court of Human Rights ... arguing that the prohibition or lack of availability of assisted dying is a breach of the ECHR. Whilst these cases have not been upheld, the”

Court

“has not stated that assisted dying is either compatible or incompatible with the ECHR. The approach of the”

Court

“to date has been to recognise that countries/jurisdictions are better placed than the Court to decide on nationally sensitive issues (this is known as the ‘margin of appreciation’).”

I also remind members that I completed an equalities impact assessment for the bill, which was sent to the committee and is available on the bill’s web page.

Furthermore, extensive written and oral evidence was received at stage 1 on issues relating to people with a disability, which is reflected in the committee’s stage 1 report. I have also previously cited research by Dr Ben Colburn and others that concludes:

“1. People with disabilities are not generally opposed to assisted dying laws.

2. Assisted dying laws do not harm people with disabilities.

3. Assisted dying laws do not show disrespect for people with disabilities.

4. Assisted dying laws don’t damage healthcare for people with disabilities.”

On the issue of coercion that Mr Balfour raises, I refer members to my response to the chief executive of the Scottish Partnership for Palliative Care, which was copied to MSPs last week—again, that is a matter of record. It makes it clear that my intention and, indeed, understanding is that doctors will use the full extent of the General Medical Council guidance and relevant training and experience when making assessments. I therefore believe that the bill is consistent with other relevant legislation, and with professional practice. It ensures that safeguards remain robust, clear and enforceable, while allowing professional guidance to continue to support clinicians in identifying more subtle or indirect influences in practice.

Amendments to further refine the definition of “coercion” in the bill have been and will be debated and decided on by the committee. I believe, however, that the terms “coercion” and “pressure” are well understood. Indeed, I note that the Scottish Government commented that providing a definition of coercion that brings in broader internalised pressures could have the opposite effect and create uncertainty.

I endorse the role of the UN Committee on the Rights of Persons with Disabilities in monitoring the practical application of national legislation in the context of the convention. However, Mr Balfour’s proposal that a final vote at stage 3 not take place until the UN committee has certified that the bill aligns with the convention would not only interfere with decisions taken by this committee at stage 2 but pre-empt the legitimate scrutiny process of this Parliament, the remainder of stage 2 and the amending part of stage 3, which is still to come. It would not be appropriate to seek to interfere with the legitimate processes of this Parliament, including the lengthy and thorough scrutiny process at stage 1, which resulted in the Parliament agreeing to the general principles of the bill. Mr Balfour would still be free to engage with the UN committee, but I believe that this committee, Parliament and the public can have confidence in the robust process of scrutiny being applied to the bill.

The disadvantage of speaking to my amendment, and the others, at this point is that I am doing so before I have had the opportunity to hear Mr Doris set out the rationale for his own amendment.

I have misgivings about the way in which Mr Doris’s amendment 125 is phrased, but I do recognise the point that he makes—and, indeed, which has been made in the range of amendments lodged in this area. The bill would benefit from further clarification in relation to those points. I am not sure that that clarification has been captured in any of the amendments that have been lodged, albeit that they have led to this discussion. I hope that we can address those concerns ahead of stage 3.

On Stuart McMillan’s amendment 187, the bill provides for Scottish ministers to regulate for the use of an approved substance and requires ministers to consult ahead of any regulations being laid. I fully expect such consultation to include the chief medical officer. The regulating power would also allow Scottish ministers, if appropriate, to regulate to remove a substance from the approved list. Therefore, I do not believe that amendment 187 is needed. I would also acknowledge the Government’s view that it is normally for the Medicines and Healthcare products Regulatory Agency

“to advise on the suitability, safety, side effects, quality, efficacy, ... dose, full product life cycle, and post licensing review ... of drugs licensed for a purpose.”

Finally, in relation to Patrick Harvie’s amendments 127 and 137 on safe access zones, I am conscious that I have not heard him speak to his amendments, but I do understand his rationale for lodging them, not least in light of legislation that this Parliament has recently passed. The purpose of that legislation—that is, the Abortion Services (Safe Access Zones) (Scotland) Act 2024—is to designate zones to protect patients and staff from activities that cause distress and intimidation. Given the sensitivities surrounding the debate on assisted dying, I understand the need to ensure that those who seek assistance and those who provide it are not subject to harassment and intimidation.

The amendments would allow, but not require, ministers to regulate for

“safe access zones for premises in which assistance may be provided”.

That is important, because the issue will need careful reflection and consideration, given that assistance might be provided in, for example, a person’s home. That alone would make requiring such zones to be established problematic. The Scottish Government appears to agree with that point, further noting that

“There are existing laws in place which would provide some protection”.

I do not believe that the provisions in amendments 127 and 137 are necessary, although I would observe that the proposed five-year review of the act would allow the issue to be revisited at a later date and with a clearer understanding of the experience in practice. It is worth acknowledging that such issues do not seem to be a feature in other jurisdictions where assisted dying laws are in place. However, as I have said, I am conscious that I am commenting on amendments that I have not heard the member speak to, and I will listen with interest to what he has to say.

Bob Doris is right that this is a very sensitive area. There is an understandable desire for as much clarity as possible. Does he accept that, at present, the guidance that is in place to medical professionals in relation to such situations is about making the patient as comfortable as possible? He is certainly right that the application of any additional substance is not what would be expected. However, the provisions in the guidance that exists at the moment would cover the situation adequately. There is a risk in putting that sort of detail in the bill—that has not been done in any other instance.

I remind Mr Doris and the committee that section 7(1)(a) of the bill would require the registered medical practitioner to assess, among other things,

“(i) the person’s diagnosis and prognosis,

(ii) any treatment available and the likely impact of it on the person’s terminal illness,

(iii) any palliative or other care available,

(iv) the nature of the substance that might be provided to assist the person to end their own life”

and, in section 7(1)(b), to inform the person

“(i) of the further steps that must be taken before the lawful provision of assistance”.

There is a lot of detail there already. I appreciate that the member and others might wish to see more, but those provisions are in the bill as introduced.

I thank all colleagues for their contributions. To touch on the points that Brian Whittle has just made, I certainly understand his intent. However, for reasons that other colleagues have flagged up, I think that, as currently drafted, amendments 155 and 196 are perhaps problematic. I reiterate the offer to work with Brian Whittle ahead of stage 3, but I also point to the General Medical Council guidance, which already sets out strict provisions in relation to undue influence of one practitioner over another. It is an area on which I am happy to work with Mr Whittle ahead of stage 3.

The exchanges so far this morning have underscored the crucial importance of training. I note, with perhaps a little regret, that I did not foresee that and put it in the bill in the first instance. The debate has highlighted the importance of such training to specific groups, whether that be people in the disability community, as Pam Duncan-Glancy referred to, or people under 25, as Daniel Johnson referred to on behalf of Jackie Baillie, as well as specific training and understanding in areas such as palliative care and coercive controlling behaviour.

In a sense, the Parliament has had an opportunity to set out its expectations on what the training would involve. For the reasons that Sandesh Gulhane underlined, there are risks in putting such provisions in the bill instead of allowing them to rest in secondary legislation or, more likely, in guidance, which is where such provisions sit at the moment.

Will the member take an intervention?

I get Daniel Johnson’s point that the process of discussion needs to be meaningful and the options have to be laid out and comprehensible. He made the point previously that, sometimes, the way in which medical professionals engage with patients does not necessarily leave them as well informed as they might be about the nature of the options and what the implications are.

The richness of those discussions is important, and I am happy to consider whether more can be done. However, I think that, ultimately, that will still rest on a patient-centred approach that must give primacy to the desire, the will and the choice of the patient in relation to how they wish to proceed.

To be clear, as Miles Briggs helpfully indicated, this is a feature of the legislation that is being taken forward at Westminster and in Jersey and the Isle of Man and it is my intention and expectation that it will also apply to this bill.

I have some concerns about passing amendments at this stage while there are on-going discussions between the UK and Scottish Governments in relation to areas of legislative competence. This will have to be a feature of any legislation that is finally passed by Parliament but, at this stage, I urge the members who lodged the amendments not to press them but to be reassured that we can return to the issue at stage 3.

This group also contains amendments that seek to allow organisations to opt out of the process. Daniel Johnson’s amendment 16 would extend the conscientious objection provision to care homes and hospices, therefore introducing an organisational conscientious objection, rather than having the conscientious objection provision limited to individuals, as it is in the bill at present. Amendment 20 would add a no-detriment clause to the effect that a care home or hospice that opts out as per amendment 16—and in line with the general no-detriment provision for individuals and organisations in amendment 11—

“must not be subject to any detriment by a public authority as a result”

and would provide that no funding of a care home or hospice can be dependent on it providing or permitting assisted dying.

With regard to amendment 16, I refer to my amendments to remove the conscientious objection element and replace it with a broader no-duty-to-participate provision. My amendments to section 18 would mean that no individual was under any duty to participate directly in anything that was authorised by the act. There would be no obligation to claim or demonstrate a conscientious objection; not wishing to participate for any reason would be sufficient.

As I have stated, I have significant concerns about establishing an organisational opt-out. As I told the committee at stage 1, with such an opt-out, although an organisation might well include individuals who are willing to participate in the process, it ceases to be about individual choice. The risk, too, is that barriers are put in place to individuals who, despite meeting all the eligibility criteria and being protected by the safeguards that are in place, find that they are not able to access that choice as a result of an institutional opt-out. We have seen that happen in other jurisdictions, and it has proved extremely problematic. I must say that it also cuts across the patient-centred principles and ethos at the heart of palliative and hospice care.

Likewise, for Jackie Baillie’s amendments 52 and 60, I support the principle of a no-duty-to-participate provision for individuals, but I am not supportive of extending that to permit organisations to decide whether to participate. Establishing such an organisational choice could act as a significant barrier to a person being able to access assistance under the act. The potential effect of the amendments would be that a person in a particular care home or hospice would need to be moved to other premises in order to access the assistance that they wish, at the most inappropriate of times. Some of the testimonies that are set out in the Dignity in Dying briefing for today’s proceedings are certainly worth reading in that context.

It is not to say, however, that hospices should not be given flexibility in the way that they engage with the provisions of the legislation, as we see in other jurisdictions. However, my position remains that an individual can decide not to take part for any reason, but if a registered medical practitioner and other relevant health and social care staff are willing and able to participate, the fact that the terminally ill adult resides in a particular setting should not prevent them from accessing assistance, if eligible.

I note that amendment 190 pre-empts amendment 40 and amendment 41 pre-empts amendment 191. I turn to Jeremy Balfour’s amendments 190 to 193 and 211. Regarding amendment 190, my amendments to section 18 reframe the section by replacing the reliance on a CO with a wider no-duty provision, so that no person is under any duty to participate directly in anything authorised by the act. Amendment 190 would amend the existing CO provision too broadly, in my view, by referring to a person facilitating

“in any way, anything authorised”

by the act. I note that the British Medical Association, when addressing similar amendments in the Westminster bill, reinforced the need to

“ensure that the doctor’s views are respected, whilst also ... ensuring that patients can easily access the information and support they need.”

Amendment 190 could exclude patients from accessing their crucial right to information, which I note that Mr Balfour would not wish to see.

Amendment 191 would move the burden of proof away from existing legal precedent. It is also not necessary, as, if a decision is made to move to a wider no-duty provision, such a provision will not be required in any event. I have lodged an amendment to remove that subsection from the bill, subject to further discussion and considerations, including with the cabinet secretary, ahead of stage 3.

Amendment 192 is another no-detriment amendment. As I have said, I am sympathetic but, given the amendments that I have lodged to section 18 and the further considerations that might be required ahead of stage 3, I ask the member not to press it.

Amendment 193 and consequential amendment 211 also seek to establish a form of institutional objection, as does Stuart McMillan’s amendment 249. I have made it clear why I do not support such an approach. I urge members not to press those amendments and the committee not to support them.

Taking a blanket approach has superficial attractions, but I am not sure that it would necessarily be as effective. I will go on to explain the intent behind the amendments that I have lodged, which I hope will significantly bridge some of the gaps—if not all of them—between where I am and where Mr Doris is at the moment. I am happy to continue working with him ahead of stage 3, to see whether we can bridge the final short spans.

The convener intimated that the Scottish Government has raised concerns in relation to the burden that Mr MacGregor’s amendments would place on local authorities—that seemed to be the implication in the questions that she was asking—and I do not think that that burden would necessarily improve or strengthen the safeguards that are already in the bill. The assessment process allows assessing registered medical practitioners to refer any doubts on matters of capacity to psychiatry specialists or those who otherwise hold qualifications or have experience in the assessment.

Thank you, convener. I start with an apology that my remarks are, again, going to be on the lengthy side. Again, it is a reflection of the fact that I want to do justice to the amendments in the group. I thank Miles Briggs for helpfully setting out the rationale for his amendments and the case for an opt-in model; that has always been my intention and I think that my amendments in the group reinforce that.

Amendments 39 to 41 amend the current conscientious objection provision in the bill to broaden it out and ensure that no person is under any duty to directly participate in anything that is authorised by the bill. That provision is broader than the conscientious objection provision, as a person no longer needs to claim a conscientious objection to participating but can decide not to directly participate for any reason.

My original policy intention was to include a conscientious objection provision similar to that provided in abortion law, so that health professionals would not be under a duty to participate in the provision of assisted dying if they had a conscientious objection to doing so. It has always been my intention that no health professional would be expected to participate if they did not wish to, and this approach should cover anyone who is directly and actively involved in the process—by which I mean anyone carrying out functions in the process as set out in the bill’s provisions.

Following stage 1, I have reflected carefully on how best to ensure that the bill fully reflects my intended policy, and I have concluded that, to simplify the matter further, the bill, instead of relying on a CO provision, should allow anyone carrying out such functions to not participate directly for any reason, thus ensuring that only those who are content to participate directly do so. That will have implications for overall training need, thereby reducing some of the cost issues that have been raised by the Scottish Government.

Amendment 39, which adds the word “directly” after “participate”, is in line with my view that there should be no blanket provision that would allow any person, however peripherally involved in some aspect of the wider process, to be able to not perform their role. Instead, it is intended to ensure that the provision is focused on those people who are directly involved—for example, the independent registered medical practitioner or the authorised health professional, who might be approached by the co-ordinating registered medical practitioner to undertake the duties under sections 6 and 15. Amendments 39, 40 and 41 enable a debate to be had on the pros, cons and potential consequences of a change from CO to only those directly participating who are willing to do so.

On amendment 27, it has always been my policy that a person first seeking assistance should be directed to another medical professional if the medical professional whom they first approach does not wish or is unable to perform the role of co-ordinating registered medical practitioner. My understanding is that such signposting already takes place in healthcare settings and, therefore, it was not specifically provided for in the bill as introduced. On reflection, however, I have decided to lodge amendment 27 to ensure that someone seeking an assisted death is either directed towards a registered medical practitioner who is willing and able to participate, or given further information on how to proceed.

That will not require formal referral of the person to a specific registered medical practitioner, but it will require a registered medical practitioner who is approached by a terminally ill adult looking to make a first declaration and who is unwilling or unable to participate to signpost the person to where they can receive information on how to proceed and/or where they can make a first declaration. That might involve, for example, a GP at a medical practice directing a person to another GP at the practice who is willing to participate in assisted dying provision. In later groupings, we will have a chance to consider amendments on the provision of information.

As for other amendments in this group, amendments 151, 154, 186, 198 and 213, in the name of Miles Briggs, form part of the debate on how best to provide for health professionals in deciding whether they wish to participate directly in the provision of assistance. Indeed, we have heard as much from Mr Briggs himself. At the heart of the amendments is a requirement for

“Scottish ministers, by regulations,”

to

“establish and to maintain a register of persons willing to carry out functions under this Act of ... a co-ordinating registered medical practitioner ... an independent registered medical practitioner ... an authorised health professional”

and

“a registered pharmacist ... supplying”

the

“substance.”

I considered such an approach when I was originally looking at how best to proceed on the issue and came to the view that the establishment of such a register was not necessary. In practice, it is, as has been seen in other jurisdictions, likely that such registers will form part of the information that is held in each health board, and nothing in the bill at the present time will prevent that from happening. However, I am not persuaded that mandating the establishment and maintenance of a central register and requiring individuals to notify Scottish ministers of their willingness to participate is appropriate or proportionate.

That said, I again pay tribute to Miles Briggs for the way in which he has engaged with me on these and, indeed, other issues, particularly around palliative care. I am keen to continue working with him to see how the bill might be further strengthened, and I thank him for the constructive approach that he has taken throughout, not just with me but with other colleagues.

On related amendments that were lodged by the equally constructive Jackie Baillie, and which are being spoken to by the ever-constructive Daniel Johnson, amendments 74 and 80 to 82 relate to the establishment of a register of psychiatrists who can undertake assessments, as set out in the bill. The amendments provide that psychiatrists may apply to be on the register and, to do so, must be approved medical practitioners or must

“meet criteria specified by the Scottish Ministers in regulations”.

I recognise Ms Baillie’s work with the Royal College of Psychiatrists on those provisions.

It is important that the assessing registered medical practitioners are able to seek input from specialists when assessing capacity, which is why the bill provides for that in section 7(2)(b). That provision allows for such referrals to be made by either assessing doctor to

“a registered medical practitioner who is registered in the specialism of psychiatry”

or who

“holds qualifications or has experience in the assessment of capacity”.

Section 7(2)(c) provides that the views of such specialists must be taken into account by the assessing doctors. I firmly believe that such specialists will be capable of assessing the capacity of an individual for the purposes of the bill without any need for the creation of a new register, just as currently takes place in other matters of determining capacity.

Section 3(2) sets out the capacity requirements for a person to be judged as eligible to request assistance. I note that the Scottish Government has highlighted legal and technical concerns, and deliverability challenges, with the amendments, which, on balance, I do not believe to be necessary.

Amendment 74 would be pre-empted by amendment 159 in the group dealing with the assessment of terminally ill adults. Several amendments in that group are concerned with the issue of providing for variations of a no-detriment provision to ensure that no person suffers any detriment as a result of a decision on whether to participate, as Miles Briggs explained. Those amendments include Daniel Johnson’s amendment 11, Jeremy Balfour’s amendment 192, Paul Sweeney’s amendment 248 and Miles Briggs’s amendment 194, which establishes

“Employment and partnership protection (for involvement or non-participation)”.

Employers

“must ensure that there is no employment detriment to their employee”

for actually, or potentially, participating, or not participating, in the act. As I have stated, it is important that those who do not wish to participate directly in the process are protected and I support the principle of individuals suffering no detriment.

I note that the Scottish Government has indicated that such amendments may relate to the reserved matter of employment rights and duties and industrial relations. As I have previously said, I am aware that the Scottish Government is working with the UK Government to ensure the full operation of the bill, should it be passed. The Scottish Government will consider the effect that this amendment and others might have on current engagement with its UK Government counterparts and I hope that the cabinet secretary will continue keeping the committee informed about those discussions. In the meantime, Parliament might wish to return to and address the issue when further amendments are addressed at stage 3.