Chamber and committees

There is an issue with the amendment not referring to both roles. However, my principal concern is about how appropriate it would be to put that level of detail in the bill, as opposed to requiring through guidance that those aspects be incorporated into training to ensure that those who participate in the process are aware of the issues that Pam Duncan-Glancy has quite rightly raised.

I welcome that point from Brian Whittle. It goes to the heart of a lot of this. It is why so much discussion around palliative and hospice care has happened alongside the consideration of the bill. Although I have always taken the view that that issue cannot be resolved through the provisions of the bill, the bill has opened up a debate about the current situation. The quality of palliative care generally is seen to be very good across most specialisms, but I think that we would all acknowledge that access can be patchy, particularly in certain parts of the country.

Nevertheless, the process opens up a discussion that is not happening at the moment. It is about providing protections for those who are not necessarily protected as well as we might wish them to be or think that they are. Therefore, when the medical professional has concerns that the option that the individual would prefer is not available, there is an opportunity to take steps to try to address that, which is what the process seeks to achieve.

I now turn to Mr Doris’s amendments 117, 121, 122, 123 and 135. The bill requires the assessing doctors to make a statement recording that the person assessed is terminally ill, eligible for assistance to be provided and making the decision voluntarily. The forms are set out in schedule 3 and must be signed and dated by the assessing RMP and recorded in the person’s medical records. The form captures the required information resulting from the assessment process and allows a person to make a second declaration for assistance to be provided if they wish. If either registered medical professional is not satisfied and does not complete the assessment form, the process stops. I therefore believe that the reports provided for in the amendments are unnecessary, as all required and relevant information will already have been captured. I am happy to work with Mr Doris to see whether any additional information might usefully be captured.

I am grateful to Mr Balfour for taking an intervention. I draw a parallel with established practice in the way that conscientious objection works in the area of abortion, where there is no requirement for a practitioner to participate but there is an expectation of a referral or a signpost on, so that a patient is not left with no option whatsoever. There is a duty on medical practitioners, whatever their views, to ensure that their patients get the support that they need. The no-duty provision makes it far clearer that there is no expectation on a practitioner to participate. The BMA has raised issues in relation to the specific understanding of “referral”, which is why amendments refer to signposting. However, whether it is referral or signposting, is that not a reasonable way of respecting the rights and choices of medical practitioners, while ensuring that patients do not come up against a brick wall when they are looking for choice, often at a very vulnerable point in their lives?

I appreciate Mr Doris’s point. If additional information could usefully be added to the process, I am happy to consider it. In relation to schedule 2, a practitioner would already need to be satisfied that quite a lot of details had been met before those forms were signed.

Stuart McMillan’s amendment 117A amends Bob Doris’s amendment 117 and states that, if a report under Mr Doris’s amendment sets out why a statement has not been made,

“no registered medical practitioner may carry out an assessment in relation to the same request before the end of the period of six months beginning with the day the report is recorded in the patient’s medical records.”

I cannot support the amendment, which appears to be arbitrary and disproportionate and does not appear to take account of the potential for circumstances to change.

I now turn to Jackie Baillie’s amendments 50, 51, 58 and 59. Amendment 51 would require both assessing doctors, if the person being assessed was under 25, to refer the person to a social worker and a psychiatrist and to take account of their specialist opinions. The amendment would also allow Scottish ministers to make regulations on any qualifications that the social worker or psychiatrist must have, and it would provide that the regulations must be consulted on. Amendment 59 would requires the first regulations made to be subject to the affirmative procedure, and amendment 58 would require subsequent regulations to be made under the negative procedure. Amendment 50 would add to section 6 the requirement that the assessing doctors carry out the steps that are set out in amendment 51.

I note the Scottish Government’s concerns regarding the potential time commitment for practitioners and the risk of creating barriers to access for individuals in the affected groups, which could potentially result in delays or inequitable access. Daniel Johnson sought to address that in his remarks, but I think that it would still be a matter of concern. As I have said, the way in which the process will work for younger adults, who are likely to be living with, or who have been living with, complex conditions for some time—this was set out very well by Mr Johnson—will reflect that complexity and will invariably involve a wider range of medical and other professionals, who, in turn, will require the appropriate training. A separately established and distinct process might be seen as arbitrary and open to challenge, so it might be better to set out in the relevant guidance what Jackie Baillie seeks to achieve, including in relation to training. I remain willing to work with Jackie Baillie and Daniel Johnson on those issues ahead of stage 3.

In the meantime, I have no objection to Jackie Baillie’s amendment 93, which would require the assessing doctors to inform the terminally ill adult that they could be referred for a palliative care assessment. The bill already requires assessing doctors to explain and discuss with the person their diagnosis, prognosis, available treatment, palliative care and other care that is available. My amendment 29 would require them also to discuss psychological support and symptom management. Although amendment 93 appears to replicate part of that, I have no objection to it.

Jackie Baillie’s amendment 75 would enable assessing RMPs to refer a person who is being assessed for an additional second opinion in a psychiatric assessment on capacity. The amendment would also allow the person being assessed to request a second opinion in relation to their capacity. In either circumstance, the referral would have to be to someone on the register of psychiatrists, which would be established by amendment 80, which we have already debated, and the assessment would have to be taken into account by medical professionals. I refer members to the comments that I made earlier on that issue. I also note that the Government has stated that, should amendment 75 be passed, it could raise concerns around consistency and increase the risk of “doctor shopping”. The Government also suggests that

“This may also place significant strain on staff resources, as additional referrals and second opinions would require more specialist availability and coordination.”

Let me turn to Pam Duncan-Glancy’s amendments 231, 234, 235 and 236. Amendment 231 might be a helpful addition to the list of things that assessing doctors should explain to and discuss with the person being assessed. However, assessing doctors would benefit from having discretion in such matters. For example, the inquiries and discussion provided for by amendment 231 would not be appropriate in every case being assessed, as I am sure Ms Duncan-Glancy would accept.

I appreciate the intention behind amendment 234 in seeking to ensure that any terminally ill adult who requests assistance and who has a disability has access to the support that they need. I also appreciate that the amendment frames any referral as being discretionary for the assessing doctors. There might be issues to consider in relation to which disability organisations could be involved in something of that nature, how reasonable it is to expect them to be involved in the way that is envisaged and how well placed they would be to provide support.

That brings us to amendment 236, which would require ministers to ensure that disability organisations are adequately resourced to provide that support function. It is obviously for the cabinet secretary and the Scottish Government to comment on duties that amendments would place on the Government to deliver funding. However, that consideration might add to concerns about whether such an amendment would make a proportionate difference to the bill and to the robust safeguarding measures that are already in place and that can be delivered.

With regard to amendments 234 and 236, the Scottish Government has stated:

“... this would require discussion with disability organisations to understand in what form this support would take; how it would be funded; and how it could be delivered consistently”.

The Government further notes that amendment 236

“would place an open-ended, and potentially significant, resourcing ask on Government.”

Amendment 235 also aims to provide support to any terminally ill adult with a disability and, again, allows discretion, so the provision can be used if deemed necessary or helpful. However, I again have concerns about how that would fit within the overall assisted dying process provided for by the bill, and I am also unsure how well positioned local authorities are to meaningfully provide the kind of assessment that is provided for and envisaged by the amendment.

Stuart McMillan’s amendment 232 appears to duplicate the policy intent of the provision in section 7(2) of the bill, which allows the assessing doctors, if they have any doubts about whether an illness is terminal, to refer to an expert in the particular illness in question.

On Mr Balfour’s amendment 157, I note that section 7 sets out further provision for assessments to be carried out by registered medical practitioners. Amendment 157 would add a requirement that the registered medical practitioner must refer the person seeking an assisted death to a registered social worker and a registered medical practitioner who is registered in the specialism of psychiatry for an assessment and must take account of any view provided following that assessment.

In terms of amendments that relate to a required social work assessment, I have lodged amendments that, if agreed to, would see assessing doctors being able to make inquiries and seek the views of health, social care and social work professionals and those who have provided or are providing care to the person. I further note that the bill does not limit assessing doctors to seeking the views of only one specialist on either illness or capacity, so there is nothing to prevent other opinions being sought if that is considered necessary. I therefore do not believe that amendment 157 is required, and nor are the consequential amendments 159 and 160.

Sue Webber’s amendment 158 would add a requirement that the medical practitioner must inform the person of any potential side effects of using approved substances that may be provided to assist them to end their own life and of any potential risks or complications, including pain. I would expect such information to be shared by the RMPs as part of the requirement under section 1 of the bill, which requires assessing doctors to explain to and discuss with the person seeking assistance

“the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death).”

I therefore consider that the amendment may not be essential, but I certainly do not oppose it.

I note Daniel Johnson’s comments about his amendments 5 and 6 being generally probing amendments. Amendment 5 would require the assessing doctors’ statements to record how long they have known the person, and amendment 6 is consequential. I am not necessarily clear as to what extent that would strengthen the bill, as it would simply record, and only for the co-ordinating registered medical practitioner statement, how long they had known the terminally ill adult. I have always acknowledged that there may be a value in the co-ordinating practitioner having a pre-existing relationship with the terminally ill adult, particularly when assessing for coercion. Indeed, the explanatory notes accompanying the bill state:

“It is expected that this will usually be the terminally ill adult’s GP or primary care doctor.”

However, I understand the rationale behind the amendments and there is probably scope for further discussion ahead of stage 3.

Finally, I will address Paul Sweeney’s amendments 239, 240, 241 and 273, regarding the establishment of an assisted dying panel to determine eligibility once the assessing doctors have both made statements of eligibility, as is set out in the bill. I note that the amendments would prevent a terminally ill adult from making a second declaration until the panel had granted a certificate of eligibility and would require the panel to hear from one or more of the assessing doctors and the terminally ill adult and others. In my view, the amendments would add a burdensome and unnecessary step to the assessment process, which is already robustly and proportionately safeguarded. Two doctors must assess eligibility with input from others, if and as required, before a person is allowed to be provided with assistance. Having to then pass to a further panel would inevitably delay the process and potentially deny assistance to many who met the eligibility criteria. As such, I cannot support the establishment of an additional review panel, which I believe would not strengthen safeguards but would rather act as a potential barrier to those accessing the choice that they wish, having met the stringent eligibility criteria set out in the bill.

Apologies for the length of time that I have taken to speak to the group, but I hope that that is helpful to the committee.

You might not know which physician operated on you, Daniel, but I am glad that they were clearly up to the task.

I thank Daniel Johnson, Bob Doris and Pam Duncan-Glancy for setting out the detail that lies behind their amendments and for providing justification for my taking some time to go through them, for which I apologise.

I will start with my amendments. Amendment 69 would require an assessing registered medical practitioner to make inquiries—for example by seeking input, if they consider it appropriate—from any

“professionals who are providing or have recently provided health or social care or social work services”

to that person. Beyond that, it would require assessing registered medical practitioners to consider seeking input from health, social care or social work professionals on any “matter relevant” to the assessment carried out.

Following stage 1 evidence and further engagement with social work, health and social care representatives, I lodged amendment 69 to ensure that there is provision that requires assessing doctors to seek the input of social work and social care professionals and other health professionals—in addition to those whom the process already provides for—who know the person because they have treated them or provided care to them or because they might have a relevant contribution to make to the assessment process.

The formal parts of the process would be well supported by ensuring that the assessment process is able to take a multidisciplinary approach, particularly because those who have provided social care to a person might have knowledge, insights and expertise from which the assessing doctors and the safeguards in the process would benefit.

I note the points that were raised by social work professionals and organisations at stage 1, suggesting that there is potentially a need for additional specialist expertise in assessing capacity. Such input might also be helpful on matters relating to the person’s illness, in assessing coercion and, as I said earlier, in understanding the fullest range of options available to the terminally ill adult.

Therefore, amendment 69 would further strengthen what I believe is an already robustly safeguarded assessment process and would provide further reassurances that any issues of coercion will be picked up. The amendment continues to respect the role of both assessing registered medical practitioners and therefore allows for their professional judgment, as referred to by Daniel Johnson, as to whether they should make inquiries or seek input and, if so, from whom. Further details around that multidisciplinary input, as well as other aspects of the assessment process, will be addressed in guidance that is provided for under section 23.

Following reflection on the stage 1 evidence, I lodged amendment 29, which would amend the provision in the bill that requires the assessing registered medical practitioner to explain to, and discuss with, the person being assessed any palliative and other care that is available and appropriate. That includes hospice care, symptom management and psychological support. As has previously been discussed, my policy has always been that the assessment process for any terminally ill adult who decides that they wish assistance to end their own life must include the person being given as much information as possible about care options, so that they can make an informed choice at the second declaration stage and on the day that they intend to use the substance.

I thank Sandesh Gulhane for making that point and I agree with him.

I welcome Bob Doris’s intervention, because he shone a light on the interplay between the requirements for training and the necessary option that is available to those who are involved, whether they are the co-ordinating registered medical professional or the independent registered medical professional, to make referrals to specialists that are in palliative care or social work and social care. It is perhaps unreasonable to expect everybody to be an expert in everything, so referrals to those who have the relevant expertise will be important. The training needs to pick up much of what we have discussed but, alongside that, there is the absolute expectation that specialist referrals will be made when required and that the advice that is provided thereafter will be taken on board by the co-ordinating medical professional.

I do not want to cut across Mr Balfour, but I understand the point that has been made. The concern in relation to an organisational opt-out is that, in a sense, any nuance in the debate about how an individual hospice might participate—the extent to which it might participate in the delivery of what is proposed in the bill on behalf of the patients who meet the eligibility criteria and wish to pursue that choice—would be lost. The organisational veto of any choice exercised by individuals within that hospice community is not a place that the Parliament wishes to go. There will be nuances around how each hospice engages with the legislation—we have seen that in other jurisdictions—and it is safeguarded in the provisions in the bill.

I take that point entirely. Those representations have facilitated the debate around the issues that need to be picked up in training. However, I question whether we should take a different approach to where the detail sits in relation to this bill compared to where it sits in relation to other pieces of legislation that we pass. I get that this bill is perhaps seen as more significant than some other pieces of legislation, but I would caution against taking a different approach in relation to this from the approach that we take to other clinical practice. That would only open up scope for confusion and misunderstanding—indeed, it would undermine the safeguards. I think that, irrespective of where we stand on the bill, we are all determined to ensure that the safeguards are as robust as possible.

I thank Brian Whittle for setting out the rationale for his amendments, which I think allow us a bit of a reprise of our earlier debate in relation to the amendments on future care plans. I think that the points about how desirable it would be, for a whole host of reasons, for more people to undertake to make future care plans and advance care directives have been firmly put on the record.

With regard to Brian Whittle’s amendment 153, I note that there is nothing in the bill as it is introduced that would prevent someone from having an advance care directive should they wish to have one. Although I can see the value of advance care directives, I am cautious about anything that would cause undue delay and prolong the suffering of someone who was seeking an assisted death. I would also raise the question whether people may not wish to have such a directive.

I thank Brian Whittle for that clarification, which is helpful in addressing an issue that came up in relation to future care plans: the fact that, however desirable they are and whatever benefits may derive from them in terms of understanding the individual’s wishes at the end of life, the process still needs to be voluntary.

The Scottish Government has confirmed that

“advanced directives are not legally binding”

in Scotland and that

“Mandating their use in this context could create uncertainty for practitioners and patients.”

Should amendment 153 be agreed to, I would not oppose amendment 156, which would require the assessing registered medical practitioner to explain and discuss advance care directives with the person who was seeking an assisted death—something that Mr Whittle has further clarified.

After extensive discussions with stakeholders, including medical organisations and practitioners, I have been cautious about imposing measures that might unduly interfere with patient autonomy, the doctor-patient relationship or existing clinical practice. Although assisted dying must be carefully regulated, the bill should establish a clear regulatory framework, with the detailed guidance and best practice procedures developed in consultation with those who work directly with patients and in healthcare.

Amendments 163 and 209 are consequential to the aforementioned amendments.