Chamber and committees

That would certainly be my view; I am conscious that others take a different view on that. I think that there is a way of ensuring that the information that is needed is captured appropriately.

As I said, I was reassured to some extent in my discussions with the CMO and his colleagues that there is a way of navigating the matter so that it is undertaken sensitively but makes absolutely sure that the relevant information is available so that we have the understanding that we need about how the legislation is working in practice.

The slippery slope argument is made consistently. I point the committee to the report published by the House of Commons Health and Social Care Committee in February last year, at the end of an 18-month inquiry into assisted dying and end-of-life choices, which concluded that there was no international evidence of a jurisdiction that has introduced a terminal illness mental capacity model that is similar to the one that I am proposing and that is being considered by Westminster, where the eligibility criteria have changed. That was confirmed in the evidence that the committee heard from the witnesses who are involved in the process in Australia.

The argument that one of the witnesses made to try to substantiate the claim of a slippery slope in Oregon is that different conditions among those accessing assisted dying were featuring to a greater or lesser extent, but that does not necessarily say anything other than that patient confidence and medic confidence in the procedures perhaps evolve over time, and that those with certain conditions find that the palliative care that is available meets their needs up to a point, but they find themselves beyond that point at a certain stage.

Although minor changes have been made to the residency requirement in Oregon—over the years it was found that the requirement did not provide any meaningful safeguard, so it was removed—the eligibility criteria on terminal illness and mental capacity have not changed.

I have always acknowledged that the models in Canada and the Netherlands are more expansive; they have always been more expansive models. In the Netherlands, that has been the case for many years.

The Canadian model, which is often cited, has evolved through court process, which is sometimes brought into the debate here as something of a risk, but the constitutional arrangements in Canada are very different from those in Scotland and in the UK. The legislation was introduced as a result of a case that was brought before the supreme court in Canada on the basis that the ban on assisted dying was unconstitutional. The Parliament then introduced legislation, which was not felt to go far enough, so it was then legally challenged on appeal, which was upheld, and the scope of the legislation was expanded.

The arrangements in Canada and the Netherlands, both of which enjoy overwhelming public support, are very different from what is being proposed here. As I say, there is no example of a terminal illness mental capacity model having been introduced, whether in the US, Australia or New Zealand, where the eligibility criteria have changed.

I will bring Amanda Ward in on the specifics. The capacity assessment that would be required in order to be eligible relates to the choice of an assisted death, not to a broader capacity issue. It would be expected that support be provided to allow an individual to make that assessment, which, I would hope, would allow access to a wider range of individuals to meet the eligibility criteria to have that choice. Amanda, can you add anything to that?

I will bring Dr Ward in on that. Having a mental disorder does not preclude someone from accessing the option that would be available under my proposals. A capacity assessment would still need to be undertaken in the context of the decision around an assisted death. Appropriate supports could be put in place to ensure that the individual’s capacity was realised, but with some conditions, it might be felt that a mental disorder impacts on the capacity to make a choice about assisted death. In those instances, the person would not meet the eligibility criteria.

In looking at other jurisdictions, it is interesting to see the landscape that grows up around such legislation. Many charities and third sector organisations that have been campaigning for a change in the law have made it clear that they expect to continue to provide help, support and advice to people who might seek to access assisted dying. Those organisations might also be able to provide the sort of support that you are talking about. The need for that might be rare, but it would be good to think that, where such a need existed, it would be met.

The consistent feedback from jurisdictions in which assisted dying laws have been introduced is that the process of coming to terms with a loved one’s death and going through the grieving process thereafter is eased by knowing that that loved one had the choice, the control, the dignity and so on at the end of life that, at the moment, are absent here in Scotland, for a small but not insignificant number of people.

I need to keep reinforcing the point that we are talking about assisted dying because that is the focus of the bill. However, the vast majority of Scots will continue not to need an assisted death. They will be supported by palliative care, social care and other health and care services up to the point of death.

I have probably not said enough about conscientious objection. This is fundamentally about choice; it is about giving dying Scots the choice, should they wish it. However, that works both ways, and there absolutely needs to be a robust conscientious objection mechanism in place to allow medical professionals who would otherwise be involved to opt out of that involvement, subject to the expectation that they would then refer the patient to someone who could provide that support. That conscientious objection choice for the medic is fundamental.

My problem with an institutional objection is that the organisation in question might well involve and include individuals who are supportive of a change in the law. It then ceases to be about individual choice, because the risk is that barriers can be put in place to individuals who, despite meeting all the eligibility criteria and being protected by the safeguards that are in place, find that, as a result of an institutional opt-out, they are not able to access the choice. We have seen that happen in other jurisdictions, and it has proved problematic.

I think, though, that there are ways of managing that. I know from speaking to those involved in the hospice sector in New Zealand, for example, that there is a mixed picture with regard to the engagement of individual hospices. Although some might not directly be involved in the provision of assisted dying, they will allow practitioners into the hospice to help deliver the service. There might well be a way of having a more flexible approach that recognises the strong emotions and feelings that some people have around this issue, but which ensures that those emotions and feelings do not stand in the way of individuals who meet the eligibility criteria accessing the choice that I feel they need to have.

That takes us back to the issues that Mr Whittle raised earlier. Any discussion of the options exposes them and allows an opportunity to address them. The committee heard from witnesses in Australia that the quality and level of engagement with palliative care has gone up since the introduction of assisted dying, not only because additional investment has gone into that care but because conversations have raised awareness of palliative care and have led to discussion of and active engagement with what those options are and how they might be applied.

As I said in response to your initial question, there is probably no way to prevent an individual from bringing a legal challenge, but the mechanisms in the bill provide a high level of protection against such cases arising. Challenges tend to come from family members who have a difficulty with the decision that their relative has made. Conscientious objection exists in the medical profession and we can put that into the bill, but we cannot put into the bill protections for family members who are implacably opposed to the option and who therefore might have difficulty with a relative opting to go down that route.

I sat in on that evidence session and was interested to hear those comments. The phrase “ordinarily resident” is used to accommodate situations where individuals may be working outwith Scotland for a period. They might be on holiday—possibly a prolonged holiday—but to all intents and purposes are living in Scotland and registered with a medical practice here, which is also a requirement under the bill.

The terminology is fairly commonly used in law in Scotland, although perhaps less so in the criminal law, which is perhaps where Police Scotland comes into contact with the issue more often. I do not see the issue as problematic. The phrase tries to acknowledge that somebody may be resident in Scotland but, over a 12-month period, they may be outside it for weeks or months at a time, whether for work or personal reasons.

Again, MND Scotland was particularly strong on that point. Self-administration is integral to the proposals that I have made. On that same panel, I think that there was an acceptance that there are other means whereby that self-administration can take place, whether by signalling through eye movement or other mechanisms.

It is important to ensure that there is the capacity and intent, but the development of medical technologies is now allowing self-administration to happen in a way that would have been very difficult to conceive of a number of years ago. It is important that the self-administration criteria remain and I am confident that that can be achieved while not excluding those who meet the eligibility criteria in terms of advanced progressive terminal illness and mental capacity.

There is always value in having further conversations, but I think that the bill as it stands provides those protections.

The committee also heard from the Crown Office last week about the expectation that deaths that occur through the assisted dying process would be subject to oversight by the Lord Advocate. I know that the Crown Office was slightly uncomfortable in anticipating the Lord Advocate’s view in that regard, but I think that that would be a reasonable expectation and, again, it would provide a degree of reassurance.

I do not know whether any other colleagues want to come in on that.