Chamber and committees

I see what you mean—almost the other way round. I suppose that the safeguard is that two medics need to be satisfied that the patient meets the eligibility criteria—that they have an advanced progressive terminal illness and that they have the capacity to make the decision. We have covered the other safeguards. If the patient does not meet those criteria to the satisfaction of both medics, the option to go to another medical practitioner remains open to them, as we discussed earlier. However, it is difficult to see how the patient would satisfy them and a second medical practitioner that they meet the criteria. There is the option for an individual to seek a diagnosis, but medical professionals will make these assessments. If the patient does not meet the criteria, it is important for the patient, the medics and public confidence that the law, as it stands, remains extant. We cannot have situations in which people are being assisted to die in ways other than those that are set out in the bill. The criminal law continues to apply, as we heard from the Crown Office and Police Scotland last week.

It was an extensive session, but, as the Health, Social Care and Sport Committee is finding, I appear to be party to extensive evidence sessions on this topic.

To some extent, the issue emerged from the modelling that was used to predict the numbers. As I acknowledged to the Finance and Public Administration Committee, we could make an argument that, if rising numbers of people take up the option of assisted death, the associated costs will be higher, but, equally, drawing on the international evidence, we could make an argument that the costs will be lower.

With regard to the training costs, the numbers of people that are likely to be involved in training as a result of take-up are expected to be relatively small because a lot of that training is already taking place. As I said in response to Ms Whitham earlier, assessments of coercion and capacity are already being made. I absolutely acknowledge that there will perhaps be a requirement to update the training that is provided, but we are not talking about something that is wholly new to the medical profession.

To some extent, I am at a slight disadvantage with regard to the Scottish Government’s assessment of the costs. I have set out a financial memorandum that shows my working, but I am not clear about how the Scottish Government has developed its figures.

To go back to the point that was made by Ms Mochan about whether it should be an opt-in or an opt-out service, if it is assumed that everybody—every GP, nurse and consultant—needs to have training to deliver a service, it may well be that the costs will be greater than if an incremental approach is taken.

Again, that probably touches on the question about the implementation period for the bill. What is the expectation for that? What is the trajectory leading up to implementation and then in the initial years?

I think that there was collective agreement at the Finance and Public Administration Committee in relation to the financial memorandum that this was a very wicked problem to try and get your head around. There is not an example of a similar financial memorandum having been put in place in other jurisdictions. It was an exercise in trying to make some reasonable assumptions around take-up and extrapolating them over the first few years and then up to 20 years out.

I am pretty sure that the figures are based on just medical staff, but I will ask Nick Hawthorne to answer that.

As I say, “ordinarily resident” is a legal concept that is understood. I noted the concerns that Police Scotland raised. I would be interested to know whether Police Scotland feels that there is an alternative definition that would address its concerns. The concept is fairly well established, and I do not know whether there is a way of defining it in the bill any differently from what is set out in the explanatory notes and policy memorandum, which I think make the policy intent clear.

That is another area where I would be happy to reflect on any proposed changes. However, the fact that the “ordinarily resident” requirement sits alongside a requirement for people to be registered with a GP probably gets around the concerns.

I understand where Police Scotland is coming from because it engages more often with the criminal law, and perhaps that is where some confusion arises, but I am fairly comfortable that that concern has not been raised by others and that the concept is pretty well established and understood.

I do not think so. My proposals would put in place a heavily safeguarded and transparent process whereby the individual who makes the request would be supported to understand the available options and in which medics would identify where there are needs and where those needs are not being met. All of that would happen in a way that is simply not the case at the moment, when those individuals are being left entirely to their own devices, often alone, and are making horrendous choices and decisions for themselves that not only further traumatise them but, as we know, traumatise those whom they ultimately leave behind. There are certainly gaps in palliative care, mental health and broader health and care services.

As I said, the proposals will put in place a robustly safeguarded process that means that anybody who comes forward to make the request has the reassurance of knowing that the wider context for the choice that they are seeking to exercise has been tested to the nth degree. That can therefore bring a degree of further reassurance and safeguarding to things that are happening at the moment. Decisions on matters such as double effect, palliative sedation and all the rest of it are being taken by medics, sometimes placing them in an invidious position, often without the input of the patient and sometimes without even the input of family members. There is an opportunity here to provide not just a robust safeguard but a degree of transparency that will be to the benefit of patients, but also to the benefit of medical practitioners.

I invite Dr Ward to add to that.

As you have described, it would be my expectation that the clause would apply to the people who are directly involved in the process, which I think is a proportionate approach to conscientious objection. A degree of caution needs to be exercised when drawing parallels between the process that is described here and abortion legislation. I think that the way in which the conscientious objection clause works is appropriate in the context of assisted dying.

Other people might be, at some stage, removed from the process. One of the examples that was given to me was of people in a hospital or a hospice setting who are aware that colleagues are, through the proposals in my bill, engaged in assisting somebody at the end of life, and might have an objection to that.

Extending that conscientious objection too extensively is problematic. It is about choice for those who are actively participating in the process. Extending it more widely runs the risk of putting up unnecessary and unjustified barriers to individual patients who meet all the eligibility criteria by denying them access to that choice.

The bill and the supporting documents are clear that the process is initiated by a request on the part of the patient for an assisted death, at which point the requirement is for the co-ordinated medical professionals to ensure that they understand the rationale for arriving at that decision, and equally to ensure that the individual is aware of all the treatment and care options that are available.

Listening to the evidence that the committee has heard in recent weeks, I recognise that, as much as one would like definitive clarity, proscribing or prescribing what a medical professional can and cannot discuss with their patient is territory into which we, as parliamentarians, probably need to tread very carefully. The expectation is that the process is initiated by the patient making the request, and thereafter the process and the safeguards that we have taken the time to discuss this morning would kick in.

I will not touch on the arguments about a slippery slope; all the evidence shows that there is not a jurisdiction with a terminal illness and mental capacity model in which the eligibility criteria has been expanded over time.

Rather, I want to highlight that, while the point is being made that disabled people are uniformly against assisted dying, all the polling evidence suggests that support for it among the disabled community as a whole broadly maps the position of the population at large.

I am aware that, back in 2022, Disability Scotland undertook a survey of its membership, which showed strong support for assisted dying among 57 per cent of its members and support among 20 per cent, with opposition at just over 10 per cent. I understand that there are anxieties in the disabled community, but I am interested in hearing the witnesses’ response to the argument that support, or interest in finding out more about the issue, is unlikely to be helped if the view of the legislation that is presented comes from the perspective of opposition, rather than challenging neutrality.

In the light of the position that members of the disabled community appear to take on the issue, is that not a more reasonable way of eliciting the views of disabled people? I put that question to Tressa Burke, because she spoke last, but I am sure that others will have a view on it, too.

I chose to use Oregon and Victoria—in other words, I used two comparators. There are various differences in how healthcare is delivered in the US and how it is delivered in Australia, and there are various differences in how it is delivered in Australia and how it is delivered in the UK, so, in a sense, neither the US nor Australia is a direct comparator. There is no precedent that we can lift. This is the first proposed system of its type in the UK.

If I had relied solely on Australia, that would have been justified in informing our approach here in the UK, or indeed in Scotland, where health is devolved, as there are variances in how healthcare is delivered across borders. However, I thought that it was helpful to take examples from jurisdictions in two different countries, because that gets us away from simply relying on the similarities or the differences between Australia and here, or between the US and here.

In addition, the data sets that are available for Oregon provide a picture that speaks to the 20-year time horizon that is set out in the financial memorandum. Victoria was selected because it provides the longest-running data set in Australia. The situation is different when we are talking about the first jurisdiction in a country to introduce legislation on a particular subject. I take the convener’s point that awareness of assisted dying is likely to be heightened here because of the debates that we are having now. Nevertheless, when you are the first jurisdiction in a country to get a system up and running, that will present additional challenges in relation to the extent to which you are finding your way.

As I said, I thought that there was a benefit in having longer data sets and in not relying simply on one country-to-country comparison.