Chamber and committees

As I have said, I know from my direct engagement with the RCN how strongly it feels about the issue. I do have misgivings. Members of the committee will have heard expositions of both sides of the argument, and the points that Emma Harper was—fairly—making. The committee will have to take a view on the amendments accordingly.

Sue Webber’s amendment 176 relates to amendment 158, which has been previously debated, and it would require the co-ordinating registered medical practitioners to inform the terminally ill adult of potential side effects and the risks of complications when providing the substance. I note that it is already a requirement under section 7 that the registered medical practitioners, in carrying out their assessments, explain the nature of the substance to be provided, including how it will take to bring about death.

Marie McNair’s amendment 244 proposes an avoidance-of-doubt provision to confirm that a person cannot administer the substance to or on behalf of another person. I consider that the bill is already suitably safeguarded to prevent that, but I have no strong objections to Ms McNair’s amendment, and I thank her for lodging it.

Daniel Johnson’s amendment 10 adds details to the process of providing the substance. From the outset, I have wanted the end-of-life process to be set out in as much detail as possible, and I have been clear that the approved substance could be self-administered by the terminally ill adult in a range of ways. Given that the bill empowers Scottish ministers to approve the substance that is to be used, it was felt that the best approach was to leave further detail on how the substance was to be prepared and used to regulations and guidance. In policy terms, I have always been clear that assistance must be via self-administration by the terminally ill adult. Ultimately, assistance can be anything that contributes to the person’s own deliberate act but which does not tip over into administering the substance.

I also point members to the guidance provision in section 23(1), which allows Scottish ministers to “prepare and publish guidance” on the act. Section 23(2) lists particular areas on which ministers might wish to issue guidance, including

“the provision of assistance in accordance with section 15”.

Such guidance would be consulted on in advance, allowing input from medical professionals and others, ensuring that any resulting guidance reflects those views.

Part of the amendment seeks to allow the co-ordinating registered medical practitioner to prepare a device to allow the person to take the substance if needed. That issue came up at stage 1, and, as I suggested to the committee at the time, I am sympathetic in policy terms to considering what might be done to enable a person to self-administer in different circumstances.

The Scottish Government states that it recognises that the detail that is set out in the amendment

“is likely to be welcomed by healthcare professionals, based on the evidence provided to the Committee at Stage 1.”

It also noted that the amendment

“does not make any reference to the ‘authorised health professional’, who may also carry out functions under section 15.”

Daniel Johnson might wish to reflect on those comments, but I am supportive of the amendment in principle.

I turn to Sue Webber’s amendment 182, which seeks to insert a new provision into section 15 to the effect that the existing criminal law relating to homicide applies to any act by a person to provide additional substances, treatment and so on to the terminally ill adult after they have used the approved substance for the purpose of bringing about death. Section 1(2) of my bill details that

“Such assistance is lawfully provided if it is provided in accordance with the provisions of this Act.”

By necessity, any assistance that was not in line with those provisions would clearly be unlawful.

The bill’s explanatory notes make it clear that the exemption from criminal liability under section 19

“applies only where the substance of the case against the individual is (or would be) that they provided a person with assistance to end their life under the Bill. It does not apply to any incidental unlawful acts which an individual may have committed”.

Therefore, amendment 182 is not necessary and might, by singling out one specific situation, create uncertainty.

There are, in this group, several amendments from various members that address the issue of recording and notifying instances of the substance not having its intended effect, including Sue Webber’s amendments 181 and 183, Stuart McMillan’s amendment 184, Paul Sweeney’s amendments 245 and 275, and Stephen Kerr’s amendments 126 and 188.

On amendments 181 and 183, the former seeks to cover situations in which the adult uses the substance that is provided but does not die or the substance does not produce its intended effect within a period to be specified by the co-ordinating registered medical practitioner or authorised health professional. It provides that, in such circumstances, the co-ordinating registered medical practitioner or authorised health professional

“must take all reasonable steps to preserve the life of the adult”

or reverse any effects of the substance. It also seeks to require that such incidents be recorded in writing and that details of what is required to be recorded be set out. The amendment also stipulates that no declaration or statements made by the adult under the bill’s provisions can prevent steps to preserve their life, unless the adult refuses any such intervention at the time and has capacity to do so.

As was made clear in the evidence at stage 1, the number of cases in which a person takes an end-of-life substance and does not die or complications arise is incredibly small. Even so, given that the bill provides for the co-ordinating registered medical practitioner or authorised health professional to be present when the substance is used and until a person has died, should any complications arise, the attending health professional would respond in a manner consistent with their skills, training, qualifications and experience, and provide necessary care to the person.

I refer the committee to the detailed evidence that it received from Professor Dooley, which confirmed the Australian experience that, although most deaths occur very quickly, the exact timing can be based on factors such as a patient’s condition, size, weight and overall health. Given that natural variability, Ms Webber’s amendment risks placing unworkable requirements on clinicians and potentially undermining the practical integrity of any medication protocol. I therefore support neither amendment 181 nor amendments 125 and 136, in the name of Bob Doris, which refer to dying within a “reasonable period”.

Sue Webber’s amendment 183 would require that the co-ordinating registered medical practitioner record in the adult’s medical records any complications arising from the used substance and submit an anonymised report to Public Health Scotland. Broadly, Stuart McMillan’s amendment 184 appears to duplicate amendment 183, as do Paul Sweeney’s amendments 245 and 275, along with his amendment 269, in a later group. That amendment also addresses the reporting of any complications, as do Stephen Kerr’s amendments 126 and 188.

I have considered the amendments carefully. Members will know that section 27 requires a five-year review of the operation of the act and is intended to deal specifically with how it is functioning in supporting terminally ill adults with being lawfully provided with assistance to end their own lives. The bill also provides that any concerns with the operation of the act that have been raised must also be covered in the report, as well as the Scottish Government’s response to those concerns.

However, I acknowledge that there is nothing specific in the bill about the recording and reporting of issues such as complications and, on reflection, I agree that the bill might benefit from being strengthened in that regard.

As I have said, I understand the rationale behind the argument, particularly as we are dealing with the introduction of new legislation. I am just concerned about putting in place something that then prevails but which, in turn, reduces access to choice in what I believe is a disproportionate way.

The example that the convener and Jackie Baillie have cited is certainly the case. However, there are many instances in which that provision is not required, and yet additional nurses are still present to provide whatever support is felt to be necessary. Their doing so is not a statutory provision. This is all about striking a balance by allowing this to happen, in the expectation that, in the early stages, it might well be the case more often than not, but without binding it in statute as a requirement that could have an impact on being able to access that choice.

As I have said, I echo the concern that the Government has laid out in its commentary on the amendments that the application of that provision across the board could have significant resource implications.

I start by expressing the hope that Stephen Kerr has not gone the same way as Ross Greer and lost his voice, too. I thank Brian Whittle and the other members who have had an opportunity to set out the rationale for their amendments in this group, and I look forward to hearing the comments from others who have lodged amendments, too.

I must apologise at the outset, convener, with regard to your plea to be brief. I have only one amendment in this group, but I am conscious that there are many amendments in it, lodged by many members, so my remarks will probably be lengthy. I will do my best to recoup some of that time in later groupings.

I will start with my amendment 33, although it is probably worth acknowledging at the outset that all the amendments in the group relate to section 15, on the provision and use of an approved substance. I again remind members that all the bill’s provisions must be within the competence of the Parliament. 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 many of the amendments in the group in the context of those discussions, and we certainly urge the cabinet secretary to keep the committee and other members updated in that respect.

Amendment 33, in my name, requires the co-ordinating registered medical practitioner or authorised health professional who attends on the day that the person intends to take the authorised substance, and who will provide the substance to the person, to stay with the person in the same room until the substance has been used. As introduced, the bill states that the attending co-ordinating registered medical practitioner or authorised health professional must be on the premises but need not be in the same room as the person while they decide whether to be provided with, and use, the substance. Where the person has chosen to use the substance, the co-ordinating medical professional or authorised health professional must stay on the premises until the substance has been used and the person has died.

Amendment 33 responds to questions that were raised by Police Scotland, and which were echoed by Douglas Ross and, I think, Brian Whittle, by amending section 15(6) to the effect that the attending co-ordinating medical practitioner or authorised health professional must remain with the person in the same room until such time as the person has decided to take, and has taken, the substance. As before, it will then be at the discretion of the attending medical professional as to whether they remain in the room after that point or be elsewhere on the premises. That is intended to address any potential concerns as to whether the substance has been self-administered.

Amendments 178, 180 and 179 offer alternative approaches to the same issue, and I thank Brian Whittle and Douglas Ross for lodging them and for allowing this debate to take place. Brian Whittle’s amendments 178 and 180 seek to ensure that the co-ordinating registered medical practitioner or authorised health professional remains in the same room as the terminally ill person throughout. In addition to what I said in speaking to amendment 33, I believe that it is important that, after the substance has been taken, the terminally ill adult and any attending loved ones be afforded some privacy, if they wish it, while having the attending health professional close at hand.

Section 15(5) sets out that

“The coordinating registered medical practitioner or ... authorised health professional must remain with the adult until the adult decides whether to use the substance ... and, if they decide to do so, until the adult has died.”

Amendment 179 would add to that by requiring the co-ordinating registered medical practitioner or authorised health professional to remain with the person until they have died or the attending

“health professional determines that the substance has failed to take effect.”

I understand what Mr Whittle and Mr Ross are seeking to achieve. They are motivated by a concern that I fully recognise, but I believe that amendment 33 deals with the issue more proportionately, allowing privacy for a terminally ill adult where necessary and appropriate.

That is a very fair point to raise. It has not been raised with me either in the context of the bill as introduced or in relation to the additional safeguard that I seek to introduce through amendment 33. I am prepared to engage with other members and representatives of the medical profession to see whether any anxieties in relation to that point still need to be addressed. However, as I said, there is a safeguard in the bill. Notwithstanding Mr Whittle’s—rightly made—point about our legal set-up in Scotland, I believe that the safeguard is appropriate. As I said, it balances the need to ensure self-administration and that there is no evidence of coercion with respect for the right of an individual to have the privacy that they wish to have at the end of life.

I turn to the amendments that Brian Whittle lodged on the role of the pharmacist in the provision of the substance under section 15. I remind members that section 15 details that the co-ordinating registered medical practitioner or an authorised health professional can provide the approved substance if specified conditions are met. Amendment 173 would provide that the approved substance could

“only be supplied to a coordinating registered medical practitioner or an authorised health professional”

for that purpose

“by a registered pharmacist, in accordance with the directions of the coordinating registered medical practitioner.”

Amendment 173 is one that I can support on the understanding that it would not add to the competence issues that are being considered by the Scottish and UK Governments.

Amendment 177 would enable the co-ordinating registered medical practitioner or authorised health professional, where they are

“accompanied by any other health professional”,

which, as per section 29, could be a registered medical practitioner, a registered nurse or a registered pharmacist, to

“delegate their functions under subsections (1) and (7)”

of section 15 to that person. Section 15(1) deals with the provision of the approved substance, and section 15(7) deals with the removal of the substance where the terminally ill adult decides against using it.

However, amendment 175, which I understand should be read with amendment 177, would require that the co-ordinating doctor or authorised health professional, as the case may be, has to be present for the provision of the substance.

I believe that Mr Whittle’s intention is that it is the role of a pharmacist to provide the substance to the person. However, I believe that there is merit in retaining the provision that it is for the co-ordinating registered medical practitioner or authorised health professional to provide the substance. I envisage the role of any other health professional attending at the discretion of the co-ordinating registered medical practitioner or authorised health professional to be limited to providing assistance to the CRMP or AHP as they see fit. I am wary of allowing functions under section 15 to be delegated by the CRMP or AHP, who must be in attendance and who will have the relevant skills, training, experience and qualifications to fulfil the functions set out in subsections (1) and (7) regarding the provision or disposal of the substance.

Amendment 185 would add registered pharmacists to the definition of an authorised health professional in section 15. I note that the Government suggests that, in order to fulfil that role, pharmacists would likely need additional training over and above that required by the doctors and registered nurses who fulfil the role. I agree with that assessment, and I note that, if the amendment is agreed to, there would be no distinction between who can be an authorised health professional in section 15(8) and a health professional as defined in section 29, which could lead to confusion.

I turn to Jackie Baillie’s amendments 76 to 79, which would require that, where the substance is to be provided by an authorised health professional who is a registered nurse, they must be accompanied by the co-ordinating registered medical practitioner or another AHP who is a registered medical practitioner. It would be for the CRMP or AHP who is a registered medical professional to make the determinations on a person’s capacity and whether they were being coerced. The registered nurse would have to be accompanied by another health professional for the purposes of subsections (5) to (7) of section 15.

The bill provides for the role of an authorised health professional to ensure that there is no unreasonable delay or barrier to a person who is eligible being provided with assistance. Limiting the section 15 role for a registered nurse in the way suggested might lead to such delays and a loss of access for some terminally ill adults. The bill requires the authorised health professional to be a registered medical practitioner or a registered nurse, authorised by the co-ordinating RMP. The co-ordinating RMP therefore already has a key role in deciding whether to appoint an authorised health professional.

Having engaged with the RCN, I have lodged amendments requiring the Scottish ministers to be able to regulate for any training, qualifications and experience that a registered medical practitioner or registered nurse should have in order to carry out the role of AHP. I believe that, if agreed to, the amendments will help to ensure that the role will be suitably supported. I should note that the amendments that I have lodged to section 18 are also relevant here in that they would ensure that no person would have to participate if they did not want to for any reason. I therefore do not believe that amendments 76 to 79 are necessary or would strengthen the bill—in fact, they could limit the availability of relevant health professionals who are able to provide the substance and be with the person on the day of death. The Scottish Government also appears to have noted that, while observing that such an approach

“may set a precedent of health and care professionals being accompanied when they have to attend people in their homes to deliver other services.”

The resource implications of that could be significant.

We cannot give you a grouping all to yourself if you are not going to play ball, Mr Johnson.

I thank Daniel Johnson for lodging the amendments and for speaking to them and explaining their rationale, which I entirely understand. I accept that there would be a degree of arbitrariness with any timeframe that we set for the period of reflection.

On Mr Johnson’s point about people whose prognosis is that death might be more imminent, there is a provision in the bill that will allow anybody who is assessed as being likely to die within 14 days to have a reflection period of 48 hours, which is not much but should allow sufficient time for at least some reflection. That will also allow the process, with all the safeguards, to run its course.

I believe that the period of 14 days strikes the right balance between ensuring that a terminally ill adult has time to reflect on their decision at the end of life and ensuring that they are not subject to prolonged suffering, having taken that decision. In the stage 1 evidence that the committee received, including from the voluntary assisted dying review board in Victoria, Australia, it was noted that many who seek assisted death may not live for 14 days after having signed the declaration.

I note that amendments 7 and 8 are consequential on amendment 9. I understand the rationale for Daniel Johnson lodging the amendments. He is almost certainly correct that we will return to the issue at stage 3, but it will be difficult for the committee or Parliament to come up with a timeframe that is any less arbitrary. We can draw confidence from what we see in other jurisdictions, which is that, by and large, 14 days seems to be an appropriate timeframe to set.

I again thank Daniel Johnson for lodging the amendments. I will leave my remarks there.

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.