Seòmar agus comataidhean

I hear what Jeremy Balfour is saying in relation to the prognosis period, but I think that that uncertainty exists—we would find few, if any, health professionals who would not acknowledge it—and is a factor in decisions that are taken about many types of treatment over which we seem comfortable in allowing medical health professionals to use their best judgment in coming to a decision.

I think that Patrick Harvie’s point was that placing further undue pressure on them to come up with an accurate timeframe of diagnosis, which is particularly challenging in some conditions, is not in the interests of the health professionals nor of the patients who may be vulnerable and may have questions about the options that are available to them.

Briefly, yes.

I would respond to that by saying that there is nothing wrong with that guidance. It is consistent with the approach that is taken in the bill. The discussions that my team and I have had with the Scottish Partnership for Palliative Care on that have yet to determine where that difference is. I will continue those discussions with the SPPC and, indeed, with Bob Doris to establish whether more can be done. However, as yet, I have not seen the evidence that shows the disconnect between the definition in the bill and the GMC guidance. As Mr Doris acknowledges, the policy memorandum refers to that guidance.

I turn to Emma Harper’s amendment 12. I support the assessing medical practitioner being required to make inquiries of those who are providing or have provided health or social care to the person. I consider that that should include social work services as well, if they think that that would be helpful, and their having the option to make inquiries of health, social care and social work professionals on any matter that is relevant to an assessment that they are making. That includes input that might be helpful from people who are providing or have provided care to the person and will know them to an extent and might have seen them interact with family and friends on matters where coercion might be relevant.

I note that amendment 12 is pre-empted by amendment 88 in group 10, on assessments of the terminally ill adult. I consider that that potential input should include social work services, which amendment 12 does not. I also consider that it should extend beyond being limited to matters of coercion.

My amendment 69 seeks to require assessing registered medical practitioners to make inquiries of health, social care and social work professionals who have provided care to the person, if they consider that appropriate. It would also allow those assessing practitioners to seek input from those professionals on any relevant matter at the assessing stage. That would include seeking input on potential or suspected coercion.

Those same points apply to Emma Harper’s amendment 13. Although I am grateful to her for lodging her amendments and enabling this debate to take place, I ask her not to move them and for the committee to support my amendment 69. If further work needs to be done ahead of stage 3, I am happy to work with Emma Harper on that.

With regard to Brian Whittle’s amendments 161, 162, 172 and 210, and amendments 164, 169 and 174, it is fundamental that a terminally ill adult makes the choice about requesting assistance themselves without coercion or pressure being put on them by another person. The bill is clear on that, provides for it and makes it an offence to coerce or pressure a person into requesting assistance.

Given that the co-ordinating registered medical practitioner and independent registered medical practitioner will already be assessing for signs of coercion, I question whether a further assessment by an independent assessor is necessary.

Yes—briefly.

I will in a second, Mr Doris.

In an intervention on Sandesh Gulhane, I recognised that the bill would put in place safeguards that do not exist at present. Those are in relation to access to an assisted death and more widely to those who are vulnerable, who may have a terminal illness and who, at the moment, are being left without support or the opportunity to discuss their concerns and the situation in which they find themselves.

I am happy to take the intervention. I think that it was from Bob Doris—or was it from Daniel Johnson?

I think that Sandesh Gulhane is right to point to the importance of autonomy, but does he also agree that the safeguards in the bill would require discussions to take place around the prognosis and the alternative treatment and care options that may be available in order to understand the rationale and the reason why an individual has come to the decision to make such a request?

Suicide rates among the terminally ill are running at twice and more the national average, so we have to question whether having the safeguards in the bill will provide protections that are not there at the moment. I do not see any proposals coming forward that would see them applied more routinely, but having those open discussions is far more supportive of those who may be vulnerable and need assistance in whatever form.

Good morning, convener. I thank all members who have lodged amendments to the bill at stage 2. The breadth of the amendments will allow most of the substantive issues that the committee wrestled with at stage 1 to be debated at stage 2, which is the purpose of the process.

I thank Jeremy Balfour and Daniel Johnson for setting out the rationale for their amendments and I agree with much of what they have said. In other jurisdictions, we see that people are accessing the choice that the bill would enable at the end of their life, but I understand why we are having the debate.

Before I touch on the amendments that have been spoken to, I will first address my amendments. My amendment 24 clarifies that,

“For the avoidance of any doubt, a person is not”

to be considered as meeting the definition of terminal illness as set out in section 2

“only because they have a disability or a mental disorder (or both).”

That does not, however, prevent a person from meeting the requirements as set out in section 2 from being regarded as a terminally ill person.

Amendment 26 is consequential and tidies up drafting.

I noted the concerns that were raised at stage 1 about the potential risk of a person with a disability or a mental disorder being assessed as meeting the definition of terminal illness as set out in section 2. I am clear that the bill, supported by its accompanying documents, does not permit a person to be assessed as being terminally ill for the purposes of the bill only because they have a disability, a mental disorder or both.

However, in order to provide further reassurance of policy intent and on the meaning of section 2, and to further inform any future guidance on and the practical operation of the act, I have lodged amendment 24. It is not a change of policy but it will remove any doubt. I remain of the view that, if it is their wish, a person must not be prevented from requesting assistance to end their own life because of a disability or a mental disorder, if they meet the requirements as set out in the bill and are assessed as being eligible.

Jackie Baillie’s amendment 73 relates to the amendments that I have lodged in this grouping. Amendment 73 and consequential amendment 84 duplicate the part of my amendment 24 that relates to mental disorder but do not include the part about disability. I am therefore supportive of the principle of Jackie Baillie’s amendments, but I ask her not to move them, and I ask that the committee supports amendment 24, given its application to mental disorder and disability.

I turn to Jeremy Balfour’s amendment 143, which, as the convener said, pre-empts amendments 144 and 4. The first two parts of the amendment, which relate to the diagnosis of an

“irreversible and actively progressive disease, illness or condition”

for which

“no treatment is available that could reasonably be expected to prevent death or lead to recovery”,

are already provided for in section 2. On the proposal that terminal illness should be defined as a person being considered to have three months or less to live, as the committee heard during stage 1, there are risks in including a timeframe for a prognosis of death.

Will Mr McMillan take an intervention?

I am afraid that I am going to proceed, Mr Balfour.

The Scottish Government has identified potential legislative competence issues. I am aware that the Scottish Government is working with the United Kingdom Government to ensure the full operation of the bill, should it be passed. Although the Cabinet Secretary for Health and Social Care is not here to update us on those discussions, it is important to acknowledge the issues that those amendments raise.

Amendment 256 seeks to amend the Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Regulations 2014 by adding the assisted dying for terminally ill adults legislation to its schedules. I am supportive of that amendment.

On amendment 257, I have always taken the view—I think that it was reiterated by Sandesh Gulhane earlier—that it is for the healthcare sector to determine how to manage the assisted dying process within the parameters of the bill. Fulton MacGregor acknowledged that in his remarks. Therefore, my feeling is that it should be left to the health and care sector to determine whether it would be appropriate for each health board to set up a specialist assisted dying process.

Amendment 257 mandates that every health board set up a service, while amendment 256 mandates joint working with the local authority. I wonder whether the amendments are proportionate and not overly restrictive. I understand absolutely what Fulton MacGregor is driving at and the reasons why the RCN and others wanted the amendments to be lodged and want them to be agreed to. There are certainly examples in other jurisdictions in which provision is mandated in similar ways, which, ostensibly, is to ensure access. I am happy to work with Mr MacGregor ahead of stage 3 to see whether something more proportionate might be achievable.

Amendment 277 is a consequential amendment to ensure that—

I think that I have explained that the conversations that would be had as part of the assessment of the rationale for why a request has been made are not happening at the moment. Therefore, the bill would not only provide protections but extend them far more widely to those who are currently left vulnerable.

Moving on to amendments 85 to 87, 104, 105, 107, 112, 118, 120, 124, 139 and 140, lodged by Bob Doris, I consider that personal choice and autonomy is at the heart of the bill, which provides appropriate and proportional safeguards, while allowing those who wish to have assistance to be able to access it in a reasonable time and within a reasonable framework. It is fundamental that a terminally ill adult makes the choice to request assistance themselves without coercion or pressure by another person. The bill clearly provides for that and makes it an offence to coerce or pressure a person into requesting assistance and, as I have said, I have also lodged an amendment that adds the offence of coercing or pressuring a person into using an approved substance.

However, I am very wary about widening the current definition of coercion or pressure from some form of illegitimate influence being brought to bear by another person, to something that is done by the person themselves, societal expectations, or by the health and social care system, as opposed to individuals within the system or in the state. I am concerned that defining coercion and pressure in such a way would risk introducing new definitions of legal terms, which would create confusion and make the detection of coercion or pressure and the prosecution of offences in the bill more difficult.

I understand what the member is getting at with those amendments and I understand that there are various factors that may express a person’s vulnerable status and situation, which would potentially make them prone to influence and could affect their decision making. However, I believe that retaining the need for coercion or pressure to be an act that is done by another person, supported by the offences in the bill and the ability for other health, social care and social work professionals to input into the assessment process, is the best way to proceed.