Seòmar agus comataidhean

I will restrict myself to speaking to Stuart McMillan’s amendments—he cannot be here this morning and sends his apologies.

I begin with amendment 117A, which amends one of my amendments in the group. The bill will require a registered medical practitioner to confirm that a person meets the criteria of terminal illness. That provision is essential, but it is not enough. Trust, transparency and accountability are fundamental in healthcare. We cannot legislate for assisted dying without protecting those principles. Mr McMillan is concerned that, without safeguards, a patient who is dissatisfied with one practitioner’s refusal could simply seek another who is willing to provide the statement. Not only would that scenario undermine the integrity of the assisted dying process; it could erode public trust in the health service itself.

A system that would allow repeated solicitation for an irreversible act of life-ending intervention would be unsound. Amendment 117A would introduce a practical safeguard, which is that any refusal by a registered medical practitioner to provide a statement under section 8 would need to be

“recorded in the patient’s medical records”

along with the reasons for that refusal. Furthermore, the amendment would prevent further assessment for the same request for a period of six months.

Stuart McMillan acknowledged Mr McArthur’s comments last week in relation to this issue, which suggested that a six-month time period would be “arbitrary”. However, that could be suggested about any timescale and age that is available throughout the bill. Mr McMillan’s point is that, wherever you draw the line, it will be an arbitrary decision. Mr McMillan thinks that the six months is a reasonable timescale because it would reduce the risk of repeated requests and doctor shopping while preserving existing provisions for referral to a specialist where there is doubt about the patient’s terminal illness or capacity.

Amendment 117A is not about limiting patient choice; it is about ensuring that choice is exercised responsibly, ethically and with integrity. It would ensure that the medical profession can act confidently, knowing that professional judgment is respected and that the process cannot be manipulated.

In the same group, Mr McMillan also lodged amendment 232. Mr McMillan comments that the bill, as currently drafted, would not require a person who seeks assisted death to consult a specialist in their condition to determine whether they truly meet the criteria of terminal illness. That is a significant gap. Prognosis is not an exact science; it varies by individual, treatment and circumstance. Without specialist input, there is a risk that someone with many years of life ahead could be permitted to proceed down an irreversible path. That is why it is essential that every assessment be informed by the most accurate expert knowledge that is available.

Amendment 232 addresses that risk. It would require that, in all assessments under section 6, the medical practitioner must consult a specialist in the person’s terminal condition and take their opinion into account. Mr McMillan notes Liam McArthur’s comments last week indicating that he thought that the amendment mirrored section 7(2). However, Stuart McMillan contests that comment. That is because the important word is “may”, which is not a guarantee that a registered medical professional and the relevant specialist would be involved. Amendment 232 would put that beyond doubt and ensure that decisions are based on the expertise of those who understand the specific trajectory and prognosis of the illness in question.

With that remark, I conclude Mr McMillan’s comments on his two amendments in the group.

I can confirm that I am not Stuart McMillan, but I will nevertheless move the amendment on his behalf.

Amendment 117A moved—[Bob Doris].

I do not agree with Mr McArthur’s intervention because, currently, we have not legislated for assisted dying, and the purpose of ingesting the drug in question would be to bring about death, not to make the individual comfortable while they are still living. Right now, the guidance is silent on that and it has to be developed. I will say more about it in a moment, but my amendment 125 does not propose to include the detail in the bill, but rather to include it in regulation by affirmative procedure. Like Mr McArthur, I accept that it is challenging to include all the information in the bill. A wider consultation would be needed, which an affirmative process would provide for.

I know that we have discussed many amendments over the past couple of committee sessions, but if members recall, one of my previous amendments sought to ensure that the co-ordinating medical practitioners should have a conversation with the person who is seeking the assisted death about various matters, including about the provision of the substance that would be used at the end of their life. Amendment 91, which the committee disposed of this morning, was not agreed to, but would have made that happen. Mr McArthur has suggested that those conversations would not be required, because they are already provided for in section 7(1) of the bill. However, I think that it is important to put on record that section 7(1) includes a whole variety of items for discussion, including the nature of the substance that would be used, as I have just cited, but that it is caveated and qualified by the phrase,

“in so far as the registered medical practitioner considers appropriate”.

There is no requirement under section 7(1), which we would need clarity on. The clinician would be empowered, but not required, to have those conversations: those are two very different things, which it is important to put on record.

If possible, Ms Webber, I will respond to Mr McArthur first.

I would be very interested in the BMA’s thoughts on that. I do not want to rehearse arguments that we have heard before, but in the bill as drafted, clinicians are empowered, but not required, to discuss diagnosis and prognosis; available treatments; palliative care and other available care; and the nature of the substance, including how a death may come about. The outcome could be that an individual clinician does not have to discuss any of those things whatsoever. I think that there should be a framework to support clinicians to have those conversations. Of course, if the person who is seeking an assisted death does not wish to have those conversations, that would be their right. In some respects, my view is that the bill is silent on that, by caveating everything with the phrase,

“in so far as the registered medical practitioner considers appropriate”.

My amendment 125, and the consequential amendment 136, address a gap in the bill regarding the duties placed on health and social care practitioners in the event that a person, following the planned ingestion of an approved substance provided to end their life, does not die within a reasonable timeframe.

Amendment 125 states:

“The Scottish Ministers must by regulations make provision about the management of cases where a terminally ill adult has used the substance provided to end their own life in accordance with this Act, but has not died within a reasonable period.”

What constitutes a “reasonable period” must also be specified in the regulations.

I do not wish to speculate on how often that scenario might arise. I suspect that there will be various opinions. We heard some of those during exchanges on day 2 of the committee’s deliberations at stage 2. There was an almost four-way discussion between Sue Webber, Emma Harper, Brian Whittle and, I think, Joe FitzPatrick about how often such things might happen.

However, that is to miss the wider point. Since the scenario will happen—if only occasionally—there is a need for guidance so that professionals and the public know what process should be followed in such circumstances. Such a scenario raises many complex and difficult questions of a legal, ethical and practical nature. Indeed, colleagues have been wrestling with all those questions with great thoughtfulness this morning.

For example, if the person is unconscious, should they be killed by the administration of further lethal or other substances, which, after all, would be euthanising that particular individual, against the policy intent of the legislation? Should or could such a step be taken without consent? What should the approach be if the person does not have capacity? What information should be given about such scenarios to people who request assisted dying?

I would not like to say that I was caught out there, convener. Could you please give me the number of that amendment again? If you give it to me slowly, I will read the correct bit of my notes.

Crikey, Ms Webber. I feel as though I am playing devil’s advocate on both sides of the debate. I believe that a framework is required for clinicians and that there should be supporting guidance for them but, ultimately, that a degree of discretion and professional judgment has to be used in those circumstances.

However, that professional judgment cannot be exercised in a vacuum, and I feel that Mr McArthur’s bill would lead to some of it being made in a vacuum. Similarly, although I agree with Sue Webber’s point, I am not sure that the framework should be too stringent. I will therefore go back to my amendments and say that that is why the issue should be dealt with not in the bill but by regulation and consultation. That is important.

Thank you, Mr FitzPatrick. I am not really on both sides of the argument, because the bill does not contain provisions on this issue. The member in charge of the bill says that we should not put that sort of detail in the bill. I agree with him to a large extent. I want it to be in regulations, and my amendment says that it should be in regulations. I intend to move the amendment to see what the committee’s views are. If it is not agreed to, I can always bring it back at stage 3, at which point I would be delighted to work with Mr McArthur to get the balance right in relation to that issue.

I return to my pre-prepared reflections. Complex questions such as this are best dealt with through detailed guidance—I have tried to make that point—rather than in the bill. However, the requirement for guidance must be in the bill, and that is what my amendment seeks. Those complex questions must be worked through, and the amendment places a duty on the Scottish ministers to consult on such matters before laying draft regulations under the affirmative process. For fairly obvious reasons, such regulations must be in place before applications for assisted dying are to be made, should the bill become law.

I am reminded of the exchange between Douglas Ross and Liam McArthur about whether the clinician should be inside or outside the room so that they can attend and take action as required. We are not sure what action would be permitted, so that has to be clarified before we have a debate about whether the clinician should be inside or outside the room. Amendment 125 and its consequential amendments would provide the certainty of a framework under which medical professionals should operate on such occasions. With that, I draw my remarks to a close.

It is obvious that the Government has followed the progress of Ms Boyack’s bill carefully, as much of your opening statement reflects some of the specifics of the bill.

People who are watching these proceedings will see that the Government agrees with the policy objectives, and the vast majority of the people who have contacted our committee support the policy objectives. Initially, it was the Government’s intention to legislate in this area. You have made a lengthy and informative statement, but the core question is, why has the Government changed its mind? I do not want to go into the detail of what you said in your opening statement, but at the heart of the matter is the fact that there has been a change of mind. What led to that change of mind on the part of the Government?

I have made a similar mistake.