Seòmar agus comataidhean

The issues that are highlighted in the amendment are extremely important and they will be crucial in relation to the assessments that are made of particular individuals, not across the board. Again, one needs to take into account whether that would be more appropriately set out in the bill or best left to secondary legislation or guidance. I believe that those issues are better reflected in guidance. I do not think that it is a resource issue; it is about ensuring that the profession is able to have input to the way in which training is designed and taken forward.

I turn to Jackie Baillie’s amendments 66, 68, 70, 71A and 72. I ask for those amendments not to be moved. I have spoken to my amendments on training, and I ask members to support those instead. My amendments seek to allow Scottish ministers to regulate for training, in addition to qualifications and experience, that is relevant to the co-ordinating registered medical practitioner, the independent registered medical practitioner and the authorised health professional, and they would require all regulations to be consulted on.

Jackie Baillie’s amendment 49 would require any regulations made in relation to the qualifications and experience that the co-ordinating practitioner should have to include minimum training standards and qualifications and experience that are required specifically to deal with a person aged between 18 and 24 or a person with a fluctuating illness and/or an unpredictable prognosis. The amendment would also require Scottish ministers to review the regulations in relation to qualifications and experience, but not training, from time to time.

I am sympathetic to the amendment, not least due to my engagement with Children’s Hospices Across Scotland over the past few years, but I draw members’ attention to my amendments on training. They will allow ministers to set out what training, as well as what qualifications and experience, a person must have to be the co-ordinating practitioner, independent registered medical practitioner or authorised health professional.

I note that, as Jackie Baillie’s amendment stands, the co-ordinating registered medical practitioner would be subject to the requirement, but not the independent registered medical practitioner. I also note that the part of the amendment in relation to minimum training standards that are required may overlap with Jackie Baillie’s amendments 66 and 71, which also provide for the co-ordinating practitioner to have completed training to be specified by ministers in regulations.

In relation to the part of the amendment that relates to specific qualifications and experience that would be required in relation to those aged under 25, I note that the regulation-making powers in the bill will allow ministers to specify that if it is felt necessary. The bill requires ministers to consult relevant persons ahead of laying any such regulations in order to ensure that what medical professionals consider necessary is properly reflected. That is the case in the amendment, which is concerned with specific training and experience in relation to diseases, illnesses or conditions of a fluctuating nature and with unpredictable prognoses.

On that basis, I ask for amendment 49 not to be moved and I ask Jackie Baillie to consider how the bill as amended stands after stage 2. As ever, I am happy to work with her ahead of stage 3 on any further aspects that may need to be addressed.

I turn to Mr Whittle’s amendment 155. Section 6(6) of the bill sets out the circumstances in which an independent registered medical practitioner may carry out an assessment under section 6(3). Amendment 155 seeks to add the requirements that the independent registered medical practitioner must not have consulted the co-ordinating registered medical practitioner on the case, have been provided with access to any notes prepared by the co-ordinating practitioner on their assessment, or have been provided with any other notes prepared by the co-ordinating registered medical practitioner since the date of the first declaration.

With regard to maintaining the independence of the two doctors, I believe that steps would be taken to ensure that as a matter of existing practice. Again, I believe that consistency in the principles and approach with other areas of medicine is important. However, I am open to further discussion with Mr Whittle on that.

I consider Mr Whittle’s amendment 196 and Paul Sweeney’s amendments 254, 255 and 270 to be unnecessary, due to the amendments that I have lodged on training.

I look forward to hearing members’ comments and I will respond to them if appropriate.

I move amendment 65.

I appreciate Mr Doris’s point. If additional information could usefully be added to the process, I am happy to consider it. In relation to schedule 2, a practitioner would already need to be satisfied that quite a lot of details had been met before those forms were signed.

Stuart McMillan’s amendment 117A amends Bob Doris’s amendment 117 and states that, if a report under Mr Doris’s amendment sets out why a statement has not been made,

“no registered medical practitioner may carry out an assessment in relation to the same request before the end of the period of six months beginning with the day the report is recorded in the patient’s medical records.”

I cannot support the amendment, which appears to be arbitrary and disproportionate and does not appear to take account of the potential for circumstances to change.

I now turn to Jackie Baillie’s amendments 50, 51, 58 and 59. Amendment 51 would require both assessing doctors, if the person being assessed was under 25, to refer the person to a social worker and a psychiatrist and to take account of their specialist opinions. The amendment would also allow Scottish ministers to make regulations on any qualifications that the social worker or psychiatrist must have, and it would provide that the regulations must be consulted on. Amendment 59 would requires the first regulations made to be subject to the affirmative procedure, and amendment 58 would require subsequent regulations to be made under the negative procedure. Amendment 50 would add to section 6 the requirement that the assessing doctors carry out the steps that are set out in amendment 51.

I note the Scottish Government’s concerns regarding the potential time commitment for practitioners and the risk of creating barriers to access for individuals in the affected groups, which could potentially result in delays or inequitable access. Daniel Johnson sought to address that in his remarks, but I think that it would still be a matter of concern. As I have said, the way in which the process will work for younger adults, who are likely to be living with, or who have been living with, complex conditions for some time—this was set out very well by Mr Johnson—will reflect that complexity and will invariably involve a wider range of medical and other professionals, who, in turn, will require the appropriate training. A separately established and distinct process might be seen as arbitrary and open to challenge, so it might be better to set out in the relevant guidance what Jackie Baillie seeks to achieve, including in relation to training. I remain willing to work with Jackie Baillie and Daniel Johnson on those issues ahead of stage 3.

In the meantime, I have no objection to Jackie Baillie’s amendment 93, which would require the assessing doctors to inform the terminally ill adult that they could be referred for a palliative care assessment. The bill already requires assessing doctors to explain and discuss with the person their diagnosis, prognosis, available treatment, palliative care and other care that is available. My amendment 29 would require them also to discuss psychological support and symptom management. Although amendment 93 appears to replicate part of that, I have no objection to it.

Jackie Baillie’s amendment 75 would enable assessing RMPs to refer a person who is being assessed for an additional second opinion in a psychiatric assessment on capacity. The amendment would also allow the person being assessed to request a second opinion in relation to their capacity. In either circumstance, the referral would have to be to someone on the register of psychiatrists, which would be established by amendment 80, which we have already debated, and the assessment would have to be taken into account by medical professionals. I refer members to the comments that I made earlier on that issue. I also note that the Government has stated that, should amendment 75 be passed, it could raise concerns around consistency and increase the risk of “doctor shopping”. The Government also suggests that

“This may also place significant strain on staff resources, as additional referrals and second opinions would require more specialist availability and coordination.”

Let me turn to Pam Duncan-Glancy’s amendments 231, 234, 235 and 236. Amendment 231 might be a helpful addition to the list of things that assessing doctors should explain to and discuss with the person being assessed. However, assessing doctors would benefit from having discretion in such matters. For example, the inquiries and discussion provided for by amendment 231 would not be appropriate in every case being assessed, as I am sure Ms Duncan-Glancy would accept.

I appreciate the intention behind amendment 234 in seeking to ensure that any terminally ill adult who requests assistance and who has a disability has access to the support that they need. I also appreciate that the amendment frames any referral as being discretionary for the assessing doctors. There might be issues to consider in relation to which disability organisations could be involved in something of that nature, how reasonable it is to expect them to be involved in the way that is envisaged and how well placed they would be to provide support.

That brings us to amendment 236, which would require ministers to ensure that disability organisations are adequately resourced to provide that support function. It is obviously for the cabinet secretary and the Scottish Government to comment on duties that amendments would place on the Government to deliver funding. However, that consideration might add to concerns about whether such an amendment would make a proportionate difference to the bill and to the robust safeguarding measures that are already in place and that can be delivered.

With regard to amendments 234 and 236, the Scottish Government has stated:

“... this would require discussion with disability organisations to understand in what form this support would take; how it would be funded; and how it could be delivered consistently”.

The Government further notes that amendment 236

“would place an open-ended, and potentially significant, resourcing ask on Government.”

Amendment 235 also aims to provide support to any terminally ill adult with a disability and, again, allows discretion, so the provision can be used if deemed necessary or helpful. However, I again have concerns about how that would fit within the overall assisted dying process provided for by the bill, and I am also unsure how well positioned local authorities are to meaningfully provide the kind of assessment that is provided for and envisaged by the amendment.

Stuart McMillan’s amendment 232 appears to duplicate the policy intent of the provision in section 7(2) of the bill, which allows the assessing doctors, if they have any doubts about whether an illness is terminal, to refer to an expert in the particular illness in question.

On Mr Balfour’s amendment 157, I note that section 7 sets out further provision for assessments to be carried out by registered medical practitioners. Amendment 157 would add a requirement that the registered medical practitioner must refer the person seeking an assisted death to a registered social worker and a registered medical practitioner who is registered in the specialism of psychiatry for an assessment and must take account of any view provided following that assessment.

In terms of amendments that relate to a required social work assessment, I have lodged amendments that, if agreed to, would see assessing doctors being able to make inquiries and seek the views of health, social care and social work professionals and those who have provided or are providing care to the person. I further note that the bill does not limit assessing doctors to seeking the views of only one specialist on either illness or capacity, so there is nothing to prevent other opinions being sought if that is considered necessary. I therefore do not believe that amendment 157 is required, and nor are the consequential amendments 159 and 160.

Sue Webber’s amendment 158 would add a requirement that the medical practitioner must inform the person of any potential side effects of using approved substances that may be provided to assist them to end their own life and of any potential risks or complications, including pain. I would expect such information to be shared by the RMPs as part of the requirement under section 1 of the bill, which requires assessing doctors to explain to and discuss with the person seeking assistance

“the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death).”

I therefore consider that the amendment may not be essential, but I certainly do not oppose it.

I note Daniel Johnson’s comments about his amendments 5 and 6 being generally probing amendments. Amendment 5 would require the assessing doctors’ statements to record how long they have known the person, and amendment 6 is consequential. I am not necessarily clear as to what extent that would strengthen the bill, as it would simply record, and only for the co-ordinating registered medical practitioner statement, how long they had known the terminally ill adult. I have always acknowledged that there may be a value in the co-ordinating practitioner having a pre-existing relationship with the terminally ill adult, particularly when assessing for coercion. Indeed, the explanatory notes accompanying the bill state:

“It is expected that this will usually be the terminally ill adult’s GP or primary care doctor.”

However, I understand the rationale behind the amendments and there is probably scope for further discussion ahead of stage 3.

Finally, I will address Paul Sweeney’s amendments 239, 240, 241 and 273, regarding the establishment of an assisted dying panel to determine eligibility once the assessing doctors have both made statements of eligibility, as is set out in the bill. I note that the amendments would prevent a terminally ill adult from making a second declaration until the panel had granted a certificate of eligibility and would require the panel to hear from one or more of the assessing doctors and the terminally ill adult and others. In my view, the amendments would add a burdensome and unnecessary step to the assessment process, which is already robustly and proportionately safeguarded. Two doctors must assess eligibility with input from others, if and as required, before a person is allowed to be provided with assistance. Having to then pass to a further panel would inevitably delay the process and potentially deny assistance to many who met the eligibility criteria. As such, I cannot support the establishment of an additional review panel, which I believe would not strengthen safeguards but would rather act as a potential barrier to those accessing the choice that they wish, having met the stringent eligibility criteria set out in the bill.

Apologies for the length of time that I have taken to speak to the group, but I hope that that is helpful to the committee.

I appreciate Mr Doris’s point. If additional information could usefully be added to the process, I am happy to consider it. In relation to schedule 2, a practitioner would already need to be satisfied that quite a lot of details had been met before those forms were signed.

Stuart McMillan’s amendment 117A amends Bob Doris’s amendment 117 and states that, if a report under Mr Doris’s amendment sets out why a statement has not been made,

“no registered medical practitioner may carry out an assessment in relation to the same request before the end of the period of six months beginning with the day the report is recorded in the patient’s medical records.”

I cannot support the amendment, which appears to be arbitrary and disproportionate and does not appear to take account of the potential for circumstances to change.

I now turn to Jackie Baillie’s amendments 50, 51, 58 and 59. Amendment 51 would require both assessing doctors, if the person being assessed was under 25, to refer the person to a social worker and a psychiatrist and to take account of their specialist opinions. The amendment would also allow Scottish ministers to make regulations on any qualifications that the social worker or psychiatrist must have, and it would provide that the regulations must be consulted on. Amendment 59 would requires the first regulations made to be subject to the affirmative procedure, and amendment 58 would require subsequent regulations to be made under the negative procedure. Amendment 50 would add to section 6 the requirement that the assessing doctors carry out the steps that are set out in amendment 51.

I note the Scottish Government’s concerns regarding the potential time commitment for practitioners and the risk of creating barriers to access for individuals in the affected groups, which could potentially result in delays or inequitable access. Daniel Johnson sought to address that in his remarks, but I think that it would still be a matter of concern. As I have said, the way in which the process will work for younger adults, who are likely to be living with, or who have been living with, complex conditions for some time—this was set out very well by Mr Johnson—will reflect that complexity and will invariably involve a wider range of medical and other professionals, who, in turn, will require the appropriate training. A separately established and distinct process might be seen as arbitrary and open to challenge, so it might be better to set out in the relevant guidance what Jackie Baillie seeks to achieve, including in relation to training. I remain willing to work with Jackie Baillie and Daniel Johnson on those issues ahead of stage 3.

In the meantime, I have no objection to Jackie Baillie’s amendment 93, which would require the assessing doctors to inform the terminally ill adult that they could be referred for a palliative care assessment. The bill already requires assessing doctors to explain and discuss with the person their diagnosis, prognosis, available treatment, palliative care and other care that is available. My amendment 29 would require them also to discuss psychological support and symptom management. Although amendment 93 appears to replicate part of that, I have no objection to it.

Jackie Baillie’s amendment 75 would enable assessing RMPs to refer a person who is being assessed for an additional second opinion in a psychiatric assessment on capacity. The amendment would also allow the person being assessed to request a second opinion in relation to their capacity. In either circumstance, the referral would have to be to someone on the register of psychiatrists, which would be established by amendment 80, which we have already debated, and the assessment would have to be taken into account by medical professionals. I refer members to the comments that I made earlier on that issue. I also note that the Government has stated that, should amendment 75 be passed, it could raise concerns around consistency and increase the risk of “doctor shopping”. The Government also suggests that

“This may also place significant strain on staff resources, as additional referrals and second opinions would require more specialist availability and coordination.”

Let me turn to Pam Duncan-Glancy’s amendments 231, 234, 235 and 236. Amendment 231 might be a helpful addition to the list of things that assessing doctors should explain to and discuss with the person being assessed. However, assessing doctors would benefit from having discretion in such matters. For example, the inquiries and discussion provided for by amendment 231 would not be appropriate in every case being assessed, as I am sure Ms Duncan-Glancy would accept.

I appreciate the intention behind amendment 234 in seeking to ensure that any terminally ill adult who requests assistance and who has a disability has access to the support that they need. I also appreciate that the amendment frames any referral as being discretionary for the assessing doctors. There might be issues to consider in relation to which disability organisations could be involved in something of that nature, how reasonable it is to expect them to be involved in the way that is envisaged and how well placed they would be to provide support.

That brings us to amendment 236, which would require ministers to ensure that disability organisations are adequately resourced to provide that support function. It is obviously for the cabinet secretary and the Scottish Government to comment on duties that amendments would place on the Government to deliver funding. However, that consideration might add to concerns about whether such an amendment would make a proportionate difference to the bill and to the robust safeguarding measures that are already in place and that can be delivered.

With regard to amendments 234 and 236, the Scottish Government has stated:

“... this would require discussion with disability organisations to understand in what form this support would take; how it would be funded; and how it could be delivered consistently”.

The Government further notes that amendment 236

“would place an open-ended, and potentially significant, resourcing ask on Government.”

Amendment 235 also aims to provide support to any terminally ill adult with a disability and, again, allows discretion, so the provision can be used if deemed necessary or helpful. However, I again have concerns about how that would fit within the overall assisted dying process provided for by the bill, and I am also unsure how well positioned local authorities are to meaningfully provide the kind of assessment that is provided for and envisaged by the amendment.

Stuart McMillan’s amendment 232 appears to duplicate the policy intent of the provision in section 7(2) of the bill, which allows the assessing doctors, if they have any doubts about whether an illness is terminal, to refer to an expert in the particular illness in question.

On Mr Balfour’s amendment 157, I note that section 7 sets out further provision for assessments to be carried out by registered medical practitioners. Amendment 157 would add a requirement that the registered medical practitioner must refer the person seeking an assisted death to a registered social worker and a registered medical practitioner who is registered in the specialism of psychiatry for an assessment and must take account of any view provided following that assessment.

In terms of amendments that relate to a required social work assessment, I have lodged amendments that, if agreed to, would see assessing doctors being able to make inquiries and seek the views of health, social care and social work professionals and those who have provided or are providing care to the person. I further note that the bill does not limit assessing doctors to seeking the views of only one specialist on either illness or capacity, so there is nothing to prevent other opinions being sought if that is considered necessary. I therefore do not believe that amendment 157 is required, and nor are the consequential amendments 159 and 160.

Sue Webber’s amendment 158 would add a requirement that the medical practitioner must inform the person of any potential side effects of using approved substances that may be provided to assist them to end their own life and of any potential risks or complications, including pain. I would expect such information to be shared by the RMPs as part of the requirement under section 1 of the bill, which requires assessing doctors to explain to and discuss with the person seeking assistance

“the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death).”

I therefore consider that the amendment may not be essential, but I certainly do not oppose it.

I note Daniel Johnson’s comments about his amendments 5 and 6 being generally probing amendments. Amendment 5 would require the assessing doctors’ statements to record how long they have known the person, and amendment 6 is consequential. I am not necessarily clear as to what extent that would strengthen the bill, as it would simply record, and only for the co-ordinating registered medical practitioner statement, how long they had known the terminally ill adult. I have always acknowledged that there may be a value in the co-ordinating practitioner having a pre-existing relationship with the terminally ill adult, particularly when assessing for coercion. Indeed, the explanatory notes accompanying the bill state:

“It is expected that this will usually be the terminally ill adult’s GP or primary care doctor.”

However, I understand the rationale behind the amendments and there is probably scope for further discussion ahead of stage 3.

Finally, I will address Paul Sweeney’s amendments 239, 240, 241 and 273, regarding the establishment of an assisted dying panel to determine eligibility once the assessing doctors have both made statements of eligibility, as is set out in the bill. I note that the amendments would prevent a terminally ill adult from making a second declaration until the panel had granted a certificate of eligibility and would require the panel to hear from one or more of the assessing doctors and the terminally ill adult and others. In my view, the amendments would add a burdensome and unnecessary step to the assessment process, which is already robustly and proportionately safeguarded. Two doctors must assess eligibility with input from others, if and as required, before a person is allowed to be provided with assistance. Having to then pass to a further panel would inevitably delay the process and potentially deny assistance to many who met the eligibility criteria. As such, I cannot support the establishment of an additional review panel, which I believe would not strengthen safeguards but would rather act as a potential barrier to those accessing the choice that they wish, having met the stringent eligibility criteria set out in the bill.

Apologies for the length of time that I have taken to speak to the group, but I hope that that is helpful to the committee.

Yes—briefly.

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.