Hansard

We have had an interesting debate and I hope to respond at length to all the questions that have been raised, with your forbearance.

Much of the discussion has been about medical practitioners and how they might behave. I will clarify a point that I made yesterday when Mr Gallie, who is not here today, unfortunately, asked about the definition of "medical practitioner". My response was, to say the least, rather clumsy and I will clarify the definition now. "Medical practitioner" would cover doctors registered by the General Medical Council, but not nurses or other health care staff. As I said to Mr Gallie, the definition would not include a dentist, unless he was registered as a doctor. The medical practitioner has power, under section 44 as amended, to delegate authority to treat to other health care professionals such as nurses, dentists, physiotherapists and opticians.

As Mr Matheson says, amendment 327 might be the last amendment that we will deal with but has caused one of the most important debates that we have had. I acknowledge the sincere concerns of Mr Matheson and of other committee members over amendment 327. There has been an anxious debate over the issues raised by the amendment, and fears have been expressed that the bill opens the way to what has been termed passive euthanasia.

As we have said before, nothing could be further from the case. The Scottish Executive has no plans to change the law in respect of euthanasia. We repudiate calls to legalise euthanasia. An act of euthanasia, in which the injuries are not self-inflicted, would be regarded as the deliberate killing of another, and would be dealt with under Scots law, under the criminal law of homicide. Nothing in this bill changes that position. Right away, therefore, we have a very powerful response to Mr Matheson's fears. Any health professional, like any other individual who acted by any means—be it by withholding treatment or by denying basic care such as food and drink—with the objective of euthanasia, would be open to prosecution under criminal law. That is the general position, and this bill does not alter it.

I will turn to some of the assertions made, firstly by those who read sinister intent into a bill which is designed to do the precise opposite: to protect the adult with incapacity. We have had useful discussions with a number of groups with an interest in the bill. They have made sincere, carefully argued points, underlining their wishes and concerns. Many of them have communicated in a similar way with their MSPs and with members of this committee. However, those groups have been ill served by articles in newspapers over the past few months, and indeed in the past few weeks. Some of those articles were, I think, referred to by the convener yesterday. They have distorted the issues that we are discussing today. I know that we have examined the facts in a measured way during the debate. We have not responded to the irresponsible scaremongering which has found its way into print, and we can be proud of that.

I appreciate Mr Matheson's concerns, however, and I certainly do not include them in those last remarks. I am grateful for the opportunity to clarify what the bill does and does not do. I wish to examine, one by one, the questions that have been raised of which there are many.

The first, and most unlikely, which has been included in some of the arguments made to committee members, is that doctors under pressure, perhaps because of a shortage of bed spaces, may collude with unscrupulous proxies, who perhaps have an interest in the estate of the patient, to deny treatment and basic care. The committee has already discussed the standard of decision making required of proxies such as attorneys and guardians. It has agreed that the bill should not include statutory duties of care, because there are already good safeguards to ensure that the proxy acts in the adult's interest. The committee has also agreed that it was unnecessary and undesirable to prohibit proxies from certain actions and decisions similar to the harmful ones referred to in amendment 327.

We have provided, in our amendment to section 47, that anyone with an interest in the personal welfare of the patient can challenge a treatment decision in court. Even if a welfare attorney or guardian were to behave unscrupulously and sought to enlist a doctor's support in bringing about the death of a patient, they would have to contend with the possibility of a challenge from others.

Those who disagree with the proposals in part 5 of the bill have further suggested that doctors may refuse life-supporting measures to patients whose existence is not considered to benefit them. To suggest that is to confuse the provisions of the bill, which are about helping and healing adults with incapacity, and the common law in relation to patients in a persistent vegetative state. Much of Michael Matheson's argument was based not on the Adults with Incapacity (Scotland) Bill, but on the common law. Our amendments specifically underline that the provisions of part 5 are made without prejudice to other enactments, or to the common law. It is misguided to suggest otherwise. The bottom line is that this bill does not supersede the Law hospital judgment. I will return to that judgment later.

Opponents of part 5 of the bill have claimed to recognise, in its general principles, which require all interventions to be for the benefit of the adult, a way of introducing euthanasia when existence can be shown not to be a benefit. Section 1 does not, however, authorise any substantive action or omission; on the contrary, it sets down guiding principles. It can operate only along with provisions of other parts of the bill, and cannot be used to justify the withholding of basic care.

The Executive has already undertaken to consider an amendment to the bill, at stage 3, to clarify that an intervention may be either an act or an omission. That fact was referred to by Christine Grahame, who is correct. That would further strengthen the protection that is offered by these general principles. A closer examination shows that section 1 also requires any intervention to be

"the least restrictive option in relation to the freedom of the adult."

Clearly, to cause a person's death would be the most restrictive option imaginable. So, even considering section 1 of this bill in isolation, the fears that have been expressed are groundless.

I now turn to one of the most frequent criticisms of this part of the bill—that it will allow patients to be starved or dehydrated, for whatever reason. Those who put forward that suggestion do so in the face of the facts. Section 44, the section that those people criticise, cannot be read as allowing any such thing, as it limits the doctor's authority to treat an incapable patient in two ways.

First, it authorises him to do only those things that will safeguard or promote the physical or mental health of the patient. Any action or omission which does not have that effect is not authorised by this bill. It must be obvious that the withdrawal of food or liquids, however they are administered, when that will lead to death, does not safeguard health and is therefore not permitted by the bill.

Secondly, the doctor is limited, in section 44, to doing

"what is reasonable in the circumstances".

That qualification is objective, and is not solely a matter of the doctor's opinion. He is therefore limited to action that he will later be able to justify as reasonable in the event of challenge.

As we are discussing the level of safeguard that is provided by the bill, it might be worth considering the steps that a doctor will be required to take when planning treatment for patients who are incapable of making their own decisions. First, he will have to satisfy himself that the treatment that is proposed will benefit the adult, and that such benefit cannot reasonably be achieved by other means. Next, he must satisfy himself that the treatment that he plans is the one that least restricts the freedom of the adult with incapacity. Both those tests, which are required by section 1, have already been approved by the committee.

That section further requires the doctor to take account of the views of the nearest relative, the primary carer and any guardian or attorney who has been appointed. Having done that, the doctor must examine whether what he proposes to do would be regarded as reasonable by others. Then he must assess whether the proposed action will safeguard or promote the physical or mental health of the patient. Finally, as always, the doctor is bound to follow his professional judgment, act in accordance with his professional ethics and comply with the general law. Only if the proposed treatment complies with all those requirements is he authorised to carry it out.

I mentioned professional ethics. Some concern has been expressed, in the course of this morning's debate, over the British Medical Association guidelines. I want to respond to that concern in two ways.

In relation to the decision in the Law hospital case, the guidelines are generally accurate. However, in saying that the judgment did not require every PVS case to be referred to the court, we must remember that that must be taken with the Lord Advocate's subsequent statement that he would not authorise prosecution of a doctor who, acting in good faith and with the authority of the Court of Session, withdraws or otherwise causes to be discontinued life-sustaining treatment or other medical treatment from a patient in persistent or permanent vegetative state with the result that the patient dies. In other words, to take that action without the authority of the Court of Session would leave the doctor open to prosecution. That is the effect of the Law hospital judgment and the Lord Advocate's statement. This bill does not change that position.

Concerns have also been raised regarding the comments in the BMA guidelines on non-PVS patients, such as those who have suffered a stroke. The Law hospital case only applies to PVS. To withdraw hydration and nutrition from a non-PVS patient with the purpose of hastening death would leave a medical practitioner open to criminal prosecution. Let us be clear about that.

There is a further point. In the bill before us, section 74 makes it an offence, punishable, as appropriate, with imprisonment, for any person exercising powers under the bill—which would include a doctor or proxy—to wilfully ill-treat or neglect the adult. That is a further powerful sanction against doing anything that would result in an adult's death, or in lesser forms of harm.

I want to be clear about the effects of those safeguards. This bill does not authorise the withholding or withdrawing by any means whatsoever of feeding or hydration. The bill makes no distinction between different means of delivering food and water. To withhold food and water would not be treatment

"to safeguard or promote the physical or mental health"

of an adult with incapacity, and thus is not authorised under the bill.

The new Labour slogan "For the many not the few" was referred to. This bill applies not only to the few and not only to the many, but to all adults with incapacity. It does not authorise the withdrawal of nutrition and hydration by any means. These are stringent safeguards. It is right that they should be so. They will ensure that any treatment given to an adult with incapacity will keep that adult as well as possible, and will offer hope for improvement where possible.

I hope that what I have said will be recognised as a categorical assurance that nothing in the bill will permit a patient to be denied basic care, or to be starved, dehydrated or otherwise mistreated. I hope that it will be seen that those fears are unfounded, and I hope that Michael Matheson in particular will accept that we have no intention of permitting euthanasia, either active or passive, and that he will accept that the provisions of the bill, with the proposed Executive amendments, ensure that.

I have sought to demonstrate that the amendment is unnecessary, but I would like also to demonstrate that the amendment is unwise and, indeed, flawed. First, the title of the amendment states that it is a prohibition, but if it is intended to create a prohibition, it does not. The amendment carries no sanction. It merely attempts to introduce a prohibition without any penalty for its contravention. That is unsatisfactory. On the other hand, the Law hospital judgment, taken with the then Lord Advocate's statement, is much more definitive. Immunity from prosecution under the criminal law is only guaranteed where the doctor has the authority of the court to withdraw or withhold treatment.

Further, our policy, stated, for example, in "Making the Right Moves", clearly affirmed the view that it was premature to legislate in relation to patients in PVS. Mr Matheson's amendment, with its reference to withholding or withdrawing treatment or food or fluids

"with the purpose of causing or hastening the death of that adult",

clearly runs the risk of legislating prematurely. A legislative provision, positive or negative in this regard, is arguably encroaching on the area of the common law that is currently covered by the Law hospital case. Whether that is the amendment's intention or not—and I believe that it is not, as Mr Matheson has made clear—none the less, as Gordon Jackson argued powerfully this morning from many years of experience, this amendment would run the risk of encroaching on the Law hospital case. In addition, Euan Robson is right that the amendment introduces new, undefined terms to a considered legislative regime, and that is dangerous.

I am confident that the bill, as improved by the Executive amendments under discussion today, is sufficiently watertight not to permit any action that would have the purpose of causing or hastening the death of an adult with incapacity. I therefore return to where I started. This bill is not about euthanasia or harming adults with incapacity. It is not about interfering with the common law. It is about protecting and helping adults with incapacity.

The committee, by and large together, has worked its way through a difficult moral maze, as Gordon Jackson said in the press earlier this week. We have held firm to some principles in doing so—that we are legislating to help rather than to harm adults with incapacity, and that we will not stray beyond the scope of the bill and interfere with the common law. The bill gives no authority to do anything that would deprive an adult of life. We have held to those principles, and I hope that the committee will continue to hold to them, will accept that amendment 327 is unnecessary and unwise, and will therefore reject it.