Hansard

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 require 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.