Meeting of the Parliament 12 March 2026 [Draft]
My amendments 94, 65 and 68 relate to the issue of signing by proxy. The bill would allow a proxy to sign a first or second declaration form on behalf of a patient who is unable to do so. I put on record my thanks to the Law Society of Scotland for its advice and engagement on those matters.
Amendment 94 would change section 12(4)(a) to the effect that a proxy would not be able to sign a declaration unless the proxy
“has read the declaration to the person making it”.
The amendment seeks to address concerns from the Law Society that the provision as it stands, which requires the proxy to be
“satisfied that the person understands the nature and effect of the making of the declaration”,
could imply more extensive assessment and be open to legal challenge. My intention was always for the signing proxy merely to stand in place of the terminally ill adult who is unable to sign for themselves.
In response to concerns raised, amendment 94 would have the effect of requiring the proxy to read out the declaration and then sign it in the presence of the adult. That would change the proxy’s position to a facilitative one for an adult who is unable to sign their own name. I am satisfied that that would address the concerns that have been raised while allowing the provision to work as intended.
Amendments 65 and 68 respond to a Delegated Powers and Law Reform Committee recommendation that the affirmative procedure should apply to regulations under section 12(5)(e).
The other amendments in the group—amendments 190 and 191, in the name of Jeremy Balfour, and amendment 192, in the name of Fergus Ewing—stem from a misunderstanding of the purpose and role of the proxy in the bill. Amendment 191 seeks to add various criminal offences into the proxy provisions. However, I again make it clear that the purpose behind those provisions is simply to allow a person who cannot sign a first or second declaration for themselves to ask a proxy to do it for them, and that the bill provides clear rules on who can and cannot be a proxy.
I also note the Government’s concerns about competence in relation to amendment 191 and the reservation of employment rights. There are no risks here of behaviour to criminalise. It is still the requesting person who makes the declaration, with a proxy standing in for the signing. The declarations must also be signed and witnessed by others, as is set out in the bill. A person must be assessed as eligible by two doctors acting independently. Then, after a second declaration is signed and witnessed, the terminally ill adult must request provision of the substance and decide whether to use it.
Mr Ewing’s amendment 192 would reinsert a required role for a solicitor, which is the issue that the Law Society of Scotland first sought to have me address. I therefore cannot support amendment 192, although I understand and sympathise entirely with Mr Ewing, who finds himself in the same position that I found myself in when I was drafting my bill.
I move amendment 94.