Committee
Justice and Home Affairs Committee, 01 Mar 2000
01 Mar 2000 · S1 · Justice and Home Affairs Committee
Item of business
Adults with Incapacity (Scotland) Bill: Stage 2
After section 48
I agree with Christine Grahame. Like most of us, I have spent more time on this difficult issue than on any other. Some of us have discussed it for hours at a time. I wondered whether we should agree to the amendment on the ground that it does not do any harm. However, a number of things convinced me that that was not a good idea.
I am not persuaded that the amendment has no impact on the common law position. Michael Matheson says that it would not reverse the Law hospital case; I understand that he has had legal advice to that effect. However, in almost every case—almost by definition—wrong legal advice is given as well as right legal advice. My instinct is that the amendment would be used in a Law hospital situation. People who are in that situation are incapable adults, so the bill would apply to them.
A doctor could secure the proxy's consent to a decision to remove a feeding tube, but I have no doubt that in such a case the groups that are against such action would use the amended section in court to say that the action was not permitted. That argument might not win—I can see arguments against it—but it is wrong to say that the amended section would not be used in a Law hospital situation. I would have no difficulty in using it for that purpose, although I might not be successful.
That is not the ruling factor for me, however. It is correct to say that a doctor and a proxy might collude and—quite improperly—allow a patient to die, but that evil should be dealt with in other ways. I do not mean to be facetious, but doctors and nurses can do all kinds of horrendous things that are not prohibited in the bill. Dr Simpson is right: there are procedures for dealing with that sort of thing.
The purpose of the bill is to allow a necessary intervention to be made. Yesterday, when dealing with section 47, we included a safeguard in the bill. The safeguard that is suggested by this amendment, however, would not help the structure of the bill. At the moment, incapable adults are dealt with by their families and doctors. The bill improves the situation and introduces more safeguards. Although I sympathise with the intention behind the amendment, I have to say that it is not helpful to use this section to cover a perceived danger that has nothing to do with what the bill is for. The amendment would impinge on the common law.
I am not persuaded that the amendment has no impact on the common law position. Michael Matheson says that it would not reverse the Law hospital case; I understand that he has had legal advice to that effect. However, in almost every case—almost by definition—wrong legal advice is given as well as right legal advice. My instinct is that the amendment would be used in a Law hospital situation. People who are in that situation are incapable adults, so the bill would apply to them.
A doctor could secure the proxy's consent to a decision to remove a feeding tube, but I have no doubt that in such a case the groups that are against such action would use the amended section in court to say that the action was not permitted. That argument might not win—I can see arguments against it—but it is wrong to say that the amended section would not be used in a Law hospital situation. I would have no difficulty in using it for that purpose, although I might not be successful.
That is not the ruling factor for me, however. It is correct to say that a doctor and a proxy might collude and—quite improperly—allow a patient to die, but that evil should be dealt with in other ways. I do not mean to be facetious, but doctors and nurses can do all kinds of horrendous things that are not prohibited in the bill. Dr Simpson is right: there are procedures for dealing with that sort of thing.
The purpose of the bill is to allow a necessary intervention to be made. Yesterday, when dealing with section 47, we included a safeguard in the bill. The safeguard that is suggested by this amendment, however, would not help the structure of the bill. At the moment, incapable adults are dealt with by their families and doctors. The bill improves the situation and introduces more safeguards. Although I sympathise with the intention behind the amendment, I have to say that it is not helpful to use this section to cover a perceived danger that has nothing to do with what the bill is for. The amendment would impinge on the common law.
In the same item of business
The Convener:
SNP
Amendment 326 has been withdrawn, so we move on to amendment 333, which is in the name of the minister.
Angus MacKay:
Lab
Amendment 333 establishes an appeal mechanism, which will be open to"any person having an interest in the personal welfare of the adult"and which will apply ...
The Convener:
SNP
Gordon Jackson has been wondering on my right. I wonder if he wishes to wonder on the record as opposed to under it.
Gordon Jackson (Glasgow Govan) (Lab):
Lab
I must confess immediately that there have been so many other difficult issues in this section that I have not considered this amendment in detail.How wide i...
Angus MacKay:
Lab
The wording of the amendment is "having an interest", rather than "claiming an interest". We think that having an interest is a sterner test than claiming on...
Gordon Jackson:
Lab
I accept that. I suspect that someone will eventually test that intention in the courts. So what? That is what the courts are there for.
Christine Grahame:
SNP
I was directed to this point by the Law Society of Scotland. Under section 76 there is a definition of a "person claiming an interest" and you have now broug...
Angus MacKay:
Lab
The specific provision that we are attempting to make in the amendment is for someone who has an interest, rather than someone claiming an interest. The defi...
Christine Grahame:
SNP
I see.
Gordon Jackson:
Lab
I suspect that the fact that both phrases appear in the bill will help matters, because it will differentiate between having and claiming an interest. The co...
Christine Grahame:
SNP
Perhaps that distinction should be made clear in the bill.
Angus MacKay:
Lab
Our position is that we think that the point is sufficiently clear. However, as Gordon Jackson has said, the courts will be the place in which that is proper...
The Convener:
SNP
Are there any other comments on the amendment?
Amendment 333 agreed to.
The Convener:
SNP
Amendments 121 and 308 have been withdrawn. We move on to amendment 327 in the name of Michael Matheson.
Michael Matheson (Central Scotland) (SNP):
SNP
Although this is the last amendment, it is by no means the least. Amendment 327 seeks to address one of the most fundamental concerns about the bill. I recog...
Mrs McIntosh:
Con
Michael's presentation has left me very little to say. In supporting his amendment, I should point out that we are all aware that the bill's principles will ...
The Convener:
SNP
We will have a round-up of questions before I ask the minister to reply.
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
I welcome the chance to discuss this extremely important issue, about which I have thought for a long time; I have talked with the minister about it at least...
Dr Simpson:
Lab
I understand the concerns that have been expressed, but I do not feel that the amendment is necessary in any way. The BMA guidelines are now well established...
Christine Grahame:
SNP
I wholly support Dr Simpson on this matter and defer to his professional experience. This is a very difficult area, but we should consider it rationally in t...
I will go back to the first principles of the bill and work my way through it. The first principle of the bill is in section 1(2):
"There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the ...
Gordon Jackson:
Lab
I agree with Christine Grahame. Like most of us, I have spent more time on this difficult issue than on any other. Some of us have discussed it for hours at ...
Euan Robson (Roxburgh and Berwickshire) (LD):
LD
I, too, had thought that there would be no harm in including the amendment and I share the general sentiments behind it. However, like Gordon Jackson, I have...
The Convener:
SNP
Some of the comments that have been made seem to suggest that death can be regarded as a benefit that justifiably could be brought about by medical means, po...
Iain Gray:
Lab
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 ha...
Michael Matheson:
SNP
I will be brief because, if I were to respond to all the comments made against my amendment, I would probably require the 11 advisers that the ministers have...
The Convener:
SNP
The question is that amendment 327 be agreed to. Are we agreed?
Members:
No.
The Convener:
SNP
There will be a division.