Hansard

As convener of the Health, Social Care and Sport Committee, I am pleased to speak to our stage 1 report on the Assisted Dying for Terminally Ill Adults (Scotland) Bill. Starting with two calls for views that ran during July and August 2024, the committee has undertaken detailed scrutiny of the bill at stage 1 over a period of 10 months. We have listened carefully to strongly held views from people who support assisted dying and those who oppose it. We have gathered detailed evidence on all aspects of the bill. I place on the record the committee’s sincere thanks to those on all sides of the debate who contributed to our stage 1 scrutiny.

From the outset, the Parliament has agreed that voting on the sensitive topic of assisted dying should be treated as a matter of conscience. In recognition of that, the committee decided to make no overall recommendation on the general principles of the bill at stage 1. Instead, we highlighted a number of key considerations for members to take into account in deciding how they will vote today. We looked carefully at the human rights that are protected under the European convention on human rights and which might be affected by the bill. Those include the right to life under article 2, the right to respect for private life under article 8, and the prohibition on discrimination in article 14. In that context, members will need to consider how likely it is, or how serious a risk there might be, that a human rights-based legal challenge could result in the scope of eligibility for assisted dying being expanded over time, contrary to the original intentions of the bill. Equally, in deciding how to vote, members will need to judge for themselves whether the bill strikes an appropriate balance between providing a right for terminally ill adults to access assisted dying and giving adequate protection to vulnerable groups.

As part of its scrutiny, the committee took evidence on the related issue of palliative care. We heard how important good-quality palliative care is for people who are approaching the end of their life. No matter how the Parliament votes on the bill today, it is to be hoped that the debate will provide a catalyst for further improvements to be made to the quality and availability of palliative care services in Scotland. If the bill progresses to stage 2, we suggest that the safeguards that it contains and its compliance with human rights requirements could be strengthened. Those could be achieved through amendments to establish an independent oversight mechanism, such as an independent review panel, or to create a potential monitoring role for the chief medical officer.

We have looked carefully at the eligibility criteria for assisted dying that the bill sets out. On balance, the committee is satisfied with Mr McArthur’s rationale for not including in the definition of “terminal illness” a timescale for life expectancy, and leaving individual decisions on eligibility to clinical judgment. However, we think that certain of the criteria, specifically those on minimum age and residency, might benefit from further consideration and clarification should the bill progress to stage 2. In that context, I note Mr McArthur’s recent comment that, should the bill progress to stage 2, he would propose amending the minimum age threshold for eligibility from 16 to 18. I should add that the committee would wish to undertake further engagement on that aspect prior to stage 2 proceedings taking place.

The detail of the provisions on capacity would also be worthy of further consideration at stage 2. In particular, there should be scrutiny of the resource implications for the medical professions of their having to assess capacity, by ensuring that the capacity of people with mental disorders would be assessed in a fair and non-discriminatory way while also providing suitable protections for vulnerable adults, and defining how the eligibility of people with fluctuating capacity would be determined.

We heard a range of views from healthcare professionals about the way in which assisted dying would be delivered in practice were the bill to become law. We recognise Mr McArthur’s intention that assisted dying should be delivered via a service model that enables integration with existing services, rather than being provided as a stand-alone service. If the bill becomes law, we think that it will be important to monitor the impact on existing healthcare services over time. We believe that, if the bill progresses to stage 2, it might be appropriate to explore through amendments whether specific aspects of assisted dying would be better delivered on a stand-alone basis. In particular, that might be considered necessary to ensure consistent access across the country, including in rural and remote areas and the islands.

The committee has heard evidence of significant discrepancies in the estimates of the training costs associated with the bill. Those costs might also vary significantly according to a number of factors. Whatever the costs of training ultimately prove to be, should the bill become law, we would expect the Scottish Government to set out how it intends to meet them in a way that does not negatively affect available funding for existing services.

We welcome Liam McArthur’s preparedness to consider further the sections of the bill that relate to the provision of assistance. The evidence that was submitted to the committee has led us to conclude that the provisions of the bill concerning self-administration and provision of assistance will require further clarification should the bill progress to stage 2. Whether through amendments or more detailed guidance, further clarity will be essential to ensure that all parties involved are suitably protected should the bill become law.

The committee has concluded that the wording of the section on conscientious objection will require further attention at stage 2 to ensure that it provides an appropriate level of legal clarity and certainty for all parties involved in the assisted dying process. Some stakeholders have called for the bill to include a no-duty clause, meaning that healthcare practitioners who decide to exercise a conscientious objection would be under no obligation to refer an individual who has requested assisted dying to a healthcare colleague who is able to deal with that request. However, we have also heard concerns that the inclusion of such a clause could create unreasonable barriers to access to assisted dying. We have concluded that, where healthcare practitioners exercise a conscientious objection, there should be a minimum expectation that they will refer patients who request assisted dying to a colleague who does not share such an objection. As a bare minimum, they should be expected to provide additional information about the process.

We believe that the potential inclusion of a no-detriment provision would merit further investigation at stage 2, as it could help to protect healthcare staff from potential workplace discrimination if they decide to be involved in an assisted dying or, equally, if they decide to exercise a conscientious objection in order not to be involved.

We have noted Mr McArthur’s willingness to explore further the possibility of creating an opt-in model of participation in assisted dying for healthcare practitioners. That might merit further examination via amendments at stage 2.

Irrespective of the position that the Parliament takes on allowing or prohibiting institutional objection, we believe that amendments will be needed, should the bill progress to stage 2, to provide further clarity so that institutions understand how they will be permitted to act should the bill become law. We have taken a particular interest in potential alternative models for assessing coercion, such as those that were created in relation to living donors by the Human Tissue Act 2004. We believe that such alternative models should be explored further via amendments should the bill progress to stage 2.

We welcome Mr McArthur’s preparedness, should the bill be approved at stage 1, to consider mechanisms for reviewing and updating guidance on coercion. That will ensure that health practitioners are suitably equipped to assess coercion effectively and will allow the related offence created by section 21 to be policed appropriately.

There has been a good deal of commentary on the provisions in the bill that may be judged to extend beyond the legislative competence of the Scottish Parliament. Mr McArthur has acknowledged the constraints that issues of legislative competence will place on the full implementation of the bill until they have been resolved. That will require an open dialogue to take place between the Scottish Government and the United Kingdom Government, with a view to reaching an agreed solution. Many stakeholders have emphasised that it will take time for a workable solution to those matters to be agreed and implemented. Nonetheless, our report welcomes the Scottish Government’s commitment to enter into a dialogue with the UK Government should the bill progress and to keep Parliament regularly updated on progress.

Should the general principles of the bill be agreed to today, its information reporting and review provisions will be particularly important, and our report highlights a number of areas that will require further reflection at stage 2. Those include the information that is required to be collected as part of the review process; whether five years is an appropriate review period for the bill; and whether the bill should include a sunset clause, which would mean that the legislation could not remain in force beyond a defined period without a further vote in Parliament.

In conclusion, I reiterate my sincere thanks to all those who contributed to the committee’s scrutiny of the bill at stage 1, whether by submitting written evidence, giving oral evidence, participating in informal engagement or contributing personal testimony of their lived experience. I also put on record my thanks to the committee clerks for their work on the scrutiny, and to Scottish Parliament information centre colleagues for their assistance to the committee.

The committee has very deliberately not made an overall recommendation on the general principles of the bill, out of respect for Parliament’s desire to approach the issue of assisted dying as a matter of individual conscience. However, I hope that, in presenting the evidence that we have gathered during our careful scrutiny of the bill at stage 1, the committee has made a positive and useful contribution to today’s important debate, and that the contents of our report will be helpful to individual members in deciding how they vote on the bill today, and in informing further scrutiny of the bill should it progress to stage 2.