Seòmar agus comataidhean

I sat in on that evidence session and was interested to hear those comments. The phrase “ordinarily resident” is used to accommodate situations where individuals may be working outwith Scotland for a period. They might be on holiday—possibly a prolonged holiday—but to all intents and purposes are living in Scotland and registered with a medical practice here, which is also a requirement under the bill.

The terminology is fairly commonly used in law in Scotland, although perhaps less so in the criminal law, which is perhaps where Police Scotland comes into contact with the issue more often. I do not see the issue as problematic. The phrase tries to acknowledge that somebody may be resident in Scotland but, over a 12-month period, they may be outside it for weeks or months at a time, whether for work or personal reasons.

As you will be aware, the schedules to the bill are, in effect, the forms for this and other aspects of the reporting requirements. It is important that death certificates reflect the underlying progressive advanced terminal illness that gave rise to the application, as well as the fact that medication had been administered to allow for an assisted death. For clarity and transparency, both those things need to be captured, which is what the schedules to the bill set out.

From my initial discussions with the chief medical officer, I recognise the legitimate concern that there may be some sensitivity about the way in which the information is expressed and the distinction between suicide and assisted dying, which goes back to an earlier point. The chief medical officer and his colleagues helpfully suggested that codes are used for registrations that may allow for that information to be captured in a way that respects and acknowledges the sensitivity of what we are discussing.

I am keen to explore that further, but it is important that we understand who is accessing the option of assisted death, what conditions are involved, when people are accessing it and their sociodemographic characteristics. We need as much information as possible—anonymised, of course. As we might touch on later, it will be crucial to report on and understand the picture of how the legislation is working in practice. There are the annual reports, which will feed into the five-year review that is also set out in the bill.

If we look at other jurisdictions, we see that there are a lot of similarities in who is accessing assisted dying, the reasons why they are doing so and the demographic profile, but to my mind it is absolutely essential that we gather information in Scotland. In fact, the only element of my proposals that changed between the initial consultation and when I brought the bill to Parliament was in respect of tightening up the data-reporting requirements that were envisaged. For public confidence, and for the confidence of patients and medics, the more robust those requirements are, the better.

The fact is that there are two practitioners, acting independently of each other, making the assessment of both terminal illness and capacity, and they will have the option, where it is felt to be necessary, to refer to a specialist in relation to either the terminal illness and/or the person’s capacity. Those safeguards go well beyond the safeguards that are in place for many, if not all, other treatments that are available to patients.

Ultimately, whether or not we agree with the choice that an individual makes, if they meet the eligibility criteria, it would be unreasonable to deny them the opportunity to make that choice and activate the provisions that are set out in the bill.

I am highly delighted that you have asked me that question. With regard to the finance committee’s letter to you, the thing that confused me a bit was the weight that was attached to the suggestion that Canada would be a more appropriate model. The point was certainly raised by one or two of those who gave evidence, but even cursory scrutiny of the different models in place in Canada, as compared to those in Oregon and Victoria, would give you a pretty definitive answer as to why Oregon and Victoria were used.

I used both of those places because they used the terminal illness and mental capacity model, which was adopted in Oregon in 1996-97 and then more recently in Victoria, as the first of the Australian states. That means that we have probably the largest data sets on who is accessing the choice—and when, how, and so on—and we do not have to rely on an understanding of other demographic factors, or on whatever may be at play in the US, but not in Australia. Therefore, I think that it was a good comparator. No two assisted dying laws anywhere in the world are the same, but those two laws reflected the models that are most closely aligned to the bill that I have introduced and they give us the largest data set.

The eligibility criteria in Canada are far more extensive than the eligibility criteria in my bill, so it is difficult to see why you would use that as a model to understand who would access assisted dying and how, were it to be introduced in this country. I was slightly confused—not by the fact that that has been raised by witnesses but by the fact that the finance committee appeared to attach more weight to it than I think was justified.

We have both been involved in politics for long enough to know that predicting what individuals will seek to legally challenge is very difficult. However, like you, I was reassured by the responses from the Crown Office and Procurator Fiscal Service and Police Scotland on those provisions in the bill.

We touched on coercion earlier. Having spoken to practitioners and those who are involved in the oversight of such legislation in Australia and the US, I know that they consistently argue that the greater concern is not family members coercing somebody into assisted dying but family members having difficulties with the decision that a relative has taken to opt for that choice. That points to the concern that you have raised, and it is why the safeguards and procedures that will be in place are as robust as they are. First and foremost, they will provide protection for the patient, but there will also be robust safeguards for medical practitioners who operate in this area.

We wrestled over the bill’s phraseology. It is difficult to capture the discussions that take place between a patient and family members, because families operate very differently. A requirement that a discussion takes place with the family could be highly problematic, because family members might be estranged from one another, for example.

However, in order to manage the process, including the process of grieving after the death, clearly, the more discussion there is—either with the family or with the support network around the individual—the better. That would certainly be the expectation. I would expect medical practitioners to give that advice to their patients. The more such conversations take place, the more we will minimise the risk of family members feeling that the process is not robust or even feeling blind-sided by the decision that a relative has taken.

My first observation is about the jurisdictions that have a similar model in place for assisted dying, terminal illness and capacity. Broadly speaking, we can see the conditions that patients who access that provision tend to have, and the expectation is that that would be replicated here in Scotland, and I do not think that it would be much different in England and Wales.

As I said in my opening remarks, the expectation is that there would be a requirement for the terminal illness to be advanced and progressive, so that the patient would not recover. I think that medics are used to making that diagnosis and are comfortable with it. There would also be a requirement that the diagnosis would be made by not one but two medical practitioners, which provides an additional safeguard. Over and above that, where there is any dubiety or any question in the mind of either practitioner, there is an option to refer that on to a specialist in that area of medicine.

Regarding the terminal illness diagnosis, conversations with stakeholders and observation of what happens internationally suggest that that might be more about the assessment of capacity, so the onward referral will, again, be an important safeguard and will give confidence that the terminal illness assessment is robust and thorough and that it provides the protections that patients and the wider public would expect.

You have summed it up well. You can make a strong argument for both 16 and 18, and the rationale for opting for 16 was on the basis of that being the age of adult capacity for making medical decisions. People who are 16 are deemed to have the capacity to make decisions about their treatment. There is a logic for 16; it is a very defensible case.

That said, I have heard the evidence that the committee has taken in relation to the case for 18. In other jurisdictions—whether in Australia or some of the US states—18 is the age at which an assisted death can be accessed, and the Terminally Ill Adults (End of Life) Bill that has been introduced at Westminster has a similar age limit.

It is an area on which I am keen to reflect further should the bill pass at stage 1 and as we look ahead to stage 2. As I say, I have taken cognisance of the evidence that the committee has heard, and the arguments for setting the age level at 18 are persuasive. The reason for opting for 16 is that that is the age at which individuals are deemed to have capacity to make a range of decisions in relation to their care and treatment.

There would absolutely need to be further engagement.

I would observe that the Children and Young People’s Commissioner Scotland has taken a close interest in the issue—in fact, successive children’s commissioners have done so and have expressed views. The Scottish Youth Parliament has had campaigns in support of a change in the law over successive sessions of that Parliament. The issue clearly engages younger people. It is often assumed that the issue kicks in solely for people later in life, but that is absolutely not the case.

You will probably see in the written evidence that you have received—I certainly saw it in the response to the consultation that I issued—that young people have very clear personal experience to draw on, often of older family members who have perhaps gone through a bad death, so they feel very invested in this. Therefore, if the age limit was to change, that would need to take account of any concerns that younger people might have.

The only other thing that I would add is that the numbers that are likely to seek to access an assisted death in any given year will be relatively low. I would have said that it would be around 1 per cent of the overall numbers who die in any given year. Therefore, the numbers at the younger end of the age spectrum will be exceptionally low, possibly even zero in a given year. That is not to say that it is not important to take those views into account, and I am very cognisant of some of the concerns that Children’s Hospices Across Scotland—CHAS—has raised with the committee. However, it is important to emphasise that the numbers involved are likely to be exceptionally low indeed.

Again, it is probably more appropriate to pick that up in guidance. On whether there would be an expectation that somebody in that position would refer the individual to their GP to seek support, that would seem to be the most logical option in those circumstances. That would be difficult to express in the bill, so it would be better for it to come through less in secondary legislation and more in guidance.

As I mentioned earlier, there will be training requirements for those who are directly involved, but there will be a wider training requirement with regard to raising awareness of what the change in the law means among those who are involved in health and care more generally. With regard to whether someone has a conscientious objection, it would be in their interests to understand the implications. However, as I said, that would probably be better expressed in guidance than in the bill.

I think that that would come through guidance. I can understand the committee’s frustration in wanting to understand with real clarity how the model would work in practice. Some elements can, and absolutely must, be expressed in the bill itself, but the committee will understand from this and other bills that some elements are more appropriately covered in secondary legislation, recognising that they will almost certainly need to be frequently reviewed, revised and updated.

A great many more aspects will probably need to be reflected in guidance from professional bodies, regulators and others. That is the appropriate way to take the proposal forward, I think. However, I entirely understand why there is a desire to see as much detail as possible in the bill, and I sympathise with that. I hope that I have provided that detail as far as I can in the bill and in the supporting documentation—the explanatory notes and the policy memorandum—where I have sought to flesh things out. Ultimately, you are right: some elements will have to await guidance. I think that that is a reassurance for patients and medical professionals; that is absolutely where things ought to be.