 Good morning and welcome to the first meeting in 2015 of the Health and Sport Committee and a good new year to you all. I would ask everyone who doesn't require it to switch off mobile phones and tablet devices or electronic equipment. Sometimes that can interfere with the system. People will notice that committee members and clerks and others are using electronic devices instead of hard copies of our papers. First of all, welcome Patrick Harvie, MSP, who joins us for agenda item number 4. The first item on agenda today is a decision on taking issues in private. First, I invite the committee to agree to take item 5 in private today and at future meetings. Item 5 is consideration of the themes that emerge from our evidence sessions on the Assisted Suicide Scotland Bill. Is the committee agreed? Thank you. Secondly, I invite the committee to agree to take item 6 in private today and at future meetings. Item 6 is consideration of a draft stage 1 report on the Mental Health Scotland Bill. Is the committee agreed? Thank you. We now move to agenda item number 2. The issue of witness expenses in connection with our scrutiny of the Assisted Suicide Bill. I invite the committee to agree to delegate to me, as convener, responsibility for arranging for the SPCB to pay under rule 12 for 3. Any witnesses on the bill can have the committee's agreement. Thank you. Agenda item 3 is consideration of a legislative consent memorandum from the Scottish Government on the Health and Social Care, Safety and Quality Bill, which is a private member's bill in the UK Parliament. The committee previously agreed not to take evidence in this LCM. The members will have had the memorandum in their papers. I invite members if they have any comments at this stage. I don't see any member wishing to make any comment. I take therefore that the committee is content with the LCM and with the Scottish Government's view that the Scottish Parliament should consent to the UK Parliament legislation in this area. We now move to agenda item number 4, which is the start of our stage 1 scrutiny of the Assisted Suicide Bill. Our first panel of witnesses is David Stevenson, QC, the Faculty of Advocates, Professor Alison Britton, convener of the Society of Health and Medical Law Committee, Coral Riddle, head of professional practice for the society, both of the Law Society Scotland. We also have Gary Flanagan, Detective Chief Superintendent, Police Scotland, and Stephen McGowan, Proketer Fiscal, Major Crime and Fatalities Investigation, Crown Office and Proketer Fiscal Service. Welcome to you all. Can I remind members that Mr McGowan has written to provide us with details of the matters on which he may not speak because of judicial review? I have already welcomed Patrick Harvie, the member of the charge of the bill. Patrick is not here as a witness but may, of course, ask questions of the witnesses through the convener. I will go straight to questions now and our first question this morning is from Dr Richard Simpson. The fact that the majority of the public appear to support this bill is wholly understandable if one looks at it from the point of view that all of us would want autonomy over our own lives, including when we end those lives. I have to say that, as a doctor who was found a member of a hospice and as a GP who dealt with a number of very difficult cases at the terminal stage, I have great difficulties with this bill in one particular respect on which I would like to witness his view. It was my experience that the patients who were most seeking to end their lives were ones who reached that point in terminal care where they were unable to do anything about it themselves. I am thinking of people, particularly with motor neurone disease, where they have reached the point where they are being ventilated mechanically and they are being peg-fed. As I understand it, the individual must be assisted but does not perform the act of ending this person's life. For that group of people, there is an exclusion. The other group of people for whom there is an exclusion, and I am not sure quite how that is tackled, but I would like the witnesses to comment on, are those who have impaired cognition. Clearly, if they are severely dementing, the bill excludes it because they cannot make an informed choice. However, there are an increasing number of people who will make advanced statements or living wills and may reach the point, as occurred in one case in America, where something happens like a stroke and they have expressed in an advanced statement that they wish not to continue with life in these circumstances. However, the bill was ignored by the doctors and they recovered. At that point, they were grateful that they recovered. I realise that those issues are extremely difficult. For me, those are two of the issues. The one about cognitive capacity in situations where terminal illness and the fact of being so physically disabled that you are unable to actually perform the act yourself. Just one more thing on the cognition side. I think that I will just leave it at that. Who would like to respond first? Anyone? Professor, I think that I started to hear you. Good morning. I think that I would like to start with the issue of the individual who is unable to take their own life without some form of assistance. I think that what this does is highlight the importance of trying to have a clear definition about what actually constitutes assistance. As you rightly point out, those with a progressive neurological disease or some form of other impairment may not be able to end their life either by use of drugs or by other substance or other means without some form of assistance. The proposed bill talks of the licence facilitator using best endeavours to assist in this process. Given that, in section 1, we are talking about criminal liability, we need to be very clear what this assistance encompasses. We need to be also clear at what point is there a demarcation before assistance is being given and that crosses over to being complicit in homicide. I look at section 18 of the bill. No-one is authorised to do anything that causes the death. The legislation is a rich vein of case law in Scots law, both criminally and civilly. It is a matter that is still subject of argument in the courts on a regular basis. I support Alison Britton's point that the line between assisting someone and taking the act out of that person's hands is a fine one. There are also difficulties in relation to what encouragement and support might go into, or what is support rather, and what goes into encouragement. The key part of that is that there is no definition of what assistance is and what it is to assist someone in suicide. Given that causation is a matter that is often a matter of controversy in the law, it is probably something that should be looked at in terms of definition and giving more specifics to the definition of what assisted suicide is. Otherwise, it does expose those who might seek to assist others to criminal prosecution, which is obviously not desirable. I will come back to you, Professor Britton. In relation to the first point about physical assistance, I agree with Alison that a real challenge that societies have identified has been the absence of definition of assistance. In comparison, looking at the assisted dying bill, there is some further description and assistance there that would include, for example, assisting a person to ingest or self-administer medicine. I think that there is a recognition there that there might be a further degree of assistance, but in the current definition we do not even have that spectrum. I think that that is an area that should be further fleshed out. I have a point in relation to the second point about impaired cognition, but I could come back to that if you would rather deal with this first point. We cannot come back to that, I think. Professor Britton, do you wish to come back? Just a brief point to follow through what you were saying. I know that the member in charge has pointed out that the spirit of this legislation is that it should be taken as a process, but the nature of our criminal law relies so heavily on causation that that will be the focus, the action, the mens rea, the intention and then whether or not there is a public interest in any prosecution going forward. It is very difficult to take that as an entire process. We have to focus on what the assistance actually is in isolation because that will be the person that will have to take the ultimate responsibility of the consequences of their act. I am reiterating what other witnesses have said. Any confusion is likely to lead to a police investigation, which is what I think most people would seek to avoid. That would be the consequence of a lack of clarity around a specific issue. The provision in the bill that tries to deal with this is section 18. It seeks to draw a distinction between assisted suicide and an act of euthanasia. In subsection 3, it says that the cause of the other person's death must be, and I am reading short, that person's own deliberate act. In the interest of clarity, it might be better to make provision here that the final act or the final cause was the person's own deliberate act, rather than simply to leave the matter as the cause, because there may be multiple causes. In an assisted suicide, there will be multiple causes of any person's death, because different people are coming together to contribute to that end. I would suggest that that would be a helpful change to section 18 that would make matters clearer than they currently are. I think that just on that last point it would be very helpful to get some written indication of what changes might be appropriate to be able to clarify that area, because it certainly is one that gives me considerable difficulty. I can see situations in which the relative or friend who is assisting, but they have to then procure drugs from a doctor, for example. The doctor is therefore assisting because they are providing the means by which this is going to occur. There are multiple assistants involved in that, which certainly, as a doctor, gives me some cause for concern. On the practicalities, there is not a specified means of committing suicide in the act. It is not clear exactly what was envisaged as being the means of death. Internationally, there are people who claim to have developed machines, which might be capable of dealing with the situation that you envisage, where somebody is substantially disabled and not physically in a position to ingest drugs. There is an Australian doctor who claims to have a machine that will inject lethal drugs on the use of a coded password, which someone who is able to move only their eyes can trigger by means of a computer. There are practical, technical ways around some of the difficulties that you have indicated. Is this a particularly Scottish issue in terms of Scottish law, or are there other jurisdictions across the world who would support assisted suicide and overcome that problem? Are there other examples? For example, if you consider the state of Oregon when they introduced their assisted dying bill in 1995, one of the strongest arguments were put forward by lobby groups representing the interests of the groups of society that you have described. Those with progressive neurological disease or some form of impairment would make it very difficult for the individual to actually bring about their own death. I do not think that it is a situation unique to Scots law at all. I am quite happy to put it in on this section. Are there any other supplementaries to this theme, Rhoda? Can I just ask for some clarity? Obviously, what we are looking at at the moment is to stop someone committing a criminal act by assisting someone to commit suicide. Is there a criminal act of the moment, given that suicide itself is not a criminal act? Has anyone been prosecuted for knowing that someone is about to commit suicide and maybe does not assist because you maybe do not assist but has been aware, maybe has provided moral support or whatever but not actually encouraged or I am just not awfully sure if that is the case? The last prosecution that took place for that type of offence was in 2006. It related to the brother of a man who had Huntington's disease and he was prosecuted in relation to his assistance to that man in the High Court, was convicted and was admonished. So there are prosecutions and have been prosecutions in that area. Not many but there are prosecutions and the prosecutions are all for homicide. Although the person being prosecuted did not carry out the act that led to the death? Those cases are very fact sensitive, so it would depend under the current law what precise action was taken to assist in the suicide. The key point here is perhaps that consent is not a defence in terms of assault or in terms of homicide. Any act that is taken to assist in the dying process can be looked at in terms of the law of homicide as a whole. Because you cannot consent under the current law to die in that way, if someone assists in relation to that, it potentially becomes homicide. It is difficult to come up with a precise rule because the cases are all very fact sensitive depending upon the circumstances of each case and what the condition is, what level of understanding the person who dies has and what the intention is of the person who carries out that assistance. Bob, I think that you wanted to follow up on some of this, and I see Derek as well. I was going to read this question anyway, but I think that it links into where a crime has been committed and what assistance means within the bill. My overall understanding is that if a crime was to be committed or that the process was not followed, then there are no specific penalties highlighted within the bill as to what the consequences would be. With that at default position, under Scots law back to it would be homicide rather than something else, or should there be provisions within the bill to see what the penalties would be? I think that that probably links into another matter that was raised in terms of what is the talk about prosecutions and vulnerable cases. That is not the reason for asking the question, it is to make sure that this is what is possible, but also a safeguard within the bill is that anyone who acts out with the processes outlined within the bill who are not acting carelessly or acting in good faith, whatever those things would mean, would mean that a savings clause would mean that that would not be prosecutable either. I am just wondering where the balance in law sits to when someone what acting in good faith means or not acting carelessly means within the provision. Is that too broad? There are no penalties within the bill if the process is not followed and there is a savings provision which seems to extend out for when the process is not followed. When we are talking about what it means to assist someone to end their life, that just compounds the lack of clarity. I think that that links into the line of questionings that we have, and it links some opinions on that. To answer the first part of the question first, if the default position in terms of this act or the past would be that if the procedure in the act is not followed, then the person assisting would be liable to investigation in terms of what it means to assist someone to end their life. It is really a matter for Parliament whether Parliament thinks that other offences could be put within the act of not following it, not the law of homicide. The English Assisted Suicide Act of 1961 is specific offences within that and specific penalties which attach to them. Section 24 of the bill has the savings provision. That means, as you say, that it talks about carelessness in acting in good faith. Again, there is a lack of definition around what that means and what the standard of carelessness is, because the standard of carelessness is not defined in the act, so are we looking at that on an objective basis or a subjective basis? What is acting in good faith? There is a spectrum of potential behaviour here. As I understand the intention behind that particular section of the bill, it is to safeguard those who have gone down this process and to save them from being liable for prosecution if some of the paperwork has not been filled in correctly. As an example, so is not to expose them for prosecution in terms of law of homicide. However, the way that is drafted at the moment means that I am not sure that it restricts matters to that situation, which is, I think, what is envisaged. It is not intended to be too technical, but the act, as proposed, sets out a statutory scheme of checks and balances. Some of those checks and balances, I think, are potentially blunted, would perhaps be a word, but by the effect of section 24, which means that it might be difficult to bring a prosecution in other circumstances beyond a mere failure to fill in the paperwork properly, et cetera. It would restrict the ability to prosecute people in circumstances, I think, beyond a mere technical failure to complete the paperwork properly or to go ahead with the final act at a stage either a day before or a day after the timescale envisaged in the bill, which I really think is what the intention that the drafters had behind it. However, I do not think that that is necessarily the effect that the provision would have. I have got Colin Kerr on this theme, Colin, because I would like to get party in to respond to some of this. Thanks very much, convener. It is actually in terms of the final act. I take it that we are all agreeing that in the final act it has to be initiated by the person themselves. Anything else is not really an option in law because that becomes euthanasia in my eyes. Would that be the way that I am reading that? In which case, moving around, let's assume for the moment nothing else that we are going to a final bill, eventually a vote and all the rest of it. We draft up a bill that, within the general plan of movement going forward in terms of what should be provided to initiate such an act. In law at the moment, anybody who is helping somebody to go through that at this minute is liable for prosecution. Taking that away, because at this moment I am a bit as regards how we get to the point where somebody is able to commit suicide in a dignified manner if there is such a thing. How much of a change would it be to say that, because of the differences in different illnesses and different abilities to go forward with the act of suicide, the different forms that that suicide might take, is it better that this act is drafted very specifically or kept open? In terms of the procurement, the people who are allowed to assist and how they go about it. I think that this is really what the difficulties that you are saying. This is the difficulty that I have in my own mind, is that if we accept that those are the difficulties, does drafting open legislation, as against very prescriptive legislation, become a hindrance or a help? What we are dealing with here, as you have already pointed out, is assistance to end another person's life. To me, a very simple distinction between euthanasia and assistance in dying is who takes that responsibility. In this piece of legislation before us, the responsibility for the deliberate act of taking one's own life has to remain with the person. As soon as you move that responsibility on to another person, you are then dealing with euthanasia. There is nothing in this bill that would allow any interpretation of that whatsoever. That takes me back to the question itself, how difficult is it to put down legislation and is it easier because of the different forms of taking your life? Is it to keep the legislation open to allow those who are helping to go about it in different ways? I am not talking about the weeks and time periods or whatever at this time, but the more practical methods of help. Because of the differences, is it better to have more prescriptive or an open piece of legislation? That is a matter for Parliament. Other jurisdictions have taken different approaches. Some jurisdictions focus only on assistance to die. Other jurisdictions focus only on physician-assisted assistance to die. The Netherlands, for example, incorporates both euthanasia and physician-assisted suicide. The end result has been brought about by different means in different jurisdictions. The more general, the more open the legislative provisions are, the more risk there is of uncertainty and somebody falling foul of failing to comply with what would ultimately be the court's interpretation of what is going on. There clearly is a tension between an open, permissive sort of system and a very heavily regulated system. Where the balance is struck is essentially a political matter, but the consequences must be that the more flexible the system is, the more open it is to different interpretations and the more uncertain the procedure is. The greater difficulty people will have in knowing that they are protected when they act to assist the bringing about of the end of a life. I agree with that point. I think that there are challenges at both ends of heavily prescribing, defining and leaving it open, but I do feel that because we are dealing with vulnerable people at a very vulnerable stage in their life that I personally would be to err more on definition and some reassurance there. Otherwise, we are constantly relying on the courts to interpret this, which is not going to get to the position of having a process and a system, which is what the bill is seeking to achieve. As it stands, for example, section 18 in its description of assistance talks about no euthanasia, et cetera, and I think that the bill could go further certainly than it does at the moment to define what the et cetera part is. I think that the Assisted Dying Act takes that a little bit further. I do not think that it is necessarily the answer, but I think that it is an example of where further definition and clarification would benefit all the parties in this. I think that it was something that one of the other witnesses had alluded to, that a lack of clarity also perhaps means that there is more invasive investigation at the end of the process and the aims of the bill are to try and allow some form of autonomy, respect for the individual, value for the individual. If we are leaving some things to chance or uncertainty, we are then leaving it open for increased investigation, necessary investigation at the end of that process. I think that it is around that, the very interpretation. If it is open to interpretation, it is possibly open to investigation and that is the thing that needs to be. I think that that is Parliament possibly as an option to try and prevent that. Mike MacKinnon, you wanted to come in at this point, did you? I can come in just now or wait at whatever seats. If the committee members agree that I want to give Patrick Harvie the member an opportunity to ask some questions at this point, Patrick. Thank you very much, convener, and thank you for the opportunity as a non-member to ask some questions. I will just mention, as I did to the Justice Committee when they took evidence on the bill, that I am very happy to explore constructive amendments that might seek to change the level of detail that is on the face of the bill. It is obviously a matter for members, both the committee and the full Parliament, to decide on the matter of principle whether to move toward a more codified system. In response to the comment from Mr Stevenson that a more open legislative framework does leave people with a lack of clarity about what might be subject to prosecution, and the comment from Mr McGowan that we are talking about a spectrum or a range of behaviours, I would put it to you all that the position that we are in at present is the most open, undefined legislative framework in this area, an area that is inherently complex and which we are probably never in any legislative context going to have crystal clarity about every theoretical scenario. Can I just mention a paper that has been circulated to members from the office of the solicitor to the Scottish Parliament, outlining the current context, because it is different from the Assisted Dying Bill, which amends the Suicide Act. In Scotland, an individual assisting a suicide could be prosecuted under the common law for murder or culpable homicide, or some lesser offence such as culpable and reckless conduct. In a situation for example where someone had taken steps to ensure that someone they were caring for had access to the means to end their own life, available to them within the room they were being cared for, that would be one scenario. In another where they had physically propped them up in bed during the time when they had taken that action, that would be another scenario. In another, they might simply have made the practical arrangements for them to travel to Geneva and to end their life in that way. All of those scenarios at present give rise to a great deal of lack of clarity about what offences might be prosecuted and under what circumstances. Is not it the case that the position that we are in at present is the most open and ill-defined legislative framework that we could possibly have in this area, and that an attempt to outline a process that would be protected from those forms of prosecution is a positive step in terms of increasing the clarity available to people? To whoever would like to respond. I think that my hands are tight to some extent in relation to any answer to that question by the on-going judicial review. My hands are tight and I can't really comment upon that. I'm not sure that there's anything I can usefully add. We respect your position but Professor Britton is going to respond. Maybe I can try and help a little there. Clearly what you have said has some resonance. The view within Scots law and reply to that prior to recent events and the current judicial review would be that the law in Scotland is absolutely clear that assisting in the death of another person will incur some form of investigation and possibly some sanction. The position in England, as you know, was subject to similar consideration and the DPP issued guidelines following the case involving Miss Purdy. That position has not yet happened in Scotland. At the moment, we are relying on existing law, which the argument is clear. England has tried to be a little bit more specific but clearly there is a limit to how specific any rules or guidelines can be because you are then usurping the role of Parliament. I acknowledge that that may be the time for a challenge. Is it clear, in fact, the current law in Scotland, whether someone who had made all the practical arrangements for someone to travel to Geneva and travelled with them and ensured that they were able to go through that process, is it clear that they would not be subject to prosecution? I do not think that we have had sufficient case law in Scotland to be able to answer that. Does anyone else wish to respond? I wonder if I could just follow up with one very brief final point, which is also about the line between support and encouragement. I think that that was an issue that had also been raised in relation to the role of the facilitator, as defined in the proposed bill. The provision of practical and emotional support, whether and in what context that might cross the line into encouraging someone to take an action, is not this again a situation that exists at present and probably a judgment that would have to be made in any legislative context, whether an assisted suicide bill like this, an assisted dying bill such as South of the border, a framework similar to Switzerland, Oregon, Belgium or wherever, that judgment would always have to be made about whether support had crossed the line into encouragement. Isn't this simply an aspect that is inherent to this subject rather than one that is specific to this bill? I think that the only point that I would make there is that here in this legislation you are actually authorising somebody to undertake that role. There is a specific appointed person, the licensed facilitator, it is a new role and a very responsible and indeed onerous role. The definitions of what that person can and cannot do have to be clear because I revert back to section 1 because if they are not then they may be subject to criminal or civil liability. I think the point that you make that the current position is an uncertain one and is therefore an unhappy one is a good point. But that in itself does not mean that if you are introducing legislation to create a system that you shouldn't do the best you can to reduce and remove uncertainty. If you criticise the existing system for uncertainty you should do your best to remove uncertainty if you are creating a legislative regime. I might have misled you a bit because Dennis I think asked me earlier and I have got him on my list but I will go to Dennis first and then I will come back to you Mike. I mean obviously we are looking at some of the aspects that you mentioned and I was wondering within section 24 we looked at the aspect of careless aspects. With regard to autonomy and there is quite a lot of emphasis when we are looking at a person making their decisions for themselves and that is an autonomous one. Is it fully autonomous or are people influenced by other people's will? I am thinking of some of the more vulnerable groups of people who have probably got an idea of themselves on how they want to live their life or end their life at the end of the day. But if you are within a vulnerable group how can that be influenced in a greater part by the will of others so therefore you are removing the autonomy because it is influenced by the will of others? Yes please Professor. Medical jurisprudence has already acknowledged an individual's right to make decisions involving their healthcare and vulnerability and the capacity to make a decision is always going to be a challenging one. I do not think that there is ever a completely watertight way to be able to address that but any capacity under for example adults within capacity law mental health legislation looks at the ability of the individual to be able to understand the decision that they are about to make and whether they have the commensurate understanding knowledge reason to be able to make that decision and perhaps that is the best that could be here too. We have a duty if somebody has no capacity or their vulnerability is at such a level that other mechanisms have to be in place to ensure that they are protected and treated equally in society against others. But where there is a possibility of being able to articulate preferences about for example healthcare treatment or how we are treated at the end of our lives I think our ability to articulate that has to be worked out and reasoned and measured against the difficulty of that decision. I think my problem with that is the individual requires to be identified in the first instance and I think where I am probably having some degree of difficulty here is that I think there are perhaps groups of people within society and perhaps influenced by maybe the different changes within the society influence and whatever that maybe aren't actually known to say to the medical profession as being particularly vulnerable but maybe known to maybe other social care services however. So it's not a question of actual capacity but vulnerability and I think there are groups within society that are particularly vulnerable and are influenced by whether it be what they read in the media or by family encouragement or whatever. And it's not the capacity that's maybe the question but their vulnerability by external influences in some way and that concerns me. I think one of the areas where the bill might benefit from additional safeguards might be for example and I appreciate later in the process but were a person to cancel the declaration and again that's not done in any kind of formalised document like the declarations. If for example the recording process of the declarations and potentially a cancellation were in a more formalised process there might be a trigger there where a person could meet with a support service or someone who could discuss the nature of the decision, the reasons behind it. But I think at the moment there is the capacity simply to make the declaration a very limited number of people would be aware of it and therefore those vulnerable people may in fact be more vulnerable. I think there are quite a number of groups within society that are known as vulnerable groups but I think with reference to this they become even more vulnerable to the influence of other people's thoughts and decisions and follow those lines of decision making. So therefore you remove the autonomy although the person themselves may follow that through, they're actually doing so because of the influence of others. I think the point's been acknowledged in some respect Dennis in terms of gaps there but I've got Mike Mackenzie. I know that a lot of the territory that we're covering this morning has already been covered by the Justice Committee and that Mr Harvie's response to at least some of the points if not all of them was that he was perfectly willing to consider amendments which would perhaps seek to deal with some of the points, some of the difficulties that have been raised. Given that the law is not a perfect instrument, it doesn't always function perfectly and I wouldn't suggest for a moment that we don't have a duty to get as close to perfection as we can. I wonder if the witnesses feel that if it's possible to deal with some of these concerns by amendments, by statutory guidance or by subordinate legislation, or do you feel that the bill as it stands is somehow or other irredeemably flawed just by the general approach that's been taken? That's a pretty straight question, direct, Professor Britton. I don't know if I could comment on all aspects of it but if I had to choose areas that I think would need to be firmed up on the face of the bill, it would be around the area of defining the role of the licence facilitator and I'm sorry to go back to this but also defining assistance. Because we cannot identify criminal or civil liability without knowing what constitutes assistance. I would agree with that and I would add a requirement for clarity around about section 24 and the savings provision and what effect that that actually has. I think I understand its intention, I'm not sure that I think it goes beyond its intention the way it's drafted. I agree with the last point about section 24, which is one of the points that I wanted to make. The other matter that I'd like to pick up on is the need to clarify the role of the facilitator. At present there is no express requirement anywhere in the bill that a facilitator be engaged or she be involved to any extent in the process of assisted suicide. It is necessary for the person applying for assisted suicide to make a statement in their application, a second application, to the effect that they have engaged the services of a facilitator but there is no express requirement on them then to proceed to use the facilitator. The facilitator is given certain duties, he is to use best endeavours to do a number of things including trying to be present at the death but there is no requirement that the facilitator actually be present at the death and the facilitator has no powers to force himself upon the person who is seeking assisted suicide. I spoke at a symposium on the bill in April last year when a member of the audience suggested that it had been a deliberate policy choice of the late promoter not to specifically require a facilitator to be present at the death. A facilitator should not be forced on the individual suicide at the time of the act, a deeply personal act, one can understand why that might not be desirable but if that is correct and if my reading of the bill is correct it rather begs the question as to why the facilitator is described in the supporting papers as a safeguard. If he or she is a safeguard, he or she is not a necessary safeguard yet the only person who has the obligations in relation to, for example, reporting the death or the attempted suicide is the facilitator. If the facilitator's involvement is not to be in relation to the practicalities of every attempted suicide or suicide, there is then a gap in the reporting provisions. If the facilitator is not there, he doesn't know what's happened, who is to report the suicide or attempted suicide. The facilitator has given no powers whatsoever in the bill itself to support their function to enable them to compel the applicant for assisted suicide to participate in and co-operate with them. There may be very good policy reasons for that. It may be decided that that's undesirable or that facilitator shouldn't have to be involved at all stages of the procedure. However, if that's the case, it ought to be understood that the facilitator's role is perhaps not as all-involving, not as encompassing as some of the supporting documents of the bill might suggest. I think that I've got Roda Grant to tease out some further elucidation on the point that I was trying to address. Maybe I could rephrase it. I accept that this bill is capable of improvement, perhaps as it goes through Parliament in the terms of amendments. I'm taking it perhaps, Mr Stevenson, but I'm not absolutely certain that the point that you made there, or indeed any of the other points that have been made, are the absolute showstoppers? Or are the matters that should not be beyond the wit of Parliament in terms of addressing those issues? I think that that's a difficult question to answer, because it's really a matter for Parliament in terms of how Parliament wants to take that forward. I don't think it's for me to comment upon. All I can comment upon is from my own position, my experience, is to say that if Parliament wants to take forward this particular matter, there are areas here that could be fleshed out or increased definition, could be given to them, and that's what we've been trying to do this morning. In terms of your point, that's really a matter for Parliament. Does Parliament, as an organisation, want to take, or as a body rather, want to take this forward and legislate in this area? I'm very grateful to you for that point, and it's a very interesting point, because I think that the tension that you describe equally may apply to the functioning of this bill, or indeed any piece of legislation in as much as you touched on the possibility of lack of perfect clarity, perhaps giving rise to the need to investigate, or sorry, it may have been your colleague, Mr Flanagan. That idea, that tension, that possibility, that moral hazard, is that not a benefit rather than a disbenefit in as much as it exists in all our criminal law, the possibility of prosecution if we don't get it right, and is that moral hazard not a good thing, not a bad thing, as it may have been presented earlier on this morning? I suggest that it's really a political issue, isn't it? It's a decision that you and your political colleagues have to take as to what sort of system you want and what are to be the consequences. For my part, I'm here representing an organisation, and whatever personal views I might have, I'm not able to advance specific suggested amendments to individual clauses in the bill. Sorry, I think that you misunderstand me again. I'm not suggesting that it's your responsibility or that you ought to suggest amendments. I'm just talking about, in terms of the broad principles of the matters that you've raised, are they in theory capable of being dealt with by amendment in the parliamentary process, or do you think it's irredeemable, the bill, as it stands, and not capable of being transformed into a satisfied parliamentary state through the normal parliamentary process? I'm not asking you to write the amendments or to suggest them. I think that you've tried to elicit a response that you're not going to get. We are at stage one of a parliamentary process, and our witnesses are assisting us in identifying problems or issues that they, from their expertise, see as a barrier to moving forward. The whole process will be refined at stage two when we would expect all of those who are interested in the promotion of the bill to be able to do that. We will be able to take into consideration the expert evidence that we've had and the criticism, and that will, of course, proceed to a parliamentary debate in the chamber where we will have all of the evidence, the report, subsequent amendments, et cetera, et cetera, which indeed may or may not gain the support of Parliament. Of the very early stages of this round of this issue, we could proceed on. Rhoda, you wish to ask some question, and I think that Bob and others want to come back. Yes. Can I ask about investigation? If a facilitator needs to tell or register the death or report the death as a suicide, and there would have, obviously, the paperwork attached to that, would there be any formal investigation of that? Would that be enough to say that that has been carried out under this law and that there requires to be no investigation as to the circumstances or surrounding circumstances of the death? In that question, the facilitator has all of the paperwork, and all of the paperwork is in the one place. You're correct to say that the nature of any investigation where this bill passed would depend upon the circumstances, but it's crucial that all the paperwork was available in the correct place so that it could be gone through. That would be the starting point. It may or may not be the end point, but as I understand the bill at the moment, whilst the various declarations and various paperwork has to be then noted on the medical records of the person who's expressing the will to take advantage of the bill, there isn't a central repository of all of this paperwork. There's an issue about potentially ingathering all of that paperwork, so that in itself, the way that the bill is currently drafted, potentially means that there is an investigation. Again, the policy intention behind the bill is to minimise the intrusiveness of any investigation so that the investigation is there to satisfy that the authorities can satisfy themselves that things have been done in accordance with the act. I do think that there's potentially something that could be done about having a central repository of the documents, whereas at the moment it envisages that things will be endorsed on medical records, but I'm not sure that the bill is quite as tight as your question suggests. I hope that's helpful. I would fully support that. In our written submission, we suggested something that would be like the Office of the Public Guardian, where documentation, when it is collated—and I agree that it might not just be a case of producing it—it might take a bit of time. If it is the licensed facilitator, they have to be given reasonable time to pull this paperwork together. However, they are after, for monitoring purposes, data purposes and security of holding records, something similar to the Office of the Public Guardian, where this information can be held centrally and securely. We've made the suggestion previously that the legislation suggests that the mechanism for reporting would be to the police. We've previously suggested that there's a precedent already for medical deaths, which are reported directly to the Procurator Fiscal's Office. We would wholly support that for the consistency that would make things smoother for everyone concerned. Go back to Dennis's question about vulnerable people. If there was somebody who had concerns about that, say, a family member who was unaware of the declaration of the intention, and if they took issue with that, if they didn't believe that that was maybe a decision taken by the deceased, what steps could they take to have that investigated? That would be consistent with any concerns that anyone had in any other aspects of their life. If they were concerned that there was potentially a criminal act taking place, they would be able to report that to the police or to the Procurator Fiscal. An investigation would be conducted, and I wouldn't imagine that it's likely to change if everyone has a right to express a concern. I don't think that anything in the legislation would alter that ability of people to report. Does that make sense? If someone is to raise a concern, the police or the Procurator Fiscal would have an interest in that particular concern. If it was necessary, if it required more than just dialogue, there would be an investigation that is likely to follow. If there was a concern that always not, as appeared perhaps on the face of the paperwork, that would be investigated. That would have to be investigated. I don't think that in the face of a concern that always not, as it seemed, the paperwork couldn't be accepted on face value. There would have to be some degree of investigation into that. The extent of that would clearly depend upon the circumstances, but if there was a suggestion that there was no consent in some way, there would definitely have to be an investigation into that. If a family member thought that someone was coerced into making those declarations of paperwork, it was properly exercised, registered, if required, by amendment in the bill. If somebody thought that somebody had used their influence over that person to make them reach that decision, it made them encourage them to do the paperwork. It was quite clear, in front of witnesses, that the person might have stated that view in order to get the approval or whatever of the person concerned. That would have to be investigated and it's potentially something that, in terms of the bill at the moment, would take the case into an investigation of a homicide rather than something that is dealt with within the parameters of the assisted suicide legislation. It would have to be investigated and it would be. It may or may not be the right time to ask the criticism of Mr McGowan on the issue that he mentioned about specific penalties for assisted suicide. Would specific penalties require a specific offence, as it is in England and Wales? In order for there to be a penalty, there has to be an offence. At the moment, the default position is that if the bill is not complied with the common law, the position in England and Wales is that there are statutory offences around and about specific penalties. The bill that is before the UK Parliament, the assisted dying legislation, has various offences within that about fraud and such like, which also have specific penalties so that those are in that legislation. If it were passed, the default position is back to the common law. How do you create a specific offence? The UK Parliament would have to define what it was. That would need to come. In terms of the UK bill, it looks at fraud and fraudulent entries in the documents and such like and it makes that an offence. The net millon, because she has not been in and then the table. We have been talking a lot about almost the practicalities of the bill, but the law society's written submission actually raises the possibility to legislate at all in this field could be incompatible with article 2 of the European Convention of Human Rights. Does the law society still have that concern? I think it was to flag up matters of interpretation. Article 2, as you rightly say, confers a right to life. Now this is interpreted by member states broadly to enforce and protect that right to life. The European Court of Human Rights tends to leave it up to each member state how that has to be interpreted. A right to life does not automatically confer a right to die. However, article 2 also has to be looked at in relation to article 8, a right to a private life. There has been far more case law around that, so you can take some English cases involving Miss Pretty and Miss Purdy. The issue of the private life is whether or not one can make decisions about one's death and the processes leading up to that. Is that an integral part of life? Lord Hope and Purdy acknowledged that it was, so that gives the individual. Article 2 is a right to life that will not, under current interpretation, confer a right to die. However, in the confines of the bill, we are not actually looking for a personal right to die. What is being proposed in this bill is that under certain circumstances that assistance is provided. Has this issue arisen with other jurisdictions who are signatories to the HCR, who also have laws that allow assisted suicide? The case law is only starting to be developed in more recent years. Many of the states were relying on a common law development within their own member state. The European courts have talked about a margin of appreciation that has to be applied in each and every circumstance. They are reluctant to interfere in what a right to life might mean. For example, a right to life might include evaluations of personhood when does life begin? Each member state will have religious influences, cultural influences and legal influences that would determine that. The jurisprudence in case law has been developing particularly in recent years. Some of it will have had some impact, but it is having an increasing impact. We are looking to the European Court of Human Rights, but more so to articulate the notion of a right to a private life and what that actually means in terms of our decision making about death and the dying process. Have those issues been taken into consideration in the south of the border in the legislation currently before the House of Lords? I would imagine that they have, yes, particularly with such recent case law, as well as Ms Purdy, Ms Pritty. The Supreme Court issued the judgment in the case of Mr Tony Nicklinson and others just last year. I would find it very surprising that that was not to the fore in Lord Falconer's bill and any deliberations there. The Supreme Court made it very clear that any decision taken as to whether assisted suicide was to be endorsed was strictly a matter for Parliament and not for the courts to decide at that time. Do you reckon that anyone else has any comments on those issues? Good summary, Professor Pritton. I have Bob Doris and Richard Simpson. Do you wish to ask some additional questions? I have got some other hands now. Richard Simpson, Colin Kear, Bob Doris, and if you want, Patrick, come back on. I have a few things I wanted to ask of time. I will be as concise as I can as I go through them. I have some discussion about what it means to assist in relation to assisted suicide. I am interested in the roles of medical professionals in relation to that. Before people can exercise their right, if that is what is decided, if that is what is passed by this place, you have to know about it. For example, the place that you might find out about it might be your GP, for example. GPs may have a variety of views on that. They are individuals on their own right, plus they have their own regulatory system. What is the balance between a GP informing patients unsolicited that this is a treatment option? Is that a valid thing to do? Could that be interpreted as promoting or encouraging the practice? How would that be defined within the bill or within the law? I do not want to be frustrated by the member promoting the bill, but as members we have to think about potential scenarios should the bill be successfully passed. There may be a scenario in which the family disagrees with the exercise right in relation to assisted suicide and may challenge a variety of fronts, one of which might be the advice or the information that was given by a medical professional or anyone else. I am just wondering where the protection is set within the bill in relation to that. Professor Britton seems to mop up all the curveball questions here. If it is not relevant, perhaps it is very relevant and it has not been given consideration too. If you have given consideration to it and if you have not, that is allowed, but do you think that it is something that has to be fleshed out and consideration has to be given to it? Mr Riddle and Mr Stevenson? It is not something that I have given direct consideration to in relation to the medical profession, but it is certainly something that from a legal standpoint we have considered in terms of, from a solicitor's point of view, for example, you might give a client advice about different options, testamentary, executories, would this therefore be something that you would need to consider? Particularly from a solicitor who has professional obligations around integrity, honesty and a client's best interests, I think that that leaves huge ethical challenges for a solicitor as to what they might do. I think that there is a risk there about, at what point do you say that assistance or encouragement does seek beyond the immediate parties that the legislation envisages? What I do not know is the answer in terms of what that would mean. You could not compel a solicitor and I assume you could not compel a medical practitioner to disseminate this information or promote it or however you define it, but I think that it is a difficulty with this particular legislation. If the bill were passed then there would be a law in Scotland making assisted suicide legal in certain circumstances. It is therefore very difficult to see how someone who is simply imparting information about a legal regime which exists could be in doing that, contravening some other law. You are simply telling somebody that this is a system that is approved by the Scottish Parliament. It exists. From the point that you have a doctor promoting this, a doctor would have to consider their ethical position in addition to their legal position and their ethical position would be largely as determined by any guidelines issued by the General Medical Council. At present the General Medical Council's face is set against assisted suicide and euthanasia assisted dying. If a legal regime were introduced then the GMC might have to look at that again. Clearly I am not in a position to speak for the GMC. I think that the doctor's role would be one that would be subject to professional regulation by the doctor's professional bodies and in particular the body that defines doctor's ethical obligations in the form of the GMC. I think that that is helpful. I should be able to say on a personal level that I was not suggesting that doctor should encourage or promote a pathway towards assisted suicide. I am just trying to look to see where challenges could come. I think that that is maybe a question for the next panel, a bit more relevant for them as well, looking at the legal position. I presume that the GP's doctors would be subject to the same concerns that you warned of earlier about the lack of clarity in terms of the bill and its current forum. That would apply to anyone, doctors, friends, family, whatever, who were assisting and dying. With the present concerns that you have outlaid, doctors would fall into that category as well. It does seem to be envisaged by the bill that this be a service supplied under the auspices of the NHS. It does not say that in terms, but it talks about registration and the keeping of documents in the patient's medical records, the use of registered medical practitioners. Supporting documents, I think, anticipate that the system would work within the NHS. Therefore, if that is to be regarded as an NHS service, doctors who work in the NHS might be concerned that they should have some specific protection or opt-out. I know that you are hearing later today from Dr Potts. He deals with this very nicely in his submission, which is appended to the documents that you have. He says that, if participation is considered part of NHS duties, there is a strong case for an opt-out provision so that a doctor knows that they are not considered by their NHS employer to be obliged to participate if, for conscience reasons, they do not feel able to do so. Therefore, it may be that one of the matters that should be considered is a conscience clause. In fact, he has referred to this in his submission. I think that there could be significant ethical and practical judgment calls that I suspect the medical profession would have to make. For instance, if their patient is unaware of assisted suicide and they deem them to qualify in terms of, in theory, being able to go down this pathway, but when it would be appropriate to inform their patient of that, would that be deemed to encourage? It is a very difficult issue to tease out on what it is that is not appropriate and how the checks and balances could be provided within that without compromising doctor-patient confidentiality. There are two other medical areas that I was hoping to explore and understand. I may have got this wrong, but in terms of determining whether an individual has capacity under this bill in a previous forum, there would be a reference to a psychiatric assessment, which does not necessarily have to take place on this occasion. I will try to roll this together, hopefully for brevity, in terms of also qualifying. It also has to have capacity, but it also has to be a terminal illness or a life-limiting one, and the fact that there could be various medical opinions in relation to that. I am thinking about after the event in itself, if, for instance, an individual assisted suicide case is challenged because an individual believed that the person making the decision did not have capacity, but there was not a full psychiatric assessment done, or they challenged it on medical grounds that they did not believe that the patient's condition allowed them to qualify. Where is the legal position in relation to that? Are the checks and balances right within the bill or are the protections right within the bill? I think that, from the moment of full circle, it is about the clarity again in relation to this. I am just trying to tease some of that out with some very specific examples. Yes, Professor Martin. Can I take the last point that you were referring to in terms of definitions of terminally ill and life shortening? It is something that any piece of legislation that I know of has struggled with. How do you encapsulate what somebody's illness or what stage it has to be at to be able to fall within the provisions of any law? Here, we are relying on medical diagnosis. Clearly, in first consultation and second consultation, as part of the process, it is medical diagnosis. We believe, the law society believes that it should not only be reliant on medical diagnosis. If this is about an individual's autonomy to be requesting assistance at the end of their life, their own subjective view, we believe, should play a part in this as well. The quality of their life in their opinion and not just on medical opinion. The value of things that might be important to them in the end stages of their life should play a part. If that was the case, that it is medical diagnosis, good communication, we believe between doctor and patient, that should always be encouraged and a respect for each party's viewpoint, then we would hope that that would go some way to painting a fuller picture, medical diagnosis linked with persons value system belief and their views on their own quality of life at that time. The approach taken in sections 8 and 10 is to start with medical diagnosis but then to say that it is necessary for the applicant to have reflected on the consequences of the medical condition and have concluded that the quality of their life is unacceptable. It is unacceptable and suggests that it is currently unacceptable. It would also seem that the person must see no prospect of any improvement in the quality of their life, so no prospect and any improvement. There is quite a high hurdle added to the fact of medical diagnosis of a life shortening or terminal condition that may be life shortening but still leave you with decades to live. You must have to qualify under the bill a perception that your current life quality is unacceptable and that there is no prospect of any improvement. There is quite a high hurdle added to the fact of medical diagnosis of a life shortening or terminal condition that may be life shortening or terminal condition that may be life shortening but still leave you with decades to live. The definition of life shortening is a supplementary question. Bob asked the two questions that I was going to ask, so I would like to do supplementaries on both. On this first one, if you take someone for example, that is to take a rather extreme example, but someone with schizophrenia, the number of people with schizophrenia who commit suicide is huge. It is really very significant. They see no prospect of their life improving during periods of control where their symptoms are diminished. In those better states, they may become aware that there are long-term prospects of managing this with the medicines that they are required to take, etc. Are people like that going to qualify under the act? There are also those with learning disability, not severe learning disability but significant learning disability or with epilepsy. All those people at the moment tend to have a much shorter life expectancy. I have real difficulties, not about the terminal illness group, not about the progressive group, but I have significant difficulties and I would like commentary from the witnesses on what constitutes life shortening, life shortening condition. It is not defined. It would seem therefore to follow that any illness that shortens your expectancy of life is life shortening. In the faculty submission, we have pointed out that there will be very many everyday type conditions which are likely to be life shortening. Type 2 diabetes may shorten your life only by a relatively short period of time, but nonetheless you could argue that it is a life shortening condition. The other thing is that there is no prospect of improvement. A recent case that really disturbed me was the young man who had a rugby injury and was paraplegic as a result and went to Switzerland. The situation around him was that exoskeletons providing movement are being developed as we speak and that spinal transplant of stem cells are being developed as we speak. No prospect of improvement seems to me to be a clause on what constitutes that. Who decides that there is no prospect of improvement? Who decides that the course of action of assisting someone who decides that they have no prospect when actually there is a prospect out there of improvement? Who has decided that there is no prospect of improvement? I think that the case that you are referring to is the case of David James, the very young man. I think that perhaps his case provides a good example that there has to be more than just a medical diagnosis and perhaps provides an example of looking at the broader picture there. Mr James tried to take his own life once by overdose and once by trying to stab himself to death. I believe that family members had done everything they possibly could to try to encourage a quality of life there. His family reached a view, I am sure, very reluctantly at the end of the day that this was what Mr James wanted at that time. I do not think that we have any way of knowing whether that is something that he would have wanted in the future had he lived, but his quality of life at that time gave rise to his family and family friends being willing to offer support to allow this to happen. It is a natural reaction. There was a supplementary, and Mr James went back in and I have two or three and we are under pressure. You asked who's choice is it or whose decision is it that a quality of life is unacceptable. In the first instance it is the person who applies in terms of the bill and you find that sections 8 and 10. Then the medical practitioners have to be satisfied that the facts that they have available to them are not inconsistent, you note the double negative, with the conclusion of the individual as to the unacceptable quality of their life. It is not clear to me what degree of scrutiny is required because this is a conclusion that the medical practitioner requires to make on the information that he has. What information will he have in individual circumstances, I suspect, will vary. However, it does not seem to involve an objective review of the patient's subjective conclusion that his life is unacceptable. It may be that that would not be possible or realistic. It may be that he said that that should not be an aim of the bill, but that seems to be what is anticipated at present. I've got Bob, we want to conclude. Richard Lyle hasn't been in and I want to give part of the opportunity to get back in and we're going to do that within the next 15 minutes. It was just in terms of, I'd asked about capacity, I think that's fleshed out some of the issues in relation to subjective views of the individual, perhaps overriding medical consideration. That's a political judgment call and ethical judgment call as much as it is a legal issue, but in terms of capacity that would be more clearly a legal issue as well as a medical one. If a person has not been had a psychiatric review, and maybe a medical professional doesn't deem that to be appropriate, there are a lot of undiagnosed psychiatric conditions within society that could go undetected and the previous bill seemed to give provision that that should happen. Could it be legally challengeable on the basis that the medical professional got that wrong or should have on balance referred it for a psychiatric review? It's open for challenge and capacity is a concern in law society submissions to the degree that there are different degrees of capacity required for different decisions. I won't labour it but there's a particular view that law society has around solicitors acting as proxy because this is, in our view, a significant decision and you have to be sure that the person has capacity. I can answer it with the significance of this decision, so certainly from the perspective of a solicitor taking the role of proxy, I suspect that a solicitor would look for some form of psychiatric or medical reassurance and confidence that the person understood the effect of that decision. It very much does differ in our view a solicitor potentially or is determining whether someone has capacity to transact in the purchase of a property or a basic contract versus do they have capacity to understand the decision they're making, the consequences of it, whether they could in fact change their mind, whether they could cancel it. There's lots of areas there and it does pick up on Dr Simpson's original point about impaired cognizance as well, how do you determine whether capacity continues, whether it was valid perhaps at one point in time but hasn't differed. Yes, I think there's difficulty in ensuring there's capacity but I think because of the significance of the effect of this legislation it really has to be a very high test. The endorsing medical practitioners in respect of both the first and second requests need to be satisfied that the person in their opinion that the person making the request has a capacity within the meaning of section 12. Section 12 introduces a two-stage approach to testing capacity. The first stage is by reference to the Mental Health Care and Treatment Scotland Act 2003. The subsection says that a person has capacity to make a request if he's not suffering from any mental disorder within the meaning of the act which might affect the making of the request. Mental disorder in terms of the section is any mental illness, personality disorder or learning disability, however caused or manifested. So, if somebody has a mental illness that might affect the making of the request, the first of the two stages and the test of capacity they would fail. What the faculty is concerned about is that this part of the test of capacity involves a medical decision which looks like a psychiatric decision unless somebody already has a diagnosis of a mental illness when perhaps a GP or a consultant dealing with a cancer patient might know that they have a mental disorder. So, it does suggest a psychiatric diagnosis. Who is capable of making a psychiatric diagnosis? A psychiatrist is another medical practitioner. So, we're concerned that the practical effect of this might be to require a psychiatric diagnosis at the first part of the two stage test. But if your medical practitioner has to be a psychiatrist, is he capable of making the diagnosis of the terminal or the life-threatening, life-shortening condition? I'll leave that with you. What does it mean to say which might affect the making of the request? I know that Mr Havie has a different view on that, but it might suggest that a mere possibility is enough. What does it affect the making of the request? Does it mean that it influences the making of the decision behind the making of the request? To my mind, it's not a very clearly expressed provision and might be improved on. The second part of the test relates to capability in more of a practical sense, ability to make a decision, remember a decision etc. That may not be a medical expert psychiatric decision. Psychiatrists who have responded, you've got a copy of their papers say that's not. I think that the first stage is a psychiatric decision. I'll blow that later. Richard Lyle. I'm going to move to Mark Harvie and then we're going to bring it to a close. I've sat listening this morning to most of the questions and points that I was going to raise. I think that I have to raise one and what's coming across to me, Parliament makes laws. Police implement them, procurative fiscal charges people, lawyers defend people in court or not and look at all the things. But basically what has been said today is to cover all the bases. This bill is going to run into hundreds and hundreds and hundreds of amendments. My point and this is what I want to ask you. People have the right to live. We all agree that. Do people not also have the right to die when they choose to die? A matter for Parliament. That goes to the legislative purpose of this bill and really not something that I can certainly comment upon. But with a great respect earlier on you said that it's homicide, that it's not suicide. I don't want to go over all that you said this morning. But at the end of the day, if people want to die, why should we not respect them? That's the question that I want to answer. Talk about the law of homicide. The law of homicide currently applies to this situation to anyone who assists someone else. So that's the current law. If Parliament wants that note to be the situation then Parliament can legislate to that effect. But that's really a matter for Parliament. Mr Stevenson. The dead are beyond the reach of the law. If somebody commits suicide then in this life their troubles are over. They will not be prosecuted. They are dead. The point of this act is to protect those they leave behind and who may have been complicit in their act of suicide. And to prevent them from being prosecuted or being found civilly liable because our focus has been very much on the criminal side of things. But there's also a removal of civil liability in section 2 of the act. So I think that the focus isn't so much on somebody's right to die or kill themselves if you choose. It's to protect those they've left behind. It's not so much the autonomy or the personal decision to die but the fact that this legislation requires the assistance of a number of different professionals to bring that about. Professionals such as doctors, solicitors and the new role of a facilitator. Many of those already have professional codes of conducts and obligations which haven't really been accounted for necessarily within the process set out in the bill. I think that's really why the professionals are keen to safeguard and highlight those conflicts. The bill doesn't propose a right to die. We need a right to die. We are all going to die. What we are looking for here is under certain conditions that that help is provided. None of us want to lose any of our loved ones. At the end of the day we've all went through that pain at some time with grandfathers, mothers or whatever. At the end of the day, as I said, Mr Stevenson was correct, all the points that you made this morning, we would need hundreds and hundreds of amendments to cover the person who has left, who knows that their loved one has wanted to go. That's the point that I'm trying to make. Patrick Harvie, please. On that last point, I don't think that I've ever seen a bill introduced to Parliament that wasn't capable of improvement through the amendment process, to some extent. I'll be happy to engage with any proposed amendments that are constructive and intended to improve the bill during the process. I agree strongly with some of the comments that were made about the purpose and the intention of the bill, so I'll not go over that again. I'll also leave the issues around psychiatric assessment and so on to the next panel, where I think that they might be more usefully explored. I think that there were just two issues that I wanted to pick up on that came up more recently. One is on the issue of a conscience clause or an opt-out clause. Given that the regulation of the professions is currently a reserved function, it seems possible that that could be implemented either through guidance or perhaps through ministerial regulations. Can I ask the witnesses who raised that, whether those are appropriate means of introducing a degree of protection for those who don't wish to participate, who want to be sure that they will not be required to participate in assisted suicide? If those are not adequate means, is it possible for the bill to address that by another means? I think that I raised the conscience clause. My point of view does not matter much where the provision is to be found as long as it is there and it is effective. It gives those who have conscientious objection to participation in the process an ability to opt out. As I have said on another occasion, it also seems to me that it would be appropriate and necessary to include in the conscience clause a requirement that, if somebody is declining involvement on grounds of conscience, they should be under a duty to advise the person seeking assisted suicide of that fact so that they know that is why they are being refused assistance assistance and have the option to go to somebody else who may be prepared to supply them with the assistance that they are seeking. So it's not enough for somebody to say, I'm not being involved and leave somebody with the impression that they somehow don't qualify when they do or might. Thank you. I think whether people agree or disagree with the basic principle at stake, I don't think I've met anybody who's discussed this issue who wouldn't welcome a clear conscience clause. Apart from anything else, it would give individually the ability to ensure that they had registered with a GP who agreed or disagreed with this issue in principle and know that they were going to be given treatment by someone with a view that was compatible with their own. You discussed some of the issues around qualifying conditions and I think in looking at what seemed to me a fairly extensive list of conditions which in my view would be unlikely to qualify, you actually added the possibility of type 2 diabetes. Can I just suggest to you that although it might be described as a life shortening condition and thereby meet the test of section 85A, it certainly wouldn't, in the absence of other factors, meet the whole test of the bill, which you described as a high bar, type 2 diabetes. In its own right, it wouldn't meet that high bar, would it? It's difficult to envisage somebody concluding that the quality of their life was unacceptable and that there was no prospect of any improvement simply because they had type 2 diabetes. That's why I was trying to perhaps not successfully get across the fact that there has to be an objective medical diagnosis, but there then has to be a subjective impact on the person's life. It's at that point where it seems to me that the bar is quite high because they have to conclude on reflecting on their condition that they have an unacceptable quality of life with no prospect of any improvement. So there would have to be some relation because that's a consequence of reflecting on the condition. Existential angst in its own right. The medical practitioners who then endorse the individual's request would have to be satisfied that the person's quality of life, the person's conclusion about their quality of life is not inconsistent with the facts known to the practitioner. Is that double level of this? There is a check whether you feel that check is strong enough and the use of the double negative is appropriate or whether there should be some additional requirement of investigation, I don't mean an extensive investigation or inquiry, rather than leaving the medical practitioners decision based on such material as they have, which could be not very much. That's helpful, thank you. Again, that level of detail is something that I'm very happy to explore. Finally, I think that that was clear in the question earlier around compatibility with ECHR. Could I just clarify what was being said there? It does seem clear at present that, as with other issues that the Scottish Parliament has legislated on recently, such as same sex marriage, it's clear that ECHR neither compels a jurisdiction to provide this nor forbids a jurisdiction from providing this. That is the case in relation to assisted suicide, whether we look at the decisions that have been reached at European level or in the Supreme Court within this country. Under the interpretation of article 2, yes, it does not confer a right to die and the European Court of Human Rights is keen to allow that margin of appreciation to be given to each member state, but I don't think article 2 can be read on its own, it has to be read in conjunction with other articles, primarily article 8 there. The decision of the Supreme Court, as far as I understand it, makes it clear that the question of whether article 8 has been breached is a question for domestic courts. It's an issue of proportionality for domestic courts, yes. Thank you very much, convener. I thank you all who have attended our panel today on behalf of the committee. We are very grateful for your written evidence and your precious and valuable time that you have given here this morning. Thank you all and we come to the end of this session and pause to set up the next panel. To now reconvene and continue agenda item number 4, our stage 1 scrutiny of the Assisted Suicide Scotland Bill. Our second panel this morning is Dr Francis Dunn, the Royal College of Physicians and Surgeons of Glasgow, and Dr Stephen Potts, consultant for psychiatrists at the Royal College of Psychiatrists in Scotland. Aileen Bryson, practice and policy lead royal pharmaceutical society in Scotland. Welcome to you all. We're going to go directly to Bob Doris for our first question. I'll take bids from the committee as he. Thanks very much, convener. I think towards the end of our last evidence session, we were teasing out some of the potential issues or challenges for the medical profession should this bill be passed into statute and become law. One of them was in relation to whether there should be a conscience clause on the face of the bill, whether it would be acceptable to have something at a later date in guidance or in secondary legislation, whether existing codes in relation to medical practice provide suitable protection for medical professionals, be it GPs at the local practice or others who may be at some point involved in the Assisted Suicide pathway. That's the correct terminology, I'm not sure. I've also just teased it out further, convener. Some of my questioning earlier on was about what stage it would be appropriate for a medical professional to, if you like, awareness raise with one of their patients that perhaps assisted suicide is something they should be aware of, because I would imagine by saying to someone, this is something you should be aware of, could be tacitly also moving towards saying this is something you should consider. I'm just trying to tease out whether you feel, as the bill stands just now, that's something you think medical professionals would feel comfortable with and that they would have suitable protections for their own individual views as well as working in the best interests for their patients. I'll answer that as a psychiatrist representing psychiatrists in Scotland. I think it would be a very unusual position for a psychiatrist to suggest or advocate the possibility of suicide to any of the patients we were seeing, but we wouldn't expect to see to be the clinicians in the front line who might raise that question. I would defer to the views of my colleagues about that. I obviously at the Royal College represent a huge constituency with fair aim views about this and I would say that the majority of view really is of this trust relationship between doctor and patient and this is a new concept and many doctors and alien concept of actually having an option of discussing assisted suicide with the patient. It would be very important, I think, if this were to proceed to have a conscience clause. One would be concerned about the patient having to go to different doctors to find one that was in agreement with that so I think we need to think of our duty of care to the patient from that point of view but I think the conscience clause is very important and I think it's important to emphasise that there are diverse views within the profession My organisation and the majority of view is very much that it impinges on that trust relationship between doctor and patient. Can I start from the perspective of pharmacists also? We would really like a conscience clause to be in the statute rather than in professional guidance and we also represent members who have very wide views on this but among the members who would be willing to dispense a prescription for this procedure if the legislation came through then a conscience clause was an absolute must in those circumstances to protect them. I do know that there are a variety of professionals who may seek the assurance of comfort of a conscience clause. I mentioned doctors in the front line in GP's practice as a potential first point of contact for patients and that's why I started off with that. In relation to the trust dynamic with patients I'm just wondering if it's still the case that there are many family members who have the same GP or the same GP's practice where maybe the individual is seeking to go down a road where family members may or may not agree with whether there's a trust issue not just with the individual but the wider family network. I think that things have moved on, a lot of people have moved their GP's practices a lot more but it used to be family, traditionally had the family doctor and the GP's practice and if that's a bearing on it at all. I was just going to say that the relationship between the patient and the doctor is the prime relationship and nowadays we take a much more positive view from this point of view. In days gone by you excluded the patient sometimes from discussions about their prognosis and their outcome because they thought that would affect the patients but thankfully these days are gone now so it's very important that that relationship should be won. Clearly there is involvement of the family as the patient dictates but I think it's very important that the patient is the one that dictates how much involvement they want their family to have with the general practitioner. The supplementary point about conscience clause in so far as it affects psychiatrists. I represented the college in responding to the previous bill in 2010 and surveyed the subspecialities in psychiatry that might wish to avail themselves of an opt out or conscience clause. It was important to do so then because that bill built in many requirements or duties upon psychiatrists and two thirds of the psychiatrists responding would wish to opt out of all or some of the provisions in that bill. I suspect that if this bill is passed a proportion of psychiatrists will also want to opt out. It probably won't be as high as two thirds but it may well be substantial and it could be a majority. We would need to poll again to know that. I suppose the only other thing I would ask in relation to the conscience clause then that there seems to be a unity of views from this particular set of witnesses and that would be pharmacists as mentioned and psychiatrists and GPs. Are there other professionals in the field in the front line that you think would potentially come under the scope of any conscience clause to give the committee a flavour of the extent of that? If the person seeking assisted suicide is in a palliative care residential placement or on a hospital ward then the nursing staff attending to them may wish to avail themselves of a conscience clause if they are expected to nurse somebody who is requesting assisted suicide. If it is in an institutional setting with nurses involved they might ask why they are not able to avail themselves of a conscience clause when pharmacists, doctors, psychiatrists and GPs are. There may not be any other, as Ms Bison has other wishes to put on record. No, I think that that covers it because it is off the top of my head. I will leave it at this. Mr Harrew and Patrick will clarify that. I did write something down when Patrick was asking a question in relation to whether people may wish to register with a GP who either supports or does not support assisted suicide. That might be taken out of context and I am sure that that will be clarified later. I was concerned about that because I would like to think that that was not the overriding reason why someone would choose a GP or a particular health practice when they are building up a relationship in a variety of health needs. Would you have concern if that became a pattern of registration with people who are registering with GPs depending on what their own ethical issues may be in relation to something like that? None of us here represent GPs and would hesitate to speak for them. I am not in a position to make a view on that as a psychiatrist. I think that that could come in as an issue. It is very difficult to know how much of an issue it would be. As you mentioned, families are registered with a GP from very early life and it would obviously not be an issue for many of them that they would really want to raise. If the bill came into practice, I think that it could be an issue for some individuals at the time of registering with a GP. You spoke about the existing relationship between a patient and a doctor at that point. You might be indicating that assisted suicide bill would be likely to alter that relationship. In what way would that relationship be altered? If you are a medical profession, you have a discussion with that patient that brings a subject up. Would it be described as a therapeutic approach or a medical approach? What way does it change? What is the fear in terms of trust in that relationship? What is the concern? As the additional dimension to it, doctors are absolutely committed to ensuring the best of health for their patients. When it comes to the time of dying, they have a death that is peaceful and dignified. Up until now, a great majority of doctors would be uncomfortable about participating in a process that directly led to the patient's death. That is something that is not alien to our development and career. Having said that, there is also a feeling that, if that was an option, this would reduce other options such as further development of the palliative care movement. I feel that if this had come in, say, 20 years ago, it would have diminished the impetus on the palliative care movement. There are still many further developments that we can make in palliative care, particularly in non-lignant conditions. If that was an option on the table, the other options would not be able to be explored in the same way. That is a real issue. The other point is that we have heard already today about the developments that are being made in situations such as quadriplegia, which were before reckoned to be something that was really incurable. Even 70 years ago, there was a feeling that tuberculosis meningitis would be a condition that could be considered for euthanasia, because they felt that there was just no way that that condition could ever be anything but fatal and in a very uncomfortable way for the patient. Having that option, people started to discover methods for those treatments. The neurodegenerative ones today are the ones that are creating a tremendous amount of interest in research on what we can do about those conditions. That is the other dimension that might reduce the incentive to find better cures and better palliative care treatments. At the centre that you referred to yourself that the days when the patient was maybe not consulted or certainly that the family were consulted, times have changed and patient choice and empowerment, why couldn't patient choice to take this road, good hospice, end of life care and the maximum, why would that be contradictory in the new relationships that we have with doctors and patients, that patient choice would be the top priority at end of life? I think another component is the unpredictability of the situation, the unpredictability and doctors, even in lignan conditions, find it very difficult to estimate the remaining part of your life and how the quality of that will be, whether it will continue to deteriorate or be at a level where it will further deteriorate. That is a question that doctors have when they are giving patients advice from that point of view. We respect the autonomy of the patient but there is the greater picture of what that decision would make on the greater body of patients. We get very tragic individual cases, which everybody really sympathises with, but whether those cases should lead to a major change for the whole population is a question that doctors find very difficult. Sorry, president, we have had situations in this committee where we have looked at access to new medicines and new drugs and sometimes aggressive treatments that are uncertain, sometimes lead to betterment, sometimes not, lead to severe and unpleasant end of life situations. It is all uncertain there, but people are encouraged and allowed to make that choice to get access to some of those medicines. We have got a hospice movement that we are very proud of and everglide and elsewhere and we have got this part of patient choice. I am still going to say that the relationship between the doctor and the patient and the patient's choice is in the society that we live in to be assisted at the end of life or to access new medicines or indeed palliative care. Is it the fundamental nature of this? All of the options are that, but it is the fundamental decision about the doctor providing assistance or facilities providing assistance to death, which the general practitioner will obviously have to have a role in or doctors in other environments will have to have a role. It is that significant proportion and majority of the doctors in my organisation find difficult. There are contrasting views, as we have emphasised, and views that I respect and people who hold these views very clearly. They think that they can move to that stage where a facilitator can assist, but the majority still feel that that is a bridge too far. If I could venture a speculative answer to that question as a psychiatrist, I am not in the front line of those decisions, but I work alongside doctors who are. I think that part of the fear in the medical profession, if they mention the options of assisted suicide or indeed discontinuing life-sustaining treatment, is the patient might think that he is not fighting for me anymore. He is not pushing for me. He is giving up on me. I think that that is part of the fear that some doctors might bring of a loss of trust. It is something that I have observed as a possibility, but I must stress that I am not in the front line of those decisions. Rhoda Grant. Can I ask the panel about the 14-time limit between the second request and the act of committing suicide? Two things. Why do you think that that time limit is in the bill? My own thoughts are that it is because of medication being available and within the community. Is there another way of doing it? Could that time limit indeed force somebody's hand if they had made the second request? They had got their medication, but they knew that they had to use it within 14 days or else that second request expired. Can that force their hand in making a decision about whether to use the medication or not? The timing is difficult, as some colleagues have alluded to with prognosis and all sorts, so to put numbers in the bill I can understand would be difficult. If the legislation was going down the road of having medication as an option, the medication would, in all likelihood, not be readily available in the community and would need to be specially ordered for somebody. It would certainly take a few days to acquire and to be there. We had a working group that had pharmacists from right across the sector looking at this. In some ways, 14 days is a fairly reasonable number to plump on. The prescriptions would probably only be valid for 28 days anyway, so anything outside 28 days would be a new prescription. What we did fail with the bill as it stands at the moment is that there perhaps is not enough emphasis on the fact that it is the person's own decision, it would be, and they could change their mind at any time. The fact that they had made the second request within that last 14-day period would not stop somebody changing their mind, and the whole premise of this is that somebody could change their mind right up to the very last instant that has to be their decision. Issuing a prescription and being in that 14-day period does not preclude a change of mind at any point. I think that there has been a bit of anxiety around that because that is not very clear in the way that the bill is written at the moment. Does that answer your question there, Rhoda? That helps, but if, for instance, a prescription lasts 28 days, someone has the prescription because they have made the second request but decide not to draw it down or maybe swithering about whether this is the right time for them or whatever. If they present the prescription on day 12, day 13, they will discover that it will take three or four days for that prescription to come. Suddenly, their second request has become cancelled or that they feel that they have to immediately draw down that prescription and take it on making the second request because that time limit is so tight that it does not give them time to reflect properly and to assess whether that is the right time for them or not. We submitted our policy to the committee as well and part of the reason for developing that policy was to look at the practicalities of this if the legislation were to be passed. We thank the committee for recognising that the role of pharmacists would be important if the legislation went through. We looked at all those possibilities. That is why we suggested frameworks where you would have a triangular agreement between the medical practitioner, the pharmacist and the facilitator. We took a slightly different tack in that we envisaged something like if a person requested an assisted suicide procedure, the medical practitioner would then have conversations with a pharmacist and the prescription would be issued at the beginning with the 14 days to allow that to be acquired. However, there would be conversations and dialogue working closely together with the professionals so that patients were not put to undue distress. This would not be a normal prescription in any shape or form. It would be quite different. What we would want to avoid would be exactly that scenario that you have described with somebody presented with a prescription in the normal way because this would have to be quite a different procedure. That is why we also advocated the need for a professional advisory panel so that we would have national guidance and protocols. We would not expect prescribers to do that alone. We feel that there would need to be support and there would need to be robust procedures around that. When you look at that, I find that you get more questions than answers. There would be a lot of issues. We asked for a multidisciplinary professional advisory panel to be written into the statute. The details of that could be in the regulations underneath. That would be somewhere where those decisions could be looked at and a framework that would be suitable would be able to be ironed out on a national basis. I think that there have to be some time limits, a minimum and a maximum, but quite how they are set depends on a number of factors. A short minimum allows for those who are deteriorating rapidly and suffering intensely to avail themselves of the possibility that it is there. However, it might not allow enough room for review of the decision and the possibility of changing somebody's mind. A long maximum allows plenty of room for changing your mind and reviewing your decision, but it might mean that somebody who is deteriorating in mental capacity loses capacity and therefore cannot avail themselves of the opportunity. I don't have a view of about 14 days versus 28 days, but I think there is another European jurisdiction. I think it's the Netherlands where they have two time limits, one for when people are deteriorating rapidly. I think they have a 14 day and a six day period written into their legislation and it might be worth looking at something like that in amendment here. Just to head back to something that was said a little bit earlier, I'm just thinking in terms of the issue of trust. I think it was yourself, Dr Potts, that said that he might be seen as not fighting for the patient if they start talking in terms of the discussions with the person involved. In terms of palliative care, I wouldn't expect anyone within that environment to be even talking about suicide. I'd be expecting the issue of suicide to come not from anybody within the professions, but only at the point where the patient is deciding himself that this is the final straw. In which case, he's gone past the point of professionals that I would suggest fighting for him if he's gone through that palliative care element. I'm just trying to sort of get my head around the idea of when people get to the point where they see it as of no return, how do you feel that your professionals would be letting these people down by whatever actions they take, so to speak? My point was made in response to Mr Doris's question about whether doctors should or should not raise the question of assisted suicide with a patient as one amongst a number of options. That's really the crux of the matter when it comes to the professional involvement that I can see. I think that this is something that has to be brought forward by the patient. I don't necessarily see if it's in terms of the palliative care movement and you talk about the trust issues and the awareness that people have about the suicide. If they're quite happy to go to end of life through the palliative care system, that's fine, but I think it's for them to bring it up, I would probably suggest. I tend to agree with you, but I'm not sure that that answers Mr Doris's question. It brings forward a different aspect of the effect of trust within the professional patient relationship if it's the patient that is determined to bring the issue up, not the doctor. In my medical career patients have said they've had enough and in my own area of heart disease patients can come in with very disabling symptoms. At times it seems to be the end of the road and in fact if this bill came in when they said that you would have to really explore that with them but that option isn't available and therefore you explore other options. In many occasions in the vast majority of situations you can make that patient comfortable, you can give them a quality of life continuing and it's quite interesting to look at DNR notices that patients put on themselves. In quite a significant percentage of patients are reversed as time goes on and they see that the effects of treatment are kicking in, so I think it is important that you understand when patients have had enough but at times they've got the opportunity to review that. I think that there is concern within the infection with the assisted suicide that that option might not be explored as thoroughly as it is now. On that subject of professional trust we had palliative care specialist pharmacists on our group and they were quite adamant that these are two completely separate procedures and there is a conflict of interest. A palliative care pathway, established end-of-life pathway is a totally separate procedure and should not be confused with an assisted suicide procedure. We felt quite clearly that patients should always be given the options of all the palliative care options available to them and that in places I would agree with my colleague here, sometimes they're just not aware of the options and it's quite simple things. My understanding is that dignitas have people who register with them but they have some simple inquiries which we would say were pharmaceutical care issues which should be dealt with and when those options are explored and dealt with the patient would not be then requesting an assisted suicide procedure and that happens often. I think that it highlights what was mentioned before, the need for resourcing palliative care adequately across the country, for having it across the different therapeutic areas and to have equity of access and that's maybe something that the committee will want to explore more when they speak to the palliative care specialists in a few weeks time. I just agree with you that there are two completely separate pathways and the hospice pharmacist, the palliative care specialist pharmacist did not want to have their roles confused with an assisted suicide procedure because they did feel that would take away their lack of trust with their patients. It was just a comment that was made when patients come and say, right, I've had enough, you know, it's the end of the line, I can't cope with this anymore and perhaps with the agreement obviously go to this, a DNR, there's a non-resus. In how many cases do people actually change their mind in terms of, you know, whether it's the individual or the families and carers that go through the discussion? Are we aware of how many people sort of opt out of the DNR once they've maybe entered into it? There are studies mainly from the US indicating a percentage that I think is around the 30 per cent mark but I would have to check on that. I had looked at this a number of years ago when there was, and of course the DNR issues are a different situation altogether and it's one that we would obviously support the patient. In many of those situations, in the vast majority, there are appropriate decisions but they decide for whatever reason that they want that lifted and if their carers feel that's appropriate then that's what would happen. With reference to the DNR, what I'm thinking is that at the moment there's probably still the possibility of making a patient comfortable, perhaps continuing life on whatever quality of life that is. I'm not trying to reach the sort of parallel in terms of the end of life through the assisted suicide but it does strike me that there are patients already who are making decisions not to continue life which is respected through the medical profession. Is that not the case? I think that there are situations where the patient may want a decision reversed but the ultimate decision in that regard would be for the medical professionals. For example, if a patient said, I want to go on a ventilator whatever happens here then we have to try and counsel them and advise them that given their own situation that would not give them any improved quality of life or give them a better outcome. In that situation, the professionals would have to make a decision again at all times involving the patient and their family so that the DNR order would be appropriate. Thanks, Dennis. Patrick, do you want to come out at this point? I'm going to call on Richard Simpson on the capacity issue that you dealt with in the first time. Patrick, do you? Thank you, convener. Just on this question of trust, like other members, I'm keen to explore it. Dr Dunn began the session by talking about this trust relationship and you raised this in the context of describing assisted suicide as a new concept. Can I suggest that it's not? It goes beyond the fact that, in days gone by, medical professionals might have excluded patients from decisions. Actually, in days gone by, it may not have been legislated for but there is good evidence that it was very common practice that doctors might decide when it was the right time to end somebody's life. It would administer a dose of a medication with that intent. There is good historical evidence that, actually, we're continuing with a legislative proposal like this, a trend away from the idea of an authoritative approach where an authority figure will make decisions and impose them on individuals and toward a question of empowerment where individuals make their own choices. Isn't that the basis of a healthier trust relationship? In particular, in this bill, the mechanism of the preliminary declaration, which a person might have lodged in their medical records at any time in their life, perhaps when they're fit and well, perhaps when they don't anticipate that they have an imminent need to make a request for assistance. The ability to have that conversation with a doctor, the ability to have that conversation about a person's general attitude to these questions of life and death, surely that could give rise to a stronger trust relationship between patient and doctor, one where the patient knows that the doctor understands and respects their approach to these questions. I said a new concept. I meant more that if this bill were to come in for doctors, there would be a new issue to deal with for patients. That was what I meant. You're absolutely right that this has gone back for many years. I cited the fact that Euthanasia was discussed in the early part of the 20th century, so it's not new. I take the point about the importance of the patient autonomy and the fact that, in days gone by, doctors had information from the patients even about things like their blood pressure. They wouldn't tell them what their blood pressure was. These days are gone. I think that this is, for many and within the professional, such a fundamental issue because it's about assisting the process of ending the patient's life. This, for many doctors, is a very difficult concept. Many of us feel that pursuing other avenues such as the pallidive care environment are the way forward. That would diminish the chances of that. I think that there are other issues involved in it in terms of the fact that patients who are extremely disabled can be huge contributors with the continuation of their life, not just to themselves but also to their families and to the wider world. There is an issue about that, their contribution and the fact that patients that reflect after a period of time, I'm glad that I didn't make that decision to end my life because of the contributions that were made. We know of many examples of that in motor neurone disease and people towards the end of their life in these conditions who have made huge contributions to society or actually improved society by their attitude towards their life ending condition. That door would be closed if there was a widespread introduction of the assisted suicide. I would agree very strongly with the comments that you make about the positive contribution that people make to society as well as to their own family life. That's something that I suspect everybody would agree with. I think that that has to happen on people's own terms. You've said again the suggestion that the introduction of assisted suicide would lead to a reduction or a diminution in palliative care. What evidence do you have for that? I'm aware of a significant body of research and I can provide the committee with research references if that would be helpful, demonstrating that in jurisdictions that have a form of legalised assisted suicide, we don't see that. We see the opposite. In Belgium and Netherlands, for example, since legislation was passed, we've seen an increase in investment in palliative care. In Oregon, there's also evidence demonstrating the high quality of palliative care in that state compared with its neighbours. The use of assisted dying legislation is relatively low. We're not talking about a large number of people. We're talking about a relatively small number of people who'd be expected to take up this option. That, again, slightly conflicts with your suggestion that we would see with a reduction in research either in treatment or in cures. I think that's the concern. If we take examples of palliative symptoms like pain, you know, intractable pain or nausea, if there is an option that that pain, you know, that assisted suicide would relieve the pain, then the incentive to have other measures in which that pain can be controlled would be diminished. That's the concern that we have. Do you have evidence that that happened in other jurisdictions? Very difficult to get that evidence at the moment for that, because we don't have the option of not pursuing it. At the moment, the palliative care team are doing everything they can to further develop methods of controlling pain. Can I just suggest to you, though, that there is strong evidence that in jurisdictions that do have a form of assisted suicide, we actually see an increase in investment in palliative care and other alternatives, not a reduction? Do we know that there is? That investment includes these intractable issues? That's the thing that we would need to look at. I see no reason to imagine that it wouldn't. We're talking about a high level of palliative care provision in Oregon, an increase in investment in provision in Belgium and in Netherlands. These are some of the jurisdictions that we cite most regularly. I think that the palliative care movement worldwide is being invested, so it's very difficult to know what that relationship is in these three particular constituencies. We have representatives along from the palliative care movement at some future sessions anyway, so we will be able to explore that further. The area of cognitive impairment or capacity is a difficult one. I gather from what Dr Potts is saying that his members may be relieved to be removed from the act as a specific requirement, but my concern would be as to whether all my colleagues in general practice would have the ability in these very delicate circumstances to assess mental capacity and whether it needs some more specific determination, either involving a lawyer or a medical practitioner with specific qualifications such as is required in the mental health act for detention, for example, to sign part of that act or signed under that act. You're still required to be registered for that purpose, so I just want to explore that a little bit further because the issue of cognition seems to me to be hugely important in determining whether those individuals may be vulnerable in a way that means they're not making a determination that's appropriate. My colleagues and I are relieved to be relieved of the potential burden of decision making about capacity in all cases routinely as a matter of course. We accept that we may well be involved in assessing capacity in a subset of cases. I think the best way I can answer that is by reference to renal units up and down the country, which have large numbers of people on dialysis, a small proportion of whom will decide that they've had enough of dialysis, they want to stop, and they do so in the full knowledge that they will die within a matter of days, perhaps weeks afterwards. Renal physicians are well capable of assessing their capacity in the main, but if there's a question of cognitive impairment or lowering of mood or the history of psychotic symptoms, they may well call in psychiatrists to assist with the assessment of capacity and therefore the decision making. That's the model that I and my colleagues would have in mind for this legislation if it's to be passed. We would expect to be involved in a proportion of cases. It's hard to judge how many it would be, but not as a matter of routine in all cases where there's no question of mental disorder or impaired cognition, even though the results by definition will be fatal as they are for withdrawing dialysis. Anybody else on the panel? Richard? I think Dr Dan White. In this whole area again, we're in a situation of a very delicate area where the palliative care physicians clearly have the expertise, and it may well be that many general practitioners don't have that level, and yet at the end of the day the onus in many situations will fall on the general practitioners. So whether we have enough individuals really to deal with this area that are trained, there would need to be specific training for doctors at the primary care level as well to enter into these discussions with palliative care. I mean I know in my own specialty again that our ability as palliative care doctors in cardiology was greatly weakened really until we spoke to palliative care doctors and learned all the things that could be done to help the patient's symptoms so that in normal conditions again they can provide the expertise that cardiologists don't have. That's something that's become very evident, so there is a real art in the whole palliative care environment. Richard Grant. Can I just follow on a question that was put forward earlier when people obviously losing physical capacity or the like or in difficult conditions say, I've had enough. What assessment can be done under this legislation to kind of say, well actually maybe not if you were given the support of palliative care or indeed new treatments or whatever. I mean everyone comes to a point where they maybe are sick fed up of the condition, but if they were then allowed to pursue an assisted suicide rather than have other options explored with them, how do you stop them falling through the net? People who maybe are depressed by their condition, people who are getting older get depressed because they know that their strength is not going to return and they're going to continue to decline. How can GP's doctors make that assessment that this is maybe a passing phase of coming to terms with your illness or your declining abilities and not something that you might wish to continue with? I would say that's the everyday work of psychiatrists working in the speciality of liaison psychiatry in the general hospital is to try and help the patient and the treating doctors come to a judgment about whether indeed this is a passing phase or a settled view and it is not easy, it's not an exact science and we will get it wrong. In preparation for this meeting I reviewed case records from my department in the last 10 years or so, 25,000 to 30,000 cases referred to us. In only two was part of the referral an explicit request for assisted suicide at a time obviously when it was not legal. In both cases the patients were seriously ill, both would have qualified under the terms of this legislation for assisted suicide and both had depressive illnesses. But after assessment we were clear that the depression was not influencing their decision making and if assisted suicide had been available at the time they would have availed themselves of it. That kind of assessment is not easy, takes time, takes consultation with others but it would follow as the clinical work that would be required if this bill is passed and we will have to develop our skills further in accepting Parliament's will for the benefit of the patients that we are trying to help. I'm just wondering in relation to the doctor's relationship with the patient. There are a number of factors outwith the mental state of the patient. For example, palliative care, frameworks could be better in one part of the country compared to another offer one condition compared to another. The pharmaceutical management of some individuals may be superior than for others or the social care support that local authorities provide may vary as well. I'm just wondering if there would be any concerns about the likelihood for certain individuals to seek assisted suicide may be determined by other social factors such as the quality of care provision or the investment in palliative care for various life limiting or terminal conditions. That's a very fair comment and I'm sure there is differences throughout the country in all of these issues and obviously the patients that are best looked after with the optimal palliative care are the ones that are likely to continue down that road and those that are not would be more discouraged and perhaps consider the option of assisted suicide if that were available. I think again it emphasises the importance of having our services very equal throughout the country and that's something that we know that we're all aiming for but I agree that that could well influence a patient's decisions. I don't know if there's any other comment so that was a slight other supplementary conveyor. It was in relation to whether a psychiatrist should make a determination in relation to capacity in every occasion or some occasions. The last evidence session a suggestion was made under the legislative provisions as things stand. Just now one of the witnesses suggested that there could be a legal necessity for the first stage further to be determined by a psychiatrist. Whether a doctor pots for you is always necessary or desirable in legal terms it may or may not be required but I guess I was also thinking about where this law could be challengeable and again doctors who don't refer onward to a psychiatrist for a psychiatric assessment and then family members or others seek to challenge the validity of the decision taken where the patient ultimately goes ahead and has an assisted suicide. I wonder if there's any concerns on board the point that you're making doctor pots but whether those concerns tell protecting your profession or protecting doctors who don't do an onward referral for a psychiatric assessment. I don't think that there needs to be an automatic recourse to psychiatric assessment at any stage but psychiatric assessment has to be available to the doctors seeing the patients at every stage. Whether or not a decision is open to legal challenge is probably better for a lawyer to comment upon but we don't have a concern now that when a patient says I want to stop dialysis and a doctor agrees that there needs to be an automatic recourse to psychiatric assessment. That decision is open to legal challenge. We don't require that doctor always to refer every such patient to a psychiatrist and probably half the patients in my hospital in that condition do not get referred to my department and I accept that. I don't see any reason clinically and with an amateur's understanding of the law why it would be necessary to make it automatic. I suppose the question is, with the change in nature and legislation and the law would make it more likely that people caught within that process the GP or some other medical person involved. He would seek that reassurance to ensure that there was no future liability on him or her. I suppose that was what was being said this morning. In advance of legislation and a code of practice and then it actually being seen to work it's very hard to know what proportion of cases would trigger a referral to psychiatry. I suspect that cautious GPs and cautious doctors would refer quite a high proportion and then if this is bedded down into practice the proportion might go down over time but that's pure speculation on my part. Yes, yes, but there is a high anxiety among the professions that issue of capacity. I would expect a psychiatric referral in any person requesting assisted suicide where they appear to be significantly depressed at the time, where there's a history of depression, where there's evidence of cognitive impairment, where there are on antidepressants, where there are on antipsychotics. That might account for most people but not automatically for everybody. But you wouldn't want to blank a ban on people with mental health problems, as I said, if this became... I think the difficulty there is potentially a significant one in that my psychiatric colleagues will have as an everyday experience seeing people with depressive illnesses who will say things like, my life is intolerable, I can't go on, I'd be better off dead, please let me die. These are people who don't have qualifying physical conditions and where the job of psychiatrists every day is to treat them sometimes against their will under mental health legislation in the full expectation that they will recover from this episode as they have recovered from all their previous episodes. If the psychiatrists are being asked to enforce treatment on people with depressive illnesses in those circumstances and to essentially authorise assisted suicide in other cases with physical disorder, it's a very acute dilemma and I don't know how as a profession we're going to resolve it. I'm prepared to assist in that process if the legislation is passed and code of practice needs to be written but might need some time. Do you all then believe that there needs to be enhancement of the protections that you have mentioned? A lot would depend on the code of practice. Whether it's necessary to build in protections in statutes, I am undecided about and my college is undecided about. No other comments on that? I think that this is a huge dilemma particularly for our colleagues who have to, you know, patients who have got major psychotic illnesses have to have treatment against their will and therefore you're preventing these patients from taking their own lives and yet in other situations would be asked to assist in the process. So I think that that is part of the dilemma that we have. Any other questions from committee members at this point? I haven't, so I'm going to give the opportunity of the member, Patrick Harvie, to ask some questions at this point before we proceed to closure. I'm grateful, convener. Just to pick up, first of all, on that last point, you were raising yourself. Dr Botts, I assume that you would also acknowledge that there could be many patients with a diagnosis of a mental illness with a history of episodes which have not recurred for some considerable time and that in circumstances like that, if Parliament was to agree the principle of legislation in this area, a blanket ban on patients with mental illnesses in general would not be appropriate. Sustainable and inappropriate, yes. Thank you. Can I take you one step beyond that and ask whether you would look at the evidence from other jurisdictions, for example, the high proportion of people in Oregon who under the Death with Dignity Act do acquire a prescription for a lethal dose of medication with the intention of taking it should they reach that point, but who then don't do so? Other jurisdictions where the experience is that people knowing that they have the option actually helps them to face the experience that they're going through. Is that something that you would recognise? I am familiar with that evidence and I do recognise it, yes. I wonder if we can ask Dr Dunn as well to reflect on that argument that, for some patients, knowing that they have the option to ask for assistance should they reach that point, is something that benefits them and their ability to deal with and to live through the experience that they're going through? Well, I think that if patients have let us know that this actually did help them through the process then, obviously that would have to be acknowledged and it's just a question of balancing that against those who, is it where, make the decision, will never know whether they would have reflected on it or not, but I certainly acknowledge that evidence is in existence, that it does help some people if they're faced with it to say, well, this is not the route for me. To pick up on the point that Bob Doris raised about social factors and social circumstances, in looking at the definition of life shortening conditions in the bill, can I ask what your view would be about whether a condition itself should be required to lead to the shortening of somebody's life expectation? Or whether the social circumstances, perhaps the discrimination that they might encounter, the likelihood that they are to live in poverty or to be unable to work, there's a distinction, isn't there, between whether the condition itself directly shortens somebody's life or whether the condition is associated with social circumstances that might have the same effect? Is this an area where simply a slightly clearer definition would be helpful in determining which conditions meet that test? I think that it's a package really, I mean it's how a patient responds and how a patient responds to an illness will defend on the support, will depend on their social circumstances and many other factors. So I think it's very difficult to say, to focus purely on the condition, I think that it's the whole support network that they find themselves in, how they're coping with it, their coping strategies down the years that may have been influenced by that. So I think that certainly the disease is at the centre of it, but all these other factors will play a part in their decision making. It's well recognised that it's life shortening to live in certain deprived areas in Scotland and there will be few people my age and older who don't have at least one life shortening condition, whether it's diabetes or hypertension or asthma or emphysema or depression indeed. And I think that means that the term life shortening is drawn so broadly as to be difficult to make work in this legislation and my view is that the definition needs to be tightened and revised. But it's presumably something which is quite open to amendment. It's achievable to tighten that definition in the legislation. I hesitate to answer that without trying. OK, well, hopefully we'll get to that point. Finally, I think that Aileen Bryson mentioned the issue of time limits earlier on or responded to a question on that and talked about whether other jurisdictions might have two different time limits for different circumstances. The Assisted Dying Bill, which is currently being considered by the House of Lords, includes the option to accelerate the timescale, so a shorter timescale in certain circumstances where that was deemed appropriate perhaps due to an individual patient's prognosis. Is that the kind of approach that you would be seeking in this bill? I think that that was done. I think that that was done that actually mentioned that. I talked in general about the difficulty of actually putting numbers into the bill, but I was talking about the prescriptions and the practicalities. Frances, you mentioned the jurisdictions in the Netherlands in their six days. I beg your pardon. Sorry. Did somebody want to respond on that point? The Assisted Dying Bill sets out a timescale but then defines circumstances in which it could be accelerated. Is that what you're seeking in this bill? I'm not seeking anything in this bill. I'm just pointing out a comparison with other jurisdictions where it is a provision and I think I understand the reasons why it's a provision. Therefore, the question needs to be raised whether it's worth amending this bill to incorporate it or not. Thank you. I thank the witness panel and all who have attended here this morning. Your written evidence has been appreciated. Thank you very much indeed for giving us your valuable time here this morning. I'm going to suspend at this point. I'm going to actually clear the room quite quickly and a limit of ten minutes just in reflection of the evidence sessions, which we have previously agreed is in private.