 Felly, mae nhw gwaith yw'n ateb gwaeth pwysydd GwyddemSpeedd y GwyddemSpeedd yw'n 12 14. GwyddemSpeedd yw'n ateb gwaeth bobredwyr i g kel�n cyrraethau yw'n cymunedau tynnag i gyfnodol a'i ddysgu eu cyfnodol a'r cyfeirio gyda'r cyfnodol. Felly, mae hi yn gallu ei chyflolמש yng Nghaethiei GwyddemSpeedd yw'n cyfnodol yn gaw Ibawsbwrthan. Felly, mae'n gŵith o ran gyllewydd, mae chi'n gwybod i'n g dejaeth i GwyddemSpeedd. Mac Donald would have relished coming to justice committee to pursue a bill, although I suspect that we wouldn't have any questions in ourselves if Margo had been here. I'm very pleased to see you. I have been asked in the commitment to agree to consider work programme for Adam in private. Are you agreed? Item 2, the Sicius is suicide Scotland bill. It's an evidence session on that health and sport committee, it has a general and Ministerial committee and as le curator, it has examined the bill in its entirely. We have agreed to focus have agreed to focus our scrutiny on the criminal and civil liability aspects of喝 the legal and practical application of the provisions in the bill on unhuman rights issues. We have two panels of witnesses today, so our first panel and I welcome to our meeting Professor Alison Brittain, convener of the Health and Medical Law Committee and Coral Riddle Head of Professional Practice at The Law Society of Scotland. David Stevenson, QC, from the Faculty of Advocates, Professor Alan Miller, chair of the Scottish Human Rights Commission. Professor Britton, you want to make some kind of statement of interest. I do, thank you, good morning. May I make a personal statement that I was appointed adviser to the health committee of the Scottish Parliament in its consideration of the general principles of the end of life assistance Scotland Bill in 2010? Thank you very much for your written submissions. I say to the law society, my goodness, I was ages reading it. The faculties was much shorter and somebody rather adeptly said because time is money to the faculty and that's why it was crisp. I thank the human rights commission for that as well. Anyway, because we've got those, we can go straight to questions. As it just put you indicate to me you go on my lists. Sandra, I'll put you on my list just to show I'm not vengeful and have Elaine then Roddy and then I'll have Christian, thank you. Then Patrick, off we go. Sandra first, please. Thank you very much, convener. Now you see, you get it first and you're not ready. Yes, that's better. If I'm on a Tuesday morning, sorry, do you know what day it is? Thank you very much and good morning. I must say I thank you all very much for your submissions. Very enlightening for myself is not having a legal background. I must admit I think it took me about two days to read through all of it. Anyway, this morning included. The first question that I wanted to ask was in regard to the role of solicitor as proxy and you have stated that we are the view that solicitors should not undertake this proxy function and you mentioned the Belgian model. Perhaps could you elaborate more on that particular aspect? I think that's from Ms Riddle. By the way, if you just indicate to me that you wish to answer a question, if not specifically directed at you, I'll call you and your microphone should come on automatically. We read like comes around. That lets you know your broadcasting, okay? So don't say anything untoward, you don't want recorded. Absolutely, I'll keep that one. Right. Thank you. Yes, that probably does sit with me and I suppose more broadly, I think it's not a sentence that solicitors should not necessarily act as proxy, but the challenge that the bill presents is that what looks like a very systemised process underlying that are some very significant professional obligations that I think potentially bring into conflict some of the duties of a solicitor whereas what the Belgian model does, and I've got some of the provisions here, is that it doesn't necessarily require a solicitor, so it does anticipate a requirement where a person may need physical or mechanical aid, but it identifies someone who perhaps understands the process better, perhaps understands the medical condition and it does require a medical certificate. The difficulty I feel for a solicitor is that while solicitors on an everyday basis will act as a notary or act as an agent, what section 16 of the bill provides is something other and something beyond what is currently reflected in the legislation. I talked a little bit about the 1995 act and that anticipates, again I had a look at the annotated commentary around that bill previously, that anticipates really just a mechanical aid and it didn't anticipate this kind of assessment of capacity, and again you might say well solicitors assess capacity every day as well, but for me the clear distinction is that they don't assess capacity in such a different and such a significant outcome as a sister suicide would be, the decision here is going to be irreversible and terminal, and I think that's what the challenge is for a solicitor, they wouldn't ordinarily have the training, the experience or the knowledge to be able to assess whether a person really did understand the effect of that. Why should that be any different? Why should it be different what's being decided? I mean if it's a contractual matter, let's see, a solicitor has to and signs its proxy and makes an assessment as to capacity, why should it be any different because the decision is about how one ends one life or just entering a court? It's a matter of capacity. It is, but I think it introduces really significant ethical and moral interests into this beyond a solicitor looking at transaction or a convincing sale and a solicitor I don't think generally would have the experience. I also think that because you're bringing a solicitor into this process you have to give some regard to the professional obligations they have, so obligations to only act in areas where they're competent and an obligation to act in a client's best interest, and I think that's the huge moral dilemma here to assess whether it is in a client's best interest and whether a solicitor is the appropriate person to make that decision. Touched on what you were saying yourself, convener, had written down about ethics and obviously the moral obligations, you open up another field in that respect then if the bill was to pass with this part of the legislation intact, would solicitors therefore be obliged to be the person if they morally or ethically didn't feel they could do that? A solicitor would be in a position not to set the instructions and not to act so that would be a safeguard. I think the concern for me and the need to address it now is rather than have a position where the bill went through because this is untested within the profession so we don't know how the profession would react to this. There may well be solicitors who are well qualified and well trained who could deal with this, for example those who work in the sphere of mental health law, but I think your average solicitor is not likely to come across this kind of situation. The guidelines anticipate potentially 27 requests annually so it's not the kind of area that's going to build up frequent requests and experience. I'll leave it at that just now. I want to follow up again with somebody who's a will and it's a very important decision and it might be something that's rather strange will to make perhaps counter that. This solicitor can either say, I know it wants to not take your instructions or take them having assessed capacity. I'm kind of still not convinced that there's a distinction between capacity when someone's making a will when the solicitor has to make a judgment and can say no if there's any doubt and making a contract about life. Yes, Patrick, do you want to join in on that particular question? I'm very grateful, convener. I suppose that the question is whether this is interpreted as a medical assessment of capacity or a common-sense test of understanding, which is common in other contexts. You use the phrase, which is included in the written submission as well, that this is irreversible and terminal. Clearly, the act of ending a person's life or someone assisting them to do so is terminal and irreversible. None of the three documents that we're talking about here—the preliminary declaration, the first request or the second request—is irreversible. In fact, right throughout the bill there are clear steps to ensure that these are all reversible and it's easier to cancel each of these steps than to take those steps in the first place. I wonder also if you could explain a slight ambiguity in your evidence. You suggest the Belgian model on page 2, which allows the proxy to be any one of a minimum age who doesn't stand to gain from the person's death, but two pages later you argue that the proxy should be a medical practitioner, which seems odd given that each of those three documents, the preliminary declaration, request 1 and request 2, require already to be approved by a medical practitioner, including an assessment of capacity. I think that there's a couple of points. I think that I suppose that in terms of the—sorry, just—I've slightly lost your two points there—the last point. I mean, the first is that the three documents, the intention and the two other, can be revoked. They're not irreversible. Absolutely. Where the bill to proceed as it is, what I would anticipate for solicitors would be enhanced guidance as we've got for solicitors who are acting, drawing up wills, powers of attorney and so on, where they do have the opportunity to seek guidance from a medical practitioner, because it is a significant responsibility. I do think that the outcome of assessing a client's best interest in relation to something as significant as assisted suicide does distinguish it from some other transactions. I don't know if I actually followed that either, Patrick, because elsewhere you say that if you give advice to a client and the client rejects that advice, the solicitor has the option of saying, you know, well, I think you should take advice elsewhere or say, well, I've given you my advice, I've put it in writing. Nevertheless, that's what you want. I will do it. So what is—you know, you're making a judgment about the right of the person to make the decision about how they want to end their life. You're saying that that could be—but shouldn't be an issue for the solicitor. If they're—surely, if they are satisfied that the person has capacity, then I cannot see the distinction, frankly, between that and other times when the solicitor act or the advocate will act as a proxy. I think that there's an element of assumption on this, but some of the challenges might be around the condition that the person has, so how effectively the relevant person can communicate. So a solicitor has a duty for effective communication, best interest of the client. If the solicitor doesn't know if the person hasn't met them before and has to try and establish that relationship, that communication, and it may be that the person is not in a position to communicate verbally, so that's challenging. I think that what I did notice in the guidelines within the bill is that, for the other professions, there is a reflection for training and funding, but that isn't reflected for solicitors. I think that to protect solicitors and the public, it would be fair to see that reflected as that this is not something that necessarily every solicitor would be equipped or trained to assess and it would require some further assistance and training there. Do you wish to pursue the proxy or are we moving on? Do you feel free? If you'd allow me just one final point, I suppose that the point is certainly that solicitors would be entitled to act as a proxy but not required to do so if they didn't feel that they could meet what I would regard as a common sense test of the person understanding the effect of the document, but it still seems unclear to me what you're asking for, whether you're proposing the Belgian model in which anyone who doesn't have an interest, who's over a certain age, can act as proxy or medical practitioners, or would you simply be suggesting that we add medical practitioners but not remove the right of solicitors to do this proxy role if they felt able to? I think that it's a matter that does require medical assistance and I think on reflections since these submissions, it occurs to me that just because the requirement for a proxy isn't reflected within the actual bill, that doesn't lead necessarily to the conclusion that there isn't the opportunity in another jurisdiction for a proxy to act, so for example that might be contained within common law or within other legislative provisions, so just because it's within and it's arguable that whether section 16 is included within this bill would prevent someone from having a proxy act for them anyway because the provision's available within the 1995 act, but I suppose from the society's point of view the concern is that solicitors don't have the experience or knowledge to make the assessment of capacity because they see it as a significant decision and therefore they'd be looking for medical training or assistance to do that. It does still imply a medical test of capacity which I don't think is suggested in the text of the bill. We'll move on, we can come back to that somebody wants to come back to that and move on, Elaine. We can come back to those issues if you wish. It's one of the differences that you've pointed out in your evidence between the Assisted Dying Bill and the UK. Excuse me, in this bill, is it that there's a the Assisted Dying Bill to find a maximum life expectancy of six months whereas this bill refers to a terminal or life shortening illness, now a number of illnesses could be life shortening but there could be many years of the person's life still remaining. I think that the Law Society makes the point that in fact some mental illnesses could be life shortening but they seem to be excluded by clause 12A which just says that people should not be suffering from any mental disorder. I just wondered if you could explore those issues a little more and whether it's desirable to actually define a maximum life expectancy or is that too difficult because we're detecting it. Two points in there is the time and also this expression of life shortening and the complexities of using that term. Who would like to take this? Quite happy to try and answer your question there. I think that in relation to placing a time on a terminal illness, I think that that's a very very difficult thing to do. All illnesses manifest in different ways and trying to be precise about that. I think that we would be probably more sensible trying to ascertain why we're doing that and what value would it have to place a time limit on a terminal illness at that point. In relation to mental illness and disease, other jurisdictions have taken the view that what somebody with a mental illness can request assistance to die and in the Netherlands that has already been forthcoming. The provisions in this bill have not taken us down that road at that time in the interests of protecting those who may lack capacity to make decisions at that time have vulnerability. Our legal system places great responsibility on the state's obligation to protect life particularly when it is vulnerable and I believe that's the reason it's reflected in the bill to decide. There's no particular problem. I know that this has been flagged up and you don't actually see a problem with the way in which Bell has just written at the moment in terms of those. In terms of the terminology about a terminal or life shortening, because both the faculty and the Law Society flagged this up and I wondered if you are actually flagging this up as an issue. In relation to duration, I hope that I've already answered the point there. I think that in terms of whether it's life shortening and tractable, I think that placing any clear definition is very, very difficult to do. It's clearly a subjective decision in every case and I don't think that it's only definitions of life shortening that may be problematic. I think that there can be many definitions throughout the bill. It's very, very difficult to place a subjective or indeed objective definition on them. Is it your view that the bill is correct in the way in which it's done or could it be improved? Is this terminology as good as it can get or are there ways that it could be improved? I think that we would always look for clarity given the implications of any outcomes of the provisions of the bill. Trying to make that as clear as it's possible to be would always be advantageous, not only for the individual wishing to use its provisions, but for those being able to interpret it as well. Is the bill as clear as it could be? I think that it could be clearer. In what way do you think that it could be clearer? I think that definitions on life shortening could be made clearer. You won't want to see those in the face of the bill. Yes. I think also that's a medical decision, not a legal one. The law would be guided in relation to what the definition of life shortening would be within a medical context. You've not got a handy amendment with you then. Does anybody have one? What about the faculty? I think that you had concerns about life shortening. Yes, the faculty has concerns about the way that this is defined, but I think that it is worth noting as well that, in addition to having a life shortening condition or illness or a terminal illness or condition, the person would also have to be able to show that they had a quality of life that was unacceptable. It isn't merely sufficient for the purposes of the bill that a life shortening condition exists. It has to have a current impact on the quality of life, and that may go some way towards restricting what otherwise a fairly general provision in relation to the condition. Isn't that fairly subjective as well to see that the quality of life is unacceptable? Because what might be acceptable to one individual would not be acceptable to another. Is that not slightly unclear? Yes, there's a subjective element, but in the certificates that require to be signed by the medical practitioner, they have to confirm that there is nothing known to them that is factually inconsistent with the conclusion that the quality of life is unacceptable. I think that perhaps it doesn't do to focus entirely on the phrases that are used in relation to the condition or illness. One has to take into account, too, that that's the first stage of a two-step test, and therefore it's qualified by the second stage. I'll come back, if you want to come back. Roderick? I refer first of all to my list of interests as a member of the Faculty of Advocates. I'd just like to expand further on the issues of clarity and definitions, perhaps just taking it a stage further back to the question of whether or not the bill would be improved by a definition of a sister's suicide on it. I think that there is a very strong need for clarity on what constitutes assistance in suicide. In danger of repeating myself, I agree that that's a very difficult thing to be able to grasp. The bill refers, in its explanatory notes, to the idea of a licensed facilitator to provide reassurance but not encouragement, just to take one example. I think that it would be very difficult to know at what point the provision of reassurance stops and active encouragement starts. Many of the cases that have discussed the issues of assistance to die have been brought to the courts by people with progressive neurological disease, multiple sclerosis, Parkinson's, etc. For them, the issue of assistance is very intense. They envisage a time when their capacity is still there, but their physical ability to take their own life is no longer there. At what point, putting pills in somebody's hands, holding up their head to allow them to ingest tablets, the demarcation lines are by no means clear. Given the responsibility, a facilitator or whoever is assisting that death, it has to be very clear where assistance stops and when being complicit in homicide starts. I accept the point that there is also the other end of the chronological spectrum where, for example, somebody is prescribing the drugs that they know are to be taken in order to bring the death about. Is that part of the assistance and is it covered by the bill? There is an enormous chronological potential scope of coverage of this bill from the initial act by people who simply do what is necessary to allow the process to take place, the dispenser, the prescriber to the person who perhaps hands over the pills at the end of life and provides the glass of water. I am just like perhaps to engage with Professor Miller. I saw you shaking your head at the question of being drawn on the definition of suicide. We are having a second panel of representatives of the Crown and Police later on. I noticed in your submission that we do not have a definition of, or it is not criminals, under Scots law for a charge of suicide to be brought, but you state that there is no means of knowing how prosecuting authorities might respond to a relative who assisted the death of another individual because we do not have a definition in law. Would you like to expand on that issue? Yes, thank you very much. Like many of you, I have fond memories of discussing this issue with Margot over the years. It is very strange to me now that we are discussing it without her. It is a challenging issue. From a human rights point of view and beginning to zero in on the question, you actually have a relatively free hand in a sense in that human rights law neither requires you or prevents you from legislating on assisting suicide. There is no consensus around Europe. It is up to each country to have its public debate, its parliamentary decision on it. If you do decide and Parliament does not approve this bill, then there is a problem that has to be tackled. That is the lack of foreseeability, the lack of accessibility for individuals and families to know just what actions they may want to take informally to assist suicide. Will that lead to criminal sanctions being brought against them? There was the UK Supreme Court recently of perdieg where it decided that there was a lack of accessibility, a lack of foreseeability in the criminal law and the DPP had to issue quite detailed directions that people had a better understanding of where they were in a grey situation. There is ripe conditions, I think, for a challenge in Scotland for the lack of that present in the current system. Otherwise, an individual simply does not know whether they are going to be breaching the law or not. They are in a very difficult emotional set of circumstances and the last thing they need is a lack of clarity about what their legal position is. Since having a go at legislation, difficult there may be does have a positive case rather than relying on guidance from prosecuting authorities. Well, anything that makes it clear that individuals know where they stand, that can be done whether you pass this legislation or not. What I am saying is that if you decide not to, then there still remains something that has to be addressed quite apart from this bill. John Finch-Everett, you want to come in and then Patrick on this issue. Thank you. It is a question for Professor Miller and you alluded to the perdie case to Professor Miller. In your evidence there, in a footnote, you talk about the concern that the commission has that there is a lack of guidance relating to the admission doctrine whereby doctors may withdraw life-sustaining treatment and certain knowledge that this will bring about the death of a patient. I wonder what we can learn from the arrangements that are applied at the moment, from a human rights point of view, about the withdrawal or even the instances where people make an undertaking not to be resuscitated. What can we learn from those two issues? Well, I think whether this legislation is passed or not in this or any other form, there is a need to recognise the right to improve palliative care in Scotland for reasons that are obvious. Otherwise, if we are not looking after people the way we should be, they are going to place in situations where they are going to say, well, is this worth carrying on? I think that there is an obligation, irrespective of the merits of this bill, to improve palliative care. Part of that is recognising the human right to the highest attainable standard of health. That applies to older persons as much as it does to people in any other stage of life. There is concern that there are practices that are not recognising that right of those in need of care and health decisions being made that respects their free will to determine what kind of healthcare they are going to be given. I know from my personal experience that I am sure that others are around the table too. That is not what is done on a daily basis in hospitals. Decisions are being made without proper consent, instructions, information and the free will to be exercised by the patient herself. Very often, families are being put in a situation where they are making decisions that they are ill-equipped to make for emotional reasons and for legal reasons, as we have discussed before. Therefore, there is a need for much more certainty for families and for medical and legal professionals. I agree with that. It is just to pick up on some of the points that Professor Miller has made and perhaps ask one or two of the other witnesses to respond to it. There are questions of clarity, questions of definition, for example, around what counts as reassurance and what would step beyond that. The seeking of clarity is understandable, but it is clearly a complex area. There will always be difficult concepts involved. It seems to me that the guidance that would flow from the legislation, for example, about the training and responsibilities of licensed facilitators, and even the context for someone who had not requested assisted suicide or not made a preliminary declaration would leave medical practitioners in a clearer sense. For example, in some of the decisions that Professor Miller was alluding to, someone had not given that indication. That gives some sense. It seems to me that the questions of clarity that you are seeking are open-ended questions at present, and that the legislation gives us the clearest opportunity to begin to fill in the gaps, particularly through the guidance for the role of facilitators. Is that something that you would agree with? Anyone? I was giving him a moment, Patrick, to gather the thoughts after that peroration. My point of view and my concern would be that there would be a danger of individuals falling through the gaps and finding themselves exposed due to the uncertainty to prosecution. The reality at present in Scotland seems to be that there is very little in the way of historic prosecution of those who have assisted suicide. There are very few cases where we do not have a statutory offense such as they have in England, which has the focus of prosecution there. If the bill is introduced and cases are being scrutinised as they will have to be when a system is introduced, it seems to me that if we do not get it or you do not get it right, then it is individuals who will suffer, and it would be better to get it right now rather than to get it right through a process of a series of criminal prosecutions in the high court, where individuals are at risk of losing liberty. Certainly better to get it right than to get nothing. I would not assist then because it is called the assisted suicide Scotland bill to have a definition that people involved in this at all levels could understand, and if the answer to that is yes, will you provide one? I want faculty, QC advice free. There is a first. I currently do not have one. It would be silly to try and make one up. On the spot, I understand. It is possible, is it? It should be possible. It should be possible to define the circumstances that are covered by the bill in much the same way that Lord Faulkner's bill in England, which is different in the system it sets up, defines more clearly what is to be legalised and what is now to be permissible. I would have thought that it cannot be beyond the width of man. That would be helpful to Mr Harvey. Depending on what that definition turns out to be, I should not be questioning you or not giving you evidence. You can do that another time. This seems to be part of the problem for everybody, to know that they are within some kind of parameters. Christian, followed by Alison. Please. Good morning. I would like to ask, first of all, a pointed question, then maybe a more general question. The first question would be on savings. I was surprised when I read it, your views of both law society and the advocates, the faculty, about the section 24 of the bill that provides saving provision for certain mistakes and things done in good faith. Both of you pointed out that it might expose a person to the risk of prosecution, and you would suggest that that should be changed. Could you elaborate a bit on what you mean? I am happy to start with that. The savings for certain mistakes, I think that we are almost back into a discussion for clarity. As soon as you start to include sections such as this, you leave room for a broad range of practices, whether they are actions or omissions. For anybody being involved in the process, being left in this vacuum, being uncertain as to what they have done or have not done, may render them criminally liable. It is probably not the best situation to be in. It is almost a catch-all provision, which, on one hand, tries to enable or flexible legislation to deal with the complexities and the moral, personal and legal issues that it brings, leading somebody in an uncertain state until some other subsequent mechanism comes in, may not be the best way forward at this time. I was particularly interested about the possibility that the ignorance of the law would be a defence in relation to the bill. Is that again, sorry? The ignorance of the law could be a defence in relation to the bill if people are prosecuted. I think that ignorance of the bill could not be a defence at that time. It is absolutely could not. The law tends to state what becomes a crime, and it would not be a defence to say what would be ignorance of the law. One may not know what they may have to do in terms of assistance or actions or reassurance, and until you are in that situation, it would be very difficult to be able to measure your responses at that time. The nature of what one would be required to do in those situations might not give you that latitude. You would end up being in a situation where, only afterwards, you are having to try and account or respond to what you have done or not done in those circumstances. Yes, I think that there are a number of concerns from the faculty's point of view in the saving section. The first is that there is a considerable blunting of the essential requirements set out earlier in the act by the effect of section 24. I do not think that, in itself, that is necessarily a bad thing, because this is a complicated system and you do not want to expose people who have made simple errors to prosecution. If you set up a complicated system, people will make mistakes. Therefore, it would seem to me that there has to be some means of preventing these people from being prosecuted. However, whether the balance has been struck properly here, personally, I would doubt. What we are trying to do is to prevent people who assist suicide from being prosecuted for either murder or culpable homicide. For example, in section 24, to make the test as to whether they are exposed to prosecution or not, ultimately one of carelessness on their part strikes me as being a best unfortunate. The dividing line between prosecution for murder and a legalised assisted suicide here potentially is one of carelessness. We are all careless from time to time. Is that to be the test of whether somebody is at risk of going to jail and having a life sentence for murder? I would have thought that the saving section needs to be looked at again, perhaps with tighter definitions. Even if we are told what carelessness is to be against what standard of care it is to be measured. Is it to be the standard of care of the ordinary reasonable man or the medical practitioner involved in a day-to-day basis in the assisted suicide process or some other standard? I feel that we really have to be told. I am made to ask a general question. Let's say that somebody has given pills to end their life and it is unsuccessful, but they are left severely brain damaged and no longer in a position to exercise any subsequent decision to kill themselves. At a relatively young age, somebody has no ability to earn income and has care requirements for the rest of their life. Are they to have no remedy against the person who has negligently given them the wrong medication or the medication of insufficient strength? I do not know if that is helpful, but I was just thinking as an aside that one should consider the consequences of any sanction. In England under the Suicide Act you have a sanction of 14 years imprisonment and the sanction of having assisted a suicide. As ScotSlaw currently stands, it could be life and the title, if you like, of having committed murder or culpable homicide. So the consequences for those who are sanctioned under ScotSlaw as it currently stands are very serious indeed. Let me ask you another question, another detail question. You spoke about the faculty post about pills and I have seen a lot of evidence given by both the society and the faculty about the lack of clarification of what type of pills should be administered, who should decide how they should be administered and particularly the timetable as well. There is no indication in the bill to say when the pills should be given back. It seems to be a huge omission of how the pills are used and how they should be used. I cannot speak to the pharmacology of any pills being administered, but we did raise concerns that if any form of prescription is stored in someone's personal home, how is that going to be looked after, ensuring it's safe? There could be other persons in the house there and if this medication is or is not used, there's a stipulation that 14 days afterwards this has to be removed from the person. How would that be achieved? Would somebody just immediately take it away? Would someone be knocking on the doors a matter of hours later? We cannot lose sight that any legislation that is passed has to consider the individual. That's the person at the centre of any legislation that we pass. If they haven't taken the medication, perhaps if they need another hour or two hours, is that going to be given to them or is it going to be very strictly enforced? If it is going to be enforced, how would that actually happen there? Professor, you want to come in? Yes, thanks, convener. The commission didn't make a submission on any of these issues, but they are, I find them very interesting in the line that you're taking and at the risk of maybe having not seen something in the bill that's there or no doubt I'll be corrected if that's the case. In terms of mistakes and the savings, from a human rights point of view, you want to try and ensure that, as far as possible, the opportunity for making mistakes is reduced as far as it possibly can be, plus recognising that you can never eliminate it in its entirety. The real test from a human rights point of view is, did the person exercise free will and was the decision made based on sufficient information to be able to be satisfied that the person who is seeking to bring an end to their life is doing so with free will? I've heard discussions about capacity has to be tested and, of course, the medical condition has to be satisfied. My background is legal, but if I were a legal or a medical professional being asked on behalf of society to affirm that this seemed to be okay for this person to end their life, I'd want to be satisfied that I had all the relevant background information so that I was satisfied that there was no other pressures being brought to bear for whatever reason on this individual who may have the capacity, may have a medical condition but is he or she really expressing a free will? He may well be, but I'd want to be very satisfied that if there was anything lurking in the undergrowth that I knew about that before I would make a decision, and we all know that these kinds of circumstances without overstating how often that would happen, it only has to happen once, and that is the most serious mistake that could be contemplated. If I may ask a general question, and I know it's difficult to answer at this stage, but we talked a lot about clarity and the draft of this bill that seems to lack of clarity, so is it only a matter of having some amendments, or we talked a lot about the volume of omission, which is not in this bill, but different people brought evidence to say that there is a lot of omission in the bill and a lot more should be drafted, so that volume of omission, I don't know if it can be addressed by amendments, and maybe we should think about as a bill should be redrafted altogether, because there is not enough clarity, and there is too much omission. I know that it is difficult to judge on this, but I would like to have your point of view. As a representative of the Law Society, we would not be in a position to comment on the aims and purposes of the bill. We confine ourselves to looking at legal and practical issues as they arise. I think that that is what Christian was making point of, where we are not dealing with the ethics here, but really are the processes or the definitions lacking, so much lacking, in the mechanisms, as they were, and the legal tests? If I can comment, something that initially drew me to the bill was that it is set up very much as what intends to be a dignified systematic process, and I think that there is something to be said about the simplicity and the directness that is being set up, but the challenges that we have seen within the society is that, as you start to prove beneath that, you do start to understand that the absence of definitions does not give the certainty, does not provide the simplified, process-driven intention that I think that the bill seeks to achieve. So, whilst we have not necessarily got all the answers and the definitions, I think that by enhancing the bill with that clarity and certainty, I think that it would take a step further to being effective. That is an amendment then, enhancing. I would have thought for the bill to be effective, it would require that, because I think that the key to this is certainty. Does anybody else wish to comment on that, whether it is right? I have got Alison, followed by Margaret, followed by Patrick. Thank you. The bill does not contain any sanctions or penalties for any contraventions of its provisions, and I wonder if the panel have a view on that. I suspect that that is because the approach is not to create any offences, but to give freedom from the risk of prosecution for common law offences that stand outside the bill. An alternative approach would be to take the sort of approach that was taken in the English Suicide Act 1961 and to decriminalise assisted suicide subject to specific offences created in the bill. That is not the approach that is currently taken. I think that that must be why, because of the approach that has been taken in the drafting and structuring of the bill. I think that it is quite interesting that the provisions of section 1 of the proposed bill is unusual in so far as it defines what is not a crime as opposed to what is a crime. The faculty in its written submission did think that it would be desirable to have some penalties. Do you want to discuss that further? Well, I think that it would be capable of looking again at the savings provision, and instead of throwing people back on to the criminal law of murder and culpable homicide, to say that if you do not get this right, even if maybe you are a wee bit careless, then you could be subject to punishment, but punishment under the bill and not simply the common law. It is a matter, I suppose, of degree and what sort of error you have made. I have a separate question back to the facilitators, the idea of the licensed facilitator. I note that the legislation that is drafted at the moment suggests that anyone over the age of 16 could take on that role. I think that that is rather young. Does the panel agree with that? I would certainly say that that seems to be young when considering the purpose that they are undertaking. I do not know if this is a legal point, but one would hope that they would have an experience of life, a certain empathy to be able to understand the circumstances in which another individual may find themselves to be in. Whilst many 16-year-olds may feel that they possess those qualities, they would more usually be found in someone of older years. On the question of facilitator in section 21, section 21 subsection 1, a licensed facilitator may not act as such for a person in relation to whom the facilitator is disqualified under schedule 4. I know that you raised this in the submissions at schedule 4 to G, anyone who will gain financially in the event of the person's death, whether directly or indirectly, and whether money or money is worthwhile, you might not know that. That is an issue. You really do not always know whether or not you are in somebody's will. Is there an issue there, or would the fact of not knowing be sufficient? I know that it was raised in the submissions. It is not tested, so ignorance may not be a defence. It would really have to be tested against the facts and circumstances, the capacity that you acted, and whether you were not aware of that. That provision gives rise to another issue of a solicitor's proxy, because a solicitor— We are back to that. You were not happy with me. It is a very small point, but a solicitor might in fact be an executor for a person in their will, so that would exclude them from acting as a proxy. A solicitor would in fact know that, but it provides— You would not do it if you were an executor. It creates further tension about the different responsibilities and roles. I think that, going back to your previous point, people will not necessarily be aware that they will feel uncomfortable asking if their solicitor will not be able to disclose whether they are likely to benefit from anything from the will. It creates more uncertainty. Exceptually, the executor would have sight of the will. The executor would, but if a member of family were to find out whether they could act as proxy or not, or if they were going to benefit, that could not be disclosed. I am not going to dwell on this. I think that someone would agree with you, but there we are. That is not a huge issue, though, the fact that someone might not know that they were going to benefit financially and that they had been a facilitator. It must put a certain ease in people who are facilitators if they think that they are going to be placed in a position of scrutiny, particularly if we go on to the next section about police reporting and so on. Is it something that we should bother about? I suppose that we have to look to what the actual purpose of that is, which is to try and prevent abuse. Most of those would be judged upon after the event, as Mr Zell says, in terms of knowledge or perhaps the amount that one would tend to benefit from. It is really probably not to pick up an acknowledgement, a thank you, a bequest there. It is really to prevent abuse, which rarely is picked up until after the event. I appreciate that. Perhaps a statement by the party is stating that the facilitator is not a beneficiary in any respect. If that was able to be done, that would be built in braces for a facilitator. Margaret? I wonder if the panel could comment on the capacity issue and the variation and inconsistency between the bill and how capacity is defined in other legislation, perhaps the law society and the faculty particularly, I think, as a submission on that. I am section 12 of the bill that deals with capacity and it has a dual approach, two-stage approach. A person's capacity to make a request if they are not suffering from any mental disorder is defined in terms of the mental healthcare and treatment Scotland Act 2003, which might affect the making of the request, so the qualification, and then is also capable of making a decision, communicating the decision, understanding the decision and retaining the memory of the decision. This is the reverse of the definition of incapable in the Adults with Incapacity Act 2000. First of all, it is not clear, at least to the faculty, why the decision has been taken to yoke the two different sources together. If what is important is to determine whether an individual has capacity to make a decision, the first of the two-stage test, the requirement did not be suffering from a mental disorder, would exclude anybody with a mental illness, for example. Whether that mental illness was the principal focus of their desire to have assisted suicide or was just incidental. It must be common for someone who believes that their life is of an unacceptable quality due to a physical illness, such as Parkinson's or MS or any other progressive neurological illnesses, to become depressed and therefore to develop a mental illness. We do not usually assume that everyone who has a mental illness of whatever severity is incapable of making decisions, yet that seems to be what the bill is setting out to establish. That may be because whoever drafted it or Margaret MacDonald were keen to be seen to exclude people who were mentally ill, but the consequence of that is one that the committee might want to consider in some detail. Is it really the intention that all those who have any degree of mental illness are to be excluded from the provisions of the bill? I suppose that there is a difficulty for us with the Justice Committee, so we are only looking at what we can put down legally without going into the medical coincidences. I suppose that it is the short-term nature of depression still being termed a mental health health issue. Maybe having a reversal in how you might feel about something at another time goes to the heart of that particular provision. I was wondering just returning to the 14-day time limit between issue of prescription and the act of suicide. I think that a number of, if I have understood that properly, submissions expressed some concern about that and certainly they felt that maybe that was too shorter time limit and there might be pressure on the individual. In Oregon, the Dignity Act figures show that just over a third of people who initially get prescriptions change their mind and choose to extend their life. Do you have any comments on that? I know that there are three-stage protests, but we are talking at the very last hurdle here. Quite a lot of studies have been done in Oregon that it has been shown that once the person knew that the option of assistance with death was available to them, they almost took a step back, they made other plans, some went on to utilise those provisions and others did not. On the one hand, I know that we have been arguing for clarity. It is such a difficult thing to measure. It is trying to get a balance on the one hand that these are very difficult times for the individual. There are things that he or she may not want to achieve at that time. You do not want to rush them in any way, so trying to place a time limit is a very arbitrary thing. Some people will need a great deal of time. Others may not have that time due to the nature of their illness and infirmity, so it is probably like most things trying to get a balance. However, if one would err on the side of protecting the individual's life, we would want to make sure that a decision made is fully informed and requisite time has been given to that individual to make that decision there. Does anyone else want to come in? Can I just return to the convener? I do not know of licensed faciliters. Did we hear if you thought that a definition of that should be in the bill or the function action taken by them should be actually in the bill? Yes? Just a very brief point. I think that it just goes back to the roles and functions. That is a new role, a new function that an individual will be undertaking. The clarity of what that role involves in the parameter of that role. You are moving something that was originally the preserve of clinical decision making, and that role is being entrusted to another individual. It has to be very clear what that role involves for them. Anyone else wants to comment on that? I just endorse that point. In terms of section 19, there is a number of points that have been made already by comfort and reassurance. Such practical assistance, as is recently requested, is very difficult to know what that means and what the parameters are around that. For facilitator to undertake that responsibility, I think that would benefit from definition. Would you put that on the face of a bill or would you put it in some kind of guidance that would facilitate it? I think that with inevitably guidance and the kind of thing that would probably develop as practice and experience dictated the kind of requests and assistance that was required. Sorry, I started on guidance. I think that I would feel very uncomfortable that just this role was being developed by ministers, a crucial role after we passed a bill. Just again on the functions of licence facilitators, should there be a duty to record when, what was dispensed and then what happened thereafter? Just a lot of tidying up around this very crucial role. They should know initially what was dispensed anyway, so the nature of the drug, how much was dispensed there. I think that it also takes back if the drug has not been used, you are back on this 14 days to remove the drug. How is that going to be disposed of? Who has the responsibility? Does that go back to the pharmacist for that to be safely disposed? Is it the responsibility of the licence facilitator? I keep thinking of the circumstances. This event has occurred and an individual has received assistance to end their life. The priority for the licence facilitator may rest elsewhere other than worrying about what is happening to the pharmacology writing reports at that time. Would it be so onerous to have a duty to record when and what? Not at all. I think that it would be only right that that duty to record occurred, but a reasonable timeframe should be given for them to make that recording. The priorities, if they are there to be providing reassurance, would surely have to go to the individual concerned and or any next-of-kin family members at that time, but it would not be unreasonable to expect them to record what happened. I will then take Patrick Lassan. I will let you be a sweeper-up, as it were, on all the things that you wished we'd asked, or we didn't follow through. Thank you, convener. It was in regard to the facilitator and Margaret Dassan, a couple of the questions that I wanted to ask. Basically, concerns around what everyone has put forward around facilitator being appointed by Government or ministers, what experience, what is the role, that isn't written out in the face of the bill. Another question that I wanted to ask is, in the back of Professor Millers, if something could happen. I think that Mr Stevenson also said that if by chance a facilitator had given the medicine and that person had ended up very much disabled, etc., would the chance be that a facilitator could actually be prosecuted for criminal negligence if that wasn't written on the bill or if that wasn't part of, I don't know if you'd call it a contract or not, but it doesn't seem very clear what the role, it seems clear what the role of a facilitator is, but there's nothing in writing that protects anyone who may be a facilitator if any careless action happens. I just wonder if that had to be looked at as well. I agree. In the role of the licence, we've already alluded to the question of age, that 16 seems very young to have that experience. Now, some facilitators will come forward who may inevitably have some form of medical training, medical experience and others will not. So, there will be a great diversity in terms of experience between each licence facilitator, so how they may manage a certain situation when the individual who may be trying to ingest medication becomes distressed, some may need to call for assistance from other medical sources, others may have the ability to deal with the situation at that time, but it still brings you back to what form of assistance that may take. If you're then trying to make sure that the individual is ingesting substances with the least amount of distress, that certainly seems to me to have crossed some line within the parameters as the bill stands just now. Your question is a very good one. I don't actually have an answer. I would suggest that perhaps we ought to be able to find an answer in the bill and presently we don't. I point out however that although somebody has to find a declaration that they have arranged to have the services of a facilitator, if there is then no express requirement in the bill that the facilitator be involved, so if having made an arrangement to have a facilitator, booked a facilitator, if you're like somebody then says, well in fact I shan't bother, I won't have a facilitator for whatever reason, there would seem to be nothing in the bill that would impose any consequence upon that. So this isn't a bill that, to my mind, sets up a system that requires the assistance of a facilitator when the lethal drugs or the lethal injection are administered and that perhaps a matter of concern. Perhaps this is a process that should have a form of compulsory supervision, albeit one can see why individuals might not like that sort of intrusion at what would be one of the most personal moments in one's life for them and for their friends and family. Very quick query on books, I think both the faculty and the law society have made, have commented on the fact that there's not a conscience clause in the bill. Would I be correct in assuming that that is not necessary since this bill defines what is not a crime and therefore if you refuse to take part in what is not a crime you're not committing a crime so therefore it is not necessary to put a conscience clause into the bill? I'm not sure, I have the knowledge to be able to answer that fully but I would say that I would believe that a conscience clause addresses more than criminal liability, it's called a conscience clause because it addresses one's attitude towards their profession, their moral standing, their ethical beliefs and values so I don't feel able to comment on the criminality aspect of it but I think it definitely covers more than just criminal behaviour. I think it's more about certainty again, certainly from the perspective of a slister they would be able to choose not to act as would any of the parties but I think and it's reflected in the assisted dying one that there is it's just clarity and certainty that this is an option you can elect to make but practically it wouldn't change somebody whether they act or not because basically you're saying I'm not prepared to take part in something which is not a crime so you're not there's no chance of prosecution of the person who says I don't want to take part in that. If you for example consider abortion legislation there's a conscience clause there the primary consideration is not whether or not the individual is taking part in a crime it's a personal preference whether or not they wish to be involved with the termination of crimes. Does the abortion legislation take the same does it deal with the issue in the same way or does it say that it's not a crime to do that or is it actually making it an exception from the alternative approach which seems to be suggested for this bill where you actually make an exception of something that is a crime you see what I mean? Undertaken under the terms of the act is not an offence but if you don't comply with the act it remains so it takes the alternative approach does it? A conscience clause could have two purposes it could allow people to say I'm not prepared to participate in this it could also then go on to require them to say why they were not participating so that the person who is seeking assistance is referred on to somebody who knows the reason that they are being declined assistance it is not because they do not meet the requirements of the act it is because the individual they have consulted has conscientious objection to involvement and if you in your conscience clause as faculty have suggested go on to say if you're going to exercise your right of conscience you must then also tell the person that that is the ground on which you are refusing them assistance that enables them to understand that they can go somewhere else and seek assistance from someone who does not have conscientious objection so that would be a second purpose to a conscience clause. Patrick, I'll let you know. Thank you very much convener an awful lot of ground has been covered and I wonder if it might be appropriate if I was to write to the committee before you reach your conclusions to cover some of the issues that there might not be time to cover. We are very flexible. I think just to pick up on one or two of the issues that have been touched on just briefly the conscience clause it's a great convenience for those legislating in Westminster that they don't have to consider the question of devolved and reserved competencies and perhaps if at some future time there's a reciprocal legislative consent mechanism we would have that flexibility as well but clearly I think there's a requirement for the guidance and guidelines for professional bodies to address the issue of a conscience clause would that be an appropriate means to do it given that the regulation of medical professionals is not something we can legislate on in this Parliament. Okay thank you. I think also the question of the age of the minimum age of licensed facilitators being 16 is it not clear that this is not simply a voluntary role which one steps up for and acquires that status there is a licensing process which would be undertaken which would take into account the skills and abilities or experience that people would require to undertake that role having said that it's would it not seem reasonable that for example someone who might be very young but had been a full-time carer for a relative for a long time perhaps for many years and would have gained the kind of experience and a commitment to palliative care and to the the dignity and freedom of choice of people at the end of their lives that somebody who was surprisingly young might have that experience and might be regarded by the licensing body as an appropriate applicant. I agree I think it's the quality of that the person's experience and their ability to have an understanding of what they're about to undertake there yes. Thank you. The question I think around capacity and mental health has perhaps been misunderstood it's clear to me from the way that this bill was drafted and subsequently I've undertaken it that section 121A does not rule out from the capacity test anyone with a mental health diagnosis it talks about someone who's not suffering from any mental disorder within the context of the 2003 act which might affect the making of the request is that not a clear statement this final clause and it is not a commentary on the nature of mental illness it is part of the capacity test and that therefore as someone who had a diagnosis for a mental health condition which did not affect their capacity to to make that decision to make that request would be able to make a request is that not clear well with respect I don't think it is because the the last part of section 121A reads which might affect the making of the request it doesn't say which does affect the making of the request I suspect in practice very difficult to exclude the possibility that any mental disorder might affect the making of the request it does seem to me that this is a capacity test that a medical practitioner with expertise in this field having the responsibility to to apply that test in approving the the request that had been made you know this is one of the normal things that they would be doing in applying that capacity test in other contexts for example someone who had a history of a recurring mental health condition which had not recurred for a long time but they still had that diagnosis it would be reasonable to conclude that that having been no recurring episodes for a long time that condition did not affect their ability to make the request well that's possible but you would have to exclude it as a possibility and it would that decision would have to be made with someone with the appropriate level of qualification and one of the concerns that faculty had in our response in relation to capacity was that we wondered whether the way this was phrased wasn't driving one to the conclusion that the only person properly in a position to make this judgment would be a psychiatrist I think that the final question I would I would put is a general one convener which applies to this matter as well as to the section on savings and to several other issues which have arisen over the course of the discussion and it's about the balance between specificity and flexibility or the ability to take account of circumstances and to take account of case law which is required with or without legislation in this area. The question has been put several times that there's a need for greater clarity so my response would be to ask is there and as the member in charge I'll be happy to discuss amendments that are constructive and intended to improve the bill very happy to do so but is there not a danger that if we get into that kind of discussion at the other end of the spectrum an overly rigid approach would also give rise to problems in the application of the law and problems in an inability to take account of circumstances this is surely a balance between clarity and an overly rigid approach is there not that danger of going too far in the other direction we must always be a balance to be struck and there's an advantage to having a simple system for no other reason but that people can then understand it people who are not loyal so people who are not regularly engaged in the process of considering assisted suicide I would suggest that clarity does not necessarily involve complexity so for example if one looks at Lord Faulkner's bill for England and Wales it seems to me that it's more clearly expressed as a lawyer and I think that I understand it more easily than I do when I look at this bill so and yet it's no longer than this bill I think in fact it's shorter thank you thank you very much I want to thank the witnesses a very interesting issue to explore and thank you for your evidence can I say to Patrick because with the secondary committee you won't actually be coming in front of us indeed but it's open to members notwithstanding the fact that health and sport sit at the same time as us that if you wanted to attend you could ask health and sport to go along if legal issues were arising because I suspect you'll be before the health and sport committee giving evidence and then you could question Patrick on issues arising but that's if you don't want to be here on our happy hunting ground can I thank you very much I'm going to suspend for five minutes for the next panel of witnesses okay thank you let's just start up again please thank you I welcome to the meeting our second panel of witnesses and the assisted suicide Scotland bill Chief Superintendent Gary Flanagan head of major crime specialist crime division at police Scotland and Stephen McGowan procreate of fiscal major crime and fatalities investigation crown office and procreate of fiscal service and I said with earlier panel thank you for the submissions and so we'll go straight to questions from members and Elaine Margaret John the bill is drafted to define something as not being a crime under a variety of circumstances does that create any difficulties in terms of investigation or prosecution when it's actually the approach has been to define something as not being a crime is that are there associated difficulties for you and either as investigators or as prosecutors around that it's an unusual it's an unusual it's an unusual piece of legislation if it were passed because it defines something which is not a crime which previously has been a crime so but it's all about the specifics of an individual piece of legislation as to whether it causes any difficulty or not so as a general principle whilst it's unusual it's something that we could deal with if we had to do it it's unusualness doesn't cause any specific issues in itself it's about knowing what the law is and applying that law which is important to us as prosecutors and do you think there's sufficient clarity in the bills that stands to label you to be able to to apply you know who you shouldn't be prosecuting if you like there are some specific pieces of the legislation where perhaps further clarity may assist us in our job as prosecutors in relation to the bill I think some of them have been touched upon by the earlier panel and most of what I would have to say in relation to them would be fairly similar to what I've heard I only caught the second part I think of that panel but they would probably be similar what's important for us is to know the specific clauses I think would be in particular the definitional aspects of the crime and the essential safeguards and also the saving clause at the end these are the particular passages of the bill which perhaps and when we consider a case we would have to look at in the same context as we would currently have to look at and it would all be about context it's the definitional aspects which are the bits which perhaps so I think it's sections 1 3 18 and 24 to be specific about the clauses that we would be looking at yeah I was just going to say it's um whilst the the decriminalises if you like where we the current situation it wouldn't obviously preclude someone you know a member of the public raising an issue of concern which would then you know more than likely necessitate an investigation but in effect by engineering out the police investigation that the the forefront then that clearly would be significant to ourselves and that you know there would be no police involvement unless unless something either from a member of the public or by way of an instruction from the crown to look at a particular circumstance so that's clearly very helpful and the faculty of advocates suggested there could have been a different type of an approach which is maybe the more common approach where you would have a definition of criminal activity and certain things are exceptions within the context of that criminal activity would that have been an easier approach in terms of your job and looking at what is proposed in the bill I think it would provide more certainty in terms of what we're looking at in the bill and so if I perhaps give an example of what I mean in terms of some of the tensions that there are in the act as the previous panel mentioned there is no definition of assisted suicide or assisting a suicide now I understand as an intention that's to give as much flexibility as possible but when you look at that and it's interplay with clause 18 which talks about nothing authorising anyone to do anything in itself which causes another person's death that demonstrates to me that everything in this sphere has to be dealt with and looked at in its particular context so there is various parts of various definitional aspects could be brought to that so what is something that itself causes suicide I take the intention of that to be the direct in causing someone to ingest the medication perhaps that they may be using but it's not entirely clear in terms of the structure of the act that that is what's intended on the face of the bill as it's drafted at the moment so that together with the lack of definition around what it is to assist suicide still means from my perspective as a prosecutor that there are discretionary judgments that we should have to be made in relation to this and perhaps a lack of clarity the thing to emphasise about the bill as it's currently drafted as with the current law is that the cases would I am sure be very very fact sensitive so the specific facts of any case would be very very important but the way the bill is set up at the moment it doesn't give that framework of this is what's criminal and this is not there's still an element of reading that into the particular clauses of the bill and if that were to remain the case then the likely consequence would be a police investigation which by its nature would need to be you know intrusive and you may end up in a situation where you're you know that the driver for this is around the dignity of the the person's last wishes and yet the very people that are assisting in this process may find themselves being investigated for their actions and that would happen if a member of the public raised a concern even I'm sure Stephen would agree with that now if that were the case then you know that the minutia of the law would probably necessitate that person would become would be suspected of a crime and therefore would be a suspect so very quickly things would develop and you may have an adverse impact on where we wanted to be in the first place and indeed in terms of the criminal justice bill could be arrested in fact because of the new terminology there is a need for it it's been mentioned the numbers of times there would be it would be hugely beneficial for absolute clarity on on those those points so it's not to effectively end up in with a a police investigation on behalf of the crown to safeguard the you know the integrity of the process. Margaret, I want to please Scotland in particular Mr Flanagan yes in your police Scotland could ask you about the ensuring the compliance by licensing the role of police Scotland in with regard to ensuring the compliance by licensed faciliters any comments on the provision the bill you're happy with that or I am again it's it would it would seem that uh is that my understanding that everything might in effect be retrospective um as opposed to um you know so i'm not sure i'm not entirely clear as to what the the actual role would be if i'm been honest are you saying that there is a defined role um i think that's um one of the points that issue should there be a defined role no it's it's specifically looking at the kind of suggested role just now if you're unclear about it then it seems to me immediately you know the bill is there and we're not quite sure so that there has been some suggestion that the role should be in the legislation could be left to guidance issued later by by ministers but it would be up to police scotland to ensure whatever role it was um was carried out properly and compliance was there so i think clearly then there's a big question mark on that a person yeah i'm not sure if there's a precedent um and you know in our current role where we would take such a you know such involvement in something of this nature um it's not something which um you know it's not it's something i don't have any and police scotland doesn't have any experience of a role at the moment in such a almost pastoral i think that what clause 20 of the bill envisages is that where a licensed facilitator has assisted a person to end their life then that person the licensed facilitator will have an obligation to advise the police of that fact that clause in itself is slightly anomalous with what current practice is in terms of what i would broadly call medical deaths and i know this isn't a medical death but someone who dies under medical care and there's a degree of supervision which is why i characterize this in the same way of what's going on those deaths are currently matters which would be reported to the procreator fiscal and there's a Scottish fatalities investigation unit which only deals with that i would suggest that the role there is not for the police but for the Scottish fatalities investigation unit who would be made aware of that that's typically what would happen in a a sudden death or a death where the person's under medical care and it can't immediately be certified and i think that would provide the necessary safeguard which the bill's attempting to provide so i don't know if that answer goes to the question it would be more appropriate somewhere else yeah that would simplify be consistent that's the the role of the police is to act on behalf of the you know the crown and the investigation of deaths and take instruction so that would keep that simplify matter and it would certainly be easier for for adoption yeah we've been looking at this in you know a medical context and almost it will go down a certain a certain route and should be quite easy to well not really easy but should at least point to certain people dealing with it section 20 but where there's a doubt expressed then the medical context then moves into perhaps a suspicious death and i'm wondering then if you could comment on the savings provision in the bill and also the breaches potential breaches and penalties issue the savings provision is fairly broad as it's currently expressed and again when you look at that in terms of section or clause one clause three and then clause 24 again i see i think what the legislative intent is it's to make sure that someone isn't penalised for an error in paperwork or or some such minor error i think that that's what it's driving at i'm not sure that that's what it actually says on the face of the bill at the moment and therefore it talks about person acting in good faith and an intended pursuance of this act again i'm not sure what intended pursuance of this act is is it following the steps and in an attempt to follow the statutory scheme or is it someone who wants to end their life and knows that there is legislation which allows them to do so and perhaps to assist someone to do so is that the act in good faith and in pursuance of the act i think there's still part of that definition that could perhaps be tightened which would facilitate the legislative intent if i understand the legislative intent correctly but whilst not being quite as wide as a prosecutor it strikes me that any step towards trying to imply with the act would cause a difficulty then in a prosecution if we were to bring a prosecution now it may well be that that's what the bill is intended to do so but there's a question for Parliament as to whether that's sufficient protection in terms of the legislative scheme it does seem to be quite loose but as i say there appears to be a slight difference between what the legislative intent as i understand it is and the face of the bill the face of the bill appears to be slightly wider than that yes i move on i've got john nensandra please follow by rodrick thank you convener it's a question for mr mgawn i don't know if you are present mr mgawn when i want to ask professor miller about a comment in the the human right commission evidence about the omission doctrine i don't know if you're wasn't okay well i'll read from the evidence it says the commission is also concerned that's a lack of guidance relating to the omission doctrine whereby doctors may withdraw life-sustaining treatment and certain knowledges this will bring about death to the patient now clearly that's something that's not going to come to the attention of the authorities unless there was any debate about the writing of a death certificate that's correct isn't it it would depend upon the circumstances i've said earlier these are very fact specific cases there are cases of that nature which i know have been brought to attention and which we have dealt with under the current regime and and these are once you talked about discretionary judgment is that something where you would have envisaged exercising discretionary judgment on the current position is that the law of homicide applies to these cases and so what we look at when we look at that is the case against the law of homicide so we look at whether a crime is being committed has that caused the death and if a crime has been committed then the crucial thing is the intention if the intention is to kill then that could be homicide if that's not the intention if the intention is to treat and the intention is round about palliative care then it wouldn't be a crime potentially but that's a fine distinction isn't it it's a distinction the conscious decision not to take an act that would sustain a life distinct from actually seeking to end a life yes and there are very few crimes of emissions so in scots law is there anything we can learn from that was the question i asked professor another anything we can learn from that in relation to this proposed legislation it's difficult to say specifically what might be learned i mean we're straying into a slightly different topic in relation to that and in the sense of what treatments are appropriate to those who don't want to take advantage of the proposals that we're running as well sorry i should have stressed it wasn't in the medical aspect i was particularly it was about the proposal to report to a constable as distinct to that's something that may be reported directly to you by the medical authority i would expect if there was a jubiety about the cause of death if it was sudden if it was under medical care depends on whether the treatment was a factor in the cause of that death if there were any concerns on the part of the family or nearest relatives or anyone else about the cause of death then that would come to our attention any connection with the the situation where a conscious decision is taken not to resuscitate someone for instance it would depend upon the circumstances and there are cases of that nature which have been brought to our attention in which we've dealt with over the years and how have they been dealt with in France i can't think of an example in which a crime has been committed i can't think of an example off the top of my head okay thank you very much sander follow by rodrick please thank you very much it's still good morning good morning gentlemen obviously the facilitator and i did ask questions previously of the the previous panel and one of the questions i'd asked and i think you alluded to mr mgawain is regarding to any criminal prosecution which could be brought against a facilitator if a member of the public or the family were to basically raise concerns that that's one concern obviously i think we need to deal with the legal aspect of it but also one of the questions i did ask the legal profession was if the medicine as such was being administered and it didn't work completely and the person didn't pass away in a certain manner would that constitute criminal prosecutions against the licensed facilitator as such would you see that there's not enough clarification in terms of the bill is currently drafted if the facilitator acted in good faith and intended pursuance of the act the the conduct by the facilitator would as i understand the bill have to be of a quality of reckless rather than careless careless isn't defined in the act but taking carelessness as it's known in other criminal contexts you would have to be reckless in order to facilitate any prosecution and i don't think that recklessness is protected by the legislation as it's currently drafted thank you i noticed that in the submissions from others as well another issue i wanted to ask is obviously involves the police in the legal profession as well would it constitute specialised training perhaps for the police in regard to not just that part of the facilitator's job as you might say but also the drugs that are available how they're stored when they're collected brought back to the pharmacy wreck has been kept would the police need to have special training on that from a prosecutor's perspective it's clear that any any case of this nature currently or i imagine if this bill was passed would be dealt with by people who are specialists so at the moment any case of this nature would there be one of two routes into crown office in relation to that it either be through homicide teams or through the fatalities investigation unit both of those groups of prosecutors will get specialist training but ultimately any decision in relation to this would be made by crown council and probably involving law officers so these are cases where decisions would be taken by a small group of people if the bill was passed there may be need for further training and further internal guidance to make sure that prosecutors are all fair with the terms of the specific bill police perspective really is simply yes there would be you know requirement for awareness raising at all levels but uh steven highlights for the you know for the teams that that you know i'm in charge of the major investigation teams yes i would imagine there would be a need for for for more in-depth training thank you that point you superintendent are you content with the the evidence of the provision so far about recording processes would seem to me if somebody reports to you then if you've got good you know robust reporting processes it makes the police job so much easier are you content with what's here just now in terms of recording i think is steven highlights in terms of recording yes i think i am and steven highlights that each case would always be treated on its merits so it would need that you know particular scrutiny to see that conditions have been met but from the information that i've seen yes i think i would be it didn't seem to be the position about the legal panel they were not quite so satisfied with recording processes i wonder where the single repository of of this documentation is going to be in a medical case we know where the medical records will be we know what format they take there's nothing in the bill which specifies where that single record of a person's intention and the various steps will be again i think it's perhaps envisaged that the facilitator will do that but it doesn't say that in the bill so there is perhaps a gap and if there is a gap then what that means is potentially a police investigation and as Gary Flanagan's mentioned there's an element of invasiveness in any police investigation i'm not sure that's what the framers of the bill had in mind when they drafted it yes answers could be found more quickly at least in the direction rogeck thank you convener um if we could just start by just asking one question in terms of the lord advocate's submission um so paragraph that starts account considers there to be sufficient evidence that a person has caused the death of another it's difficult to conceive a situation where it would not be in the public interest to raise the prosecution but each case if you considered on its own facts and circumstances um that's fairly black and white i'm really saying that there haven't been any cases for example the last five years where kind of public interest considerations have come to bear the last case of this nature that i recall that we had to take a prosecutorial decision in was a case in 2006 and in that case it was a man whose brother had i think it was huntington's disease prosecution was raised for culpable homicide he was convicted and he was admonished by the court as far as prosecutorial discretion is concerned the factors that we would take into account in applying that public interest test are set out in detail i think there are 13 factors which are in the prosecution code one of those is about the gravity of the offence and others are about the impact upon the victim so when you speak of the result being a death then the public interest in prosecution is very high so that's what's behind the statement on the lord advocate submission okay thank you um the second question is the Scottish human rights commission in their submission refer to the decision and has lords in the perdie case um and they comment that a similar challenge could be made in scotland and suggests that interim guidelines should be issued by the lord advocate what's your view on that i would say that's not necessary because of the factors which are set out in the prosecution code and the perdie case which isn't binding in scotland i think has to be seen in its context that the perdie case came because mrs perdie wished to travel abroad to end her life and she wanted her partner to help her in that and she wanted to know whether or not he was vulnerable to prosecution in terms of the suicide act 1961 her case came shortly after another case of i think it was daniel james who was a 24-year-old rugby player with spinal injuries and in his case his family was not prosecuted by the director of public prosecutions who unusually published his decision as to why he had decided not to take criminal proceedings in that case and the factors upon which the director relied not to take proceedings were factors which for the most part were actually out with the code for crown prosecutors that was in england and wales so when mrs perdie said that her article eight writes to a family life were being interfered with the question for the court was whether or not that was in accordance with law and because the factors taken into account by the director were factors which were not covered by the code for crown prosecutors they said that that wasn't in accordance with law and that's where the director's guidance in england and wales came so i think it's very specific to that context in that there was a code which bore to be the factors which were taken into account when a prosecutorial decision was being taken in england and wales and they were not the factors which the director took into account in the james case which caused mrs perdie to have that uncertainty as to what the law actually was in england and wales okay then just as a kind of side issue is either of you aware of any kind of statistical information on the number of people who might leave scotland for purposes of ending their life elsewhere i'm not no okay thank you thank you um christian followed by patrick christian thanks very much yeah just a couple of questions uh i can see that there could be some implication regarding life insurance and i would like to know if you would want more clarification in the bill regarding the consequences and particularly if the life insurance could be the benefits there could be the licensed facilitator which could happen we voted the licensed felicitator knowing about it i think that's really a matter of parliament's intention in relation to this i don't think it's something i can comment on as a prosecutor as to whether or not someone should still have the benefit of the life insurance and whether there should be any clauses and i know that other jurisdictions who have legislation to similar effect do have clauses in the legislation which allow someone to have the benefit of the life assurance and it's still to pay out in these circumstances but i don't think it's something that i can comment upon as a prosecutor and what about the police we didn't make i mean i would just simply add that i wouldn't really want to go into the the legislative side but clearly that might be something which a family member another family member may raise a suspicion if someone was thought to benefit from something of that nature but other than that i wouldn't like to comment patrick thank you very much good morning can i thank the witnesses for their their evidence and particularly to emphasise again that where there are areas where evidence suggests a simple amendment would be beneficial i'm certainly very open to discussing that and for example the argument around reporting to the prosecuting authorities instead of to the police is certainly an example where a change would be pretty straightforward to make to the bill i suppose the the general question i'd like to put is one that i put in general at the end of the the previous panel which is about this question of clarity and particularly to to mr mcgowan in terms of the prosecution decisions is it not the case that at present in the absence of legislation in this area in the absence of any guidance around how a system of assisted suicide ought to operate and in the great complexity of people's individual circumstances of the the actions that have been taken or the questions of inaction there is a great deal of a great lack of clarity at the moment for prosecutors in reaching decisions i can accept that perhaps we'll never have crystal clarity given the inherently complex nature of this subject but is it not a reasonable suggestion that legislation in this area would increase the clarity that both prosecutors have and that individuals would have about what they are allowed to do and what is what remains a criminal act i'm not sure that i accept that there's a lack of clarity at the moment if someone takes steps to assist a suicide then they may be liable to prosecution in terms of the law of homicide depending upon what those steps are maybe implies a lack of clarity surely you can never be and we can never be entirely certain about anything but if you take those steps you you may be and i can't put it any higher than that you may be liable in terms of the law of homicide and if you were the factors taken into account or in the prosecution code that provides a degree of certainty any departure from that is a matter for Parliament and if Parliament legislates for that then we work in that system clearly the bill is presently drafted there are a number of areas where i'm not certain that gives any more clarity and would suggest that it gives slightly less clarity than the position we're currently in that's not a comment upon the legislative intent it's simply in terms of the scheme which is set out i think there are one or two areas in which greater clarity and greater definition could perhaps be given given the question which was raised earlier as well about the the the potential for biomedical failure of an assisted suicide is this something that you've looked into in preparing your evidence on this i'm not aware of examples in other countries such as switzerland which already operate an assisted suicide system where where that has been a problem and i'm a little bit concerned that we kind of build up the potential for a problem i think that's a question which is perhaps better directed at those with the medical or pharmacological experience to know how the mechanics of this would work and how various medication and drugs work you know my comments are simply in relation to if that happened this would be my assessment of what the response would be from a prosecutor's point of view i'm not aware of any facts or circumstances or specific statistics in relation to that no but i don't think it's really my area okay thank you could i offer an observation mr harvey to your point i think it's the point you made about the decisions to prosecute are valid i think it's worthwhile pointing out that there's a great likelihood that the people would be subject to an investigation and that in itself would be you know in the circumstances may be very very traumatic and is likely to you know introduce all sorts of difficulties and anxieties so it's worth saying that it's not necessarily just about the impact of a decision to prosecute or otherwise there would be the associated investigation which would be fairly significant to the individuals involved as well i appreciate that and i appreciate the context in which you've raised that that concern and i think all of us would be concerned to minimise any risk of unnecessary stress or anxiety for people in that situation but i would again suggest that in the absence of any legislation in the absence of a well-regulated system is it not already the case that a small number of people who feel the need to give assisted suicide without a legal basis for that and who is subject to prosecution or subject to the prospect or the possibility of prosecution very often would anticipate that making a decision like this in very very difficult circumstances at the end of a loved one's life that's a situation that they face at present in the absence of legislation people in that circumstance are not protected from the possibility of investigation or prosecution far from it yes i agree with that yes thank you so sorry are you saying that are you agreeing that that i'm not prejudging the an individual circumstance and the point made about just now yes people would possibly anticipate an investigation i'm saying that in the spirit of the legislation that's been progressed that it would be an it would be advantageous to recognize and to avoid any unnecessary investigation i thought that it was asking that this the position just now as we appreciate is sensitive and delicate and usually handled in that way by the prosecution services but that having something in legislation which requires processes to be gone through and recorded should surely assist police and the crown office from deciding whether or not they need to go beyond a paper investigation rather than you know have to in these situations actually meet people face to face i think that's the point patrick was trying to make and squeezing it down to processes and recording yes i agree with that that the intentions there and that that would be that would be agreeable does that make sense i'm not sure that it does simply on the basis of the current drafting i think as i've said before there's a some of the definition elements i think it would have to be tightened up so what in effect the bill would do was introduce a regime of assisted suicide in scotland and that might mean because of some of the definitional aspects of the bill and increasing the number of those investigations as i see it but but it's subject to amendment and for our consideration but do you want to say any more no i suppose simply to to observe that for someone who'd been caring for a loved one through difficult circumstances through a life shortening or terminal illness who'd been supporting them through making this decision the prospect of having to have a conversation with an investigating officer after they had confidence that they'd taken these steps properly in compliance with the law that frankly might be the the last of their worries might might be a fairly minor thing for them to contemplate if they feel that they've given their loved one the the freedom to make a decision on their own terms and that that's been a profoundly important thing to them rather than a question but it doesn't matter can i can i say that's the end of this session i thank you very much for your evidence i'll suspend for just a couple of minutes but we stay put because we'll move on to the next panel very much next next item is an evidence session on the reduction in the drink driving limit proposed in the draft road traffic act 1988 prescribed limit scotland regulations 2014 this session is a draft this session informed next week's evidence session on the instrument with the cabinet secretary justice now welcome to the meeting our panel of witnesses chief superintendent ian murray police scotland dr peter rice chair of the scotty shelf action on alcohol problems and margot decker had you here before my missus record i remember your campaigns research secretary of scotland's campaign against the responsible drivers we have some missions on the proposed limit to the original scottish consultation so i'll go straight to questions take take you first this time christian not had you before elaine thank you and then samton thank you good morning is this morning we had a lot on the on the media the reaction of people when we heard about the change in the limit and i have to say i do agree with some of the comment that we made regarding the areas of the penalties for the offense it looks like that a lot of people out there think that it might be very unfair that people who are caught on the lower side of the offense will get the same penalties that somebody will be on the higher side so is there and particularly i'm i'm somewhere worried that maybe the hard luck stories may over time reduce the level of public support and that does concern me do you think it is it is it is the concern a wee bit lost it you're not we're suggesting a variation in the penalties we haven't got power to do that but is it isn't i'm asking do you think it's we know i know we haven't got a big part of it i don't know the law i tell terrible of me yes but but we maybe ended up having it okay but by another way but do you think it's it's it's an important part of the legislation if we had the power to do that is it something you you you would want that event well if you'd like me to answer first i must be honest i don't wouldn't support any variation within the penalties i think when you look at the research which suggests that even at the new lower limit that's being proposed you know individuals are three times more likely to die in a crash than if they hadn't taken alcohol before they drove and there's obviously sufficient evidence out that suggests that any alcohol you know does have that impairing you know effect on your ability to drive and your ability to concentrate and reaction times etc so i must be honest i think that that to suggest that between you know for already looking at that statistic then to go higher where the existing limit you're looking at six times more likely to die in a crash so i must be honest i'm not in a place in my own head where i think you want to vary between whether you're three times more likely to kill yourself for somebody else or six times and whether the penalty should vary depending on on how that works my view is that as you're putting somebody at risk and putting yourself at risk that therefore the penalty needs to be such that it's a deterrent effect and i think again the studies that have happened across the countries which already have the limit what that's now being proposed have shown that all blood alcohol level counts tend to drop that it has that deterrent effect and the whole overarching picture of drink driving changes so i think that deterrent effect is what's being looked at and therefore i think to lessen the impact now of the purpose of this which is to improve safety to lessen the impact by suggesting that we would lower the penalty at the same time means that we're not taking to me you suggest we're going to be taking it seriously thank you to answer missus decker john let's see the court already has you know powers to you know to to sentence you know and you know we keep getting told you know sheriffs it's up to them to decide what the penalties are so i think it would be a matter for outwith a remit really to comment on that now i think it's mandatory that you lose your license don't you for 12 months yes i'm about to be corrected by a resident advocate the exceptional circumstances but the basic rule is you lose your license does anybody else wish to comment on varying the penalties somewhere else in europe yes there's i think your question that also touched on the level of public support for the measure and there are high levels of public support for drink driving action there's also levels majority levels of public support for actually a whole range of alcohol other alcohol measures but which sometimes surprises people but for drink driving the level of public support is high and i don't think that there's a substantial risk that the lowering that the level is going to lead to you know in some other countries drink driving is looked at a little bit more like a kind of parking ticket and it's one of the i think distinctive things in the United Kingdom that's regarded as a serious offence by the general public i don't see a substantial risk that lowering the limits going to lead to kind of diminution in the seriousness of this in the public i absolutely agree with my colleagues from Police Scotland that the impairment at 50 remains significant and substantial and i think the public realise that and i don't think there's a risk that this will diminish the importance of drink driving in the in the eyes of the public again the most recent road safety information tracking study survey that's been carried out on behalf of road safety scotland and those figures 95% of those people who were surveyed believe that drinking and driving with the limit is a very serious offence and the further 4% believe it to be serious so you're looking at 99% of people surveyed believing that drinking over the legal limits either very or very serious or serious so i think the public support and the perception is there certainly at the moment yes maybe i can add into that it's exceptional circumstances could be maybe extended two of the cases but we have already you know i think i'm with margaret and so far as the courts already have that power to take on board the circumstances and to make a determination and i think that's where we would give our evidence and that's where that would be taken so i must be honest i believe there's sufficient scope within the system as it is just now thank you i don't think it's used very often to them i may be exceptional circumstances i think my ass mr caml is not successful so very often it's quite often pledged but i don't think it's very successful very often and i now take margaret than Elaine all right we think i was next pixel could i ask the resource bars burden on police scotland in terms of the anticipated increase in convictions the moment we're still obviously looking and we'll do some survey work over the next few weeks because you know some of the data is slightly hard to come by just now i think it's the estimation just now we have is that we are likely to catch maybe a third more drink drivers than we're doing at the moment in the initial phase of this although the research does show as i mentioned earlier that drink driving and blood alcohol counts across the board tend to drop so certainly my expectation and my hope would be that the public will learn there's quite a significant campaign you know going to be ratcheted up through november into december in terms of making people aware of the implications and again we've already been doing that through the drink drive initiatives of last winter and also this summer time and we'll also be speaking to drivers from this point on to make them aware as we do breathalyze people and we're getting values that are over the new limit but but below the existing limit so as that message starts to permeate my hope is that the worst case scenario could be as many as a third more but i would like to think that'll be less is there not a significant chance that there would be more convictions for people under in terms of the morning after and you know maybe i can ask once you answer that chief constable you i could ask the rest of the the panel if they can offer any advice to people how they would be able to to be sure that they wouldn't be over the limit the morning after before you're promoted to chief constable chief superintendent i was quite grateful for that i was great thank you um certainly in terms of what we found during last winter was was 10 percent of those convicted of those detected we'd 434 detections during the four weeks of last winter's drink drive campaign 10 percent of those were found after six o'clock in the morning so there is that risk if you like that there would be a again a small increase within that um before my colleagues answered this i mean my view would just be that simple messages don't you know that's the only way you know it's the message if we're going to be driving in the morning then don't drink the night before but how do you know yeah this is i think for for the public how do you know if they're out for an evening meal because we know it's different for different people and what they eat and the size and metabolism and but how do they know um you know if they get into the car the next morning whatever time that they've waited long enough or not you know it's i'm not trying to make excuses i think it's a genuine problem for the public certainly if you're sitting in the pub and you're drinking you can mount track yeah easy peasy but if you've had a meal the night before or shared a bottle of wine with a pal or somebody how do you know that you're not going to be over the limit the next morning i think it just is a planning ahead to make yourself aware of the fact that you can't take the chance but how do you know this is my point you i mean you saying nobody should have anything in the evening before the evening you know i'm not trying to be difficult i'm just trying to do i understand the point but i think it's that notion of people who you've got to prioritize innocently is it where yeah i think it's a case of prioritising the aspects of your life in terms of you know when do you drink and when do you not drink and when is it when do you need to drink or when is the importance of that within your life that you decide what you're doing and when are you doing it and i'm sure peter can throw more light on that but i think you know for me that the message you know the simple message we've always been saying is don't risk it you know the fact is we're not talking about a legal limit as well we're also talking about the concept of there's an impairment so it's not just about a legal limit the fact is your ability to drive is impaired potentially so therefore you know you have to be aware of that yourself you may be feeling fine the fact is you missed a point it's not the point yes we admit there'll be an impairment and so on i think we did admit all that but how do you know you are over that limit even now let alone a lower limit dr peter rice perhaps you can assist with some guidance for the public i will because it's an important question and well i think you always couch it in caveats of individual variability and so on people do need some some i think some some relatively firm guidelines and you you gave us a scenario you know sharing a having a half bottle of wine with with a meal and if you started drinking that half bottle of wine at 8 p.m with your meal your blood alcohol would be getting to zero about 2 a.m you know the the following day so that's you know about the that's an indication if you drink more heavily than that and i think this is an important point your metabolism of alcohol doesn't speed up if you drink more heavily so it's like your alcohol metabolism system is like a is like a shop with one checkout you know it can only go at one speed if you drink more heavily there are no additional i'm just trying to think that through but i'll okay well if you think it takes you if it takes you to if it takes a shop two minutes to put people through a checkout and somebody's coming in every minute you're going to end up the big long queue okay some shops will be able to call people through from the back to open out another checkout your liver is not like that okay your liver does not speed up so it chugs away at about 10 ml the standard unit an hour and nothing speeds that up coffee sleep shower exercise eating full scotties breakfast none of that makes any any difference what happened to iron broon a bacon roll i know they may have good marketers but again that whatever magical properties people endow in iron broon bacon rolls or square sausages and that they're no more than that so basically it's time is the only thing that clears alcohol from your system and is say to use your scenario the the that individual drink you have bottle of wide started 8 p.m. would would be getting to zero blood alcohol in the in the early morning they might in fact wake up because they're pretty much that time because that's what's happening to them and i think again for the good chief superintendent that the morning after thing is not an unintended consequence people are significantly impaired if they're blood alcohols or those levels so it's an intended consequence because it's a risky thing to be doing and but i i would say that people are going to be needing to be drinking fairly heavily or having very short sleeps to really be running into that problem but people do need to be aware of you know their you know the rate of metabolism and and calculate a bit accordingly circumstances then if if that's the case should there be a very extensive programme of education so people know exactly because there's lots of law abiding i mean i don't think the intended consequence that no one in Scotland who's a driver should ever drink just in case the morning after they're going to be over so that's the other extreme of of of what we would take as a logical conclusion clearly that isn't the purpose of it because so many people are absolutely law abiding and you know we'd be appalled at the idea of drinking when still a feeling the effects of drink whereas others have no regard whatsoever and will be many times over and get into their car so i think if we're looking at this we want to ensure that we are targeting these people who really go out there and cause a real danger as well as educating the public and making sure that people don't by default fall into that category. Yes, can I just say that road casualties cost not only in emotional and financial terms to families but also the ruffling effect to the NHS, emergency services, insurance companies and the like to hold a driving licence is a privilege. I think lots of people forget it is a privilege and they feel it's all right you know and to protect that licence you have to abide by the laws and we welcome the fact that the drink driveling has been reduced in line with other European countries. My point Mrs Decker is how do you advise the public I don't think you're suggesting if you're a driver you never ever drink. No I'm not suggesting that. So is how people can be absolutely sure if they've been at a wedding or something the day before when they get into the car next day they are not going to unintentionally be over the limit. Well I mean I think I go along with the BMA you know you don't over indulge I mean everything in moderation and I don't think being a wedding allows you the fact to ignore the law and you know drink to your tipsy. It could be at the time you drive next day it could be your metabolism it could be all these things you know I'm pausing this if we're going to do it let's make sure that we're doing it for all the right reasons and it is going to have the intention that we want which is to cut down on road traffic we're not putting valuable resources somewhere where they might be better deployed to have the same for example just if you if I make convener we don't know that the penalties if it's a loss of licence for example for someone being over the the 50 milligram limit if that leads to job loss if so on and so forth and are there other consequences there that should be looked at and weighed up? Well as I say a driving licence is a privilege and you know to protect that licence you have to abide by the law. I mean it's good we're only too aware of the devastating consequences of loss of life and the financial impact in these families as well you know there's a balance to be struck here and I think lowering the drink like drive limit to 30 50 mgs per 100 ml of blood alcohol is not unreasonable it's already been proven in other european countries that it brings down the road casualties for drink driving I think really it's just clarity it's only a start this to eradicate the scourge of drink driving in scotland I don't think we're disputing the level I think it's the and certainly my experience of being in court that to say you're going to lose your job takes you nowhere the court hears that just every time but I think the issue about or still getting back this issue of the knowledge of the person obviously if it's the biggest issue is the day before the day before or the evening before and I think Dr Rice your information was very helpful perhaps you should be producing a wee booklet to let us have a night I know there's differences and you can't rely on it but it gives the public do need guidance about so when they should say to themselves are we a minute here I'll you know I'll err on the side of caution tonight and at this time I'll not no thank you you know two glasses is sufficient even though it's nighttime that's fine you know that kind of thing it's helpful to people who I think would be not knowing whether or not they were liable to be breaking the law and certainly wouldn't want to be breaking the law mrs decker you know that's the issue I think that we're trying to get at I'm going to take I think most of the questions will be on this issue am I correct all right so I'll take who's next on my list Elaine and then I'll take John I was really at the same issue I mean I think most of us can see the case for the reduction it brings us on into line with the rest of the Europe and I think in fact the UK stands out is being exceptionally high but I think for a lot of it I think we don't know what it means for somebody who's been responsible the night before you know at what stage should they start to drink you say somebody's gone out for a works night out on the friday at what stage on the next day can they go and do their Christmas shopping for example is there a case that people should be able to breathalyze themselves actually just to make sure before they get in the car that they're not over the limit because I mean one of the things that acros said that should be a significant media campaign prior to any reduction coming into effect now this is due to come into effect on the fifth of december is there really enough time to make sure that the public are fully aware of the consequences not just in the don't drink if you're going if you're driving your car which I think most of us understand but the consequences for the following day even if they have been responsible the day before I just say it's all about taking responsibility and I mean if there's any doubt you can get the bursar attacks here or something you know there's other words that transport besides cars to get you to where you're going not in some parts of the world now I think it's just that you know which I mean the chief superintendent rightly says it's about impairment now if you have a heavy cold you're impaired you shouldn't be driving but I mean I believe that heavy cold can have the same effect on your ability to react as being over the limit the current limit but you know nobody thinks oh I better not drive because I've got a cold and in fact if you were you know the whips here would take a dim view of us not coming to work because we've got a heavy cold you know so you know there are all other issues about impairment that you know that possibly people should be aware of and there's a point in this in so far as the point is targeting and just the point you've made there about impairment I mean bear in mind the vast majority of vehicles we stop we're stopping for a reason and it's because something to do with an offence it's being committed to a risk-taking behaviour or something about the manner of driving that's drawing attention to themselves so you know that this idea of stop people from the morning after the likelihood is they will brought themselves to your attention we're not you know we're not setting up road checks and the outskirts of housing estates at six in the morning to see who's going to the work you know so within that we're finding people who are already putting themselves in a position where they are maybe speeding or something else they're doing wrong or the way they've overtaken anything that's drawing attention so right away there's an element of risk there's an element of behaviour and that's where we then start to pick up the element of impairment as well to the drink element so those who are you know behaving responsibly who are being considered the night before who are taking a consideration in the mornings to when they drive and then drive according to law anyway will not have to worry about coming to the police attention you know so there is that element of you know it's it's it's a market says it but taking responsibility it's being aware of what you're doing how you're doing it and over the limit mightn't it so I mean actually that's not the point to the point is whether or not you're impaired if you're impaired about 50 but the point for me still comes back the point of you're still putting yourself and others at risk because there is an impairment if you're sitting over the new proposed limit at that time in the morning there is a degree of impairment whether you feel it or not but I think I think what my point is is that in terms of the education of people being aware when they're impaired not necessarily that the police have noticed that they're impaired in their driving but being aware that certain things like having a bit of alcohol in your blood like having a heavy cold or something like that actually probably means you shouldn't be driving and you have to be aware of the education on people to know that they are impaired under those circumstances let's keep to the draft which isn't about having a heavy cold it's not the heavy cold draft I know I know what an analogy is yes I mean certainly certainly there's a marketing campaign about to kick in to place I think that the understanding obviously has to be to the point where you know to tell the public when it's going to happen so I think this is why obviously this is so vital in terms of going through the process so that can kick in there's television advertising there's all sorts of marketing being done there's all sorts of media stuff waiting to kick in as soon as it's a green light so that will be there and I said we're doing it live time now anyway when we're stopping motorists and making them aware so it will be there and I suppose it's just that perception of the question of do you think that's long enough or not that that'll be for yourself but there is a significant amount of money being spent through Safer Scotland the Road Safety Scotland to make this happen I was teasing Elaine a bit about heavy colds but if you've taken medication with alcohol in it which you've said it would be at some of them have especially for heavy colds and so on and you also have taken some alcohol but only with the addition if one has a test with the alcohol in the medicine have you gone over the limit would that be any kind of defence if you could just prove it and would it be able to be distinguished from by an examination of the blood sample of someone the levels of alcohol in mouthwashers cold remedies these kind of things is not substantial it's certainly compared to you know the alcohol that people would be consciously drinking for for you know for the effects of alcohol so I think that it's the level of so if you're saying might somebody be over the limit because they were a bit over enthusiastic with with the night nurse I think that's I think they'll have been over enthusiastic with something else would be my I think but if adding to if adding no you're teasing me a bit you know if you if you would without the night nurse yes okay you wouldn't have been over the limits would that be a defence if you could prove it my understanding is it would not no right okay that's that because I just made a booklet you're going to produce obviously don't rely on us I think I'd like to turn to part I think I did make earlier that the following day issue is is only going to crop up if people have drunk pretty substantially the night before now I know my professional life spent a lot of time speaking to people who drink very substantially but really we're talking about consumption if we're talking about innate or sleep we're talking about consumption levels of an excess of a bottle of wine half bottle of spirits six pints of average strength beer these are all together or or not and I think the point I want to make is is that if people are drinking at those levels there are of course other risks that run aside from driving we have very considerable amounts of deaths and injuries from intoxicated pedestrians in this country injured by sober drivers and some estimates in fact the numbers of those exceed the number of people who are killed or seriously injured by drunk drivers so they you know there are all sorts of risks that come with intoxication if you turn up at your local A&E department with it with an injury or trauma because you're intoxicated they don't say oh well fine at least you weren't driving you know this it's a significant injury and they need to deal with it so I think that that would be I think I just point that I would want to to make that that any risk of mourning after is is also going to be in someone who's taking considerable non-driving risks because of the amount of drinking that they've done the night before many people do that and many of them get away with it but many people don't and you know that it needs to be seen in that context thank you john and then Sandra then Roderick then Alison thank you convener it was to pick up on a point my colleague Margaret Mitchell made earlier on to yourself chief superintendent there for she used the term burden now I would disagree with it the convener dr rice gave a number of eloquent explanations of limits but I think the public probably would more readily understand yours don't do it the night before I wonder do you get frustrated at all these various what if if I mix up type of questions that are put to police officers I think being honest I think I'm with Margaret very much it's about personal responsibility I mean we still are looking you know somebody dies in the roads of Scotland every two days I mean this is an unacceptable state so and there's all these risks taking behaviours that people engage in you know drink and drug driving is one of those and there's so that whole element of it's an accident and this is this concept of I didn't mean it you know that this is something we put ourselves at risk voluntarily by getting behind the wheel or by using the road in some way and therefore that our duty to each other and to ourselves is paramount for me so therefore I must be honest I have little sympathy with the argument that says but I didn't know because you have to know and you have to take that responsibility and you know therefore my view around it the whole drink limit is I think if we are at stage where you can't not drink tonight then that's a really sad indictment of our society that says I can't you know I've got a drive in the morning I know I can't have a drink well I think to me that's something you make that decision you decide who drives who doesn't drive and you balance your life accordingly so so that's a personal view that's but I do think that you know we find that there's some of these circumstances that road safety and casual reduction is such a huge responsibility for us all and we need to put it into that round of it's all about risk taking and how we interact with each other and therefore we have a duty to ourselves and to others in how we approach all aspects of use of the road and clearly as the other witnesses have alluded to it's not simply a matter for the police other agencies that involve the health service but more importantly society can you tell me what one of the suggestions is that this change could result in up up to 17 lives being saved what is the burden for police scotland of 17 fatal collisions involving front driver I mean it's huge I mean I mean Margaret's already alluded to the cost of you know it's at 1.9 million per fatal collision to society you know but the time that takes in terms of operational time you'll be looking at a minimum team of four officers for a minimum period of five days working solidly on on that fatality itself and so the time you add that you know serious collisions will will be slightly less but it's a significant amount of time so you are looking at what you're using a working month if you like for each fatality with it so that obviously adds up across the across the year and that's just those who are directly involved in the investigation of the of the incident there'll be others associated around it and obviously the impact thereafter and crown office and the courts and whatever so it does roll on and on and as Margaret said the health service and all these people who've been involved you know from the ambulance teams who are attending the first place to you know to the hospitals wherever particularly if the person doesn't die at the scene where you've then obviously got a protracted period of care that may go on so it is a significant burden in terms of how we respond to that and that obviously then impacts on our ability to target other areas of risk taking on the roads and whatever else if I've got teams of officers dealing with fatalities trauma for the individuals involved in dealing hugely yes I mean there's no doubt about it I mean and this is a cumulative trauma if you like you mean you know traffic officers go out there daily and deal with horrendous scenes you know and there is a you know we have an issue and a duty of care or anything we deal with our officers as well so when you're looking at an average of 200 deaths a year over the last sort of 68 years and that's that's a lot of death and a lot of destruction 1900 serious collisions a year you know that's a lot of people injured and hurt unnecessarily in our roads just finally to confirm you please Scotland's more than up for this change we are we'll be ready we are we support it fully and we'll be ready to implement it on the date proposed thank you very much yeah I don't think it's an issue of whether we're up for I think it's the difficulties for the public we're really I don't dissent from what john has asked and what you've said and obviously you know people affected it's appalling but I think we're just testing how the public you take you must take them with you in enforcement um I hope sander followed by rodrick please thank you thank you convener and again you know it's just past 12 so good afternoon we know that 1 in 9 deaths in the roads you know basically are caused by drivers now over the limit and many many more injuries and collisions also but if I could just perhaps put a wee bit of perspective into what some people have been saying I remember recollect many many years ago when there wasn't what you might say a limit and it was carnage basically with people drink driving so I think they have got to take responsibility I agree with what Margaret said about the education and obviously you're looking towards putting that forward educating drivers I always think that a car in the hands of someone who's had a drink to me is a lethal weapon and perhaps people should learn their responsibilities in that respect but one of the questions I wanted to ask and it's leading on to the education and obviously I'm assuming it's going to be running the tv etc etc when this legislation comes into force we will have a different drink driving limit from the have in the rest of the UK how are we going to look at that is there going to be advertising down south or is it come over the border or whatever it may be my understanding of the campaign is there's national elements to this in terms of media and also broadcast media as well to make sure it's there it is being looked at just now in terms of whether that has to extend into other modes of transport you know whether if you're using a train you know so do you have a drink in the train if you're flying do you have a drink in the airport whichever way you're going obviously could have a different impact so that's being considered as well as to how we engage with the you know the operating companies and those who are providing those services so that you and again whether you're in motorway services you know so whether there's posters whatever else you know whether they're strategically placed so that drivers will see them so they're aware as they're heading either north or south where the change will happen so that's all being considered as part of the campaign there's a number of agencies because obviously a heavy reliance on social media as well to make sure that the messaging is out there so all the traditional media that I'm more acquainted with and also moving into the newfangled stuff to make sure we catch as many people as possible but there's a significant investment and it's a very extensive campaign that's planned it's not an unusual situation in other parts of Europe you know people are driving across borders with different limits and so I think there are systems that have developed and there might be some merit from international learning but it's not a great problem that you hear about from my colleagues in other countries so it's you know there are examples where this has worked without any great difficulty it would seem You can just say that Scotland has led the way in lowering the drink drive limit and it's only a matter of time before the rest of the UK fall into line. I have to say that Westminster they've already developed a handheld saliva device for drugs which I think is equally important as drink driving you know at present the field impairment test is pretty basic and you know it has been argued that there's more drug drivers on the road than drink drivers so you know I would hope that the parliament would see the next step in implementing you know a roadside drug testing kit to enable the place you know to tackle the casualties on the road. Just one final thought. Thank you convener. I do agree with everything that you've said in particular yourself sir in regards to the differences in the European legislation in different countries and that was a point I was trying to make they have moved on from there it's time we moved on as well and we can learn from each other. Thank you. Thank you. Thank you. Roderick please then Alison. Good afternoon panel. I just wondered if anyone on the panel thought that we were missing the trick by not going for restrictions on younger drivers and random breath tests. I mean it's a consideration I mean there's certainly I think the perception before is that maybe it was a step too far from that element of public support you know in terms of also perhaps mixed messaging. There's certainly evidence to suggest that younger drivers again in terms of capacity, in terms of tolerance, in terms of maturity, in terms of you know never mind driving skill that there is a greater risk and therefore some countries have looked at lower limits or whatever. But there does then come a point I think that I suppose again speaking personally I have a difficulty with where it comes to a point of well done you've held your license for two years you can drink more. So there is a degree for me that you know there's the argument I think and maybe I think Margaret was hinting at at the idea that you know you would continue to drive the limit down you know full time. If you look at the Scandinavian countries you know they're shocked that we're only just coming down to 50 milligrams you know that that's taken us so long to get there already. I think it's 20 or 30 they're sitting at just now. So there is that degree of you know the the reality and the argument around the impact and the impairment is one that affects everybody but it does a disproportionate effect that the young is my understanding although I'm sure Peter again can add more to that. Yes I think the British Medical Association and the Royal Medical Colleges would I think fully support both the things that you mentioned the graduated structure with lower limits for younger drivers simply on the basis of the demographics of the accidents that we we see including the fatalities weighted very much towards younger people. So although there's often talk about either younger generation are better with drink driving than older people are in fact the numbers don't really don't bear that out in terms of the profile of the of the serious accidents and fatalities and similarly with random breath testing I do think the level of public support and understanding about the importance of drink driving is such that I think the general public would accept random breath testing that the UK's hasn't really been referred to the UK's made a great deal of progress in reducing harm from drink driving but we still have a relatively low level of testing compared to other countries I think 15% of French drivers are tested every year and ours I think are single single figures in the UK so although other countries have much to learn from us in various ways that drinking driving has been approached one thing that one league that we're not top of is that is the testing rate and so I think you'd find the health bodies would support a process of random breath testing. Can I just make any law effective it has to be seen to be enforced and you know the penalties and the enforcement's got to be seen to outweigh the risk of offending you know in that sense you know we would support random breath testing and a lower limit for professional drivers like taxi drivers school bus drivers care drivers anyone driving in a care capacity we would support an even lower of 20 megs for a lower for for these drivers I don't know if the police could answer is that ever reflected in the sentencing of someone firing to be driving over the limit if they're a professional driver commercial driver I'm not sure of the whether the court takes a harder view of it or not I'm sorry no I couldn't really comment on that I'm not I wonder if it was reflected in sentencing just now I don't know Roderick you finished I finished thank you Alison John's covered most of my points I do support the reduction and because I thought it would make it much clearer for people that the message was very simple don't drink and drive and I'm concerned but some of the questioning today might kind of encourage people to start less trading off and time themselves and nots can I have some assurance that the public education campaign that's obviously going to need to be run over the next one will be a very clear one yes my understanding of having seen the the main sort of television advert is very clear which is just don't do it don't risk it I mean that's because I think everything else becomes you know well it's you know I think Peter's given some very clear advice but to how that gets interpreted or when did you stop how much did you drink how much did he eat you know I think these are the issues that you'll then find people potentially taking a risk I think the simple message has to be you balance it and you know people who are intelligent enough and can work it for themselves will be able to find that information online anyway it's there but I think for any for any messaging that we put out to say you know so much would be enough or make sure you allow so many hours would leave your leave us open to all sorts of of counter-challenge later would suggest there a sense that in the wider benefit to society in terms of health benefits that there might well be a knock-on effect in people's reduction in their alcohol consumption generally I think there would mean anything that you know encourages people to kind of reflect on their you know on their alcohol consumption is going to be a good thing. Driving injuries and fatalities represent a pretty small proportion of alcohol-related fatalities in Scotland probably it's certainly much less than 10% and I'm probably near to 5% so there's a lot of harm that happens from alcohol it's nothing to do with driving and of course we've been a lot of interesting things have happened particularly in Scotland you know to try and a lot of productive things have happened to try and reduce that so yes I think if this is part of a broader you know kind of education campaign that encourages reflection people that's a good thing I think one important thing though is that we've education on its own is a less powerful tool than we would often like to think and a combination of education and enforcement is is very powerful shape of behavior we see that with drink driving we see that with wearing of seat belts and so on so forth so while you'd love to think that the answer is in explaining things clearly to people in them changing their attitudes in fact that's a relatively we any marketer will tell you that's a real you also have to have your product easily accessible and easily bought by people so I think the combination of of education and a you know legislation as we're talking about here is is is the optimum mix to have absolutely plain and I think my colleagues here who teased out about the drinking the day before in no way support drink driving or you know and absolutely support the limit I think the question we fairly asked was you know how I mean obviously if you're daft enough to drinking late at night you shouldn't but there is a point at which someone doesn't know and I think it was fair to ask what would be a guidance not a get-out clause to mean you still take responsibility for what you're doing but some kind of guidance as to you know well at this point frankly err on the side of caution rather than something else I think just to clarify the position no means do we support and I think it would be fair to reflect from Margaret and Elena myself that that was our line of questioning because I think that's what people would be asking when they can you know what I'm okay for tomorrow and obviously there's the extremes you'll know you're not okay and there's and if you've not you're okay but there'll be bits in the middle where people are not sure about the next day and I think that was important an important piece to test out and I think that Dr Rice your information was helpful more of that would be very helpful it's information which the public can then decide and make judgments themselves and take responsibility for what they're doing but they do I think need the information put before them about what is you know is liable to take them into danger zone the next morning but it's not a get-out clause I mean yes we'd be saying to people if you've had a big night out don't drive at all the next day yeah exactly don't go in your garden next day I think just make that plain Alice I hope we didn't get the impression because we were not in any way I think being frivolous or in any way but trying to get people excuses and I apologize if you took it in that way I think one of the points of the 80 milligram limit is that people have tried themselves and not thinking oh well it's okay because I've done that and people have unintentionally and as in their minds been caught out and and I do think that this lower limit helps to make it much clearer that actually there's just no point in trying to say was yesterday I was doing that and we appreciate that but I think it's helpful to tease out can I just ask about another thing which is what nobody's asked about is random breath tests do you think that the public are you said the public are in support of random breath tests which I found interesting what's your data for that I don't have data on that I think there was a you give poll which I must have I could go back and look at but I suppose I was I was really just speaking from my kind of observations of the if you like the public having been involved in various debates around various aspects of alcohol drink driving is is one where there's a you know particularly kind of solid public support and I you know I've heard the arguments against random breath testing because of the the risk that it would lose public support and I think what I was saying is my my own views something all that up is that is that the public support for drink driving is very solid and I don't think that random breath testing would we'd put that at risk and I think it would be a move in the in the right direction and it's had long-term support from the health bodies simply testing your evidence you know the evidence base for it because I mean I can see why intelligence-led breath tests to someone would be would be a I don't know about random breath tests I don't know the answer to that that's why I was just asking you because we've already had the issue of stopping search and police doing that and alienating the public and whether this might I don't know just pose the question whether it might have a counterproductive effect clarification because I thought that in terms of intelligence-led breath tests if somebody reports to the police so and so has been in the pub drinking and they've got into their car you are able to act on that aren't you reasonable costably you know there's the three circumstances either committing a moving traffic offence involving the collision or in that reasonable costably of the vall calling on their system so I mean that so we go through the the festive safety campaign and we do a you know a large number of of roadside road checks because again we have the power to stop vehicles to examine vehicles to make sure the road worthy particularly in the dark there's always issues around lighting or whatever else so as we're speaking to drivers that after we can form the opinion you know from the smell of alcohol or but demeanor or whatever else you know which allows us then to make that requirement there has been surveys done and studies done particularly in Australia around random breath testing and I think there's some questionable elements about some elements of some of the data gathering but most of them have shown a move towards a support and last year we engaged with Glasgow University looking at a procedural justice programme around that just explanation of what we were doing so there's some follow-up that's still not concluded with some follow-up work on going just now but that was about you know again how we approached and how we spoke to people and we did find a lot of support because there is a an awareness you know it's Christmas it's drink drive time again we've been doing this for so long now that when people are stopped we find I mean having done it you know the cold face at 2 in the morning as well the reality is that most people are supportive and if you ask them do you mind providing a specimen even though because as we have done in the past some of the campaigns featured on breathalyzing as many people as we're willing to give us one so we can get the numbers from you know from that dramatic statistical perspective I never ever had anybody who refused or who declined to do it when offered the opportunity whether there's a need to do it we can do it and it will evolve for the opportunity as well that's clarifies that position it's just that we'd never gotten into that that sorry John you want one final point that you said that Murray there's some people might think that you know it's an extra tool in the army that there's nothing in your existing powers that inhibits your ability to rigorously enforce the legislation so is that no we can stop vehicles at any time traveling on the road so therefore at that point we can speak to drivers and you know that allows us to then form opinions which allows us to there are powers that allow us to do things from that point on you don't have cause you don't have cost to stop you don't have to break lights out or something we have separate sections for that but anybody driving on the road can be stopped by the police at any time I'll bear that in mind thank you very much I think that completes the evidence thank you indeed we move into private session