 Good morning, and welcome to the fifth meeting in 2015 of the Health and Sport Committee. At this point, as I normally do, I would ask everyone in the room to switch off mobile phones as they can often interfere with the sound system. In addition to that, I ask members of the public and everyone else to take note that some of us are using tablet devices, which are instead of hard copies of the papers. The first item on the agenda today is a decision on taking business and private. I ask the committee to agree to take in consideration of our approach to the national health service board's budget scrutiny in private future meetings, where it is our normal practice to do that. As the committee agreed, I should also put on the record that we have apologies today for Richard Simpson for who, for understandable reasons, is not able to be with us. The second item on the agenda today is the Assisted Suicide Scotland Bill. This is the committee's final evidence session on the bill, and we are joined by Patrick Harvie, MSP member in charge, Andrew Millan, head of the non-government bills unit, and Louise Miller, senior solicitor to the Scottish Parliament, and Amanda Ward, adviser to Patrick Harvie. Patrick, you are prepared an opening statement for us this morning, and if you want to proceed with that, we will go into questions. I will be quite brief. First of all, can I just put on record my thanks to the committee for the serious consideration that they have given to the bill during the inquiry. This is a more complex bill than many members' bills. I think that my previous members' bill was about two and a half sides of A4 and very relatively simple issues. This bill does include more complex argument and deserves detailed consideration, and I am grateful that it has received that. The commitment that I made to Margot McDonnell was to present her bill as best I could to Parliament. On that basis, I do not intend during the consideration to propose radical changes to the bill as Margot drafted and introduced it, but I have said from the outset that I am quite willing to consider changes from other members, assuming that they are properly drafted and would not undermine the basic principle of the bill. There are some areas where evidence to date has shown a good case for making some more minor changes such as improvements in the recording and reporting procedures. There has also been considerable discussion of the final 14-day time limit, and some witnesses have argued that that is needlessly restrictive. I am convinced that a reasonable solution can be found to that issue, and no doubt we can explore that in detail during the questioning. While I do not intend to propose any more radical changes, the difference in eligibility between this bill and the assisted dying bill at Westminster has been noted and discussed at committee. The committee may feel that the issues are significantly different in respect of terminally ill people than those with progressive conditions. If the committee eventually decided to recommend changes to these aspects, I would listen with an open mind to what was proposed. A different position on eligibility, if that was eventually decided, should, in my view, not undermine the basic principle of the bill or prevent Parliament from making progress on this matter. That is all that I wanted to say in my opening statement, and I look forward to the committee's questions. Okay, thanks for that, Patrick. You mentioned a couple of times the principle of the bill before, just to tease that out. Could you explain to us or take this opportunity at this point in time to explain to us what you believe the principles underpin in the bill are and how you believe that the bill achieves or promotes these principles? In my view, convener, the bill represents the continuation of a decades-long change in healthcare and medical practice away from a slightly top-down approach, which, as some witnesses have acknowledged, left in previous decades or previous generations, patients very often excluded from the decision-making process and saw information about their own condition withheld from them. We are moving, and we have moved some considerable way to a position that is much more focused on patient empowerment, on patient decision-making and on the principle that each of us has the right to determine major choices about our own lives. The position of autonomy, as various panels during the inquiry have made clear, autonomy is not and never has been regarded as an absolute principle, but it has an important place in modern healthcare and in the decisions that we make about our lives. The basic principle is to shift power and decision-making into the hands of individuals. I suppose that I would pose that as, in a sense, quite directly taking on some of the arguments that we have heard from some witnesses, arguing that the bill implies or suggests that some people's lives are less valuable than others. Nothing could be further from the truth. This bill takes as a first principle, almost at a philosophical level, the idea that because all of our lives matter, because all of our lives are valued, we have the right to make major decisions for ourselves in a supported and informed way. The principle of this bill is to place that power in the hands of the people about whom those decisions are being made, so that we each have a right to make those decisions for ourselves in a fully informed and supported way. Richard Lyle. Thank you. Good morning, Mr Harvey. I listened quite intently to your opening statement, and some of what you said I was going to ask you, but we all had a high regard for Margo McDonald, and I first of all thank you for taking our bill forward and also for the work that you have done on it. The concern that most people have, whether you support this bill or not, is that there is a concern, and there are flaws, and you say that it is very complex. In regards to the comments that have been made, and you have sat in most of the evidence sessions, if not all, how would you address some of the concerns that people have, the flaws that are in this bill? How can we resolve it? Will it be, and you are basically saying that you welcome amendments? How many amendments do you think would need to be made to this bill in order to make it fit for purpose? I would argue that the bill is fit for purpose. I do not think that there have been many major pieces of legislation that the Scottish Parliament has passed that have not seen some amendment. The parliamentary scrutiny process is an important one, and its value is shown through the way in which bills are shaped during that scrutiny process. Of the particular areas that I have flagged up in my opening statement, it would be relatively straightforward to ensure that initial reports are to the Crown Office of Procurator Fiscal Service rather than to the police. That is something that has been broadly acknowledged as the right change to make, a fairly minor change, but the right one to make. The police, the Crown Office and other witnesses have all broadly agreed that that would be an appropriate change. It would be relatively straightforward to ensure that there is some process for reporting to a central body that maintains an overview of the cases that have gone forward under assisted suicide. Those are relatively straightforward changes to make. As I have said, my view would not be that I would be proposing more radical changes. Where some of the concerns have arisen, for example, the context in which we make decisions relates to the notion that autonomy is not an absolute principle. All of us make decisions about our lives in context. That, for example, is one area where the situation might seem to be very different in respect of someone who is dying, someone who has very little time left to live and wants to take control of the timing of that death and the manner of that death. Those issues are very different in that circumstance than someone who has a progressive condition. It may be that the committee will feel that it wants to take a different view about eligibility for those reasons. I think that rather than trying to answer the question about what all of the concerns are, I wonder if there are specific aspects of concerns that the member wants me to reflect on. In discussions that I had with Margo, it was always my thought that she was talking about people who were near the end of life, who felt that they wanted to go with dignity, but what has been thrown up by many of the evidence sessions is that someone at 20 could walk in at a doctor and say, I am fed up with my life, I just want to end it, I want to go. Do you believe that that was Margo's intention or do you agree with me that her intention was that people who are near the end of life, who feel as though they have a situation where that is their right and their belief and most of the people who are contacting us are saying this? Do you think that that was her intention rather than someone at 20 walking in and saying, I want to commit suicide or I want to be assisted to die? I think that you are right in general. The phrase, a bit fed up with life, was used by at least one committee witness in a suggestion that that would be a reason that someone might seek an assisted suicide. Frankly, I do not think that there is any real evidence from the other jurisdictions that do have a form of assisted suicide that people would make such a decision on those grounds that people would even seek an assisted suicide on those grounds. In fact, in Oregon, which there are some differences from the Oregon scenario but perhaps the closest parallel, the evidence shows that the vast majority of people who go through with an assisted suicide shorten their life only by a very short period. The notion that people would seek an assisted suicide because they feel a bit fed up, I do not think is realistic. Nor, indeed, would such a person be eligible. It is very clear under the criteria of this bill that it would be completely unacceptable, not legal under this bill for such a person to be offered assistance to commit suicide in this way. I think you have it right in your general description of Margo's intent and particularly when we look at the question of someone's own judgment that the quality of their life is unacceptable and a recognition from a medical professional that that judgment is consistent with the facts that are known about their condition. These are the circumstances, these are the situations in which people are living and indeed in which some of them are committing suicide, statistics show that there are probably something in the region of 50 suicides of terminally ill people a year at present. That is a matter that should concern us all, it is a matter that should distress us all in fact. The circumstances in which they are making those decisions are circumstances that I do not think any of us should be willing to say that the law leaves people with no other option but that. Thank you, convener. The bill seeks to make assisting someone to commit suicide legal, to decriminalise assisting someone to commit suicide. However, it very expressly outlaws, as the law does at the moment, euthanasia. It does not define either of those concepts and some of the evidence that we have had seems to suggest that there is a very thin line between them. Some people saying that actually helping someone to take the medication of whatever would be assistance, on the other hand, people saying that just being there and supporting is assistance. What would you define both as? First of all, I would want to explore this notion of decriminalising, because as has been made clear from the evidence that you have heard from Professor Chalmers that is included in the papers for today's meeting, there is a real lack of clarity about what is criminal and what is not criminal. Even beyond what is and is not criminal, what would be and would not be open to prosecution under the current law in Scotland. Under the current law in Scotland, people who may be contemplating asking for help to end their life because of intolerable suffering, or people who may be asked by a loved one for help to end their life because of intolerable suffering, have no clarity at all about their legal position, about what actions they may or may not take. To characterise this as decriminalising assisted suicide is slightly too broad a description, given the lack of clarity in the current law. I think it is certainly arguable that some greater clarity might be sought in terms of what forms of assistance are necessary. As I understand Margo MacDonald's original intention, she felt that it was inappropriate to be absolutely definitive in listing an absolute number of specific acts that count as assistance that are legally protected under the legislation. Obviously, we cannot necessarily foresee every scenario in which practical assistance may be necessary. We also cannot necessarily see technological changes in terms of particular types of drug or drug delivery system that might require one form of assistance or another. The argument was not to be prescriptive but to talk about someone giving assistance to someone who needs that help in order then for that person, the person who has requested assisted suicide ultimately to take the final act. That might be drinking from a cup. It might be operating machinery that an injection pump machine, for example, which delivers a drug intravenously. I think that Margo MacDonald's intention was not to be overly prescriptive but to be clear about the distinction between giving someone assistance to enable them to take a final act and, on the other hand, taking that final act on behalf of someone that is outlawed in the bill and which would in many ways give greater clarity that that kind of action is illegal in Scotland than currently exists. I hear what you are saying about the clarity of the law but we received evidence as well to say that assisted suicide under the bill could also be challenged and investigated in the same way if there was anybody concerned of coercion or the like. I just park that there. Coming back to the definition of euthanasia or assisting someone with suicide, if we take an example that we know of because we cannot prejudge what might happen in the future but, for instance, if someone were to swallow something that was going to commit suicide by swallowing something, would assistance be preparing that medication for them to pick it up and swallow it themselves? Would it be going as far as putting the medication in their mouth to allow them to swallow it themselves? Those are the kind of areas that people are keen to find out because some people would argue that putting something in somebody's mouth that maybe they did not have—if they have not got the ability to lift something to their mouth, then putting something in their mouth does not give them a lot of choice because they will not have the ability to spit it out or whatever. It is something that worries people and we need to have some kind of clarity. I would certainly take the view that there is a very clear answer to your first scenario in preparing a mixture or preparing a drug for someone to take. If someone is not able to undertake that preparation themselves but has someone assisted them by doing that, it seems to me that that would count as assistance rather than taking the final act. The section that prohibits euthanasia, the section that prohibits another person taking that final act on behalf of the person who has requested assisted suicide, that would not be breached by simply preparing a drug for someone to take. I think that your second example is probably quite understandable that you are exploring ideas where the line is finer. I think that that is probably the kind of area where the requirement for directions and guidance to enable medical professionals and licensed facilitators to reach a proper understanding of how the legislation is to operate in practice. It seems to me that that is an area where that guidance and direction should be given rather than on the face of legislation. It seems that if the legislation is making the definition quite clearly that assisted suicide would be legal and euthanasia would not be. Surely the legislation has to make the definition between the two acts because it is saying that one thing is illegal and one thing is legal. It is surely not down to guidance as to what is legal or illegal. The basic principle is that to take the final act of which causes death, the action that causes the death of the individual must be the action of the individual themselves, not the action of another person. I believe that there is a case law in relation to Diane Pretty and Debbie Purdy regarding putting a drug in someone's mouth that would be seen as another person taking that final act. However, in the absence of legislation either in England Wales or in Scotland, the lack of clarity is far greater today than it would be under this legislation. What this legislation seeks to do, and I think that in relation to Professor Chalmers' evidence, it is clear that it would not resolve the lack of clarity in all circumstances, but it would provide some circumstances a clear path where there is clarity, where someone knows the conditions under which they are entitled to ask for assistance and other people know the conditions under which they are entitled to give assistance. For anyone who sought to procure or to instigate an assisted suicide out with the terms of this legislation where it passed, the courts would deal with the matter as they would deal with it today. That legislation seeks to give clarity about a path that is acceptable and which has legal protection. I want to return to some earlier points in relation to eligibility criteria for in relation to assisted suicide. As the bill outlines, it is an illness that is for the person either terminal life shortening or a condition that is for the person progressive in either terminal or life shortening. Obviously, there will be no definitive list of what that would mean. For example, would liver disease, would heart disease, would diabetes, would smoking. I am trying to tease out how broad those provisions are. Have you given any calculation to how many people there are living in Scotland today who would qualify, should they wish to, to apply for assisted suicide under the act? I would say that that would be too broad. Have you done a calculation of how many people living in Scotland today would qualify? As with definitions of what counts as assistance, it would be inappropriate to produce a definitive list of conditions given that medical science changes and our understanding of conditions and illnesses changes and such a definitive list would be in danger of rapidly going out of date. Some of the arguments from a few witnesses seem to be painting a really very broad, quite unreasonably broad interpretation of the eligibility criteria. I think that one witness suggested everyone in Mary Hill would qualify. I think that that would disturb you as much as it would me, both as members who represent Glasgow. It is very clear that the eligibility criteria in terms of terminal illness and life shortening conditions are not the only parts of the eligibility criteria. Someone who, in the example that you gave, smokes. Yes, smoking would shorten somebody's life, but it is not in itself a progressive condition. Nor, indeed, would it necessarily give rise to a quality of life that that person finds unacceptable. Nor would a medical professional be able to sign off on a first or second request in those circumstances, because the facts of the person's life would not be compatible with the test that is required under the legislation. As far as take-up is concerned, and the likely numbers, it is clear from many jurisdictions that have a form of assisted suicide that take-up is relatively low. In fact, the projection in the accompanying documents that were produced by Margaret MacDonald on the bill's introduction suggests something in the region of, I think, 80 per year in Scotland. We cannot be crystal ball gazers on a matter like that. It is pretty clear that that is comparable with the take-up in other jurisdictions, but it is very clear that, even where there have been political decisions in other jurisdictions to broaden the eligibility criteria and that that may have led to an increase in numbers, it remains a very low proportion of overall deaths. The only other thing that I would say on that is that I have a slight concern that an overly concerned focus on the number that would take up assisted suicide almost implies that there is a right number or a wrong number. If we believe in the basic principle of empowering individuals to make decisions about their own lives, we should not be in a position of telling them that they have made the wrong choice or deciding that the wrong number has made that choice. It seems to be reasonable to assume that take-up would be comparable with other jurisdictions, but I am slightly cautious about a position that implies that there is a right or a wrong number. I listened carefully and I was not suggesting that there was a right or wrong number. I was asking how many people would, in theory, potentially qualify within Scotland. For example, they would type two diabetes count as a progressive condition to allow people to if they so wish to. I genuinely do not know because we have evidence to say that the eligibility criteria is too broad, so I am looking for clarity in just how broad that eligibility criteria is. It seems very clear to me that merely having a diagnosis of type 2 diabetes would not satisfy the tests under this bill, which have been described by some witnesses as a high bar. Someone would not be in a position of saying that the quality of their life was unacceptable. A medical practitioner would not be in a position of countersigning a first or a second request on the basis purely of such a diagnosis. Where would the guidance be for the medical practitioner? I am looking at the illnesses for the person, so it is very much subjective, rather than objective. If someone goes to their GP and goes, I am living with this, I do not want to live with this any more. For me, I do not want to continue with this. Is it subjective to that person or is it objective criteria for the clinician? That is what I am trying to get to, where the clarity is within that. It is maybe worth just pointing out that, in relation to Mary Hilburn mentioned before, I stay there. I think that the discussion was around the amount of people who are on prescription antidepressants and current high suicide rates and significant mental health problems that have been set in parts of the community and whether or not they would be more predisposed because of other vulnerabilities towards—let us not mention me—there are lots of places across Scotland that are like that. Mary Hil is a wonderful place. There are lots of places across Scotland where someone, because of their life experience, may find it hard to cope with a life-limiting condition, and it is very much subjective. I am just looking for a bit of clarity about whether or not GP's clinicians will be given some guidance as to say, well actually no, we do not agree with you that we do not agree with you in relation to this. The person says, well actually, but it is for me to make that judgment call. It is autonomy, it is self-management of my condition, it is my independence. I am making that decision and the clinician goes, well actually I do not agree with that. Where does the balance of power lie in that relationship and will there be guidance for clinicians? Thank you. Your points about the social context are absolutely understood and well made, not only in relation to geographic areas, but to categories of people or types of people or life circumstances, absolutely. I think that it is important to acknowledge first of all that the phrase for the person which you mentioned is not simply a reflection of the individual's opinion, it is intended to recognise that the same illness or condition can have a very different manifestation, a different impact on different people. Secondly, there is a question of whether the social context, the social circumstances in which somebody lives having a likelihood to shorten their life is what is intended. My understanding of the bill as it is drafted is that it is the condition itself that needs to be life shortening rather than the social context in which a person lives. I would also mention that in relation to the balance between subjective and objective aspects of this, section 9 to C, this is the part where someone has made a first request and an endorsement of this is required by medical practitioner statements. The practitioner may only make such a statement endorsing the request if, in the opinion of the practitioner, the person's conclusion that the person's quality of life is unacceptable is not inconsistent with the facts known to the practitioner. So, yes, there is an individual judgment about a person's own quality of life, but in order to endorse—have a medical practitioner statement endorsing that first request, the facts must be consistent with that person's judgment. It is important to recognise that, although an individual's judgment may be subjective, the medical practitioner also has an objective test that they have to be satisfied with in order to sign off on that request. That is helpful, but would there be further guidance in relation to the practitioner to decide in relation to what facts he or she should take into account when signing off on that request? Will there be further guidance in relation to that? Yes, I am no doubt told that there would be professional guidance in relation to many aspects of that, including the medical professionals involved. I would also add that, in relation to some of the vulnerability that Bob Dorris is talking about in terms of social context, the only robust piece of evidence that we have from other jurisdictions is from the Netherlands and Oregon, which looked at a range of groups in terms of their vulnerability or perceived vulnerability and found no evidence that they were more likely to go through with assisted suicide. In fact, they were less represented—those groups were less represented than in the general population. Again, I think that we should be looking at what is the experience of other jurisdictions and what can we learn from the actual lived experience that they have? That is surely helpful. In relation to the guidance that you referred to, Mr Harvie, you mentioned professional guidance. Are you assuming that beyond the narrative that you read out from the legislation that any additional guidance would be professional one via the medical profession, rather than statutory guidance as part of the bill? There have been a couple of areas where it has been clear that the reserved nature of the regulation of the medical professions is an area that we are not able to step over. In relation to a wide range of life and death decisions that medical professionals make on a daily basis in Scotland under the current law, it is very clear that the existing nature of non-statutory guidance, something that this Parliament cannot legislate for even if it wishes to, is providing a proper context in which decisions of this nature can be made. On that point of guidance, Mr Harvie, the basic principle that you referred to earlier on was empowerment of the individual. It seemed to me that we were going to get back to our situation if we passed a bill that we would have guidance that would be developed and drawn up by professionals, which would take us back to the point that it would not be the individual, professionals that would finally agree how that would work. Is there an issue here with the basic principle in terms of its scope, as you have just described, and indeed the concession, that how that would be developed as a medical treatment would be signed off by medical professionals who seek to diminish their power over the individual? I might be getting it wrong, but we are heading back to the professionals having the final say. I do not see how that meets the principle that you outlined earlier over the bill. I understand, but I do not think that it does. What we are talking about is very clearly going to be people whose lives are already intimately connected to not just medical care, but very often complex medical and social care as well. It seems inevitable that, if people are able to make those decisions, they are making them in the context hopefully of the loving care of their family, but also of the professional and medical care of those working to support them. The way in which medical professionals engage with that, the way in which they relate to that decision making process, absolutely needs to be the subject of regulation. I do not think that I have met anybody who is a supporter or opponent of the principle of that legislation who would not agree that a test of capacity, for example, needs to be involved, that someone's mental capacity to make a decision to understand the context in which they are making the decision and the consequences of it. It absolutely has to be a part of the legislation. For a medical professional to be able to sign off on a first or second request, it seems quite unreasonable to imagine that they should do so in the absence of any guidance about how they apply the professional standards. We are talking about the context of eligibility and the, I do not know what it is, a new phrase that you used, intolerable suffering that you referenced this morning. It is not too far fetched to get advanced diabetes going blind, amputations and intolerable suffering, which you would wish to keep open for that person to be eligible for assisted suicide, I presume. If it is their judgment that the quality of their life is unacceptable, they would be open to— How does that square with the principle of that individual? The principle that you outlined today was that the individual had that opportunity, if not right, to have that final say over the say of professionals. He should have the professional support to proceed on his individual will. If those guidelines say that we will not counter-sign anything other than other definitions that other jurisdictions are operating or propose to operate, which would determine all this, so that would immediately say that people with advanced diabetes or other similar comorbidity problems who consider them their lives as they currently are intolerable would be excluded. You are not prepared to keep that as open as possible so that the argument can be made for those people, irrespective of medical advice. I have been asked questions about specific scenarios and I have tried to explore that. It seems to me that it is for the committee to determine if it accepts the basic principle that some form of legalised assisted suicide should be provided for in Scotland. It seems to me that it is up to the committee to determine whether it wants to restrict that only to terminally ill people. I do not intend to make a case for that change, although if the committee reached that view I might understand why that view had been reached. It seems to me that the implication of what you are suggesting in terms of the absence of guidance for medical professionals would leave us open to the criticism that Richard Lyle mentioned some witnesses had made earlier that this was simply about people who were fed up with life. The requirement has to be that this is about a serious decision made for serious reasons in circumstances that society would accept that someone has a right to make this request for assistance and that we have a duty as a society to give that assistance. Most people would not accept that that should be done in the context of someone who is simply fed up with life. The notion of someone reaching a decision that the quality of their own life is unacceptable to them and a medical professional accepting and counter-signing in the endorsement of the request for assistance, that that person's own conclusion is not inconsistent with the facts that are known to that medical professional, that seems to me the right approach. Mike Mackenzie Thank you, convener. It seems to me that in terms of the criticisms that we have heard of the spirit of the bill that the most significant one certainly in my book is the possibility that the bill gives rise for coercion, that people may feel that they have been coerced into the situation where they take this choice. Most of the critics of the bill and of the spirit of the bill seem to proceed from the basis that the status quo is actually perfectly satisfactory. We have heard evidence that suggests that it is not in legal terms because currently we seem to be in a very great area legally. The decision of Procurator Fiscals whether or not it is in the public interest to prosecute or not seems to me to be a decision that one individual might differ greatly in taking that decision from another. Equally, we have heard evidence that it is perfectly legal for doctors to prescribe lethal doses of painkillers in certain circumstances. That would seem to be one in which we are reasonably happy for doctors to take the decision, public prosecutors to take the decision but not individuals to take that decision about themselves. What I am getting at in terms of this significant concern about coercion, does the status quo in your opinion offer any safeguard for the possibility or against the possibility of coercion? In that sense is the bill perhaps neutral in effect rather than giving rise to this possibility? I would certainly say that I do not believe that the current law adequately protects people from the possibility of coercion. For example, the estimate that some dozens of terminally ill people currently commit suicide in a way that is very clearly unsupported, not part of a situation in which medical professionals or others can have an oversight of and to ensure that they are free from any aspect of coercion. It seems to me that the current law fails to give that protection. One of the witnesses, I think that it may have been the care not killing campaign organisation, argued that the best approach, the most defensible laws are those that give a clear line about what is forbidden but then give very broad discretion to the courts to determine whether compassion is required and whether a prosecution is legitimate. I think that that gives the absolute minimum level of clarity, the lowest possible level of clarity to people who are in these very difficult circumstances as to what is permitted, what they may ask for by way of assistance, what they may give by way of assistance but also how they can access protection if they are under the threat of any form of coercion. I would have to say that other options exist for the committee if the committee was minded to find in favour of the general principle but felt that there was some additional safeguard being required against the possibility of coercion. The committee might even feel that a criminal offence should be created in relation to trying to induce or incite someone to make a first or second request under the legislation that could be criminalised. I think that that in some ways would give a clearer position in terms of what was against the law than the current legislation does, which clearly isn't even giving clarity as to whether suicide itself is legal or illegal as an act, and therefore what situation somebody is in who does either assist or pressure someone to take that action. I think that there are options that the committee has open to it either to endorse or indeed to strengthen the provisions against coercion, but it would be quite strange to imagine that coercion is not an issue either in the case of people who currently commit suicide in these very difficult circumstances or who make other decisions about their medical care such as the decision to refuse or to end a form of treatment or to undergo a very risky form of treatment. The possibility of coercion exists today in those circumstances. I'm confident that the vast majority of medical professionals who are providing that care would treat that very seriously and would be capable of identifying and addressing those concerns. That bill would create a much clearer legal context in which those issues can be addressed and additional protection provided. In terms of the general discussions and evidence sessions that we've had, and I know that you've intended to think all of them, if not certainly most of them, how far do you feel that our discussions have been characterised by a kind of disinclination to discuss the whole business of death that we have as a society? The second thing being that as a society we have a kind of cultural taboo against suicide in general. We're not approaching that from a neutral or objective standpoint, but rather, it seems to me, some of the legal witnesses from a perspective that's perhaps not as rational as it ought to be. I think that's a fair comment. Can any of us really approach any aspect of this subject with a completely neutral mind? I don't know how I would feel if I was in the circumstances that this bill envisages for people. I don't know what decision I would want to make, and it's very difficult for any of us to think entirely objectively and neutrally as though this is merely an academic question. It's not. It's a question that engages with people's, yes, academic analysis and legal analysis, but also with people's emotional lives and, for some people, a very important religious or spiritual aspect of life. People do approach this issue for these reasons with very different worldviews, with very different attitudes to the meaning and the impact both for themselves and other people of a decision like this. It's precisely because people approach this question with such different worldviews and attitudes that our society should respect people on their own terms, in my view. To our greatest extent possible, empower people to make informed decisions, assuming that they are adults with the capacity to make those decisions, to empower them to do so and to support them to do so. The only alternative is for a society to decide what is right for everybody and to impose that decision on everybody. On the mic's clarity on that, we've heard the evidence that we have an effective safeguard for the protection of vulnerable people. That is to maintain the law of homicide and someone who causes the death of someone else should be reasonably expected to be investigated, justify their actions and, indeed, may have to face prosecution. We've had evidence that that's clear, ambiguous and the outcome will depend on what motivated that person, where it was a wicked intent or whatever, and that it can be charged a murder or a homicide or be able to justify their actions. That's clear, it gives protection to vulnerable people, we've heard, and it's something that we would expect when something is serious as the death of an individual takes place. It's unclear about that. It's not you on question, I'm referring to the evidence and I'm addressing my question to Patrick. I'm asking Patrick. There is clearly a very significant difference of opinion about the degree of clarity that the current law provides about what is legal and illegal and what might be prosecuted or not prosecuted. I suppose that we're left in that context with a question about whose responsibility it is to give clarity. Do we leave this to the courts, as has been done south of the border, and some progress has been made through those court actions in seeking prosecution guidelines from the DPP that hasn't happened in Scotland? Do we leave this matter for the courts to determine our case-by-case basis with people having to go through the most extraordinary efforts over prolonged periods of time when they're facing, as Mike rightly reminds us, profoundly challenging circumstances as they approach either an illness that causes them intolerable suffering or an illness that is going to result in their own death? Do we leave people having to go to the court and asking, asking, asking time and time again for some degree of clarity, for some change in the law, or do we leave them simply in a position where those who are wealthy enough or who have enough support around them and resources to make the trip to another jurisdiction where this is legal? Or should Parliament make a decision? I think that it's pretty clear that we have a situation where, yes, there are concerns around issues about coercion, there may be differences of opinion about what the appropriate level of eligibility should be, but it seems to me that there is an overwhelming public mood, as shown from consistent opinion polling over many years, that people who take an action in the best of intentions, an act of compassion to end the suffering of a loved one or allow them to do that on their own request at their own instigation. I think that there's a clear public appetite that people in that situation should not be prosecuted, convicted, sentenced or imprisoned. Now, do we simply leave that to the courts to determine in every individual circumstance or does Parliament have a responsibility? I think that it does to set the expectation to make it clear that there is a legal option which will be well regulated, which will be defined and monitored and supervised to make that decision in a supported context. I think that it's Parliament's responsibility to make a decision here. It may be that Parliament ultimately wants to decide that people in these circumstances are all criminals and should be prosecuted. I think that that would not be in keeping with the public expectation on this matter. We could change the way that the prosecutors and the law deal with those situations, couldn't we, as you'd referred to as guidelines? Prosecution guidelines, you mean? Well, yes. We could change the law and our guidelines and that to give a greater understanding and explanation about what circumstances would be fair and what would be justifiable or whatever it could be. That is indeed an option which the law advocate may wish to consider. For the third time, I will refer to Professor Chalmers' evidence where he I think toward the end of it suggests that the decision of the law advocate not to take steps to issue a policy similar to that by the DPP, Professor Chalmers, says that that approach was wrong, it remains wrong. He goes on to question whether the lack of clarity about prosecution rules is even compatible with ECHR. I take the view still that whatever prosecution guidelines might say, this should be a matter for Parliament to decide what the law says, rather than for us to be leaving this for individuals to have to go through a lengthy and a stressful court process simply in order to seek clarity. The net mill and then I'm followed by Dennis Robertson, Dennis, after the net. You alluded briefly earlier on to the fact that our conscience clause cannot be included in primary legislation and presumably therefore not in secondary legislation either. We'd have to be dealt with through professional guidance and of course if we know professional guidance is not legally enforceable. I think that this has caused significant concern to a number of the health professionals. I think that when particularly the pharmacy representative was giving evidence, she really felt very, very strongly that there should be a much stronger way of people not taking part in action if this bill becomes law than just professional guidance. Have you any comments to make on that? I think that I mentioned in relation to the test of capacity that I've never met anybody who takes a view on this bill who doesn't agree that such a test is required. Similarly, I've not met anybody who's taken a view on this bill supportive or in opposition to the bill who doesn't agree that if it's passed, there should be a conscience clause of this nature. We're in a position where we're not able to place that on the face of the bell, that's for purely legal constitutional reasons. Whether the view is that that would be better on the face of the bell or not, it's clear from a number of witnesses that the provision of that option, that conscience option in guidance, would be an acceptable provision. A number of witnesses have said that in writing, and I think that at least one or two have made that clear in oral evidence after my questioning during the committee's earlier sessions. While that is very clearly something of great importance to those who would not be willing, particularly those medical professionals who would not be willing to participate in assisted suicide, it is one of the more easily resolved matters. There's no disagreement in principle that individuals should be able to make that decision. I don't think that there's any substantive disagreement that placing that in professional guidance would be an adequate protection for them. We have had inevitable comparisons to the previous enacted abortion law and the fact that courts can overturn guidance, and I think that there was a recent court case where nurses who did not want to be taking part in abortions were essentially ruled out of order by the court. Does that trouble you that this could happen? Down the line, admittedly, that this could happen with this bill? No, and the reason why it doesn't trouble me is that the intent and the consequences of that particular case have been somewhat misrepresented. What was sought there was not to overturn the conscience clause in relation to abortion. What was sought there was to dramatically expand the protection in terms of conscience clause from those who were not directly involved in providing abortion to those who had more ancillary or tangential relationships with those others who were providing abortion. That was in effect legal activism in order to have the effect of reducing the ability of healthcare professionals to provide abortion services. I do not see any relevance to the issue before us today. It seems to me that the important thing is to ensure that those, perhaps a majority, perhaps not, those medical professionals who would be unwilling to have any role in providing—or, for example, in signing off on a request for assisted suicide—are able to decline to do so. I do not think that that is technically difficult to achieve and I do not think that there is any principled opposition to doing so. The other suggestion that I might make is that even if we were able to place that on a statutory basis, if it was legally possible, if it was competent for this Parliament to put that on the face of this bill, clearly it is not in terms of regulation of the professionals, I do not think that it would have a material bearing on a case similar to the one that you mentioned if one was to arise, but I see very little likelihood that it would. Okay, the other thing that can almost ties in with this is that there is a feeling for people who are—medical people who opposed the bill—that this could change the sort of relationship, the patient-doctor relationship of someone who is presenting with a terminal illness, that the assisted suicide might well become an alternative treatment option, which I imagine I can see would radically change the position of trust between patients and their doctor. Do you think that you see any ethical problem with this? Oh, there are certainly ethical factors to consider, as there are in many aspects of medical practice. Would it change the relationship between doctor and patient? The relationship between doctor and patient is continuing to change. As I said earlier on, I think that there has been an on-going long-term and very welcome change in that relationship from what I might put in simple terms, a doctor knows best attitude, which once was very common, once was the normal expectation, now to a position where autonomy, recognised as a non-absolute concept in philosophical terms, autonomy is an important part of that relationship. We seek to take the view where individuals are informed and empowered to be a part of the decision-making process, to be central to the decision-making process. I see this as a continuation of that change. In itself, the most likely cultural change in the relationship between doctors and patients perhaps relates to what Mike McKenzie mentioned about the cultural reluctance that we have to discuss death. I see that as opening up the possibility, not guaranteeing but opening up the possibility that it becomes much more normal for people who are fit and well in registering with a GP, for example, to have a discussion about what a general attitude might be. Although, as I said earlier, I do not know what decision I might ultimately make if I face these circumstances, I suspect that I would want to make a preliminary declaration and have that recorded in my medical records at an early stage before I was seriously contemplating the position of having to ask for assistance to end my life. To have that discussion with a doctor openly about the general attitude that one takes to this issue could be a very positive change and a welcome one. As I say, a continuation of the transfer of power and decision-making about our lives to the person living a life. I absolutely agree with you about the need to discuss one's ultimate death, but the same applies in relation to palliative care. We know that manicurey feel very strongly that there should be open discussion from the time of diagnosis. People should be looking forward to the end, if you like. I think that some people feel that there has been incompatibility here between really promoting really good palliative care and the next treatment option, which is certain death by one's own hand. I don't know what your thoughts are on that. As with questions of uptake, I think that we should look at the experience of other jurisdictions where some form of assisted suicide exists legally and where the provision is made. The evidence shows no impact in undermining palliative care, either in terms of its political importance and the investment that is provided or the quality of that provision. In Oregon, for example, the quality of palliative care is considered excellent and the use of assisted dying legislation has been described as very low by researchers in that state. Investment in palliative care in Belgium and the Netherlands has increased since legislation was passed on their versions of the legislation. I think that it is clear that those are entirely compatible options and that if we seek to empower people, if we seek to give people the ability to make their own choice on their own terms, then what we will do is ensure that both of those options are provided to a high standard and that they are both regarded as having political importance. I see no evidence from around the world that those are not compatible approaches to patient care. Patrick Harvie said that he would envisage that in your general discussion, first meeting with your GP, you would make a primary declaration. How does that then impact if your GP and we understand something like maybe 5 per cent of the medical profession are willing to engage with this, then only 5 per cent of people will be able to do that in their initial contact with their GP or do you suggest that everyone should have an initial contact with a GP who is willing to assist this legislation? Doesn't appear to me compatible with the conscience clause? The section 4 of the bill doesn't require that the person's own GP is the person who endorses the preliminary declaration. We are hypothetical to a certain extent here, but if this bill had been passed and had come into force and I had a discussion with my GP making it clear that I wanted to lodge a preliminary declaration, my GP was unwilling to do that because of a conscious objection to the whole principle, but I was still happy with my GP and I wanted to stay with my GP, then it would be perfectly reasonable to ask for somebody else, a different medical professional, to endorse that preliminary declaration. But it still opens up the possibility that I can have this discussion in the knowledge that ultimately a decision is open to me, which previously legally would not have been open to me if I was facing those circumstances. I don't think that the approach that I'm suggesting to the preliminary declaration is in any way in conflict with the principle of a conscience clause. How could the GP know that he would have capacity at the time? It seems to me that if you make it that early on, the GP can't judge one if the situation is intolerable, if you will have capacity. Do you understand me? If somebody can just put on the records, it seems that that then doesn't become a safety net at all. The preliminary declaration being endorsed is not a statement that somebody has the capacity ultimately to request assistance to commit suicide and for that to be taken forward. That capacity test is much later on in the process or at least later on in the process. If you look at the preliminary declaration itself, which is in page 12 of the printed bill under the statement, the note by the medical practitioner simply says, I'm satisfied that the preliminary declaration and witness statement conform with schedule 1 to the act and on the basis of the facts known of no reason to believe that anything stated in the declaration or witness statement is false. This is not about saying that someone can now proceed to having assisted suicide. There are significant further steps, the first and second requests, which somebody would make when they were felt ready or felt the need that they wanted to request assistance to commit suicide. The preliminary declaration is an earlier stage, which simply records in the patient's records that this is a declaration that they've made. I would call in with a supplementary on this line of question and Mike on a supplementary on this line of question. Along the same lines, let's assume that there's been no preliminary declaration in terms of going to your GP or whatever and we're looking at a situation where someone is drifted into palliative care and starts to think about things themselves. This is one of the things that's been running through my mind and all through the deliberations that we've heard in terms of how we actually get to deciding, bringing up the subject, particularly if you haven't thought about it before, particularly in terms of a, let's assume, a degenerative disease that has crept up over a number of years, but somebody's been particularly strong, hasn't thought about going to his GP, being told about palliative care, but eventually through the course of long-term illness, suddenly decides or hasn't decided or isn't aware. It's that relationship, I suppose, going to the palliative care doctor. Is it his or her position that she should or he should bring up the issue of assisted suicide, or should this be the option solely brought up by the patient? Because I think this is where the relationship aspect within palliative care, in my mind, is a little bit grey, murky, and I'm not 100% sure how this would be brought up. Is it the place of palliative carers who are dealing with the end of life to bring up this option? I think rather than Collin Cair's description of grey and murky, I would acknowledge that these are difficult discussions to have. They are difficult discussions to have now in relation to somebody's ongoing care. When, for example, would somebody discuss with a patient that they have a right to decide to end particularly critical treatment such as dialysis? When would somebody raise with a person that they have a right to refuse nutrition or hydration, for example? In the knowledge that their death would be an inevitable consequence of that. When would somebody have a right to raise the question of a range of critical decisions that somebody might make that will affect their prognosis, their likelihood to continue to live? Even the questions about somebody's attitude to pain relief will inform a subsequent decision or could inform a subsequent decision about the double effect doctrine and the impact that that would have on somebody's life. If we take the view that people have a right to be central to that decision-making process, then it's clear that people have a right to information and advice about what the options are. Professor Chalmers' evidence here is very recent and it's not been given much scrutiny to date for that reason. In relation to the provision of information or advice, either in the interpretation that says that suicide itself is a criminal offence or in the interpretation that says that suicide itself is not a criminal offence, Professor Chalmers is very clear that the provision of advice or information about suicide is unlikely. Under the current legislation is unlikely to result in criminal liability or is not normally regarded as sufficient for liability. Those are complex and difficult questions that need to be addressed with sensitivity today in the current context in relation to a wide range of treatment and care options. They would remain complex and sensitive issues to raise in the most professional of context in the scenario in which that legislation has been passed. All that we would have done is ensure that people are able to make this choice if they wish to make it and are certainly not under any expectation or coercion to make this choice if they do not wish to make it. If I may, my question really is given the nature of palliative care and the nature of suicide, is it correct that the doctor should bring this up? As suicide, given the fact the nature of it, is the fact that you are taking your own life and palliative care is based on longer term natural deterioration until the end, is it correct that a palliative care doctor should be bringing up the option of suicider? I do not think that any of us would want a blanket assumption that in all circumstances that must be a discussion that a doctor would initiate. Nor do I think that we would want a blanket prohibition that says that a doctor may never discuss this. Did he discuss or actually instigate the conversation? Again, I would come back to the suggestion that I made earlier that if there is a particular concern about this and the idea that merely raising the subject, merely talking about the subject or instigating that discussion could be seen as a form of coercion, the committee might want to consider a further safeguard, a criminal safeguard against influencing a person to make a request. However, I certainly would disagree that merely having a discussion about the existence of this as an option would always be inappropriate. It is for care professionals to develop the relationship that they have with the people that they are caring for and to be able to give information and answer questions in an appropriate way, given the needs of their patient. That is the situation today. It is complex and difficult today. It would continue to be complex and difficult, but I do not think more so than the other decisions, life and death decisions that people have opened to them in their treatment and care. Mike McKenzie will put a supplementary on that. In terms of the conversation at any stage, either at an early stage or approaching the end of life stage, in terms of the conversation with your GP physician, do you feel that it is a perfectly rational decision to make in certain circumstances where emotional, psychological and physical suffering is such that it would be a perfectly rational decision to make to seek to end your life in this way in the form of assisted suicide? I am not sure that I have met any perfectly rational people, have you? Perhaps striving for perfection is too high a bar. Would you say, just in terms of ordinary use of the language, that it would be in certain circumstances a perfectly rational and reasonable decision to make? In my personal view, yes, I would certainly say that in certain circumstances I could see that this is an entirely understandable decision and a decision that I think our society ought to be able to respect and to acknowledge people's right to make that decision on their own terms. Whether it is rational kind of implies that we only make decisions with one part of our brain, and I am not sure that is how we reach decisions on minor or life critical choices. We are whole human beings and we make our decisions not only internally but in a context of the relationships that we are a part of. That is not as helpful as I was hoping it was going to be. What I mean by that is that in terms of our hierarchy of considerations, should rationality be higher than, say, the emotional or other dimensions in which we may make those decisions? The day in which Dennis Robertson has been waiting patiently with these, won't he quickly respond to that? I would come back to the argument that I made earlier, that people approach those questions in very different ways because we have fundamentally different worldviews because we make our decisions in different ways. Some people are more or perceive themselves to be more rational than others. Others are much more in touch with or feel themselves in tune with an emotional or spiritual aspect of life. None of those are wrong. People are different and this fundamentally for me is why our society and the context of the care that we provide for people in those difficult circumstances should respect and reflect that diversity and allow people to reach their decision on their own terms and support them to do so, bearing in mind that the caveats mentioned about capacity and so on. Thank you, that is helpful. Dennis Robertson, Dennis Robertson. I think that the majority of the line of questioning conveners probably have gone over in terms of the direction that I wish to go in the first place. However, with your indulgence, we will seek clarity on a couple of issues. In an answer that you gave to Bob Doris some time ago, you said that you were known to the practitioner when you were looking at a particular line of questioning there. Did you mean that the condition was known to the practitioner to enable the practitioner to make a decision or was it the patient was known to the practitioner to enable the medical practitioner then to move forward to that initial step? Yes, I think that I was referring to section 9 to C of the bill, which relates to the endorsement of the first request. After a person has made their preliminary declaration, after they have made their first request for assistance, the endorsement by medical practitioner's statements of that request. A statement, the medical practitioner's statement, endorsing the request, the practitioner making it may do so only if, in the opinion of the practitioner, a number of criteria, the third of which is the person's conclusion that the person's quality of life is unacceptable is not inconsistent with the facts that are then known to the practitioner. That clearly suggests that the practitioner must be aware of the facts of the person's medical condition and make a judgment that the conclusion about the person who has made about their own quality of life is not inconsistent with those facts. Is that the doctor-patient relationship? Are you saying that the practitioner is aware of the conditions that are impacting on the patient's life or the patient themselves as an individual? It seems to me that if a doctor was unaware of the conditions that a person is living and the way that that impacts on their life, they would not be capable of satisfying the test in 9 to C. That brings me to the point when you answered the question to Rhoda Grant in terms of—I think that you suggested yourself—that if you have a good relationship with your GP and, for instance, you wanted that GP to continue being your general practitioner, however, they did not agree with your initial endorsement, you could then move to another practitioner. Those two things do not seem compatible to me. At the point that I was discussing with Rhoda Grant was about the preliminary declaration and the hypothetical scenario in which somebody might wish to have a preliminary declaration recorded in their medical files long before they contemplate the realistic prospect that they might be in a position of asking for assistance to commit suicide. I think that it would be for an individual to decide if they have a GP and a relationship with them that they are happy with in general, but they know that their GP is not someone that they would be able to turn to because of a matter of conscience to make this request should they ever need it. It would be down to the individual to decide whether they wanted to consider changing their GP. I would hope that that kind of change was not felt to be necessary given that a person's relationship with their GP is about a wide range of other issues than this. By the time that somebody was to make a first or a second request for assistance, because of the scenario that they are going to be living in, because of the circumstances that we know in which, in other jurisdictions, people actually make those requests and seek assistance to commit suicide, they would already be in intimate contact with a wide range of other medical professionals. They would not simply be going to their GP for the odd prescription. We are talking about two very different stages in life, I think. I think that that is a presumption. It may be a fairly wide one, actually. Again, I come back to this point. The person may not be known to the GP, but the condition or circumstances of a particular illness would, but not necessarily the person. That person is perhaps even a mental or emotional state. What I am saying is that, in a circumstance like that, you have just described, the individual, the patient, may well not be known to the GP they go to, but the medical condition and obviously the impact of that condition, whether it be a long-term chronic illness or whatever, may well be known to the GP and he could maybe make a decision on the basis of that, but he wouldn't know the patient. I think that it is certainly true that few people have as close and familiar a relationship with their GP as some fortunate people might once have had. I think that some of the evidence that has been heard about the historic context in which a GP who was very familiar with a patient or with their family and this might have been more common amongst wealthier parts of society, a GP in that scenario might well in previous decades or previous generations have made the decision to end a patient's life. We know of a significant number of historical examples of that happening, whether or without that patient's consent. I think that, in many ways, we do have to recognise that that kind of close relationship to GP's is less common in society now. We should be recognising that in trying to ensure that people are central to the decisions that are made about their own lives, we have to recognise the reality of the kind of medical care that is provided and the kind of relationships that they have. I see no difficulty with seeking to have a discussion with a GP about placing a preliminary declaration on one's medical records without having an intimate and familiar professional relationship with that GP. It is purely a recording, a possession. The much later scenario in which somebody is actively seeking assistance to end their life in the current circumstance that they are living with seems to me very hard to imagine. That is not taken in the context of care that is already being provided for detailed and complex medical conditions. We heard in our evidence that there is a potential there for an individual who may be wishing to end their life because they become a burden to those who care for them. It is not in a sense of being coerced to make that decision, but the individual, rather than the condition itself, that is a long-term condition, perhaps they have been living with, but they are actually starting to see the impact of that on the people who care for them and they are deciding to end their life or seek to end their life through this process of assistance suicide, based on not them themselves having a deterioration condition but the impact on others. How do we come to terms with that sort of situation that the person is making that decision because it is having a negative impact on others? I think that I would answer in two ways. First of all, to look at the experience of other jurisdictions that show that, amongst the list of factors, the feeling of being a burden to others is low down the list. It is not one of the principal reasons that people cite. The legislative framework is there for that to happen. It is certainly potential. The proportion of people who cite it is cited among other factors, so it is arguable as to whether that is ever the soul or the driving motivation to seek an assisted suicide. However, I suppose that the second sense in which I would respond to that is really to look at the experience in which this can cut in two directions. If a person decides, for example, that their on-going treatment—I mentioned dialysis earlier or perhaps a decision to ask for a do not resuscitate notice to be placed on their medical records or on the food of their bed—if such a decision was motivated by a feeling that a person was a burden, would we still respect it? Those are decisions and factors that have to be borne in mind today in a wide range of life and death decisions. I come back to the argument that the choice of politically, the choice of allowing and legislating for a form of legalised assisted suicide, the choice of an individual to ask for it and the choice of another individual to offer that assistance are complex, ethically complex and life and death decisions. However, there are no more so than other decisions that we already make. Are there laws that we already pass, are there choices that we allow people to make and other treatments that medical professionals in particular give and provide and other care that is provided? There are already life and death decisions. This is one of them. It is no more so. The questions around coercion or feeling of a burden are relevant today. I do not see why this is more relevant in the case of someone who might request assistance to end their life than someone who might request that treatment that sustains their life be terminated. Finally, convener, if I may, in your opening statement, you mentioned about empowerment. The relationship has changed between patient and GPs, which has to be welcomed, absolutely. However, this empowerment of choice of how to live their lives, is that a deliberate statement in terms of that you did not mention how to choose to die? You mentioned about living lives twice in your opening statement and you mentioned it in some of the answers that you have given to members, but is it a deliberate line that you have taken not to mention it in your opening statement in terms of empowering people how to choose to die? Throughout the discussion, I would like to think that I have been very clear about what this bill is about. It is about the choice that someone would have to seek assistance to end their life, to commit suicide and whether somebody provides that assistance. It is understandable to take the view that death is a part of life and to be, if not comfortable with that, fully acknowledging it. One of the critics of the bill, which gave oral evidence—I think that it was in the panel of ethicists—made the point that the name of the bill—the Assisted Suicide Bill—described it as more honest than previous forms of the title of the legislation. It is on the name of the bill, on the face of the bill, on the front page of the bill, it is very clear what this is about. I hope that I have not given the impression that that is in some way being occluded. I have a number of requests to ask other questions. I will just check that I have my list of questions. Richard Lyle, Mike Mackenzie, Bob Dorris, and I have a quick supplementary question. Richard Lyle, Bob Dorris and Rhoda Grant. A couple of questions and maybe seek your opinion. You spoke there about do not resuscitate. We have all been in that situation that happened to me with my father-in-law. I did not know he asked for do not resuscitate. Do you suggest that do not resuscitate in a hospital as assisted suicide? No. I think that there is a category distinction between somebody's right to refuse a treatment or intervention and somebody's right to seek a deliberate act that ends their life. This is a distinction that the bill makes, in particular the section on prohibition of euthanasia, making it clear that the final act must be that of the person themselves. I think that it is important to understand that this is not the same as somebody declining or refusing or seeking to end a treatment or intervention. However, I take the view that the reasons for placing the decision in the hands of the individual are the same in relation to a positive act to end a life or to take control of the timing or manner of the end of a person's life, to take that control into their own hands. The reasons for doing that are, in many ways, the same as the reasons for placing individuals at the very heart of the decision-making about treatment or intervention that they might wish to accept or wish to refuse. I have said that a few times. We all know when we are born. We do not know when we are going to die. However, through our life we make decisions and we make a will or we talk to our loved ones and we say when what we would like to happen to us after we die. Most people do plan that. Some people actually go and pay their funeral just now, prior to knowing when they are going to die. Many of us do miss our loved ones. We could all turn around and say, I wish I could have told Granny about the baby who was born, her grandfather or whatever. We look back on the good times that we had in our family. What is your personal view when people come out with the scare stories that they have come out with, Shipman case, suggesting that anyone can secure assisted suicide, that many of them are going to confess their loved ones to die because they want a hold of their assets? What is your personal opinion and your view in the last couple of weeks on the evidence that has been given to the committee in regards to that? You are quite right that none of us know for sure when we are going to die or the conditions of that. We all do know that we are going to and I think that most of us find it difficult to talk about that and to really relate to it. That is perhaps why some of these stories are very powerful. Sally Foster Fulton, from the Church of Scotland, who was not a supporter of the bill but acknowledged that there is a wide range of views among the members of the Church of Scotland, made the case that there are very powerful stories on both sides of this debate and that powerful stories do not necessarily make good legislation. Sally Foster, as I say, is not a supporter of this legislation, but I agree with her about that general point. Those powerful stories can make us think and help us to reflect on how we feel about a wide range of scenarios, but I do not think that they should necessarily dictate to us what the legislation should say. I think that we should think carefully about the consequences of legislation that we pass and whether it is consistent with the principles that we believe in. The principle that I am asking the committee to consider is that of putting individuals at the very heart of the decision making about life-and-death choices that they face. Lastly, if you allow me, Belgium, The Netherlands, Oregon, 64.8 per cent of people with cancer and some neurological disorders. Suicides in Scotland, if you read through 40 to 44.98, 45 to 49.94, 35 to 39.92, 50 to 54.92, 38 to 44.72. The age group? Yes, the age group. Many more people have committed suicide, sadly. You suggested earlier that you did not want to put a ballpark figure on it, but I think that eventually you did, which was that around a number of under 100 people could take advantage of this bill if it was passed. That is what is anticipated in the accompanying documents to the bill. I think that it is consistent with a proportionate comparison in terms of the population size and so on with other jurisdictions, albeit that some of those jurisdictions have different criteria for eligibility and so on. I think that that is a reasonable estimate to make. I think that it is important to distinguish between what we are talking about here, somebody's decision to seek assistance to commit suicide because of what they regard as an unacceptable quality of life and suicide more generally. I would ask that the committee considers whether any actual evidence exists in other jurisdictions of this kind of provision being incompatible with a proper and ambitious approach to reducing suicide more generally in the population. Those are very different phenomena. They happen for very different reasons and in very different contexts. I do not see any evidence from other countries that suggests that a proper approach to reducing and preventing suicide in the general population is incompatible with a legal and well-regulated approach to allowing people to take control at the end of their life or in conditions of unacceptable quality of life. Thank you, convener. Bob Doris? Yeah, thanks, convener. I wonder if I want to explore what the scope of the provisions might be for assisted suicide. I want to move on just now in relation to the civil and criminal liability that will be removed should this bill go through. That is, of course, as long as the process is laid out in legislation is followed. Anyone assisting in suicide will no longer have civil and criminal liability for assisting in that, as long as the process is followed, as I understand it. However, there is also a savings clause within the bill, and terminologies such as as long as a person is acting in good faith and not carelessly, and it has been put to us by other people giving evidence that the savings clause is drawn so wide that what the bill seeks to do is that anyone who follows the provisions of the bill will not be prosecuted and anyone who does not follow the provisions of the bill and is involved in assisted suicide will not be prosecuted either because of a savings clause and that there is not enough detail to know when a savings clause would kick in and be appropriate and when it would not be. The good faith terminologies seems to lace its way through it, so I would like your views on whether or not the savings clause is drawn too widely, whether there is enough criteria, whether you can envisage a case where someone would be prosecuted and assisting in a suicide in Scotland if the bill passes, given the fact that there is a savings clause? I think that if people accept the general principle and want some form of legalised assisted suicide to exist, very few people would want to see people prosecuted for very minor technical errors perhaps in the timing of a piece of paperwork or something very, very minor and technical, and we would all acknowledge that minor technical errors could be made. They are not necessarily errors that should give rise to prosecution as though they were intentional or seriously reckless abuses of the legislation. I am not of the view that serious changes need to be made to this section. It satisfies the need as it stands and I think that some of the slightly hyperbolic descriptions of this section—I think that one witness perhaps used the phrase, anything goes—I think that that is not helpful or accurate, but clearly if the committee was minded to suggest changes to this section, I would look at that with an open mind and explore what the intention was. I am just trying to scrutinise this bill away with any other piece of legislation irrespective of personal views, but can you give us a flesh out, a greater idea, of what a savings clause will involve? Under the current laws, it is unclear, as Mike Mackenzie made that point, quite often that a common sense approach to whether prosecutions actually ever take place is taken under the current situation and no-one is seeking to prosecute under the current status quo or should this bill be brought in vulnerable people and dire situations who may assist in a suicide? That does not seem to be what is happening currently and it certainly would not be what you would expect Mr Harvey to happen if this is passed, but I do not use the expression, anything goes, but obviously when you codify the system around assisted suicide, if you have a very clear set-out process by which you can assist someone in suicide and then you have a catch-all expression around acting in good faith, it would be reasonable for us scrutinising this bill to say, well, can you illustrate examples of what would be acting in good faith or what would not be acting in good faith? That probably brings in ideas of burden and coercion and different things again. It is just to get some clarity around that. I am not saying anything goes with the savings clause, but what I am responsible to do is ask what does go with the savings clause. If you are looking for a specific example, I might suggest that the 14-day time limit, the final 14-day time limit after which if a drug had not been used, it is supposed to be removed. If the facilitator for whatever reason had been unable to get there until 14 days plus a couple of hours but had made every effort to ensure that that time limit was reached, I think that most people would accept that that is not the kind of minor breach of the legislation that ought to require prosecution. On the other hand, similarly, if the 14-day time limit is to remain as it stands—I do not know if the committee wants to discuss that in itself—if it remains as it stands and the bill was passed in that fashion and the decision was made autonomously to leave the drug available to the patient well after the 14 days deliberately in contravention of that time limit, that would be seen as a very serious matter. Is that helpful? It actually is helpful, but I think that that is given us your thinking in relation to the savings clause, whether that is reflected in the clarity and guidelines and the legislation itself. Can I move briefly to another matter? I think that the general argument would be that we very rarely possibly never pass legislation which is entirely mechanistic in its application. If you take the view that at present there is a lack of legal clarity and that this bill seeks to not provide complete legal clarity in all circumstances but to define one set of circumstances in which people have clarity that a particular course of action is legally permissible, then, even within that course of action, there will be judgments as to be made as to the application of that law, as there are always judgments to be made about the application of any law that this or any other Parliament passes. However, the general argument is that we need to provide a path, a course of action that is legally sanctioned and which gives people some degree of clarity that they have that route open to them. I understand the arguments around clarity. That is why I was asking for initially clarity around the scope of people who would not be able to qualify for assisted suicide and clarity to us when a savings clause would kick in or would not kick in. I personally felt that clarity perhaps was not there. I was going to ask a supplementary question earlier on, but my colleague Dennis Robertson has been waiting very, very patiently to ask a question, so I forgoed the opportunity to ask a supplementary question when people were talking about the medicalisation, potentially of assisted suicide, as the net millon was mentioning. You can probably guess the question that I am going to ask, but I am going to ask it consistently to witnesses over the last few weeks. If assisted suicide is potentially a treatment option, that may be the wrong terminology. I am not trying to pick that terminology deliberately, but if someone goes to their GP and they say to their GP, I do not think that I can cope with this or live with this any more. The GP identifies that that person would in theory qualify for assisted suicide. I know that there is the conscience clause, which we cannot put in here, but in theory, should a GP say, well, actually you do have another option other than palliative care and chronic pain management, you could do, and it could be assisted suicides or whether that would be a GP or whether that would be the plethora of managed clinical networks that exist within the NHS, at what point would you anticipate? Should anyone at any point say within the process of someone struggling to live with a life-limiting condition say to them, you know, you do have another option? I do not want to needlessly alarm people because I would be alarmed if that did not happen, but it is a reasonable question for me to ask because if you do not know assisted suicide exists, how can you access it? If it does exist and you qualify for it, should not you be told about it? Whose job would it be to tell individuals about it? First of all, I think that if Parliament passes this legislation, it will have very broad recognition and acknowledgement in society at large. I think that it will be general knowledge. Secondly, if we were to pass the legislation and one of the consequences is a more open discussion, a more open culture of discussing death or the end of life or the treatment options that people have before they are in that circumstance, then again fewer people would be in the position of not knowing. Finally though, if it comes to it that this legislation has been passed, that Parliament has decided that this is the right thing to do to give people this option and somebody simply does not know, I do not see any reason why they should not be provided with that information. In just the same way as I do not see any reason why somebody who is on dialysis and who is finding their condition unacceptable, their quality of their life unacceptable, I do not see any reason why they should not know, why they should not be informed, that they have the option of deciding not to continue with that treatment or any other life critical treatment. Do you not have any concerns that depending on which relevant medical professional raises that as a potential option may undermine a relationship of trust that our constituents may have in that clinical professional who may want them to be punting for them to have as good a quality of life as possible, but then that medical professional may feel obliged to say, well actually there is this other option. Is there a danger around undermining of trust with medical professionals and patients? I think if a medical professional raises any of these options, whether existing choices that people could make or a choice that people could make under this bill were it passed, if people do that in a bad way, people can raise these issues well or badly, sensitively or insensitively, then yes the way that a medical professional or a care professional discusses the options that somebody has, the way that they do it can undermine or can build their trust. I suppose the question is what do you want to trust your doctor to do? Do you want to trust your doctor to make the decisions for you or do you want to trust the doctor that they will give you all of the information that allows you to make your own choices? Okay, thank you Patrick. Listen carefully to what you have said. I'll ask a committee for a quick supplementary, I can't ask myself. Given your responses to Bob Doris and the Saving Clause, can you give me another example that you might want to address? What if someone made in good faith a decision on an action about where the line is between assisted suicide and euthanasia? How do we deal with that issue? I think that if somebody decided for themselves that taking an action, which is the final act that ends somebody's life, they would very clearly be breaking the law under this legislation. I think that it's pretty clear that there will be a range of scenarios in which detailed regulation, for example of licensed facilitators, is expected. There's provision in the bill that would be a regulated activity, that there would be regulations that apply to them. But I think that in terms of the primary legislation, we should be focused on this category distinction of taking a final action that ends another person's life, which will remain criminal, and providing assistance for them to take the final action themselves on their own terms and in their own time. But you described it in good faith that that person felt in good faith and he committed an act of euthanasia here by way of it? No, there is no ambiguity, in my view, in the meaning of the legislation, that nothing in the bill will allow euthanasia, nothing in the bill will allow or will decriminalise in any way the ending of another person's life by an act that they had not themselves taken. The savings section 24.1 says that, if a person, when acting in good faith and in intended pursuance of this act, makes an incorrect statement or otherwise does anything inconsistent with the act. It has to be something that is in pursuance of this act, and this act is about assisted suicide and very explicitly not about euthanasia. Is there an ethical distinction in your view about assisted suicide and euthanasia, given that you have suggested that the whole purpose and principle of this is to give that ultimately that individual right to... Yeah, I think not only my view, but I think probably every witness who was asked a question in this area has agreed that there is a very clear ethical distinction between euthanasia, the ending of someone else's life by your action, and assisted suicide, the provision of assistance for someone to take and act themselves on their own terms and in their own time, which ends their life, just as there is an ethical distinction between that and the withdrawal of treatment. Not then would it be reflected in the bill and should there not be a legal distinction in the bill that makes this clear rather than yet again leaving it to. Another set of guidelines and other... I think that section 18 is precisely that. Nothing in this act authorises anyone to do anything that itself causes another person's death. I think that this prohibition of euthanasia is very clear. You have just said earlier, if that person, a case scenario, that person can claim that I was asked to do, should there not be definition there to make that clear? If a person was asked by the person who had requested assisted suicide, if the person who was providing that assistance was then asked to take the final act, perhaps by pressing an injection plunger or some other final act that causes the death, it would have broken the law. That is very clear under section 18. Nothing in this act authorises anyone to do anything that itself causes another person's death. You believe that it is clear and it does not need defining in any other way? I think that... It does not say that. It is in general, but it does not define that such an action would be illegal and face. I think that even Professor Chalmers would accept that taking an action that ends another person's life is already illegal. Murder does not need to be criminalised, it is already criminal. Can I ask about the licensed facilitator? In the bill, it talks about someone needing to be licensed, being over the age of 16, providing reassurance and reporting the death. It is not entirely clear what their role totally is. Are they the people who have the drugs that would be used for the suicide? Do they have to be there at the point that the person commits suicide? Are they the only people there at the point where the person commits suicide? It is not altogether clear what their role is in facilitating. The licensed facilitator under section 19 is expected to use their best endeavours to be with the person when the drug or other substance or means dispensed is used. I think that it is understandable that that might not always be possible. We are talking about at present a period of 14 days in which you cannot expect someone to be physically present and awake and alert for an entire 14-day period. Someone is to use best endeavours to be with the person when that happens. They are also required, as soon as it is practicable after the expiry of the 14 days, to remove the drug or other substance or means still in the person's possession. Those are two of the most significant areas of clarity in response to your question. I think that section 19b, which talks about comfort and reassurance, is understandably subjective. That will mean different things in different circumstances and mean different things to different people. It would mean something very different, for example, in a scenario in which someone is surrounded by their loved ones and also giving them comfort and reassurance and support at an emotional level than it would for someone who was on their own, who had no family or friends around them and for whom the licensed facilitator might be a principal source of emotional support and comfort. I hope that that goes some way to answering the question. There have been some witnesses who have argued for greater specificity in the role of the licensed facilitator, or particularly in—I think that we talked quite some time ago—a precise definition of what forms of assistance are allowable. My instinct would still be against a prescriptive list of specific physical actions that are permissible or not permissible, because we are talking about scenarios that will be different based on a wide range of different circumstances and which may change over time. Having a facilitator present would not stop family members from being present or, indeed, family members from facilitating and maybe preparing medication or whoever. Just to pick up on the term, the facilitator is one particular person who is licensed and regulated in that way. The bill does not prevent somebody else from offering the assistance, for example propping somebody up in bed would be perhaps one of the more common forms of physical assistance that somebody might need in order to ingest a drug that has been provided. It does not prevent somebody else, for example, a family member from providing that physical assistance. With regard to the reporting of the facilitator, was not present when the suicide was taking place, they still have to report it. Would they have to report that they were not physically present? They could assume that the person has taken the drugs, but they may not have done it. I do not think that there is an actual requirement for them to report that they were not present. That might be a reasonable change that the committee might feel that they wanted to include. I mentioned in an opening statement that there have been several comments regarding recording of information and reporting of information and whether it should be held centrally. That would be a reasonable change to suggest that if a facilitator had not been able to be present at the time that a drug was ingested, for example, they might record that and perhaps the reasons why that had happened. Because there would not be a witness to the drug being ingested. There would not be a witness to the drug being ingested at all, if that was the case. No, that is not a requirement of them under the act, but it might be a reasonable expectation that they would report the circumstances in that situation. Would that then lead to a police inquiry then, if it is not reported that the facilitator was not present, because there is no proof, therefore, on how the person was assisted in terms of their last act? Under the bill, as it stands, as it was introduced, the following section after the licence facilities are introduced is about reporting to the police and requires that a licence facilitator reports the facts of a person's assisted suicide to a constable as soon as practicable. There has been broad agreement from witnesses, including the police, that the report should, in fact, go to the Crown Office to procurate a fiscal in the first instance. It would be for them to decide whether there were circumstances that required a police investigation. I think that there is an understandable reluctance to be in a situation in which every family at this distressing time would be subject to an immediate police investigation if they had clearly followed a legally sanctioned and well-defined path towards asking for this assistance and having it provided. You can see where I'm coming from. If the licence facilitator isn't present, hasn't been present at the time of death, the report that they hadn't been present is being suggested. How do we then verify that the correct procedure was undertaken? The facilitator at present is required to make a report, and let's assume that that would be changed to the procurator, Fiscal, who would receive that report, where they believe that the person for whom the facilitator has been acting has died as a result of taking or using any drug, substance or other means dispensed or otherwise supplied for the person's suicide, or that the person is attempted to commit suicide in that way but has not died. That latter scenario is unlikely given the zero failure rate of organisations such as Degntas in this area. This is a report that is required when the licence facilitator knows or believes that the person has died in this way. I think that it's quite reasonable to— I wouldn't know if they weren't there, so does that come down? They believe—that's a very grey thing to say, isn't it? It's quite—you know, it's a lot of ambiguity—that they believe that the process was carried out. If they're not there, they can't know, but are you suggesting that they could perhaps submit the report saying the belief that it was carried out appropriately? The alternative would be that no report to anyone is required, and I don't think that anyone would support that. I think that the argument for reporting and recording information about this process has been well made and to not require a report to be made at all if the facilitator hadn't been physically present when the drug was ingested. I think that it would be rather remiss. Thanks, Dennis. I thank you, Patrick, and your colleagues, and all the colleagues here this morning. Thanks very much. We draw this session to a close. As previously agreed, we're going into a private session. I'll suspend at this point and reconvene in private session. Thank you.