After section 48A

Adults with Incapacity (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:00 pm on 29th March 2000.

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Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative 5:00 pm, 29th March 2000

It seems to have taken a very long time to reach amendment 1, so I shall be brief.

I support the objectives of the bill. It is fitting that one of the first pieces of planned legislation should help the more vulnerable members of society and the real heroes and heroines—their carers. I recognise that the Executive has made several significant moves throughout stage 2 in an effort to improve the bill. That is what good legislation should be all about. The Justice and Home Affairs Committee has also played its part.

Members may be aware that, at stage 2, attempts were made to amend the bill to put an end to any argument or suspicion regarding passive or back-door euthanasia. I was concerned by the guidance of the BMA ethics committee, which stated that assisted feeding and hydration could be withdrawn from patients with dementia, stroke and "other serious conditions" who were not otherwise dying. Such an action would result in dehydration and death—that is not a pleasant death, if there is such a thing.

Fears about passive or back-door euthanasia were expressed long before I lodged my amendment. To each and every constituent who has contacted me, I have passed on Mr Gray's assurance that it was not the intention of the Executive to open the door to euthanasia and I have applauded the good intent behind the bill. I am sure that the minister will vouch for the fact that that has been my position for some time.

The purpose of my amendment is to allay fears that have been expressed to me and to many others, despite the reassurances of the Executive. I know that the Executive believes my amendment to be unnecessary and that there are sufficient protections and remedies in the current legislation. I have promoted that position as well.

However, a significant number of people are not reassured. To those people, I gave an undertaking to lodge an amendment. The amendment takes nothing away from the bill. It costs nothing and gives everything, in terms of security and clarification.

We have a credibility gap—not for the first time, nor, I suspect, for the last time. I ask ministers and other members of the Parliament to plug that credibility gap and agree to this amendment, so that we can all pass the bill with confidence.

I move amendment 1.

Photo of Iain Gray Iain Gray Labour

As Mrs McIntosh says, this amendment covers ground that was rehearsed at stage 1 and covered fully at stage 2. It reiterates the concerns of those people who fear that the bill opens the way to what they have called passive euthanasia.

As we made clear at stage 2, nothing could be further from the truth. We have no plans to change the law on euthanasia and we repudiate calls to legalise euthanasia. An act of euthanasia, in which the injuries were not self-inflicted, would be regarded as the deliberate killing of another; it would be dealt with in Scots law under the criminal law of homicide. Nothing in the bill changes that position.

Any health professional, like any other individual, who acted by any means—whether by withholding treatment or by denying basic care, such as food and drink—with euthanasia as the objective would be open to prosecution under the criminal law. That is the general position, which the bill does not alter. That will be made clear in the code of practice, which will be issued under the forthcoming act, and in guidance to health care professionals.

I appreciate the concerns that Mrs McIntosh has expressed and relayed, and I would like to clear up what the bill does and does not do in that respect. The bill enables doctors to give desirable medical treatment to adults who, for one reason or another, are unable to give consent without fear of legal challenge. It does not make any provision to harm adults with incapacity.

For a start, section 1 sets out the general principles of the bill, requiring all interventions in the affairs of an adult with incapacity under the bill to benefit the adult. As we discussed earlier this afternoon, section 1 reinforces that concept by requiring any intervention also to be the least restrictive option in relation to the freedom of the adult. Self-evidently, to cause or to hasten death would be the most restrictive option with regard to the adult's freedom. It would not be in any sense allowed.

Photo of David McLetchie David McLetchie Conservative

The minister referred to the general law of the land. Is Mrs McIntosh's amendment declaratory of what is already the general law of the land, or does it conflict with it? If it is simply declaratory of what is already the position, why does not the Executive accept the amendment to reassure the people who have made representations to this Parliament?

Photo of Iain Gray Iain Gray Labour

I believe that Mrs McIntosh's amendment is both unnecessary and flawed. In view of the time that I have, I will demonstrate now that it is unnecessary and hope later to be able to demonstrate why I believe it to be flawed.

The general principles of the bill must always be read with the other parts of the bill, particularly section 44, which has already been discussed. That section authorises doctors only

"to do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult."

The most frequent criticism of that section has been that it will allow patients to be starved or dehydrated, for whatever reason. The people who make that criticism do so in the face of the facts. The fact is that section 44 cannot be read as allowing any such thing. Section 47, which has just been debated, provides that

"any person having an interest in the personal welfare of the adult" can challenge a treatment decision in court. Even if a welfare attorney or guardian were to behave completely unscrupulously, they would have to contend with the possibility of a challenge from others.

Section 74 provides an additional safeguard. It makes it an offence for any person exercising welfare powers for an adult under the bill—which could include doctors or proxies—to ill treat or wilfully neglect that person.

I should also make it clear that the bill does not detract in any way from a doctor's ethical, professional and common law duties to care for his patients. The safeguards are stringent. They ensure that any treatment given to an adult with incapacity will keep that adult as well as they can be, and will offer hope for improvement where possible. Nothing in the bill authorises the withdrawal of nutrition and hydration, whether given artificially or by conventional means. Nothing will permit a patient to be denied basic care, starved, dehydrated or otherwise mistreated. We have undertaken that the code of practice issued under the bill, and the guidance to help professionals, will rehearse those points and the ones that I made at stage 2.

Photo of Michael Matheson Michael Matheson Scottish National Party 5:15 pm, 29th March 2000

The amendment is similar to one that I put forward several weeks ago at the Justice and Home Affairs Committee during stage 2. This afternoon, Lyndsay McIntosh has articulated many of the arguments from that discussion. There are continuing concerns about aspects of the bill. Although it does not spell out that euthanasia will be legalised, the combination of the interpretation of the bill and the interpretation of the common law could allow passive euthanasia.

The Executive has advanced no compelling argument for not including in the bill a clear statement of what the bill is not intended to do. Such a statement would provide the clear safeguard that people have been asking for. The amendment would serve that purpose. The Executive should be willing to accept that point; I hoped that it would accept it at the Justice and Home Affairs Committee.

As the amendment concerns a matter of conscience, our parliamentary group will be extending a free vote to all SNP members on the issue.

Photo of Euan Robson Euan Robson Liberal Democrat

The amendment is undesirable. Sections 1, 44 and 74 address the situation adequately, as has been spelt out time and again, particularly in committee. In addition, this afternoon the minister made clear the Executive's position. My understanding is that legal cases can refer to ministerial statements, such as in the case of Pepper v Hart. That adds an extra dimension to the assurances that have been given, so the amendment is unnecessary.

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative

If the situation is so clear, why are people still writing in with their concerns? Why is there a credibility gap between what is intended by the bill and people's fears?

Photo of Euan Robson Euan Robson Liberal Democrat

Another reason I cannot vote for the amendment is that in some respects it is not competent. It introduces terms that are not defined anywhere in the bill, such as "basic care". Even death is not defined in the bill, and it would need to be. Not only would the amendment add text in the wrong place in the bill; it would have other implications. The terms that are used in the bill are not replicated in the amendment, as was debated in the Justice and Home Affairs Committee. Not only does the bill already address the concerns, but the amendment is technically defective.

Photo of Ben Wallace Ben Wallace Conservative

Is the member saying that, because the amendment mentions care, the term cannot be used elsewhere in the bill? It is mentioned throughout the bill without being defined. He is ruling out the amendment as technically flawed because it uses words that are undefined. That is not logical.

Amendment 145, on which we will vote next, defines benefit. The Executive argued against that amendment, so I can see no reason why it should not support this amendment, which clarifies and backs up its clearly stated position that the bill is not about euthanasia or living wills. The minister said that the amendment is flawed, but I have not heard him specify how it is flawed.

Photo of Iain Gray Iain Gray Labour

In the interests of clarity and given that we are discussing undefined terms, perhaps Ben Wallace can define surgical procedure, which the amendment refers to.

Photo of Ben Wallace Ben Wallace Conservative

The amendment refers to "surgical treatment", not to surgical procedure. I am sure that what is meant by "surgical treatment" is quite clear, and that the definition of "surgical treatment" contained in other legislation can be adapted to this bill. The minister's Liberal Democrat colleague, Euan Robson, said that death is not defined in the bill. I am sure that the minister will be able to redefine death later. [Laughter.]

Photo of Richard Simpson Richard Simpson Labour

I hear some slight laughter rippling around the chamber on the point about the definition of death. If people had agonised, as many doctors have done, over what constitutes brain death, they would understand that it requires a precise definition. To some extent, the definition of vegetative state, which is not an easy matter, lies at the heart of the bill. The fact that the terms in the amendment are not found elsewhere in the bill is a serious point—it is why the amendment is flawed.

Photo of Ben Wallace Ben Wallace Conservative

Why has the Executive not defined death elsewhere in the bill?

Photo of Richard Simpson Richard Simpson Labour

Because it is not necessary to do so in this bill.

Photo of Ben Wallace Ben Wallace Conservative

Amendment 1 is clear in its intentions and backs up the Executive's statement that this bill is not about euthanasia.

Section 1, which relates to the general principles of the bill, talks about safeguards and the motives of a carer or practitioner who wishes to make an intervention on an incapable adult. The amendment highlights, or protects, the right motive.

However, section 1(4)(a) refers to

"the present and past wishes and feelings of the adult".

That could involve a living will. In my view, the amendment to section 48A reiterates the general principles and blocks back-door euthanasia or living wills.

Photo of Pauline McNeill Pauline McNeill Labour

I start by answering Lyndsay McIntosh's question on why so many people are still writing to her. I am also concerned about that, but, in my view, some people have been misled one way or another about the bill. I received calls yesterday from many people who asked me to vote against the euthanasia bill, and I am sure that other MSPs also received such calls. I am concerned that some parties involved in the debate have projected the bill as being primarily concerned with euthanasia. That is why I oppose amendment 1.

When I first saw the text of the amendment in the Justice and Home Affairs Committee, I had some sympathy with what it was trying to achieve—I think that all members of the committee did. A majority of MSPs wants to close down all avenues to euthanasia, both passive and constructive. That is my position and I know that it is also the position of the Executive.

However, one cannot take one section of any piece of legislation in isolation—one has to consider what the whole bill is trying to achieve. My reason for opposing the amendment is that the bill's main objective is to benefit the adult with incapacity. We should concentrate on that point.

I will not give ground. The bill is not about euthanasia, but to support amendment 1 is to give ground to the lobby that says that it is. It is crucial that members understand that point.

I listened to Iain Gray make strong statements about the Executive's view of euthanasia to the Justice and Home Affairs Committee, in response to points made by Lyndsay McIntosh and Michael Matheson. We have heard about the safeguards, which I think were formulated as a response to some of the points made by different organisations. Although there has been a fine balancing act on a number of controversial matters, I believe that sufficient safeguards have been put in place. It is important to note that one such safeguard has been to give power to a wide group of people to challenge medical treatment decisions.

We have heard about the principles in section 1. It is important to examine the beginning of the bill to see what its principles are. Moreover, section 74 makes it a criminal offence to ill treat an adult. It is important to consider all those provisions.

Lyndsay McIntosh said that some people's fears had not been allayed. We should nail that this afternoon—people's fears will not be allayed if people continue to say that the bill is about passive and constructive euthanasia. If we were debating euthanasia, I would demand from my party the right to vote according to conscience, but we are legislating about adults with incapacity. This is not a matter of conscience. I stand by my party's decision on that.

Photo of Christine Grahame Christine Grahame Scottish National Party

I will be brief, because I agree with almost everything that Pauline McNeill has said.

I am not attributing this to Lyndsay McIntosh, but there has been mischief in the press portrayals of the bill as some kind of licence to kill. The bill is excellent in many ways. There are difficult sections, which have been dealt with at length. I thank Malcolm Chisholm for his comments at the recent council on aging, when he mentioned the endeavours of the Justice and Home Affairs Committee to deal with complex issues.

I do not think that the amendment is necessary. The principles of the bill are to act to the benefit of the incapable adult. Section 44 states that

"'medical treatment' includes any procedure or treatment designed to safeguard or promote physical or mental health."

That is the test.

There is also a duty of care on the medical practitioners to follow the Hippocratic oath and act in the best interest of their patients. We should emphasise that. The amendment would be a hostage to fortune and a sop to those who are misrepresenting the purpose of the bill.

Photo of Gordon Jackson Gordon Jackson Labour

I had been content not to speak, because I agree with the minister—as the bill will not allow anyone to do what is illegal now, the amendment is unnecessary.

However, I was struck by David McLetchie's question on whether the amendment was declaratory of the present law. That is a clever question, because it sums up the agenda behind the amendment. In my judgment, the amendment is proposed not because the bill is flawed but because some people object to the common law as it is. They object to the Law hospital case, which I judge the amendment to be a roundabout way of attacking. I am told that that is not the case and that it would not influence such a situation, but I take that with a large pinch of salt. If there is another case like the Law hospital one, the amendment would be prayed in aid not as being declaratory of the present law but as seeking to change it. It is not for me to judge whether that would work, but it could certainly be tried.

We must understand the agenda behind the amendment; it is to undermine current common law. This bill is not about that; it is about a different matter. In the context of the bill, the amendment is unnecessary.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

I make a plea for absolute clarity, which the amendment provides.

We must bear in mind the fact that the bill, which we will pass—or not—today, will last not for months but for years, perhaps for decades. We are committing future generations to this legislation, which is about the most vulnerable members of our society.

Everyone of some experience in life knows that one should avoid going to law—to civil law especially—as much as possible because of the cost and the strain. Civil law has been adequately described by a judge in England as open to everyone in the same way as the Ritz hotel is open to everyone. Dickens said that the law is a beast, which feeds on human misery. As a result of the decisions that are about to be made, there could be much human misery in the years and months ahead, after the bill becomes an act.

We must think of the circumstances under which decisions will be made, perhaps in a great hurry. We must think of the act being referred to not in pleasant circumstances, but in fraught ones, perhaps in the back office of a hospital.

It cannot be spelled out clearly enough that the protection of human life—exceedingly vulnerable human life—must come first. The amendment does that and I support it.

Photo of Iain Gray Iain Gray Labour 5:30 pm, 29th March 2000

I tried earlier to demonstrate that amendment 1 was unnecessary. Mr McLetchie's question was interesting, and I bow to his knowledge of the law, but today we are making legislation, and if the amendment says something that is already the case, and we accept that that is the case, at the very least the amendment creates duplication, and duplication within legislation makes for bad law.

Photo of David McLetchie David McLetchie Conservative

The minister must be aware that many principles of the common law are subsequently codified into statute, so there is nothing unusual about putting statutory declaration to the principles of the common law of Scotland. That has been going on for centuries.

Photo of Iain Gray Iain Gray Labour

If the amendment is an attempt to change the common law position, that was an interesting confession indeed, in the terms of this debate.

The amendment is not only unnecessary, but unwise. It is flawed on three counts. First, it uses terms that are not defined in the bill; we have debated that already. In spite of the levity with which that point was treated by at least one member, it is crucial. That is a serious flaw.

Secondly, the amendment seeks to introduce a prohibition, but fails to do so because it does not stipulate a sanction. The amendment says nothing about what the action or sanction should be if someone chooses to ignore the terms of the amendment.

Thirdly—the greatest flaw, as pointed out by Gordon Jackson—the amendment is unwise because it would certainly encroach on common law judgments similar to the Law hospital judgment. From the beginning, we have taken the view that we will not, at the moment, legislate for those PVS cases. We will allow case law to be built up and allow the Court of Session to deal with it. The bill is separate from common law and does not encroach on it. In spite of the attempt in the amendment to avoid that, it is our view that the amendment would encroach on such judgments.

If the purpose of the amendment is clarity, it is severely flawed. It will fail in its purpose and create confusion, whether by intent or by accident; I do not judge. The clarity lies in the assurance that nothing in the bill allows the hastening or causing of the death of an adult with incapacity.

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative

I can tell that Iain Gray will not be swayed, but I am grateful for the news that the Labour party has been whipped on the issue.

I never intended, as Christine Grahame knows, that the amendment should fuel the passive euthanasia debate. My intent from the outset has been to put an end to that argument.

I would have used that same argument if Gordon Jackson had asked me the intention behind my lodging the amendment. Instead, he has presumed that certain things lie behind my intent. I resent that; it was unkind and uncalled for. Gordon Jackson seems unwilling to acknowledge that this is an emotive issue.

Photo of Gordon Jackson Gordon Jackson Labour

It is possible that Lyndsay McIntosh acted in good faith, but that others had another idea. I accept her good faith, but I think that another agenda lies behind the amendment none the less.

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative

I accept Gordon Jackson's apology; it was very gracious of him to make it at this stage.

I understand that the minister will not be moved on the issue. As I stated at the outset, the amendment is an attempt to clarify the situation and to ensure that putting good legislation in place is as easy as possible. The minister is not minded to accept the amendment. I am sorry that that is his position.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 1 be agreed to. Are we all agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

There will be a division. The voting time will run for two minutes.

Division number 4

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Johnstone, Alex, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Munro, Mr John, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Russell, Michael, Salmond, Mr Alex, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, Welsh, Mr Andrew, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Dewar, Donald, Eadie, Helen, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Gray, Iain, Harper, Robin, Home Robertson, Mr John, Hughes, Janis, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Livingstone, Marilyn, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Ms Margo, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Watson, Mike, White, Ms Sandra, Whitefield, Karen
Abstentions: Marwick, Tricia, Robison, Shona

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 42, Against 62, Abstentions 2.

Amendment 1 disagreed to.

Amendment 145 moved—[Michael Matheson].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 145 be agreed to. Are we all agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

There will be a division. There will be 30 seconds' voting time.

Division number 5

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Jenkins, Ian, Johnston, Nick, Johnstone, Alex, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Munro, Mr John, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Salmond, Mr Alex, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Dewar, Donald, Eadie, Helen, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Grahame, Christine, Grant, Rhoda, Gray, Iain, Home Robertson, Mr John, Hughes, Janis, Jackson, Gordon, Jamieson, Margaret, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNulty, Des, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Watson, Mike, Whitefield, Karen

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 46, Against 57, Abstentions 0.

Amendment 145 disagreed to.