AN assisted dying bill making its way through Holyrood is outwith the powers of the Scottish Parliament, the country’s Health Secretary has said.
Neil Gray said issues relating to end-of-life drugs are reserved to Westminster and not under the control of MSPs, adding a Section 30 from Westminster may be required, according to the Daily Record.
Liam McArthur has introduced the bill which would introduce the right to assisted death for terminally ill, mentally competent adults.
Under the proposal, two doctors would have to independently confirm the person meets the criteria and the individual would have to sign a written declaration
Gray said of “particular concern” was a section of the bill which gives ministers powers to specify which drugs could be used to end a life.
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He said this provision “appears to relate to the reserved matter of medicines, medical supplies and poisons”. He also said other parts of the bill “may” be reserved to Westminster, such as allowing ministers to state the qualifications of medical practitioners who can be part of the process.
Gray said another potential legal issue relates to requiring a doctor to take into account a second opinion. He also said the right to conscientious objection, which is part of the bill, “may” not be a devolved matter.
While McArthur has reportedly had “constructive” talks with the Scotland Office, Gray said temporarily allowing Holyrood to legislate in these areas via a section 30 order may be required.
In a submission to the Holyrood Health Committee on behalf of the Government, Gray wrote: “In the Scottish Government’s view, the bill in its current form is outside the legislative competence of the Scottish Parliament.”
He said temporarily allowing Holyrood to legislate in these areas via a Section 30 order may be required: “The Scottish Government agrees that further processes would have to be gone through in order to bring the bill within competence.
“It should be noted that the process for such an order generally takes 12 to 18 months and would require the co-operation of the UK Government, as it requires the approval of both Houses at Westminster, as well as the Scottish Parliament, before it is made by His Majesty in Council.”
A Section 30 allowed the Scottish Parliament to legislate for an independence referendum.
Gray said ministers would have a free vote on the bill and called for the debate to be conducted sensitively. He added the Government would remain neutral at this stage.
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The Scottish Government has also warned the costs of introducing assisted dying could be "substantially higher" than estimated.
It said some costs had been omitted or underestimated in financial papers put forward with a bill.
Financial papers estimated introducing assisted dying would cost between £263,434 and £313,882 in its first year. The ongoing costs would then range from between £23,107 and £35,566 in the second year – with these estimated to have risen to between £160,186 and £368,954 after 20 years.
The Scottish Government memorandum said: “It is difficult to assess the accuracy of the estimated costs/savings in the financial memorandum, given the uncertainty around the likely number of cases and, in particular, how they will increase over time."
McArthur said: "I welcome the input of the Scottish Government and the commitment it has made to ensure a free vote on the bill alongside its position of neutrality on assisted dying.
“The Presiding Officer has certified that the Scottish Parliament can pass a bill in this area but I have always been clear that the Scottish and UK Governments will need to agree to measures that will ensure that a truly comprehensive assisted dying process can operate in Scotland.
“There are established mechanisms for transferring powers to enable legislation to be fully enacted in Scotland and no reason why these cannot be applied in this case.”
On discussions with the Scotland Office, a Scottish LibDem spokesperson told the paper: "Talks are ongoing and tone is constructive."
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