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As straightforward as it seems?

Peter Gillson | Published:

As deputies get down to the business of debating the assisted dying requete – and its amendments – Peter Gillson takes a detailed look at the implications

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I HAVE disappointed myself. My intention was to focus on tidal energy, until the St Pier/Trott amendment was published.

I assume the amendment will be approved, so even though the debate may be over by the time this is published, it’s worth considering the detail of the amendment. It may not be as straightforward as it first seems.

The first section incorporates the wording of the amendment placed by Deputies Soulsby and Tooley in response to the requete, making reference to the resolutions approved when Health’s Partnership of Purpose was debated, noting the intention of Health to ‘... consider the need for developments in specialist palliative care...’

Seems fine, except that ‘palliative’ does not appear anywhere in the Partnership for Purpose report, nor its resolutions.

The only reference in Health’s policy plan is to maintain the current palliative care provision.

I really don’t know what to make of it. Is it trying to suggest something was approved which wasn’t, or is it a strange way of announcing a new work stream?

In a way it doesn’t matter, a proposition to ‘note’ does not approve nor reject anything, merely records that the States have read it. It does not direct nor empower Health in any way so it’s of questionable actual value.

Proposition 2 agrees the importance of capacity legislation, but more importantly, agreeing that assisted dying cannot be introduced until capacity legislation in in force. A valid pre-condition.

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Proposition 3 sets another pre-condition. This time that three pieces of human rights work are completed. These are significant work streams, some have been ongoing for years already, and could take years to complete. We could be in the position of the working party reporting on assisted dying years before it could be implemented.

These preconditions seem to be designed to allay deputies’ concerns, but what actual comfort do they give? Very little really, a future States can ignore them because one States cannot bind a future States.

The next proposition is the ‘meat’ of the amendment, creating the working party.

There is a little ambiguity in the wording relating to its composition; ‘... with such membership as it sees fit’. Who is ‘it’? P&R or the working party itself? Since two members of P&R are leading the requete this could be a small but important point.

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It also removes the 18-month reporting timescale, the working party having to report as soon as practicable, which makes it quite open-ended – I can hear the can being kicked...

Obviously the ability of the working party to report is dependent upon the resources available to it, and based on the 2004 investigation these could be significant. I have heard those estimated costs, including staff time, being in the region of £200,000.

It is the next section of the amendment which addresses resources saying it will need to be ‘...prioritised in accordance with the normal prioritisation processes of the Policy and Resource Plan alongside competing policy priorities’.

Policy development comes from committees up to the States, it is the committees which make the prioritisation recommendation to the States via the Policy and Resource Plan. If the amendment is approved could Health and P&R really decide not to prioritise the resources? Surely they would be under at least a moral obligation to prioritise this work stream. With no reference to assisted dying in the policy plan such action would mean, despite the fine words, it jumping the queue at the expense of something already prioritised. I wonder what?

Now we come to the scope of the working party and it is worth quoting propositions: ‘The Report shall make recommendations for the development of a legal regime to permit “assisted dying” ie available only to terminally ill adults resident in Guernsey with mental capacity and less than six months to live, based, for example, on the extant regimes in Canada or the State of Oregon’.

This part seems to limit the scope to the Oregon/Canadian regimes. But does it? What does the caveat ‘for example’ add other than to provide the working party with the flexibility to look further afield, in which case the proposition does not preclude more liberal regimes.

If the intention is really to limit the scope of the working party then the words ‘for example’ should not be included? Why is the caveat ‘for example’ included?

The remainder of the amendment details the issues to be considered and liaison with Alderney, both seem fine.

I am pleased that the amendment removes the ‘cart before the horse’ element of approving a change to the law before the investigation, but I am disappointed by one aspect of the amendment.

Although I cannot envisage a very liberal, Belgian, regime being adopted it seems wrong to limit the scope of the working party, not because they may recommend it, but so that the pros and cons of the more liberal regimes are explained in the report. There is nothing stopping a deputy placing an amendment to the report. If one is placed, it is better for the issues to be in the report enabling an informed debate than an off-the-hoof debate.

Since the propositions are really now about creating a working party or not, the debate should focus on how this fits in with wider policy development and whether resources should be made available for it, which brings us to the Policy & Resources Plan, which will be the focus of future consideration.

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