Symposium on the Assisted Suicide (Scotland) Bill1

The Ampersand stable of Advocates in partnership with the J K Mason Institute for Medicine, Life Sciences and the Law at the University of Edinburgh’s Law School hosted a full day seminar in Edinburgh on 24th April 2014 on “The Assisted Suicide Bill: Does Scotland Need to Legislate?” Relevant topics were allocated to sessions on principles, practicalities, palliative care and policing. The day concluded with general debate.

The Bill is in the early stages of procedure before the Scottish Parliament. It has been allocated to the Health and Sport Committee (rather than the Justice Committee), whose call for evidence requests submissions by 6th June 2014. The Bill was introduced by the late Margo MacDonald, MSP, who also proposed its predecessor, the End of Life Assistance (Scotland) Bill in 2010. Margo – uniquely known simply by her first name throughout Scotland – was an indefatigable campaigner for this and many other causes, an independent MSP highly respected across the political spectrum, and a much-liked person who will be greatly missed.

Non-lawyers present at the Seminar were dismayed that lawyers who spoke all critically dissected the drafting of the Bill. It was necessary to reassure them that this in no way reflected views on the principles of the Bill. Subject to the caveat that some participants left and others arrived during the course of the day, it is interesting to note that votes cast at the outset were 37% in favour of the principle of the Bill, 42% against and 21% undecided; and those at conclusion 52% in favour, 31% against and 22% undecided – indicating, if nothing else, that a day of high quality discussion and debate can influence the development of opinion.

For present purposes it is unnecessary to record all the points of criticism of the Bill as drafted and introduced, as there was apparent consensus that it would be unworkable without substantial re-drafting. Realistically, such a level of re-drafting would be difficult to achieve at stage 2 of a Private Members’ Bill, even assuming approval in principle at stage 1, though on some points the similar Bill for England and Wales before the House of Lords would appear to provide satisfactory solutions: examples are the exemption from liability provisions, and delineation of the difference between assistance and euthanasia. Also, it would probably be helpful to introduce existing, well-understood concepts in place of attempted new, untried and often unclear – and undefined – terms and phrases in the present Bill. An example would be “not persuaded or similarly influenced” in place of undue influence and other existing concepts. Another is the attempted new, and apparently flawed, definition of capacity with no evident reason for not using the precise converse of the definition of “incapable” in section 1(6) of the Adults with Incapacity (Scotland) Act 2000. Similar concerns apply to the undefined use of “condition” as an alternative to “illness”, producing criteria such as “a condition that is ….. progressive and …. terminal” (life itself, at least for the ageing person?).

There was concern at the absence of any provisions in respect of conscientiously objecting medical practitioners, though participants were cautioned against making claims that a slippery slope from assisted suicide to morally problematic and unlawful conduct had occurred in jurisdictions where assisted dying had been legalised in the absence of substantiating evidence, which is often unavailable. It was also observed that there was no general trend of expansion of the legal criteria in the jurisdictions that permit assisted dying’. Also dispelled was a misapprehension that “autonomy,” in this or any other context, equates to uncaring selfishness.

The session on palliative care – as with the other sessions – was not without controversy but was carefully debated, and was informative. Myths dispelled here were that it is almost entirely about the care of cancer sufferers (it is not) or consists mostly of administration of large, even potentially fatal, doses of morphine (which very clearly indeed, it is not).

From the policing session emerged a general view that a requirement simply to report deaths under the procedure to the police would be inadequate. There was a strong case for a supervisory body with power to review individual applications of the proposed procedure and also able to build – for purposes of monitoring and future review – a statistical picture. There would in any event require to be protocols for police and Crown Office, with engagement of the medical professions, extending to such basic points as certification. Regardless of the progress of this Bill, Scotland is in any event at risk of a finding of non-compliance with article 8(2) of the European Convention on Human Rights unless and until guidance for prosecutors is published, similar to that now in place in England and Wales following R (Purdy) v Director of Public Prosecutions case [2009] UKHL 45.

In summary, the case for not continuing to deny assistance with suicide to anyone at all who might ever seek it, and denying the reassurance of potential availability of such assistance if ever desired, was if anything strengthened, but the suitability of the present Bill as a vehicle for delivering such provision with necessary protections and clarity – unless substantially amended – was fairly comprehensively rejected.