Time for Holyrood to drink the hemlock

In November 2010, Holyrood vetoed Margo MacDonald's End of Life Assistance Bill on first principles, after a critical report from Ross Finnie's mostly hostile ad hoc committee. 

Parliamentarians' criticisms of the proposals ranged from arguments rooted in a priori  propositions - the intentional taking of human life is always wrong - to problems with how the legislation and its safeguards had been drafted. Didn't the Bill conflate the issues of assisting suicide with active euthanasia? Did the process adequately arrest any rush, perhaps prompted by a bout depression, through the doctor's surgery and into the grave? Would it - could it - provide adequate safeguards for medical professionals, pledged to uphold their Hippocratic Oath?

MSPs thought not, with 66% of them voting agin, just 12% for keeping the discussion going, with 2% abstaining (the remaining 20% of parliamentarians were absent. It was a snowy day in December). Hoping for better luck this time, Margo has marshalled sufficient support among MSPs to relitigate some of the issues, with a new Bill, of a much more limited scope, with much more clearly delineated safeguards. This is no mere rehash of the 2010 proposals - not at all.  While on a superficial reading, you might expect this batch of MSPs to shoot the proposal down in flames as summarily as their colleagues in 2010 - having read the new Bill I wouldn't be so sure.   

Critically, the Assisted Suicide (Scotland) Bill (explanatory notes here, policy memorandum here) removes the issue of euthanasia from consideration altogether. We're only talking about the circumstances in which people may lawfully be assisted to commit suicide in Scotland. Here's where it gets a wee bit more complicated.  While assisting suicides is illegal in England and Wales under the Suicide Act 1961, the legislation doesn't extend to Scotland.  While the English law conceivably criminalises helping a family member to take a plane to Zurich for the purposes of ending their life, in and of itself, assisting suicide is not illegal under Scots law and this sort of act is (probably) not an offence known to the law of Scotland.  

On the other hand, as Frank Mulholland made clear in his evidence to the parliament in the last session, assisting suicides will, in some circumstances, bring you within the ambit of Scottish common law offences. Crimes like "the administration of noxious substances", for example, might catch a doctor providing a patient with a fatal supply of drugs. But legally, the scope of all of this is terrifically unclear: no virtue in the criminal law.  

Last time out, Ross Finnie and his committee bungled the investigation of the legal aspects, failing to ask Frank all of the obvious questions, and reaching the stupefying conclusion that the Scots law in this area is clear and foreseeable. But it isn't, and Margo's proposals would go a long way to clarifying the issues.  This is important, as MSPs are essentially being asked not to endorse doctors killing their patients, but to clarify the circumstances in which assisting suicides will be legal under Scots law, as some forms of assistance already are.  That's a different kettle of herring.

So what will the proposals require and what will they legalise? Firstly, the cause of death must be the person's own deliberate act. As a consequence, these proposals will not legalise medical killings based on living wills, where the patient does not have mental capacity to consent or where individuals lack the physical capacity to administer the substances to themselves. Doctors will not be permitted or required directly to inject deadly substances into patients' bodies: that will remain the crime of homicide. We're now talking exclusively about facilitating suicides, safely and humanely.

So how will it work? A person seeking assistance to take their own life must make a witnessed preliminary declaration to their medical practitioner.  After another week, the person may make a First Request to their doctor for assistance to commit suicide. People making such a request must be at least sixteen years of age, and must have s8(5)(a) "an illness that is, for the person, either terminal or life-shortening" or s8(5)(b) a condition that is, for the person, progressive and either terminal or life-shortening" which leads them to the conclusion that "the quality of the person’s life is unacceptable" (s8(3)(d)).

This First Request has to be endorsed by two different doctors, applying the same requirements with respect to the medical condition of the patient and having concluded that the patient's "conclusion under section 8(3)(d) that the person’s quality of life is unacceptable is not inconsistent with the facts then known to the practitioner". The Bill also excludes a range of interested persons from acting as witnesses to this process (presumably aiming to answer the macabre scenario of elderly people, being encouraged to end their lives early and against their will by grasping family members, keen to inherit). 

This is followed up by a Second Request, after another week, requiring another round of medical endorsements, after which it will be lawful for a "licensed facilitator" to assist suicide within a period of fourteen days. While these facilitators might be medical practitioners (and there may be tricky legal issues here about access to drugs), Margo proposes a separate licensing regime for facilitators, to be regulated by the Scottish Ministers.

Unlike the jiggerpokery which characterised Margo's last attempt, the standing Health and Sport Committee will lead scrutiny of the legislation.  Let's hope Duncan McNeil and his colleagues make a better fist of their investigations into this - essentially modest, sensible and clarifying - proposal.