19 November 2010

"Awa’ Margo. Yer no gettin’ yur bill..."

An end, a setback, a predictable result? Yesterday, the Holyrood committee scrutinising Margo MacDonald's End of Life Assistance Bill concluded that it, "does not recommend the general principles of the Bill to the Parliament.", on the voice of the majority of its members. The report is deeply, deeply institutionalist, by which I mean it focusses in detail on her proposals, generally avoiding any temptation to engage in an abstract comparison of the varying philosophies of those who submitted evidence, oral and an in writing.  Equally, it reeks of caution - and in the case of uncertainties, doubts, unknowable quantities, resolvable difficulties in drafting - seems to be operating under the conservative assumption that the status quo ought to prevail and the proposal should be fatally booted out into the gutter immediately. I'm not saying that all of their critiques are ill-founded. Merely, that it is noteable that every area of doubt is inflated, the significance of Margo's principled counter-arguments are muted. In short, this is a demolition job on the detail and scanty on precisely the general principles stage 1 scrutiny is tasked with exploring. The parliament as a whole  (or however many of the diffident scoundrels deign to attend) meets next Thursday on 25th of November to debate the issue and needn't follow its six-soul Committee's views. Noteably, the conclusions were not unanimously endorsed, so at least one member of the scrutiny panel must have proved sympathetic to the general principles Margo was espousing. No doubt when it comes to the vote, we'll be able to work out who that might have been. Having adduced the evidence they received at length, the Committee handed down the following conclusions. I'll pick up one of them and otherwise leave the rest for your judgement and consideration.

The Committee recommends that the Parliament take the following findings of the Stage 1 inquiry into account when arriving at a decision on the general principles of the Bill—

There is no ambiguity in current Scots law in this area – if some people choose to travel to other jurisdictions to commit an assisted suicide or to access voluntary euthanasia, they do so because certain, inherent aspects of those actions are unlawful in Scotland. That the decision of whether to prosecute is separate and subject to the Prosecution Code is part of due process. Any call for clarity is, therefore, spurious.

Not to put too fine a point on it, this is tosh. Complete and utter pish. "Spurious" reads like pure Ross Finnie. No ambiguity? Considering the Committee failed to ask the Solicitor General any of the difficult questions or uncover the tensions inherent in the analysis he propounded - is it any surprise that eveything seems as clear as day to the empty-headed lot of them? I outline some of the issues in much greater length in the post above. To harp on onestring, what about helping someone travel to a different jurisdiction? In England, that is criminalised under the "assisting" provisions in Suicide Act 1961, which doesn't apply to Scotland. So what about here? What are the conceptual limits on the definition of culpable homicide? The Solicitor General argued that causation isn't broken if I brew up a noxious compound and make it available to you, which you ingest and then perish. That, he submitted, is a cupable homicide. While this is ludicrous enough in itself, what about other forms of assistance? How direct does the "cause" have to be? Does a plane ticket count? The Committee also makes reference to the law of concert, after the Solicitor General, holding it plain that:

"... if a first person assisted a second person – thereby acting in concert – to take that second person’s own life or attempted to do so, the first person would be dealt with under the law of homicide".

But wait a minute. It isn't illegal to commit suicide, is it pray? No? Then how can assisting someone to commit something which isn't an offence be offensive? If it shades into a form of homicide, you might say, if the accused person's actions shift from bystanding to participation, if it has a causal nudge, if it becomes direct life-ending action? These are questions. Real, substantial questions. There may be answers to them, but the Committee offers none. Perhaps I should compose the list and submit it to each of them. After all, as they are such learned legal scholars, unabashedly issuing proclamations that all is clear, no questions left outstanding, even to suggest anything less than crystalline clarity in the notoriously messy Common Law is a "spurious" exercise - they shouldn't mind being put to the question and furnishing me with those straightforward answers beyond my own wit to reach.

"Examples from other jurisdictions have been offered as though comparable with the proposal in this Bill. However, there is firstly an important difference in the cultural and legislative contexts of those countries compared with Scotland. Secondly, there is a fundamental difference in the breadth and scope of this Bill.

The Bill seeks to decriminalise both assisted suicide and voluntary euthanasia under a single definition – it would have been clearer for the two acts to have been dealt with as separate provisions in the Bill.

An individual’s ‘autonomy’ has been advanced by the member in charge as a central argument in favour of the Bill. The Bill would not, however, accord or establish any rights. Further, although courts have acknowledged the right to respect for a private life, they have also acknowledge that this right may have to be tempered in the interests of wider society. The Bill should be considered, then, in the context of preserving a balance between an individual’s right to exercise autonomy and the interests of society as a whole. Most members of the Committee believe that the wider societal concerns should prevail in the context of the Bill and do not accept the principle of autonomy as argued by the member in charge. One member believes that the interests of the individual should prevail.

The preservation of an individual’s ‘dignity’ has also been presented as a central argument in favour of the Bill. However, ‘dignity’ is capable of two interpretations. Whilst those in favour of assisted suicide see it as a means of preserving dignity in the terminal stages of life and in the moment of death, those against present an equally compelling argument that a hastened death is undignified by its very hastening and that the key to preserving dignity in the terminal stages of life lies in the quality of care available to and the respect afforded to the dying. It is impossible to reconcile these arguments.

In Scots law, if a person aged over 16’s capacity is to be challenged, the challenger has to lead evidence to demonstrate the loss of capacity. The majority of evidence questioned why the Bill would create an unprecedented requirement across the board, to the effect that all individuals requesting assisted suicide and voluntary euthanasia would be subject to a test. However, the Committee believes that, in a situation such as this, the approach would be justified.

The Bill would establish a procedure, one of the purposes of which would be to detect undue influence. However, the approvals necessary to proceed would be obtainable following two meetings with a medical practitioner and one other meeting with a psychiatrist, neither of whom would need to have previously had any contact with the requesting person. The question is whether this level of contact with these particular categories of person would give sufficient assurance that there had been no undue influence on the requesting person’s decision.

The Bill attributes a meaning to the phrase “end of life assistance” that does not explicitly include any notion of hastening death. This use of terminology is confusing and arguably misleading and inconsistent with the member in charge’s stated reasons for proposing the Bill. It would have been unambiguous to use the terms “assisted suicide” and “voluntary euthanasia”.

The Bill, in setting out eligibility requirements in Section 4, ostensibly provides for an objective standard based on finding life “intolerable”. The Committee believes, however, the standard set out is inherently subjective. Indeed, the member in charge placed great emphasis throughout the inquiry on her intention that the wishes and self determination of the requesting person be paramount. Such a test cannot, therefore, stand up as an objective test.

A further eligibility requirement set out in the Bill would be based on being “permanently physically incapacitated to such an extent as not to be able to live independently”. This raised a number of equalities issues. The terminology used was aimed at capturing a small number of people who find life intolerable but could also apply to a wider group of people with a range of physical conditions or physical incapacity. This is symptomatic of the breadth of the member in charge’s intentions. The immense difficulty of drafting a provision that would capture all those that the member in charge means to include without extending to whole other groups should be recognised; this terminology is, however, extraordinarily wide.

There are real problems in the Bill’s definition of “terminal illness” as it is based on a notion of timescale that may be difficult to ascertain.

In relation to the eligibility requirement based on an inability to live independently, the Committee found evidence from organisations representing people with disabilities to be particularly compelling because of the way in which society may let an individual’s life be intolerable by neglecting to provide sufficient and appropriate support. Using the inability to live independently as an eligibility requirement for end-of-life assistance raises issues of definition, clarity and subjectivity similar to those relating to other terminology in the Bill, with the additional possibility of unintended consequences.

The Bill does not specify any particular qualifications or experience for the designated practitioner and psychiatrist roles. The Committee shares the concerns raised in evidence about this issue but notes that this may raise competence, regulatory and legal issues. The Committee did not hear evidence that these issues had been explored.

Points were also made about the age threshold. Some members found the threshold at 16 to be consistent with other legislation. Other members were sympathetic to the arguments in favour of setting the threshold at 18.

Concerns were expressed on the lack of detail with regard to the requirement for the presence of the designated medical practitioner but believes that any medication administered during the end-of-life process should nonetheless be in the presence of a medical practitioner.

The Committee is concerned that the setting of a limit of 28 days for the provision of end-of-life assistance could encourage a person to proceed prematurely.

The Bill would not explicitly require the participation of any particular person or class of person in assisted suicide or voluntary euthanasia. Nor does it state explicitly that they would be able to refuse to take part. An absence of a requirement is not necessarily equivalent to a right to refuse. There were calls in the evidence for a form of ‘conscience clause’ to be specified. This may, however, fall within the ambit of regulation of the health professions and, therefore, outwith the legislative competence of the Parliament. It may be difficult for this Bill to find a satisfactory solution within legislative competence. The Committee believes, however, that, in legislation of this nature, a conscience clause should be included.

Contrary to the assertions of the Policy Memorandum, the Bill could have a negative effect for disabled people. There are also potential issues of inequality in relation to remote areas where it could prove difficult to find locally practitioners and psychiatrists willing to participate.

The Committee is not confident that equalities issues have been robustly considered in the preparation of this Bill. The Policy Memorandum asserts that the Bill will have a “positive impact on issues of equality” but does not appear to be able to support this claim. It is an established practice that Scottish Government bills and policies are impact assessed to ensure that a negative impact is not inadvertently created for equality groups. The member in charge has not followed this example and the Committee finds that, as a result, the consideration of the equalities impact of the Bill lacks rigour.

Consideration of the Financial Memorandum uncovered weaknesses in its approach to estimating the number of assisted suicides and deaths by voluntary euthanasia that would occur if the Bill were enacted. In particular, no sufficiently sophisticated modelling has been undertaken. The Financial Memorandum also makes flawed assumptions about where costs would fall and is vague in respect of their scale. A further potential equalities issue – the possible differential impact on people from varying economic backgrounds – also appears to have been overlooked in terms of costs that may have to be met by individuals.

Overall, the majority of the Committee was not persuaded that the case had been made to decriminalise the law of homicide as it applies to assisted suicide and voluntary euthanasia, termed ‘end-of-life assistance’ in the Bill, and, accordingly, does not recommend the general principles of the Bill to the Parliament."

The Committee's full report can be read here.


  1. As I said earlier MPs when in doubt will vote to retain the status quo.

    In this case the doubt is manifest in a coming Holyrood election.

    Again I maintain that MPs are out of touch with the feelings of the electorate. Maybe it is time we had a look at other systems of government which don't look upon politics as a career pathway after leaving university.

    Democracy should flow from the bottom, upwards.

  2. So it would seem, Bugger. However, it'll be exceedingly interesting to see how each individual MSP vote, given that it'll be a notionally unwhipped decision for all. Or, for the particularly timid, who misses the vote in order to alienate nobody (except those in favour of decisiveness.) Assuming that the Bill falls at this stage, the question becomes - what next? I sympathise with your view. A public referendum on the question seems the only way to boot this agenda along.

  3. Can I just observe that it would be - um - spurious to discover only now and in connection with this Bill the fact that MSPs as a body, even those with legal qualifications, check in any knowledge of the law they may have at the door?

  4. Am Firinn

    Can I suggest as an Outlaw that it is just too much law that is the problem and not enough common sense.

    It is common sense and courage, never in surfeit in our political classes that they abjectly left in the cloakroom when they entered the Committee room and gazed southwards into their navels and public pension funds

  5. There are vast & legitimate objections to this bill. I don't think the committee expressed them very well, they just did committee speak, but you could ride a coach & horses through what the bill says.

    I would welcome a public referendum & a chance to air the arguments. There is too much perception that objections to legalising assisted suicide come from religious or other socially conservative interests.

    The debate if opened wide would show that was not the case.

  6. Thanks for the remarks, one and all. One of the curiosities here is that some of the criticisms the legislation has attracted derive precisely from its author's attempts to reassure and regulate the proposed practice. During evidence sessions, Michael Matheson twanged on one string again and again - what limit, if any, should be put on the principle of autonomy and why? Although I assume his rhetoric denoted a suspicion towards the invocation of autonomy to justify the provisions, it struck me that the same question could lead one to articulate a much more libertarian case on euthanasia, rejecting strictures and regulation more generally.

    On your point, Observer, I know that some folk have felt that I've been couching my discussion of the parliamentary scrutiny of the Bill along the lines you describe. In part, this reflects my own biased interests in "faith in the agora", rather than an attempt to exhaustively describe what happened in the Committee. Certainly, whatever one's views, the keynote here has been a plurality of perspectives, whether supporting or hostile. Assuming that the Committee represents the feelings of the wider parliament - i.e. breaking down against the Bill 1/5 - a referendum strategy seems the next obvious choice, having been institutionally stymied.