2 December 2013

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.


  1. Admittedly only the result of a first, superficial scan, but won't much of any existing lack of clarity in Scots Law persist? Certainly, there will now be a clear type of assistance that won't be illegal, but otherwise the law is unchanged. (Eg: from the Explanatory Notes: "Subsection (3) ensures that the courts will continue to be able to find that no offence has been committed for reasons which are separate from anything contained in the Bill (e.g. because the individual’s conduct in the particular case never amounted to a crime under Scots law)."

    Framing this as a clarification makes it more palatable, but the substance remains that it is institutionalizing for the first time in Scotland the involvement of the medical profession in killing the ill. I hope our MSPs treat this attempt in the same way as they treated the last.

    1. Lazarus,

      Interesting point, and fair enough to some extent. While this Bill would not, in point of law, amend or alter the courts' approach towards common law offences, its existence would, I think, more clearly delimit circumstances in which prosecutors would be likely to take proceedings under the head of "administration of a noxious substance", for example. With a clear legal framework in place governing the lawful circumstances in which such substances may be provided - it may be more likely that folk circumventing those processes will find the PF coming chapping. Overall, this impact is likely to be a clarifying one, strengthening public regulation in the field: on some views, a Good Thing.

      On your second point, I'm not sure if it is "institutionalizing for the first time in Scotland the involvement of the medical profession in killing the ill", whatever view you take of the legislation. The 1993 Bland case, which arguably already involves medics in deliberately causing the deaths of their patients, justified albeit in the tortuous logic of the Judicial Committee of the House of Lords, as was.

  2. How soon after the 'right to take one's own life' is established and accepted before the 'obligation to take one's own life' becomes expected? Health care is expensive. Do you really want to burden the state with the cost of keeping your sin-ridden carcass alive? Do you really want to deprive your grasping and newly sycophantic next-of-kin anything but the greatest possible amount of your after-bucket-kicked wealth?

    And as far as the concept of "....the quality of the person’s life is unacceptable" (s8(3)(d))....." we need only consider the Third Reich and their 'legal' determination that there is such a thing as a life not worth living.
    Who determines 'quality'?
    Who determines 'acceptability'?

    I once swore an Oath of Hippocratism, and so far, Horkos has yet to visit upon me a plague of toads or some such for my lacklustre attendance to it.

    1. ACTC,

      I don't accept the "slippery slope" logic you propound. In terms of your second point, a technical answer. If this Bill passes, it will be for the person who wants to commit suicide to determine these questions, albeit subject to medical certification this conclusion "is not inconsistent with the facts then known to the practitioner". There's no question of legal compulsion here whatever.

    2. I was not proffering a 'slippery slope' logical device. I was not inferring there is a current or even future 'legal compulsion' to die. I only mention that some people may 'feel' a personal obligation, out of some misdirected martyr complex or some maleficent familial influence they cannot psychologically endure, to get that 'medical certification'.