18 January 2015

"Is the current law in Scotland clear?" Nope...

In Holyrood this week, another reminder that whether or not the parliament decides to adopt the late Margo MacDonald's controversial proposals definitively to legalise assisting suicide, the criminal law in this field is an unpredictable mess.

In contrast with the Justice Committee's sketchy summary, the SPICe briefing on the Bill gives you a much fuller, and indirectly more critical, account of the predicament Scots law finds itself in. Briefly to recap, no equivalent of the English Suicide Act 1961 applies in Scotland. There is no free-standing offence of assisting suicide here. Instead, assistance may, in some circumstances, be criminalised under the law of homicide. But what circumstances? There's the rub. We don't really know, and because of the absence of High Court cases giving definitive guidance on the applicability of the common law in these fields, we can't really know. 

On Tuesday, the Health and Sport Committee began taking evidence from legal experts, including representatives of Police Scotland, the Crown Office, the Faculty, and my colleague Professor Alison Britton. The unpredictability of the law as it stands was brought out clearly in the witnesses' evidence. Labour MSP Rhoda Grant prodded the panel on the law as it stands. "Has anyone been prosecuted for knowing that someone else was about to commit suicide and, rather than assisting or encouraging the act, providing moral support or whatever?", she asked.

Summarising his understanding of the law now in force, Stephen McGowan from the Crown Office and Procurator Fiscal service commented:
"These cases are very fact sensitive. Under the current law, it depends on what precise action was taken to assist the suicide. Perhaps the key point is that consent is not a defence in terms of assault or homicide. Any act that has been taken to assist in the dying process can be looked at in the context of the law of homicide as a whole.
Because a person cannot consent to die in that way under the current law, if someone assists that, that potentially becomes homicide. However, it is difficult to come up with a precise rule, because the cases are all very fact sensitive. It depends on the circumstances of each case, what the condition is, what level of understanding the person who died had, and the intention of the person who assisted."
Respectfully to Mr McGowan, I think he must be conflating two distinct issues in this answer. To my ear, this sounds like an explanation of the PF's decision-making about whether or not to prosecute a particular individual. That is, to some extent at least, distinct from the more elemental question of whether or not homicide has been committed.  Prosecutors can only haul you before the courts if they can hang their case on a relevant statutory or common law crime, but several other factors influence their decision to do so too. 

Is the evidence in support of the charge sufficiently credible and reliable? Would the prosecution be in the public interest? The Crown Office may decide, for example, that prosecuting a particular mercy killer would not be in the public interest. But that doesn't mean that the killing wasn't illegal, wasn't murder or culpable homicide. The issues are distinct. And the Crown's understanding of the scope of the law of homicide remains as unhappily foggy as ever. The point was underlined when Patrick Harvie got a look in, responding to some criticisms of the lack of clarity of the draft legislation. In echo of a few of the grouchy questions posed on this blog last week, Harvie asked him about the "open, undefined legislative framework" of the law in force today:
"A paper from the office of the solicitor to the Scottish Parliament has been circulated to members. It outlines the current context, which is different from that for the Assisted Dying Bill, which amends the Suicide Act 1961. The paper says:  “In Scotland, an individual”  assisting a suicide could  “be prosecuted under the common law for murder or culpable homicide, or some lesser offence such as culpable and reckless conduct.” 
For example, someone might take steps to ensure that someone who they care for has access to the means to end their own life in the room where they are being cared for, might prop the person up in bed when they take the action to end their life or might simply make practical arrangements for the person to travel to Geneva and end their life in that way. At present, all those scenarios give rise to a great lack of clarity about what offences might be prosecuted and under what circumstances. 
Is the position that we are in not the most open and ill-defined legislative framework that we could possibly have in the policy area? Is an attempt to outline a process that would be protected from those forms of prosecution not a positive step that increases the clarity that is available to people?"

McGowan responded that he couldn't really reply to any of these particular queries- because the impending judicial review launched by Gordon Ross "tied his hands". While you can understand this response to some extent - Harvie was merely soliciting comment, in parliament, on the public prosecution service's understanding of the criminal law as it currently stands in Scotland. Even taking into account the Crown's limited range of action because of Mr Ross' judicial review petition, I find it remarkable that no comment on these essential issues was forthcoming. Glasgow Caledonian University Professor Britton stepped in to provide some informed commentary which only underlines the point Harvie - and this blog - has repeatedly made:
Professor Britton: "Perhaps I can help a little.  What you said, Mr Harvie, has some resonance. Prior to recent events and the current judicial review, the reply to that was that the law in Scotland was absolutely clear that assisting in the death of another person would incur some form of investigation and possibly some sanction.  As you know, the position in England was subject to similar consideration, and the Director of Public Prosecutions issued guidelines following the case involving Ms Purdy.
That has not yet happened in Scotland so, at the moment, we rely on existing law, which—the argument is—is clear. England has tried to be a bit more specific but there is clearly a limit to how specific any rules or guidelines can be, because we would be usurping the role of Parliament. Therefore, I acknowledge that this might be the time for a challenge."
Patrick Harvie: "Is the current law in Scotland clear about whether someone who made all the practical arrangements for someone else to travel to Geneva, travelled with them and ensured that they were able to go through the process would be subject to prosecution?"
Professor Britton: "We have not had sufficient case law in Scotland to be able to answer that."
Patrick Harvie: "Exactly."

Exactly, indeed.  If I fill a syringe with a lethal cocktail of drugs, and inject you with it - even with your consent - that's clearly homicide and exposes me to the risk of a life sentence. But what if I assemble pills for you in large quantity, at your urging? What if I pass you a glass of water to wash them down, and sit with you when they take effect and stop your heart? What if I help you onto a plane to Switzerland to terminate your life there, legally? The technical answer to all three is -- it depends on the mercurial doctrine of causation, the finnicky detail of which need not detain us here.

The Scots law on assisting suicide is unclear, unpredictable and unable to give anything approaching definitive guidance to the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable. The fact that few people find themselves in courts facing charges is some practical comfort that the Crown are adopting an enlightened and compassionate policy here. 

But in principle, the vagueness of the law, and the more or less complete lack of transparency from the Crown Office on its application, represents an unacceptable fudge the continuation of which can no longer be justified. Whether or not Margo's last Bill finds its way onto the statute book, the Scottish Parliament must act to remove the Damoclean sword which unjustly hangs over too many people, trying to do the right thing, to live compassionately according to their lights, and to live within the law. 


  1. Isn't this issue just too difficult? Either way, there is a danger of penalising somebody who is pushed over the edge by witnessing their relative suffering or of giving solace to the scoundrel who persuades his mother to commit suicide so he can have the house (and sometimes both factors might be evident in the same case). It's surely impossible to come up with guidelines which cannot promote injustice on either front?

    I know "we give up" is never a satisfactory outcome to Health Committee deliberations...

  2. I'm not a lawyer, so excuse me if I am being dense here, but as I understand it, Holyrood can make law, as when it made it legal for the City of Edinburgh's private bill on Portobello Park (to be able to build a school on common good land when the Court of Session had ruled this was illegal). So if Holyrood passes Margo's bill, it will henceforth be legal for a doctor to write a lethal prescription, for a facilitator to collect that prescription, for a chemist to issue a lethal substance (do chemists normally stock lethal drugs? Will this be new?) to the facilitator, and for the facilitator to collect the substance and bring it to the person wishing assistance. The person will have to swallow it by their own hand. But if Margo's bill is voted through then neither the facilitator, the doctor, or the chemist can be accused of homicide.

    1. Pharmacists routinely stock all manner of substances that can easily and painlessly end life. The question is usually simply one of dose. Both water and oxygen are poisonous in sufficient excess and I don't mean by drowning wrt water.

      As a number of US states are demonstrating as they continue to try and supposedly humanely execute people with common pharmaceuticals.

    2. Margo's bill proposes that these drugs (enough to kill the patient) will be collected by the facilitator and kept in the home of the patient for use within fourteen days. If they haven't been used within fourteen days the facilitator is to collect them and return them to the chemist.


      1. Who or what is this facilitator? Is it a full time paid job, or what? I can't imagine it would stretch to a full-time occupation. It would be a pretty grim job for anybody doing it even part-time. Is this person a volunteer then? What organisation do they belong to? What is their training and support in their job? What professional guidelines and counselling do they receive? The trouble with Margo's bill is that it puts a lot of the responsibility for ending a life on others, the NHS, the state, this facilitator.

      2. Margo proposed that this facilitator is to be a neutral person who has no pecuniary advantage in the person's life being ended. But the drugs are to sit around in the house for up to fourteen days whilst the patient sums up the will and wherewithall to end it all. Meanwhile others with a peciniary motive (relatives likely to inherit) may have contact with the patient. So how does the facilitator know when to come and collect the unused drugs or not? Is it (Monday morning): 'Hello Mr M., this is S., your licensee facilitator. I was just calling to see whether you had used the drugs yet or if I need to call round to collect. Wednesday? You say you will have definitely used or decided by Wednesday? Perhaps you could call and let me know beforehand if we are definitely on for Wednesday'.

      2. If the drugs are unused in fourteen days is there a danger they could fall into the wrong hands?

      3. How certain can any of us be of being of a 'settled will'?

      4. Are family members to be consulted over a person's decision to end it all? I guess this cannot be made an obligation. But death by suicide of a family member is traumatic for surviving members of the family whether this was by 'euthanasia' or any other method of suicide. In Switzerland studies of Dignitas suicide relatives showed that at least 40% of relatives suffered trauma caused by their relative's suicide.

  3. Hmm. Assisted suicide by sword and horsehair? Could work...

  4. I don't see the relevance of debating the current law on assisting suicide if Margo's bill will supplant it, by making the kind of assistance she proposes legal. Sorry if I'm being dense, but it seems to me you are fretting uneccessarily.

    Of greater concern to me is her proposal to drag the NHS into this. And her proposal to extend the scope of her bill to include the chronically ill as well as the terminally ill.

    There was a good letter today in the National by a palliative care nurse who said (re-iterating the points made by others in the palliative care sector) that this law is simply uneccessary, as patients can opt to die naturally by simply refusing to continue with treatments that extend life, when the quality of life is not satisfactory to the patient.

    Her / his point was that there needed to be greater openness about this in the NHS. Patients and their families need to be better advised about whether it is in the patient's best interest to continue with treatment, and what the likely benefits of treatment would be.

    1. This does not really help people (like me) who start from the premise that a mentally competent individual has an unqualified right to end his or her own life if he or she so chooses after careful reflection: the state simply has no right to intervene in a personal decision of this type. Starting from this premise, you then have to consider the case of a mentally competent individual who lacks the physical capacity. This is where some (not all) of the knottiest problems arise.

    2. @ Dennis Smith.

      Suicide is as straightforward as you suggest, but the problem with assisted suicide is that it arrives with a built-in conflict of interest.

      The sort of person who will be called in to assist with a suicide is also very likely to benefit financially from it. And when it comes to making a judgement on the deaths of vulnerable, elderly millionaires, the investigators will have to sift carefully through the evidence, judging whether there was any bullying or arm-twisting. Different relatives will be piling in - particularly if there's a recently-altered will involved. Each side in the dispute will produce their own expert witness, to judge on the deceased mental competency (not that anybody over 60 has any mental competency anyway...)

      The moral solution is to never ask anybody to assist you in committing suicide.

    3. I'm not sure how much distance there is between us. At some level I can sign up to 'The moral solution is to never ask anybody to assist you in committing suicide'. But I see this as a counsel of perfection - a duty of supererogation as some people would say. But most of us are mere fallible mortals. If you really want to die, seeing ahead of you only a future of pain and indignity, and cannot achieve this unaided, can you not be forgiven for asking for assistance?

      In principle, though not in some real-life cases, the issue of financial gain can be avoided. You can always ask a friend who does not stand to gain from your death, or some charitable body sufficiently insulated from self-interested motives. This is why, as I said, there are real, unavoidable knotty issues.

    4. Dennis, you say the state has 'no right to interfere' with a mentally competent person's decision to end it all. Leaving aside how we define a person who is 'mentally competent' (are the depressed 'mentally competent'?) Margo's bill does propose bringing the state into it. Specifically it proposes a procedure where an NHS doctor (not a private clinic) would, on application from the patient, procure for him/her a prescription for lethal drugs which would end the patient's life. The facilitator would take the prescription to the NHS pharmacist (supposing the patient was unable to) and bring the drugs to the patient. So the state is intervening and providing the means. I agree with you about the moral autonomy of the individual but I worry that there is a conflict of interest if the NHS is involved. Many GPs and pharmacists would feel very uneasy about this. They should have a right of conscience, that's part of their moral autonomy as individuals, and that would introduce another level of complexity into the process.

    5. I entirely agree about mental competence. This is one of the knotty problems that can't be avoided. Competent professionals and rational laypersons can reasonably disagree about what constitutes mental competence, both at a theoretical level and in applying theory to a concrete case. This is one of the arguments for trial by jury: ideally, it allows a fair cross-section of society to thresh out the issues in the light of available information and current values (as in the case quoted by Muscleguy).

      On the specifics of the bill as they affect the NHS I'm agnostic. The crucial point for me is that if someone has made a settled decision to die they should be allowed and empowered to do so in the least painful way possible (least painful for all concerned). It might be sufficient to ensure that the state allows appropriate drugs to be supplied privately.

      I am wary of any idea that the moral autonomy of a medical professional allows that person's moral or religious views to override the expressed wishes of a patient. Being a medical professional does not imply any superior insight on moral or religious questions.

    6. @ Dennis Smith.

      It is in itself a very "knotty" issue - and far more complicated than I'd like it to be, But I'm also suspicious of the assisted suicide/right-to-die agenda because the issue doesn't just exist in itself, as a set of legal conundrums.

      You have to be struck by the timing. There's currently a crisis in care for the elderly, and suddenly all of these people pop up campaigning to make it easier for the elderly to die. Dressing this in the language of empowerment, as a "right" to die or to assistance is to me somewhat chilling.

      It's extremely difficult to fund adequate palliative care for all of us. It's very easy to assist elderly people to die. And legally, if elderly people do not have adequate protection from the state, they could end up being exploited. For example, a culture could emerge in which elderly people felt that it was selfish to continue living past a certain "quality of life." For me, this is really scary stuff.

    7. Leaving aside what forms a man's conscience, I'm horrified to read that you think a man has no right to it. Or to his moral autonomy as a human being.

  5. I think you are probably right in that prosecuting guidelines are used to not prosecute people. I remember a number of years ago an old guy who at his wife's request had eased her manifest suffering by smothering her with a pillow and then ringing the police to say what he had done. Despite his clear guilt and the law the jury declined to convict and this was after a few other similar cases. So the lack of recent case law is probably because the authorities realised that in this area the law was in real danger of being brought into disrepute so they backed off to avoid that.

  6. Prompted by tychy's comment about our use in old age, I am reminded of Beerbohm's parody of HG Well, 'Perkins and Mankind'


    . . . "In the Dawn, death will not be the haphazard affair that it is under the present anarchic conditions. Men will not be stumbling out of the world at odd moments and for reasons over which they have no control. There will always, of course, be a percentage of deaths by misadventure. But there will be no deaths by disease. Nor, on the other hand, will people die of old age. Every child will start life knowing that (barring misadventure) he has a certain fixed period of life before him—so much and no more, but not a moment less.

    "It is impossible to foretell to what average age the children of the Dawn will retain the use of all their faculties—be fully vigorous mentally and physically. We only know they will be 'going strong' at ages when we have long ceased to be any use to the State. Let us, for sake of argument, say that on the average their facilities will have begun to decay at the age of ninety—a trifle over thirty-two, by the new reckoning. That, then, will be the period of life fixed for all citizens. Every man on fulfilling that period will avail himself of the Municipal Lethal Chamber. He will 'make way'....

    1. Morituri te salutamus. Semper dignitas.Semper.