25 February 2016

Assisted dying: bringing a little light

Last week, the Court of Session made an important decision on the law on assisted dying in Scotland. Gordon Ross - sadly now deceased - challenged the Lord Advocate to produce guidelines on what might happen, if a family member or a friend helped him to end his life. The outcome of this case was generally written up as a failure for Ross. 

The court declined to force Frank Mulholland to publish additional guidance on how his prosecutors would treat cases -- the remedy Ross sought. But in the course of reaching that decision, Lord Carloway and his colleagues arguably did something better -- they stated the law in this area with a simplicity and a clarity which has hitherto eluded the authorities.  Gordon Ross may not have secured the guidelines he was after, but greater clarity, he won. In this morning's edition of the Times, I pay tribute to Mr Ross's valiant efforts. He did not live to see their fruition, but they were not in vain.

Uncertainty in this area of law is a string I've harped on a good deal when Holyrood was considering the late Margo MacDonald's Bill to create a legal structure for assisted dying in this country, ending the need for folk to fly to Swizterland to end their lives, and ending the inequity, which allows richer sufferers to avail themselves of this opinion, but leaves poorer Scots without the remedy they seek.

At the time of the Holyrood hearings, the Crown Office were remarkably unhelpful, when pressed on their understandings of what the law does and does not criminalise, when it comes to assisting someone to end their days, whether by supplying them with fatal doses of drugs, or helping them to the airport, and onto a last flight to Zurich. Why? Their spokesman before the Health and Sport committee claimed that the Gordon Ross judicial review tied their hands - and presumably, their lips too. All the Crown Office spokesman would say was:

"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."

In his judgment last week, Lord Carloway suggested "the criminal law in relation to assisted suicide in Scotland is clear." For my own part, I'm unconvinced this is a particularly convincing interpretation of the law as it stood before Mr Ross's legal action. But the Lord President's legal analysis in this decision goes a long way to bringing that clarity about. Here's what Scotland's most senior judge had to say.

[29] It is not a crime “to assist” another to commit suicide. However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death (MacAngus v HM Advocate (supra), LJG (Hamilton) at para [42]). Depending upon the nature of the act, the crime may be murder or culpable homicide. Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.

[30] In relation specifically to a death caused by the ingestion of a lethal substance (which is what appears to be contemplated in the petitioner’s case), the administration of such a substance (eg the injection of a first time user with heroin) may amount to homicide (Kane v HM Advocate 2009 SCCR 238; Mr Kane pled guilty to culpable homicide, see p 264). Supplying a lethal substance for immediate use may conceivably fall into this category (MacAngus v HM Advocate (supra)), at least where there is certainty about its purpose and use (the prosecution of Mr MacAngus for the supply of ketamine to a user was discontinued). Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death. 

[31] In the same way, other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit. Driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime. The act does not in any real sense amount to an immediate and direct cause of the death (MacAngus (supra) LJG (Hamilton) at para [42]).

As I conclude in this morning's column we all have reasons to bless the memory of Gordon Ross. He achieved something here for folk in his difficult situation, and their family and friends. God rest him.


  1. We all hope we'll never be obliged to use this option, but what a relief this must be to those who do.

    Thank you for the clarification.

    I echo your remarks about Gordon Ross.

    1. From the decision at first instance, I was quite skeptical whether this JR would produce anything constructive at all. Always positive to be positively disappointed.

  2. An interesting case, and a good outcome as you say LPW. I hope it survives as a piece of legal interpretation. I am, however, baffled but he idea that 'direct and immediate cause' is a genuine line in the sand here. It works in the right way in the sort of case above - it insulates the assisting party from culpability - but it does seem to suggest that as long as I use a *sufficiently* convoluted and distal means (perhaps via several stooges) of bringing about, say, the detonation of a bomb, I cannot be considered culpable for the destruction it causes.

    Of course I am culpable, and the retreat to the claim that cases are 'fact sensitive' is just another way of saying 'we know culpability when we see it, don't ask for a consistent rationale'. I don't like that one bit.

    For what it is worth, I think that the difficulty in finding the rule in question is a serious, but tractable, issue, and one where lots of progress has been made in the last decade or so in the philosophy of causation. It is regrettable that much of that progress has yet to find its way out of the metaphysics classroom (I recently missed out on funding aiming to do exactly that) but I think some good things have been said on the relevant issues in Moore:


    1. We'll have to file this one under the heading - "law is conceptual, not philosophical", to paraphrase Bruto Latour, from memory. Although the concepts it deploys are recognisably connected to philosophical concepts, in deciding the scope of legal causation -- to my eye -- we're not really interested in getting the causation analysis philosophically right, and consistent and justifiable. Really, "legal causation" here is just a form of distributing responsibility. It is a normative concept for attributing blame, given a conceptual veneer. The same goes for many of the novus actus interveniens scenarios. Take one of the most famous from south of the border - R v Blaue - where a victim is stabbed, but dies as the result of refusing a blood transfusion for religious reasons. In asking whether or not the accused should be held guilty of murder, it seems to me, the courts aren't really asking whether or not he caused the death. False friends.

    2. Well, in that case I guess I think you badly misunderstand the (de facto) scope of philosophy, (which would of course help explain lack of cross pollination I am bemoaning above). Philosophy is almost entirely "conceptual" and is interested in exactly the issues of responsibility (and the role of normatively) you point to. It is concerned with both the abstruse inapplicable details that the law can safely ignore, and the entirely applicable, practical, and decision-relevant issues that the law is concerned with. The relationship between causation and responsibility is a case in point, as the judgements above make plain. I know the progress that has been made in that area, and I believe it is important and relevant, but you are plainly unaware of that progress and have decided that you're "not really interested". That is pretty frustrating.

    3. Neil,

      If you are narked by me -- then you're certainly doomed, as I am considerably more interested and engaged and respectful of your philosophical endeavours than most of my comrades in the law. I hope I don't misunderstand it. The point I was trying to make was - legal "causation" isn't (exclusively) about philosophical "causation". In some ways it seems - to me - a false designation of the decision-making process, to suggest it is mainly about whether the accused caused X or Y. In deciding about the scope of legal causation, judges don't ask themselves -- "is this philosophically robust?" At least, not most of the time, and certainly not in the harder cases. The splice between different disciplines is more often fraught than not; not least because we bring different freight with us, and don't notice.

    4. I can agree about the freight, but not about the causation. The dichotomy you draw between causation as investigated in philosophy and causation as used in the law is a false one.

      You say "In some ways it seems - to me - a false designation of the decision-making process, to suggest it is mainly about whether the accused caused X or Y." Of course, I did not make any such "designation".

      There is a deep and interesting connection between being a cause of, and being responsible for (in all its various guises), an outcome, and it is very much the domain of philosophy to consider that connection. Part of the philosophical process is to consider how causal ascriptions, and ascriptions of responsibility, appear in ordinary discourse, in technical contexts, and in the law. To treat the philosophical progress here as irrelevant is ignorant, and that ignorance narks me.

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