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.