Will Scotland become the first part of the UK to legalise assisted dying?
What legislation is being proposed?
A proposed bill is being brought forward by the Scottish Liberal Democrat MSP Liam McArthur in the Scottish parliament to allow terminally ill, mentally competent adults the option of medically assisted dying. It is supported by a cross party group of 12 other MSPs, who said in an open letter, “The [present] law does not work and should be replaced with a safe and compassionate new law that gives dying people the rights they need to have a good death. It is incumbent upon us to provide a solution.”
The bill is expected to require terminally ill people who wish to end their life to sign a declaration in the presence of two independent witnesses. The declaration would have to be approved by two doctors who are satisfied that the patient is terminally ill, has the capacity to make such a decision, and has done so voluntarily. A 14 day period may be built into the bill to give time for reconsideration after medical approval is given.
What is different now?
Two previous attempts in the Scottish parliament to introduce assisted dying have been defeated, by 85-16 in 2010 and by 82-36 in 2015. However, elections in May 2021 returned a new group of MSPs who may be more sympathetic to a change in the law. They may be influenced by evidence of strong public support: a 2019 poll commissioned by the campaign group Dignity in Dying Scotland found 87% support for change. Other polls have consistently shown a large majority in favour.
The experience of other countries that have legalised medical help to die may also prove influential, including the Netherlands, Belgium, Luxembourg, Switzerland, Spain, Canada, New Zealand, and Colombia. Several US states, including California and Oregon, and two Australian states have also enacted legislation.
Who opposes the proposed bill?
Some 200 medical professionals have written to the Scottish health secretary, Humza Yousaf, expressing concern over the bill, including the former president of the Royal College of Physicians and Surgeons of Glasgow, David Galloway, and Marie Fallon, professor of palliative medicine at Edinburgh University. They wrote, “The shift from preserving life to taking life is enormous and should not be minimised. The prohibition of killing is present in almost all civilised societies due to the immeasurable worth of every human life.”
Organisations including the BMA, the Royal College of General Practitioners, the Association for Palliative Medicine, and the Church of Scotland remain opposed to legalisation, but others, such as the Royal College of Nursing and the Royal College of Physicians of London, have adopted a neutral stance. The Royal College of Physicians of Edinburgh and the Royal College of Surgeons of Edinburgh have not taken a stance.
What is the current legal position?
Scotland has no specific crime of assisting a death, but doing so could lead to prosecution on a charge of murder or culpable homicide. In England and Wales the Suicide Act 1961 makes it an offence to encourage or assist a suicide or a suicide attempt, which is almost identical to the situation in Northern Ireland.
What happens now?
Details of the proposed bill will not be published until after a public consultation this autumn. If the revised proposals are approved by 18 or more MSPs, the bill will then be prepared and presented to parliament. This step is unlikely before spring 2022, and the bill would be unlikely to pass into law before 2023. The Scottish government has not made its position known but has in the past allowed its MSPs to vote with their conscience.
Will the bill provide for conscientious objection?
Conscientious objection is a key feature of legislation in other jurisdictions, and options will be explored in the consultation. The lack of a conscience clause in the 2015 bill attracted criticism: a briefing stated, “This was felt to be a significant omission and inconsistent with other legislation such as the Abortion Act 1967.”
What is happening elsewhere in the UK?
A private member’s bill on assisted dying is awaiting its second reading in the House of Lords after being introduced in May by the life peer Molly Meacher, who chairs the Dignity in Dying campaign. Under the proposals, two independent doctors and a High Court judge would have to assess each request for assisted dying, but this proposed legislation faces many obstacles and is a long way from succeeding.
In April of this year England’s then health secretary, Matt Hancock, announced that he had sought data from the Office for National Statistics on the number of terminally ill people dying by suicide. Figures from 2014 suggest that as many as 300 terminally ill people a year in England die by suicide, some of whom may be taking their own lives because of the lack of an assisted dying law, campaigners say.
Definitions under dispute
Proponents and opponents of assisted dying do not all agree on the terminology used to describe the process.
Proponents of Molly Meacher’s 2021 Assisted Dying Bill in England and Wales argue that this term best describes prescribing life ending drugs for terminally ill, mentally competent adults to administer themselves within strict legal safeguards. Assisted dying as defined here is legal and regulated in the US states of California, Colorado, Hawaii, Maine, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington, as well as in Washington, DC. Similar legislation has passed in New Zealand and in the Australian states of South Australia, Tasmania, Victoria, and Western Australia.
This term is often intended to describe giving assistance to die not only to patients with a terminal illness but also to people with long term progressive conditions and other people who are not dying. The drugs are self-administered. Some opponents of assisted dying do not accept that it is different from assisted suicide. Assisted suicide, as defined here, is permitted in Switzerland.
This term describes a doctor directly administering life ending drugs to a patient who has given consent. Voluntary euthanasia is permitted in Belgium, Luxembourg, and the Netherlands. In Canada voluntary euthanasia and assisted dying are legalised for people with a “grievous and irremediable medical condition,” in what it calls “medical assistance in dying.”