Comment: new Bill to legalise assisted dying in Scotland

The Scottish MSP Margo MacDonald has introduced a Bill which would legalise assisted dying in Scotland. Although most media coverage has reported that the Bill concerns assisted suicide (see eg BBC NewsThe Times, The Guardian), the language of the Bill appears to encompass all forms of assisted dying including voluntary active euthanasia (which is currently lawful only in the Netherlands and Belgium).

Clause 1 of the End of Life Assistance (Scotland) Bill states:

1 Lawful to provide assistance under this Act

(1) It is not a criminal offence or a delict for a person⎯

(a) to provide end of life assistance in accordance with this Act; or
(b) to provide assistance, including assistance by participating in any step required by this Act, to enable another person to obtain or provide end of life assistance in accordance with this Act.

(2) In this Act “end of life assistance” means assistance, including the provision or administration of appropriate means, to enable a person to die with dignity and a minimum of distress.

The central eligibility criterion is found in cl.4(2):

The requirements of this subsection are that the requesting person⎯

(a) has been diagnosed as terminally ill and finds life intolerable; or

(b) is permanently physically incapacitated to such an extent as not to be able to live independently and finds life intolerable.

This is a combination of the approach seen in the DPP’s recent draft guidance (which requires either terminal illness; severe and incurable physical disability; or severe degenerative physical condition), coupled with a suffering-based requirement reminiscent of the Dutch and Belgian schemes, although here it is clearly patient-determined rather than doctor-assessed. In the Netherlands, the “attending physician . . . must have been satisfied that the patient’s suffering was unbearable, and that there was no prospect of improvement”. In Belgium, the “patient [must be] in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident”.

Terminal illness is defined in cl.4(4): “a person is terminally ill if the person suffers from a progressive condition and if death within six months in consequence of that condition can reasonably be expected.”

Various safeguards are included: two written requests must be made; a psychiatric consultation is required; and the individual must have been registered with a Scottish GP for 18 months. Some of the safeguards are poorly drafted. Voluntariness and undue influence are dealt with separately (ss.6(2), 7(2),(3), 9(3), 11(3)). Surely to make a request voluntarily means that the individual is not acting under undue influence? See, eg, U v Centre for Reproductive Medicine [2002] EWCA Civ 565.

The definition of capacity in s.9(4) is also confusing:

For the purposes of this Act a person has capacity to make a request for end of life assistance if that person is not suffering from any mental disorder which might affect the making of such a request and is capable of⎯

(a) making a decision to request such assistance;

(b) communicating such a decision;

(c) understanding such a decision; and

(d) retaining the memory of such a decision,

but a person is not to be regarded as lacking capacity by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise).

The individual must not be suffering from any mental disorder which might affect the making of a request! What if the psychiatrist is of the view that the individual is suffering from depression but that although this might affect the making of a request, it has not in fact done so? Surely it should be sufficient for the individual to meet the cognitive tests for capacity? This indeed is the approach taken in the Adults with Incapacity (Scotland) Act 2000, s.1(6), on which this provision is based:

“incapable” means incapable of—

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)

It is also the approach taken in the Mental Capacity Act 2005, ss.2, 3, according to which a person can only be found incompetent if an “impairment of, or a disturbance in the functioning of, the mind or brain” (which could be caused by a mental disorder, a mental illness, learning difficulties etc.; see Mental Capacity Act Code of Practice, [4.11]) causes the person to be unable to make a decision, that is, to be unable to meet the cognitive tests for capacity.

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