Scotland’s assisted suicide Bill is laudable, but is poorly drafted

By Isra Black, King’s College London

This article was originally published on The Conversation.
Read the original article.

The Scottish Parliament is currently considering a Bill on physician-assisted suicide that has been submitted by independent Scottish member Margo MacDonald. One of the most popular MSPs in Holyrood and a sufferer from Parkinson’s disease, this is MacDonald’s second attempt to get such a law on to the statute book after her previous bill was defeated in 2010.

The Assisted Suicide (Scotland) Bill would decriminalise physician-assisted suicide (PAS) for registered medical patients in Scotland over 16 who regard their quality of life as unacceptable as a result of an illness or progressive condition that they consider terminal or life-shortening. Unlike MacDonald’s previous Bill, it expressly prohibits euthanasia – the deliberate killing of another to avoid future suffering.

Scots Law does not have a specific criminal offence banning encouragement or assistance to suicide, unlike in England and Wales, where Lord Falconer is sponsoring an assisted suicide Bill that is due to be read in the Lords later in the year.

Nevertheless helping someone to commit suicide, for example by deliberately supplying medication used to lethal effect, could potentially be treated as a serious crime. It might lead to prosecution for culpable homicide – the Scottish equivalent of manslaughter – or even murder.

Complex procedure

Macdonald’s Bill envisages a complex procedure for people who want a physician to help them commit suicide. Along with the eligibility criteria mentioned above, they have to make a witnessed “preliminary declaration” stating that they would consider suicide. This must be endorsed by a physician, who enters the declaration into the person’s medical records.

At least seven days later, the patient has to request PAS, which must be approved by two physicians. At least 14 days after this request, the patient has to make a second request, which must be approved in the same way. They then have 14 days within which to carry out their wish to die; otherwise their request expires and the process would start again.

The reaction to the Bill has been mixed, particularly among physicians. In recent letters to the Glasgow-based Herald, a number of doctors have argued in favour of legalisation, while others have maintained that there is little support among the medical profession. One of the arguments against the Bill has been that PAS cannot be effectively regulated.

The case for assisted suicide

I believe that we should support PAS and the Bill in principle. Like many proponents of assisted dying, I start from two basic principles: people should not have to endure unbearable and hopeless suffering, and when they do, they should have the choice to end their lives.

The claim that PAS can’t be safely regulated does not withstand scrutiny. The evidence from jurisdictions which allow assisted dying such as the Netherlands, Belgium, Switzerland, Washington State and Oregon is that safeguards are respected.

Opponents often argue that we cannot allow PAS because immoral killings will result – the so-called “slippery slope argument”. It is notoriously difficult to prove one way or the other, but the evidence that does exist from the jurisdictions that allow assisted dying tends against the argument.

Having said all that, the Scottish Bill needs improvements. It would benefit from redrafting, especially since its predecessor was criticised for being overly complex and providing insufficient safeguards. Legislation that gives people rights and responsibilities should be easy to understand and apply. At present, the Bill is a mess of cross-referencing and repetition.

The requirement that the request for PAS is made without pressure from others, known in legal speak as “voluntariness”, is absent from the text of the Bill. It features only in the standard form declarations that the person requesting PAS, the witness and physicians must complete. Such an important requirement must be at the heart of the law.

Loose words

Elsewhere the Bill is ambiguous. It refers to an illness or progressive condition that is “for the person” terminal or life-shortening. But it makes little sense to leave it entirely up to the person to decide whether these criteria have been met, since anyone could request PAS. As the Bill stands, the doctor is only required to validate the belief of the sufferer rather than the condition itself.

The legislators might also reconsider whether the preliminary declaration actually provides any safeguards beyond the first and second requests for PAS. You could achieve the same effect by having a longer “cooling off period” between the first and second requests – 21 days for instance. There is also a risk that the preliminary declaration deters seriously unwell people from PAS by requiring them to jump through more bureaucratic hoops than they are able to manage.

Another issue is the Bill’s failure clearly to define the responsibilities of physicians. Unlike in Belgium, Oregon and Washington State there is no conscience clause, which would give physicians the right to refuse to provide assistance.

But if such a clause is introduced, it must stipulate that the physician has a duty to refer the patient to another who will give assistance. Otherwise a doctor would be under no obligation to make clear that their refusal was conscience-based, which might lead a person to think that they were not eligible for PAS. And having been rejected for PAS by their regular physician, it can be daunting for patients to request PAS from another that they do not know. Were the Bill to create a duty to refer in the event of conscientious objection, this problem might be eased.

Neither is there a requirement that the two physicians endorsing each of the requests be independent from one another. For example the Belgian euthanasia law requires that the second physician have no prior relationship with the treating physician or patient.

The Bill does not include a system for monitoring PAS. It would be highly desirable to have a reporting requirement that would help us to develop a picture of who receives PAS and for what reasons. Ideally, there would be publicly available annual reports that consider difficult cases to help guide physicians – in line with the Netherlands.

Perhaps of most concern, the Bill sets a time limit of 14 days after the second request during which lethal medication must be taken. A 14-day time limit may well be distressing (as well as impractical), and may encourage people to end their lives sooner than they would otherwise choose.

In Oregon, a significant proportion of the people who receive a prescription for lethal medication under the Death with Dignity Act never take it. This is perhaps because PAS functions like a security blanket: having lethal medication on hand gives comfort.

It allows people to live out their lives safe in the knowledge that they can die quickly and peacefully if they so choose. To lose the security blanket might be to lose that which is most important – PAS allows people not only to die well, but to live well too.

It would be naive to believe that MacDonald’s Bill would succeed if all these issues were addressed. Experience of the previous attempts in Scotland and in England and Wales has shown that politicians become queasy in the face of a well-organised opposition lobby. But if MacDonald and her supporters want to maximise their chances, there is more work still to be done.

The Conversation

Isra Black receives funding from the Arts and Humanities Resarch Council for his doctoral research. In 2011,
Isra coauthored a briefing paper on ‘The effectiveness of legal safeguards in jurisdictions that allow assisted dying’ with Professor Penney Lewis (King’s College London), which was commissioned by Demos for the Commission on Assisted Dying.

 

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