College of Arts, Humanities and Social Sciences – Law
Salary: £32,004 to £38,183
Hours: Full Time
Contract Type: Fixed-Term/Contract
Placed on: 18th July 2017
Closes: 15th August 2017
Job Ref: 040561
Applications are invited for an Early Career Fellow in the School of Law in the field of Bioethics with a particular focus on the areas of biotechnology regulation and/or bioethics of human data and samples.
The successful candidate will be expected to make an excellent contribute to the teaching programme of the School of Law at undergraduate and postgraduate level and the ability to teach bioethics to both undergraduates and postgraduates is essential. They will also have a record of achievement in and well-developed future plans for their research. They should have either completed a PhD (or be very close to completion of one) or be able to demonstrate comparable research experience and excellent potential. They will provide clear evidence of the ability to produce written work of high quality and to communicate that work through conferences, presentations and by other means.
The duties of appointees include research, teaching and administration as specified in the contract of the University of Edinburgh and as agreed by the Head of School.
This is a full-time (35 hours per week), fixed term post until September 2019.
Closing date is 5pm (GMT) on Tuesday 15th August 2017.
The same week that the UK press reported the death of Jeffrey Spector, who travelled to Switzerland to die rather than face a life of pain and paralysis, the Scottish parliament has rejected the general principles of the Assisted Suicide (Scotland) Bill by 82 votes to 36.
The bill sought to decriminalise assistance in the suicides of registered medical patients in Scotland aged 16 years and above with a terminal or life-shortening illness or progressive condition who experienced an unacceptable quality of life without prospect of improvement. It set out a complex procedure that lawful assisted suicides should follow.
Patrick Harvie MSP, who took charge of the Assisted Suicide (Scotland) Bill following the death of Margo Macdonald MSP has pledged to continue the campaign:
Spector, a 54-year-old Lancastrian with an inoperable spinal tumour, had received assistance to end his own life at the Swiss Dignitas clinic.
Spector, who was accompanied in his final moments by his family, stated that the law prohibiting assisted suicide in England and Wales had pushed him to end his life earlier than he would otherwise have wished. In an interview with reporters, quoted in The Independent, he said:
I don’t want to take the chance of very high-risk surgery and find myself paralysed … If the law was changed then what difference if I had an operation? I could do it after. Rather than go late, I am jumping the gun.
Meanwhile, Lord Falconer has announced his intention to reintroduce an Assisting Dying Bill for England and Wales into the House of Lords in Westminster.
His Assisted Dying Bill which would have permitted adult residents whose terminal illness was likely to cause death within six months to request lethal medication from doctors if a specific procedure were followed, ran out of time in the most recent parliamentary session.
While recent independent polls (commissioned by organisations in favour of permitting assisted suicide) show very high levels of public support for legalising some form of assisted suicide in Scotland (69% in favour) and Britain as a whole (82% in favour), the prospects for a change in the law are grim, particularly in Scotland.
While support for assisted suicide has more than doubled in the Scottish parliament in the four years since Margo Macdonald’s End of Life Assistance (Scotland) Bill, there still needs to be a considerable shift in political will before a future bill can succeed.
The rejection of Patrick Harvie’s bill on principle shows that even a measure whose drafting and purpose is not criticised for “significant flaws” is unlikely to become law.
Things may look rosier in Westminster, since the recent Assisted Dying Bill passed the second reading stage at which the principle of a bill is debated and usually put to a vote. However, there was no vote on the principle of the bill at this stage, because supporters and opponents of the bill agreed that the issue deserved further debate and line-by-line scrutiny at the committee stage. So the fact that the Assisted Dying Bill made it to committee does not in this case show that peers are favourable to the legalisation of assisted suicide.
It is also very easy to kill legislation in committee. Parliament sets aside very little time for scrutiny of legislation that is not part of the government’s programme – such as Lord Falconer’s bill. If opponents table more amendments than there is time available to discuss them, a bill will fail. This is exactly what happened to the Assisted Dying Bill; few of the 175 tabled amendments were discussed over two days of debate. After the committee stage, there are two further stages (report and third reading), which also present opportunities to debate or amend a bill out of existence.
Even if an assisted suicide bill could be agreed in the House of Lords, it would then have to survive a near identical legislative process in the House of Commons. Let’s not forget that MPs, unlike peers, do not have the luxury of being unelected and may be nervous about supporting legal change on a controversial moral issue in the face of supremely well-organised opposition.
Supporters of assisted suicide need to convince politicians and the public that legalisation will not endanger the lives of “vulnerable” people. The empirical evidence from jurisdictions where assisted dying is lawful can help show this. The challenge is to communicate key findings from this complex and incomplete data set in a political moment.
Tactically, it may be desirable to talk less about autonomy and more about equality. Individuals should be able to choose assisted suicide not because choice has supreme value, but because respecting others’ choices on how to live and die respects them as equals.
People who seek assisted suicide and the vulnerable who worry about the impact of assisted suicide want the same thing: for their life plans to be recognised as having equal moral worth.
Supporters of assisted suicide should take note that in the Tony Nicklinson case, the UK’s Supreme Court dropped a strong hint that restricting suicide assistance to the terminally ill may fail to show due respect for all individuals’ right to private life as protected by article 8 of the European Convention on Human Rights. Supporters may therefore need to reconsider who would be eligible for an assisted death in their proposals for law reform.
Following the Stage 1 debate on the End of Life Assistance (Scotland) Bill on Wednesday 1 December 2010, the vote on the motion to agree the Bill was, For: 16, Against: 85, Abstentions: 2. As a result of this decision, the Bill falls.
The transcript of the Stage 1 debate on the Bill is available on the Scottish Parliament website.
The End of Life Assistance (Scotland) Bill Committee has received a written response from the Member in Charge of the End of Life Assistance (Scotland) Bill, Margo MacDonald MSP, to its Stage 1 report on the Bill.
“Publication of the Stage 1 Report on the End of Life Assistance (Scotland) Bill – Thursday 18 November 2010 and Stage 1 Debate on the End of Life Assistance (Scotland) Bill – Thursday 25 November 2010
The Scottish Parliament will hold its Stage 1 debate on the Bill on Thursday 25 November 2010. This debate will commence at 2.55pm in the debating chamber of the Scottish Parliament.
Following this debate the Parliament will vote on the Bill at Stage 1 (as part of Decision Time at 5pm on 25 November). If the Parliament approves the Bill, it will proceed to Stage 2 (Committee amendment stage). If the Parliament does not approve the Bill, it will fall.
You will be able to watch the debate online at www.holyrood.tv.”
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 News, The 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  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.