The Scottish parliament’s decision by 36 votes to 82 to reject assisted suicide is the second time it has done so. As in 2011, the current bill was introduced by the late Margo MacDonald MSP, only to be taken forward this time by Scottish Green co-convener Patrick Harvie after her death last year. And like 2011, it would be wrong to assume we have heard the last of it.
This most recent bill set out criteria which would have permitted those who were suffering from a life-shortening or terminal illness to receive assistance to end their life. There is an important distinction to be made between euthanasia and assisted suicide. In euthanasia the responsibility for overseeing death rests with a person other than the one who wishes to end their life. With assisted suicide, the person completes the final act themselves, but with the assistance of another.
The bill’s drafting represented some improvement on the 2011 version, though it is never going to be universally accepted when it is such a politically, morally and ethically sensitive subject. It provided that a “licensed facilitator” – not necessarily a healthcare professional – be appointed to provide “comfort and reassurance” and “practical assistance” for people with “terminal” or “life-shortening” conditions.
The parliamentary debate highlighted concerns over how to interpret these definitions. Such concerns are valid. There is a whole spectrum of what may be construed as assistance. To date, the law has not recognised helping someone to travel to another country to die as assistance, for example. But would putting pills into a person’s hands or mouth, or giving them a glass or water have been permitted within the provisions of the bill?
The definition of “life-shortening” was another major issue. Could it include someone with type-2 diabetes for example? Many of the politicians were understandably concerned that this definition could have permitted assisted suicide in a much wider set of circumstances than they thought reasonable.
They also raised concerns about distinguishing between euthanasia and assisted suicide, and the challenges of ensuring equality and protection to those living with a disability. And more broadly in relation to definitions, there were many references during the debate to the conclusion of the report of the Health and Sport Committee that the bill had “significant flaws”.
The Scottish parliament debate
The current position
Aside from the debate over the bill, the law is arguably not clear enough on what constitutes “causing” the death of another by providing the means of suicide. It is a question of when this amounts to culpable homicide or murder – as reflected by the uncertainty around what is meant by “assistance”, for instance. This was a recurring concern during the scrutiny of the Scottish bill both by the health and sport and justice committees. Yet during the parliamentary debate on May 27, Scottish health secretary Shona Robison said: “the government believes that the current law is clear, and it is not lawful to assist someone to commit suicide, and the government has no plans to change that”. This is not a view shared by all, it must be said, including many senior Scottish academics.
One reason for the perception of uncertainty in Scotland is that the courts have yet to consider the issue. In England, a series of court cases have considered whether the present law on assisting a suicide is incompatible with article 8 of the Convention of Human Rights, the right to respect for private and family life. One of the outcomes has been a set of guidelines from the Director of Public Prosecutions on what the law permits – an equivalent to which Scotland lacks.
In June 2014, in the case of Nicklinson and others, the UK Supreme Court concluded that the law was inconsistent with article 8 of the convention, but it was the role of parliament to decide what to do about it. Westminster had such an opportunity following Lord Falconer’s Assisted Dying Bill, which proposed to provide “competent” adults who have less than six months to live with assistance to end their own life at their own request (you can read about the differences with the Scottish proposal here). But after months of deliberation and many amendments – filibustering by opponents, effectively – its passage ran out of time during the previous parliamentary session. Lord Falconer has said that he will attempt to have a further bill introduced at a future session.
Back in Scotland, however, a court ruling on assisted dying is now in the offing. Gordon Ross, who suffers from a severe debilitating illness, has taken his case to the Court of Session in Edinburgh requesting that the Lord Advocate issue guidance which makes clear whether any person who helps Ross end his life would be charged with an offence. The decision will be known in the next four to six weeks.
Back from the dead?
Following the parliamentary debate, one also senses unfinished business at Holyrood. While the majority of MSPs have said in a free vote that the bill could not continue because it was fundamentally flawed, is that really the case? Yes, there were issues with interpretation of some key terms and it is vital that the parameters of what constitutes “assistance” should be transparent and robust. But are these reasons for the bill to collapse altogether?
Patrick Harvie thinks not. He has repeatedly pointed out to colleagues that the parliamentary process would allow for further refinements, scrutiny and valuable debate to take place. There is certainly an argument that many of the definition problems could have been resolved after the first reading, had it passed.
Finally, while I am always nervous about polls and statistics and their potential to be interpreted to suit a particular view, there does seem to be a significant swell of public support for legalising assisted dying under certain conditions. Medical law has already acknowledged an individual’s autonomy to make decisions concerning the end of their life. So while the Scottish parliament may have spoken again, this is a discussion which will endure. It is not and should not be over.