This is not a cheerful subject but is an important one.
- Towards the end of last month the Assisted Dying for Terminally Ill Adults (Scotland) Bill was introduced to the Scottish Parliament by Liam McArthur MSP: Assisted Dying for Terminally Ill Adults (Scotland) Bill (parliament.scot)
- As noted in the Policy Memorandum for the Bill two previous Member’s Bills in this policy area (in 2010 and 2013) fell by the wayside after failing to get enough votes from MSPs in support of the general principles of the Bill. This new Bill however is rather more focused than previous Bills.
- For example, it only permits access to “assisted dying” for those who have an advanced and progressive terminal illness which is expected to cause their premature death whereas the 2010 Bill envisaged access to “assisted dying” not only to a person who was terminally ill but also to a person who was “permanently physically incapacitated to such an extent as not to be able to live independently and finds life intolerable”.
- And the previous Bills introduced in the Scottish Parliament did not establish a process which was to be delivered by healthcare professionals as this new Bill does. Nor did previous Bills make provision for how assisted dying would actually be facilitated in practice (e.g. provision of a life ending substance by healthcare professionals) or for any form of conscientious objection for healthcare professionals.
- The Explanatory Notes to the Bill say:
“The purpose of the Bill is to make it lawful for a terminally ill adult who meets specified eligibility criteria to voluntarily request, and be provided with, assistance by health professionals to end their life…
The Member believes that the current legal position is unacceptably unclear as there is currently no specific legislation in Scotland which makes assisted dying a criminal offence, yet it is also possible to be prosecuted for murder or culpable homicide for assisting the death of another person. The Bill improves legal clarity by making it lawful for a person to access assisted dying if they meet the various criteria, while continuing to ensure that assisting death outwith the provisions of the Bill remains unlawful.”
- After that brief background introduction there follows an outline of key aspects of the current Bill.
Key aspects of the Bill as introduced
- A person qualifies as “terminally ill” and so eligible to request “assisted dying” if they “have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death.”
- And, in order to be eligible, the person must have the “capacity” to request such assistance. A person has such capacity if they “(a) are not suffering from any mental disorder which might affect the making of the request, and (b) are capable of (i) understanding information and advice about making the request, (ii) making a decision to make the request, (iii) communicating the decision, (iv) understanding the decision, and (v) retaining the memory of the decision.”
- The safeguards include a requirement for two doctors, independently of each other, to determine eligibility. The person must have been informed and preferably have discussed their situation, and the options open to them (e.g. palliative, hospice and other care options), with a doctor before deciding to apply.
- The process includes requirements for a “first declaration” and a “second declaration”, with a “period for reflection” between them. The first declaration is a request by a terminally ill adult to be lawfully provided with assistance to end their own life. The “coordinating registered medical practitioner” must carry out an assessment to ensure that the adult is terminally ill, is eligible, and has made the declaration voluntarily, without being “coerced or pressured by any other person into making it”.
- If satisfied on these points, that practitioner must refer the person to another “independent registered medical practitioner”, who independently assesses the same points. The independent practitioner must not have provided treatment or care to the adult in relation to the terminal illness and must be “unrelated”.
- It is open to the adult to cancel the first declaration. If the adult has not cancelled, and if both medical practitioners have carried out the required assessments and made the specified statements, then once the period for reflection has ended the adult may make a “second declaration”. The normal period for reflection between the “first declaration” and “second declaration” is 14 days. There is, again, provision for the adult to cancel the declaration.
- The Bill then goes on to regulate the provision to the adult of “an approved substance with which the adult may end their own life”. The coordinating medical practitioner or authorised health professional must remain with the adult (although not necessarily in the same room) until the adult decides whether to use the substance, and if so, until the adult has died.
- If the adult decides not to use the substance, the medical practitioner must “remove it from the premises at which it was provided”. If the adult uses it and dies, there are detailed provisions about the “final statement” that the medical practitioner must complete.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Allyson Gilchrist: email Allyson@mitchells-roberton.co.uk