Law Society of Scotland: McArthur’s assisted suicide Bill ‘not fit for purpose’

There are “serious issues” with Liam McArthur’s Assisted Dying Bill which must be addressed, the Law Society of Scotland has said, in a scathing assessment of the MSP’s assisted suicide proposals.

The Society, which represents over 13,000 Scottish solicitors, made the comments in its response to the Scottish Parliament’s Health Committee’s call for evidence. It also said the Bill might fall outside of Holyrood’s legislative competence as it may be incompatible with the European Convention on Human Rights and mental health and capacity legislation.

The Christian Institute made public its own response to the call for evidence last week, in which it said any change to the law on assisted suicide would be “hugely damaging” to society.

Concerns

In its submission, the Society was clear that it does not adopt a position “on the moral and ethical issues of assisted dying”, but was nevertheless highly critical of many aspects of the Bill, including its “broadly drawn” definition of ‘terminal illness’.

The regulator also pointed out that, under the requirement for an “independent medical practitioner” to approve requests for assisted suicide, the possibility exists for “informal reciprocal arrangements” to arise, in which a doctor may routinely refer patients to an ‘independent’ doctor whom they know will readily approve requests.

While the Bill contains a section on medics’ rights to conscientiously object, the Society questioned whether the provisions were strong enough to “protect a healthcare provider against litigation for failing to advise a patient of the reasonable treatment option of assisted dying or, indeed, refusing to participate in providing a patient with the means to end their life”.

It noted that provisions for conscientious objection are stronger in the 1967 Abortion Act, and suggested rather than having medics indicate their opposition, it would be more practical and easier to regulate if doctors were required to opt in.

Mental capacity

The Society also noted that the proposed legislation currently states that those with mental disorders should not be permitted to request an assisted suicide if their disorder “might affect the making of the request”.

It highlighted that, in law, mental disorder covers learning disabilities, personality disorders, and also ‘mental illness’, a much wider area which is “extremely common, much more so than the type of chronic physical condition which we suspect that this Bill is intended to cover”.

The Bill’s provisions are not fit for purpose

It argued that many with mental illnesses would have the intellectual capacity to request an assisted death, and so a “blanket approach to capacity” might be deemed “discriminatory”.

This raises the prospect of the law being challenged in court with the intent of expanding it to allow those with mental health issues to procure the lethal drugs.

‘Not fit for purpose’

Elaine Coull, Convener of the Law Society of Scotland’s Health and Medical Law Committee, said: “All legislation must be meticulously drafted, but such care is particularly important in relation to assisted dying. We’ve identified a number of concerning deficiencies with this bill which must be urgently addressed.”

She continued: “The proposed role for medical professionals is similarly a concern. The Bill’s provisions are not fit for purpose around key questions such as who can provide a medical assessment and what happens if a doctor does not believe the requirements for assisted dying have been met.”

“We note that the Bill would require review after five years, which in our view is far too long a period. Given the gravity and impact of the subject matter, it is imperative that the legislation can be updated in response to issues which come to light as soon as possible after it passes.”

‘Dangerous and regressive’

Disability campaign group Better Way has also criticised the legislation in its own response to the Health Committee’s call for evidence, saying a change in the law would be “a dangerous and regressive path for our society”.

It said a person’s decision about whether or not to end their life could be “influenced unjustly” by factors such as their financial situation or their access to specialist care.

The group said: “Some patients may also feel that they are a burden on loved ones, or wider society. Others may feel that they should opt to end their lives in order to ensure that their inheritance is not spent on paying for care.”

It also pointed out that, at present, the proposed legislation “could catch patients suffering from anorexia, and some disabilities”.

Coercion

In its response to the Health Committee’s call for evidence The Christian Institute said the legislation would devalue the lives of vulnerable people, risked such people being coerced into ending their lives, and would also fundamentally change the relationship between doctors and their patients.

It noted that in other jurisdictions, eligibility requirements have also been quickly watered down, such as in Canada, where just five years after legalising euthanasia, legislators scrapped the requirement for a person to be terminally ill.

The Institute also warned it will be impossible to guarantee the absence of coercion once assisted suicide becomes an option, and that many vulnerable people may choose it out of fear of being a burden on others.