Assisted Dying: Inside Scotland’s controversial right-to-die plans

If the bill isn’t entered into Parliament before the Easter recess, then it will be immediately afterwards. “I don’t want to offer up hostages to fortune,” McArthur says, “but the time frame is either side of the Easter recess.”

Support is strong. McArthur needed 18 supporters cross-party to “earn the right to have a bill drafted and introduced”.

He started that process the day the Queen died so “I launched it and then had to close it a few hours later”. Nevertheless, in that short period he got 36 backers.

Previous attempts to get right-to-die legislation through Parliament fell early. But there’s been a sea change in Holyrood. During earlier attempts, MSPs “were looking for excuses to vote against”.

READ MORE: Revealed: Right-to-die may become law in Scotland as early as 2025

Now, MSPs are “looking for reasons to vote for”.

“I’m confident this bill will pass,” he says, adding: “I’m hopeful that once my colleagues see the detail of the bill and the safety measures … they’ll be persuaded it’s the right law.”

Once the bill is before Parliament it’s sent to the health committee, which will take evidence. Its report goes before Parliament, and there’s a stage one vote on the bill’s “general principals”.

There’s a “reasonable prospect of that being concluded later this year”.

With a “good wind”, he expects amendments then brought forward at stage two. “That’ll take up most of 2025.”

Deputy Presiding Officer Liam McArthur at the Scottish Parliament. Pic: Gordon Terris

When it comes to a final vote, McArthur says: “I wouldn’t have thought there’s any reason why it couldn’t be done through the course of 2025. It may tip over into 2026.”

McArthur’s bill is stringently safeguarded, he explains. It follows what’s called the “terminal-illness model”, similar to laws in American states, Australia and New Zealand. Only someone who is terminally ill can apply to use the law.

The alternative is the “permissive model”, which operates in Canada, Holland, Belgium and Luxembourg.

This model doesn’t require terminal illness for someone to apply to use the law. Broadly, the permissive model can be used due to “intolerable suffering”.

Safeguards

McArthur’s bill applies “mental capacity” safeguards. Patients must be both diagnosed as terminally ill, and deemed mentally fit to understand both their condition and the consequences of their choices. Two doctors are legally required to agree before anyone can access the law.

Anyone applying for assisted dying must be resident in Scotland for 12 months. This would prevent Scotland becoming a “suicide destination” like Switzerland.

There’s a two-week cooling-off period between the request being made and the patient allowed to take their life. Medication to end life must “be self-administered”. This, says McArthur, also “distinguishes the bill from what we see in other jurisdictions”.

The bill “sits in an assessment of choices at the end of life, so it sits with specialist palliative care,” McArthur adds. In other words, a dying person can chose whether they continue with palliative care or end their suffering.

“If you look at the international evidence, well over 80% who access assisted dying are in some form of palliative care. This is about expanding their choices.”

McArthur says palliative care is, for most terminally-ill patients, “invariably sufficient to meet the needs of those who are dying”. Internationally, “around 30% of those who apply for assisted death don’t use it”.

That can be down to palliative care being enough to “support them to the point of death”. They may also, though, “change their mind”, “die quicker than expected” or before the cooling-off period expires.

In California, some patients were unable to access assisted suicide as they died before the cooling-off period ended. An exemption exists in McArthur’s bill allowing anyone who will die within 14 days to have the cooling-off period reduced to 48 hours.

McArthur has already spoken to Scottish Secretary Alister Jack about the bill, over UK-wide issues like the Misuse of Drugs Act. Discussions were “very constructive and positive”.

Like with abortion, conscientious objection rights exist for medics in the bill, meaning they don’t have to participate.

If the law passes, doctors will be forbidden from suggesting patients access the law. Requests can only come from terminally-ill patients. McArthur says there’s a risk “this may lead to lack of access for those less aware of their rights, but it’s important the process is initiated by patients”.

Once patients broach the subject, McArthur wants “an open, transparent discussion” between doctor and patient “about the reasons they’ve come to that decision”.

This would allow doctors to check patients are supported by family and no pressure is being applied. However, given patients can only access the law if they’re already dying, the likelihood of anyone being coerced into suicide seems extremely unlikely.

Put brutally: why bully someone into suicide, if they’ll be dead soon?

Suffering

FROM McArthur’s extensive research into similar legislation overseas, rather than coerce loved ones relatives often try to prevent them taking their life.

McArthur rejected the “permissive model” as the term “unbearable suffering” is “highly problematic. It’s such a subjective concept”. In Canada, courts lead on the right to die. In Scotland, Parliament is in control.

Canadian courts agreed with “plaintiffs who felt their constitutional rights weren’t being respected. Parliament then grudgingly brought forward legislation”. This made for bad law.

McArthur explains there are “anxieties” around the Canadian model. Moves to expand the law to include people with mental illness have been paused.

Worldwide, terminal-illness models – like in Oregon – don’t morph into permissive models like Canada. Oregon’s laws have existed since 1997 and “eligibility criteria hasn’t changed”.

Under the terminal-illness model, patients often access the right to die but don’t use it. “The mere fact of having the option allows individuals to live life to the full for their remaining days.”

While McArthur’s law is strict, there should be “no pain threshold you must endure before you’re eligible”. With terminal illness, pain isn’t just physical, “it’s existential, it’s about the loss of sense of self. You get to the point where the prolongation of life is so intolerable you want to bring it to an end”.

There’s no “ticking clock” in McArthur’s law. Patients don’t have to be “six months” from death to be eligible. They just need to be terminally ill.

McArthur is prepared for “a fair bit of amending … All legislation requires some amending”. He’s open to amendments to “maintain broad cross-party support. It’s important we get this introduced even if it’s more heavily safeguarded than necessary. That’s understandable. It’s a significant change in the law”.

Two previous attempts to pass right-to-die laws at Holyrood failed. In 2005, a bill by LibDem MSP Jeremy Purvis failed to get the 18 supporters needed. Then a bill by Margo MacDonald failed when it got just 36 votes in 2015. She died of Parkinson’s before the vote.

“This time the political mood has shifted,” McArthur says. “More MSPs have experience of someone they know passing away in very difficult circumstances … That goes with an intellectual belief that the status quo isn’t tolerable or acceptable and is throwing up too many instances of ‘bad deaths’.”

There were 14,000 responses to McArthur’s consultation process, with 78% supporting the bill. Opinion polls show consistent support of around 75%. “There’s no doubt been a lag [between public opinion and politicians],” says McArthur.

Holyrood

Parliament

THE change in MSP opinion is partly down to two elections taking place between the last vote and now. “Two-thirds of MSPs weren’t here last time. The shift in personnel in the Parliament is significant.

“Since we last voted, a number of jurisdictions around the world brought forward their own legislation – like Australia and New Zealand. So there’s more examples providing evidence of how this works in practice and providing reassurance that it’s not beyond the wit of parliamentarians to implement this, link it with palliative care, and do so successfully with appropriate safeguards. Why should Scotland be so different?”

There’s also been a “significant shift” within the medical profession. “The most notable would be the British Medical Association shifting from opposition to neutrality.”

McArthur welcomes the medical profession “providing robust challenge, raising issues of concern, and seeking clarity, but it seems far more appropriate they take a neutral stance rather than saying ‘this isn’t legislation Parliament should even consider, let alone pass’. Ultimately, it’s for Parliament to determine, particularly when there’s been such consistent and overwhelming public support for so long”.

His bill “has been drawn as tightly as possible. I don’t think it’s possible to conceive of how you’d limit the criteria more while still providing real choice”.

McArthur is just back from researching California’s law. The state recently completed its first five-year review, and “endorsed” the law with a “Continuation Act”. Other jurisdictions have “sunset clauses”, meaning right-to-die legislation must be passed again to remain legal. McArthur’s bill, if passed, will be reviewed after five years by Holyrood.

When it came to McArthur’s public consultation: “So many of the contributions were personal testimonies from either those with terminal illnesses explaining why they wanted to see the law changed or from those who’d lost family and wanted to explain their reasons for wanting the law changed.” Contributions were checked for authenticity so results weren’t falsely skewed.

McArthur found hearing these personal stories “challenging”, adding: “It’s a hard listen. There’s an argument that ‘tough cases make bad law’, but I’d flip that and say that ‘bad law has created these tough cases’.

“We need to enter this area of law sensitively, recognising the complexities and ensuring robust safeguards, but it’s increasingly obvious to more and more people that banning assisted dying is unsustainable and intolerable.”

McArthur says that during end-of-life treatment “we allow palliative sedation, where someone is effectively put under for the remainder of their days. In those instances, invariably dehydration hastens them off”.

Torture

IT’S “tortuous”, he feels, explaining: “It’s a process in which the individual isn’t meaningfully engaged or even involved at all. Decisions are taken by medics, and possibly family members, but it’s not giving real agency to the individual.

“There are instances where medics, possibly in discussion with family, sometimes not, are increasing morphine to manage pain in the certain knowledge that it’s significantly increasing the risk of hastening death. So we’ve basically got assisted dying – we’re just not either honest about it, transparent, or robust in the way we regulate it.”

He stresses, however, that “generally speaking the quality of palliative care by international standards is pretty good”. He hopes his bill will lead to discussions around palliative care and more money for end-of-life treatment.

Prue Leith, the TV celebrity chef who supports assisted dying, told how her brother died “in absolute agony”. He was given morphine every four hours but pain relief only lasted three. Esther Rantzen, who has lung cancer and plans to travel to Dignitas, says she cannot face her loved ones watching her die in pain. “If you watch someone you love having a bad death, that memory obliterates all the happy times,” she said.

Esther Rantzen

McArthur heard adult children talk of their parents asking “for help to end it all”. This puts relatives in jeopardy of prosecution for simply discussing the matter. “We can do better than this. Push this into the shadows and you put people more at risk.”

However, most terminally-ill patients don’t want to put loved ones at risk, and so are left to “take matters into their own hands to avoid drawing in family for fear of them being subject to police or legal action”. He says: “So when people are most vulnerable, we’re isolating them more. They’re not allowed to have conversations with family, or their doctor.”

One doctor told McArthur they only discovered their patient had taken their life six days after they visited Dignitas in Switzerland. “You cannot have a conversation without risking being charged with assisting suicide. Suicide isn’t illegal, but assisting somebody is.”

Prosecution services in England have broadly indicated there’s little public interest in prosecuting loved ones. In Scotland, “we’ve not had that from the Lord Advocate”, says McArthur, adding: “There’s uncertainty at best. I’d like to think that in most, if not all instances, there would be conclusions drawn that it’s not in the public interest to prosecute individuals, but that’s far from certain –and that uncertainty hangs over people trying to come to terms with losing family members.”

McArthur has “pressed for the Crown Office to provide more clarity, because even if prosecutions aren’t brought, it’s entirely possible, perhaps probable, that police would respond to a case where there’s been suggestions of conversations or assistance being provided. So you’re under interrogation – possibly under caution – again, when you’re grieving”.

In England, “there’s a reasonably high bar in terms of where the public interest lies. It’s not that there’s no risk, but there’s more clarity. Here, it’s more vague”. McArthur assumes this may be due to the fact “courts made it clear it’s for the [Scottish] Parliament to determine what the law is”.

Religion

THE main opposition now comes for religious groups. However, polling shows Church of Scotland members “broadly in line with overall public support for change in the law”. However, that’s “maybe not the same across all faiths”.

There’s a “spectrum of views in most faiths. There’s an issue for faith leaders in expressing their opposition, to perhaps be cognisant of the fact they’re speaking on behalf of congregations who aren’t necessarily aligned with what they’re saying”.

McArthur, who “isn’t a person of faith”, has spoken to those who are religious and heard them say “their faith is precisely what led them to the position of being vocal, longstanding supporters of change in the law”.

They felt “compassion was absolutely integral to their faith. Faith leaders need to recognise that faith is deeply personal. Simply saying ‘if you’re a true Christian you cannot do other than oppose this abomination’ doesn’t stand up to scrutiny. Everybody is one bad death away from supporting assisted dying”.

While some terminally-ill patients may worry about being “burdens”, McArthur’s research shows that overwhelmingly “dying people want to live. The mindset of somebody who’s suicidal couldn’t be more different to someone terminally-ill [seeking assisted death]. Knowing you’ve access to assisted death, at the point you need it, allows you to get the most out of the time remaining. You’ve this insurance policy that when it gets too much there’s choice available”.

He adds: “The issue of whether or not you die has already been taken, it’s removed from your control. So this bill is about allowing dying people to take as much control over what remains of their life as they can.

“Overwhelmingly, the motivation of those accessing assisted death is the desire to remain in control, to not continue to live in circumstances where pain isn’t managed or there’s loss of dignity, agency and independence – all the things that make life worth living.”

Disabled

ISSUES have been raised about right-to-die legislation adversely affecting disabled people. Again, McArthur says his bill is only for those who are terminally ill. Disabled people should have the same right to access the law as able-bodied people, he believes. McArthur warned against false claims “creating unnecessary fear among disabled people”.

Glasgow University research shows that internationally “disabled people accessed [right-to-die laws] in the way you’d expect: only when they’re eligible and not to a greater extent than the population at large”.

Elderly people evidently access right-to-die laws more due to the greater “likelihood of terminal illness in later years”. Any notion that such laws can be used by unscrupulous relatives to bully or guilt-trip the elderly into taking their life “isn’t borne out” by international research. Nor would such actions be possible under McArthur’s safeguards.

In fact, the reverse is true. In Australia, doctors have said “the biggest problem since introducing the laws was persuading family members they didn’t have a veto”. Most relatives find it extremely difficult to accept loved ones accessing right-to-die laws.

In Holyrood, there are some MSPs “implacably opposed” to McArthur’s bill, “those like me who are long-term supporters, others who have come in the last two Parliaments and made no secret of the fact they’re very supportive, and a chunk in the middle. Those who are supportive are significantly higher than in any other Parliament”. He says: “So numbers are up markedly, and among those undecided there’s far more of a mood to be persuaded than last time.”

McArthur worries about the law being engulfed in “culture wars” in the media. However, when talking of opponents, he wants to avoid “using terms like misinformation, disinformation or scaremongering. It’s important to keep this debate measured and respectful. It’s not an issue that benefits from confected heat. It’s highly sensitive and complex. People have deeply entrenched and very personally-held convictions. I respect that”.

The debate should focus on his bill, McArthur says. “There’s a desperate need on the part of some opponents to spend all our time discussing Canadian legislation.”

While “the need for robust scrutiny is undeniable”, MSPs shouldn’t be “encouraged to scrutinise bills that aren’t in front of them, rather than the one I’m bringing forward”.

He adds: “However, if you’re going to wage culture war you’re probably doing it not just against those within politics who disagree with you, but the vast majority of the population as well, and they’ll call you out.” Nevertheless, McArthur is prepared for “abuse”.

He sees right-to-die legislation as “the next great liberal reform”. What troubles him most is the people who are terminally ill right now but “the law won’t come soon enough to help them”.

McArthur says: “Once we’ve passed this law, we’ll wonder why the hell it took so long.”