Assisted dying in Scotland: Defending status quo just does not add up

Only adults who have been living in Scotland for 12 months – registered with a doctor, and with legal capacity – will be ­eligible. Under the proposals, people seeking assistance to end their lives would make a fully witnessed first declaration that they want to be provided with lawful assistance to die.

Two doctors must then certify they ­really are terminally ill, eligible, and are making this ­declaration “voluntarily” without ­“coercion or pressure” from any other ­person. ­Assuming all these tests are met, there is then a two-week reflection period before the doctor may provide the ­terminally ill adult with an approved substance “with which the adult may end their own life”.

The current legal position in Scotland is a bit more complex than many people recognise. The Suicide Act 1961 ­abolished the crime of attempting suicide – partly ­explaining why some folk still use that ­archaic formulation of “committing ­suicide” – but introduced the new offence of “aiding, abetting, counselling or ­procuring” another person’s death, with maximum penalties of up to 14 years in prison.

Modern offence

The 1961 Act has been revisited over the years since. The modern offence holds if you do anything “capable of ­encouraging or assisting” another person with the ­intention of encouraging or ­helping them to end their life.

It’s under these rules that people south of the Border who help their loved ones to board aeroplanes to Switzerland – or who put the arrangements in place for their parents or partners to end their life at the Dignitas Clinic – commit a criminal ­offence.

In 2008, the parents of 23-year-old Daniel James were arrested on their return to the UK, ­having made arrangements for their ­tetraplegic son to end his life in ­Switzerland. James’s case caused and causes controversy, as he did not have a terminal life-threatening condition, but had unsuccessfully attempted to end his life several times, begging his parents to help him, before they eventually agreed to do so.

Liam McArthur's Assisted Dying Bill will not have an easy journey through Holyrood (Image: Newsquest)

On returning to the UK, his parents were questioned – but not charged – for the assistance they extended to him. You rarely hear politicians – or campaigners against law reform – arguing that police, prosecutors and courts should be taking a more draconian line on enforcing the law. Best you can tell, the legislation is quietly being ignored by the English ­authorities because nobody seems to ­believe the ­public interest would be served by ­rounding up these grieving relatives. If you don’t think this behaviour merits criminalisation, then decriminalise it.

Contrary to what you often see ­reported, the Suicide Act doesn’t apply in Scotland. Important implications flow from this. First, as Lord Carloway held back in 2016, it means that “it is not a crime to assist another to commit suicide” under Scots Law, but “if a person does something which he knows will cause the death of another person, he will be guilty of ­homicide if his act is the immediate and direct cause of the person’s death”. This means Scots who help their loved ones to seek assistance to die outside the ­jurisdiction don’t commit a crime.

But what if you give someone drugs, knowing they are going to use them to end their lives? There too, Lord ­Carloway held, Scots Law is clear: “When an adult with full capacity freely and ­voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death.” This means you can’t be ­convicted of murder, or culpable ­homicide. The chain of causation between what you did and their death is broken.

Guilty of murder

Administer the drugs yourself, however, and you are guilty of murder. As Lady Dorrian held in the same case, “neither the compassionate nature of the ­motive, nor the desire of the victim to die are ­relevant considerations” in deciding whether the killer has committed ­murder or not. Any wilful act which causes ­destruction of life with the intention to kill is murder – attracting the mandatory life sentence which comes with it.

But in practice, this isn’t what we see Scottish justice authorities doing. ­Prosecutions of medical professionals for assisting their patients to end their lives are vanishingly rare – assisted by the ­doctrine of “double effect”, and the ­useful fiction that giving a suffering patient ­higher and higher doses of morphine with the collateral consequences of hastening death is materially different to injecting them with a final, fatal dose.

But in recent years, there have been examples of people brought before the court after they had committed what are sometimes described as “mercy ­killings”. Begged by suffering relatives to ­alleviate their pain, they yielded. ­Normally ­assessed as low risk to public safety, in these cases, it is vanishingly rare for ­prosecutors to seek a murder verdict.

In some cases, diminished ­responsibility is made out because their culpability was “substantially impaired by reason of ­abnormality of mind.” In other cases, the Crown Office accepts guilty pleas to ­culpable homicide, leaving the ­punishment in the judge’s hands.

Margo MacDonald had long campaigned for assisted dying before her own death in 2014

In the absence of aggravating factors, in recent decades, judges have commonly to decide to admonish Scots convicted of killing loved ones in these circumstances, allowing them to walk free, convicted but otherwise unpunished for their actions.

The arguments both in favour and against this reform are already ­well-rehearsed.

Advocates of change ­highlight stories of individual ­suffering, and pain and indignity, rooting their ­arguments in the autonomy of the ­individual and their right to decide when enough is enough.

But there are also social justice arguments in favour. If you are wealthy enough to afford a trip to Switzerland – the average cost is reportedly £10,000 – you can end your life there, sterile and sad as the experience often sounds. But ordinary men and women experiencing identical suffering are obliged to live on for fear any relatives who help them could end up behind bars. If we’re prepared to condone wealthy Scots doing this without penalty, why not condone this at home?

Religious arguments

The coalition against assisted ­dying is also diverse, rooted in religious ­arguments about God’s prerogatives over when ­human lives begin and end, concerns about coercion, slippery-slope arguments, and anxieties from disability campaigners that human lives which are too often ­written off as lesser importance.

They point out that the things that make a life intolerable don’t just come from inside the human body. We know lives are made intolerable by lack of care, by neglect, by penury, by cold, ­hunger and isolation, by unloving relatives and ­unavailable friends. We also know lives can be made ­intolerable by political choices.

The public have been consistently clear on which side of the argument they stand behind. While politicians across the UK continue to haver and waver about ­changing the law, a recent poll carried out by Opinium Research on behalf of Dignity in ­Dying suggests 78% of Scots support “making it legal for someone to seek ­assisted ­dying in the UK”. This isn’t a ­sudden shift in public attitudes. There’s been a significant majority in favour of change for some years now.

If you don’t think conduct should be sanctioned and punished by the ­criminal courts, then that conduct shouldn’t be criminal. The burden of proof rightly falls on those proposing change – but on ­assisted dying, the arguments in favour of the status quo are indefensible.