The Assisted Dying for Terminally Ill Adults (Scotland) Bill

At the end of November 2024, Westminster MPs backed the Terminally Ill Adults (End of Life) Bill proposed by Labour backbencher Kim Leadbeater as a private member's bill. If passed, this bill would cover England & Wales, with a separate discussion already underway for Scotland.

The Assisted Dying Bill was introduced into Holyrood in March 2024 to allow terminally ill adults in Scotland the choice to end their lives.

It is important to distinguish the provisions of an Advanced Directive which supports medical professionals and family to manage the scenario where a person has lost capacity and where their prospects of a meaningful recovery are minimal. In such circumstances, a person may direct they do not wish excessive and/or invasive treatments where there is little prospect of improvement. This is distinct from the provisions of the Bill where a person chooses to end their own life.

Two previous attempts to introduce similar legislation were rejected in 2010 and in 2013, but supporters believe a change in public mood means the time is right for a fresh debate. A poll for campaigners, Dignity in Dying showed 78% of respondents supported the legislation.

However, objectors believe there are legitimate concerns around pressure being placed on dying individuals to unburden their families, or where this would directly contradict religious views.

Legal variations of assisted dying legislation are present in many other countries around the world from Switzerland, introducing legislation in 1942 to New Zealand adopting measures in 2021. Debates on assisted dying are also currently taking place in Jersey and the Isle of Man.

Official estimates suggest only 25 people could have an assisted death in the first year after the legislation, rising to 400 people a year after 20 years. This is less than 0.01% of the population.

To be eligible to take this path, the Bill states that a person must have an irrecoverable and worsening disease, illness or condition which will cause premature death. Children's Hospices Across Scotland (CHAS) has warned that the definition of "terminal illness" in the Bill is too imprecise and that there should be a clear difference between young people with a life-shortening condition who may have many years of a stable life ahead, as opposed to those facing imminent death.

The person must be over 16 and have lived in Scotland for at least one year before opting to start this process. They must fully understand and recall their decision and communicate this verbally or by technical assistance. A person suffering from a mental disorder may be excluded from this process if they lack the required understanding. Again CHAS warns that the brain of a child may not be fully developed until 25 so 16 is too young an age to make such a decision.

Someone looking to take this path would tell their doctor who would then direct them to complete the First Declaration. The person will be assessed to ensure they are eligible and to ensure that they are not being pressured or coerced into the decision. If after a minimum reflection period of 14 days, (shortened in critical cases) the person wishes to continue and is eligible, they can make a Second Declaration.

Proxy signing by solicitors

If the patient is unable to sign documentation required for the First or Second Declaration, Section 12 of the Bill requires the patient to have a solicitor sign as a proxy. Section 12(4)(a) goes on to require the solicitor to sign if “satisfied that the person understands the nature and effect of the making

of the declaration.”

While evaluations of a broadly similar nature may be made by solicitors in the context of the Adults with Incapacity (Scotland) Act as regards Wills and Powers of Attorney, the novelty and complexity of the circumstances surrounding assisted dying appear to go too far in requiring the solicitor to make a form of quasi-medical examination of the individual. Additionally, as specified by the Law Society of Scotland’s consultation response, it is not the role of a solicitor to assess whether bad decisions are being made by their client. This would conflict with their requirement to prioritise the interests of their client, as well as their status as an independent legal advisor.

Once the requirements have been met, healthcare professional will then provide the person with the life-ending substance. The patient must administer this themselves with the healthcare professional in attendance.

Medical community’s response to the Bill

Reception from the medical community as a whole as to their willingness to participate in assisted dying under this new Bill has been mixed with various professional bodies citing a variety of issues with the proposed Bill. The Royal College of GPs (RCGP), appear strongly against the legislation while the British Medical Association is neutral.

The Royal College of Nursing (RCN) has criticised the Bill for its lack of safeguarding for medical professionals. Its concerns relate to the fact it is highly likely family members may not be supportive of their relative choosing to end their life and may attempt to find the medical professionals involved liable. Section 20 and 21 of the Bill cover the absolving of any criminal or civil liability, provided the assistance to end the person’s life is provided “lawfully”. Beyond this, there is no specific consideration for any particular circumstances which may arise.

However, while there is not necessarily proactive safeguarding of medical professionals in the Bill, there is conversely no specific recourse for review of their decisions. While sections 3 or 52 of the Adults with Incapacity (Scotland) Act provide such a mechanism for an application for a review by the court made by an interested person, no such option is available under the Assisted Dying Bill.

The Royal Pharmaceutical Society (RPS) is of the opinion that the Bill lacks clear guidance as to the approach taken to complications arising during the process such as the substance used to end the patient’s life failing to work correctly. What if it only makes them feel worse and they no longer wish to end their lives?

The Law Society of Scotland has in particular made reference to section 7(1)(c)|(ii) whereby the medical practitioner is required to encourage the patient to discuss their wish to die with “those close to the person”. This may ultimately cause uncertainty and disparity among family members.

Section 7(1)(b)(i) requires the medical professional to “inform the person of the further steps that must be taken before the lawful provision of assistance to the person to end their own life”. Whilst this may be deliberate to allow flexibility, it could place an undue burden of legal responsibility upon the chosen medical practitioner.

Insurance claim issues

The death certificate shall state the primary cause of death as the disease or condition, and not suicide. It appears highly likely insurance firms will support assisted dying, with three major insurance firms already confirming this, whilst one has already supported a claim in relation to a death in a legal jurisdiction where assisted dying has already been legalised.

Whilst this may appear to be a relief for those who may wish to have an assisted death and would not want to jeopardise the financial benefit that such policies bring, it could in contrast open the door to undue pressure (both internal and external) on an individual to progress with the assisted dying route.

We shall watch with interest as the MSPs, who will be offered a free vote on this issue, debate the merits and difficulties of assisted dying in Scotland.

Written by Julie Doncaster, partner at Harper Macleod.