Assisted Suicide Bill would need clarifying, Justice Committee reports
Much clarification would be needed to the provisions of the Assisted Suicide (Scotland) Bill if it were to be allowed to proceed further in the Parliament, according to Holyrood's Justice Committee.
The committee has published a report on the legal and practical aspects of the bill, to inform the Health & Sport Committee which will deliver the main stage 1 report and take a view on the moral and ethical issues surrounding the bill.
MSPs were divided on one of the principal concerns raised by the Law Society of Scotland – whether solicitors are appropriate persons to sign the necessary declaration and requests as proxy for a person seeking assistance. Some members of the committee considered that solicitors should be removed from the list of possible proxies, while others were not convinced by the arguments put forward that solicitors would not have the relevant experience to assess capacity. Partick Harvie MSP, member in charge of the bill, told the committee that no solicitor would be obliged to act, and the test of understanding in the bill was intended to be a commonsense one and not a medical test of capacity. Further, none of the steps at which proxies might be involved was irreversible.
The committee queries as "unusual" the approach of defining what was not, rather than what was a crime; notes the concerns of some witnesses regarding the interpretation of "life-shortening" and "terminal"; and agrees with witnesses that the definition of capacity in the bill should be consistent with other related legislation. It notes a lack of clarity as to whether everyone with a mental illness would be excluded from the provisions, regardless of the severity of their condition, and welcomes an indication from Mr Harvie that he would be receptive to amendments on this point.
But it notes without comment the view of the Crown Office & Procurator Fiscal Service that the prosecution code provides sufficient clarity around the current law and that it does not, at this time, see a need for the Lord Advocate to publish guidelines along the lines suggested by the Scottish Human Rights Commission.
The MSPs recommend that the lead committee gives further consideration to whether the guidelines or codes of practice for professional bodies could address the issue of a conscience clause, as suggested by the member in charge, as opposed to on the face of the bill.
Overall, as respects clarity, the committee considers it essential that, given the potential consequences for those involved in assisting suicide, the bill's provisions must be drafted as clearly as possible. "To that end, the committee recommends that the lead committee explores in more depth with witnesses improving clarity by including clear definitions on the face of the bill where required."
Convener Christine Grahame commented: “It was not the role of the Justice Committee to take a view on the moral or ethical issues surrounding the Bill – that is rightly the role of the lead committee. Our task was to hear evidence and report on the practical application and legal aspects of the bill, if it was to be passed by the Parliament in due course.
“Clarity is essential. For example, the role of the licensed facilitator is one area where more detail is needed especially given the potential consequences for those involved. We therefore recommend that the lead committee explores this and other issues in more depth.
“There were concerns that setting a time limit between the second request and the act of suicide might put unintended pressure on some people. This is a further difficult area that would benefit from more scrutiny. Recording requirements in the bill must also be watertight to ensure all involved are not subject to unnecessary police investigation or possible prosecution.
“The Scottish Parliament rightly has to satisfy itself that any proposed piece of legislation, especially one that deals with issues of life and death, has robustly considered all implications and I hope that our report helps guide the Health & Sport Committee in its wider scrutiny of the bill.”