A new bill could legalise assisted dying in Scotland

In 2009, my old friend from medical school, Ann McPherson, wrote a powerful personal view in The BMJ in support of assisted dying when she herself was dying of pancreatic cancer.1 Despite receiving the best palliative care that Oxford could offer, this well respected GP had a horrible and lingering death, later described in another personal view by her daughter Tess, a consultant dermatologist, who despaired that: “It is an honour to care for someone you love, but it no longer felt honourable to try to care for someone who wanted to be dead.”2

In Scotland, unlike in the rest of the UK, it is not a specific criminal offence to help someone to end their own life. However, there is still a risk of prosecution for murder, culpable homicide, assault, and breach of the peace. As a result, any attempts to help a person die are necessarily covert, completely unrecorded, unregulated, and possibly abusive. The present legal situation is clearly untenable.

Despite increasing and now overwhelming UK public support, according to several polls,3 many attempts to change the law to allow an assisted death for mentally competent adults who are terminally ill have failed, in the Westminster parliament and in the Scottish parliament. Other jurisdictions have been more successful, and assisted dying of various sorts is now an option under strictly controlled circumstances in Australia, New Zealand, Belgium, Columbia, Canada, Luxembourg, Switzerland, Holland, Spain, and 10 US states.3 It is reassuring that none of these jurisdictions has repealed their law to allow an assisted death, although some have altered their eligibility criteria after reflecting on how they are operating in practice. More jurisdictions are likely to follow, including, close to home, the Isle of Man and Jersey.3

Scotland is trying again after failing to change the law in 2005, 2010, and 2013. On 28 March 2024, Liam McArthur, member of the Scottish parliament for Orkney, introduced his Assisted Dying for Terminally Ill adults (Scotland) Bill.4 The preceding public consultation received more than 14 000 responses, by far the largest ever received for a member’s bill, and 78% were in support of the bill.3

More details of the proposed bill are revealed in the policy memorandum.3 As in the earlier Scottish bills, euthanasia (direct administration of a substance by a healthcare practitioner) is not permitted—the patient must administer any life ending substance themselves. They must be an adult, resident in Scotland, registered with a GP in Scotland, and mentally competent, as confirmed by two independent doctors. Important lessons from the last attempts to pass a bill on assisted dying in Holyrood have been incorporated into the new bill. For example, it does not allow an assisted death for anyone who is not “terminal” (meaning close to death, but within no specific time period) even if they have a debilitating, incurable, and progressive disease, and certainly not if they have a mental disorder that might affect their decision. The safeguards against coercion and exploiting a dying person have been strengthened, as have safeguards for disabled people who are not terminally ill and who have no wish to end their lives. The life ending medication will never be in public circulation and a healthcare practitioner will be present at the person’s death. The patient must have had palliative care and hospice options explained to them. Clinicians can opt out of any involvement, just as they can with termination of pregnancy. There will be a robust system to record data on every patient, publicly available annual reports from Public Health Scotland, and a review of the legislation after five years.

If the bill becomes law it will be for Scottish ministers to decide on the exact method(s) of assisted dying (provided it does not contravene any UK-wide law which is not devolved as a result of the Scotland Act of 1998, or provided some legal mechanism is put in place to modify any such law as it is applied in Scotland). And, in collaboration with the General Medical Council and other regulatory bodies, minsters will provide guidance on how health professionals will be trained to provide an assisted death, bearing in mind that some may need to travel to remote and rural parts of Scotland if patients do not have easy access to an appropriately trained healthcare professional.

The burden on GPs and others should not be too onerous, with about 25 people likely to have an assisted death in the first year after the legislation is enacted, and maybe up to 400 a year after 20 years.5 But even that is only about one per GP in Scotland every couple of years. Data from other countries also tell us that about another third of patients may have had the reassuring option of an assisted death but never actually exercised it.5 It is expected that any change in the law would be cost neutral for the NHS and other services in Scotland.5

It has been said that “opponents to changing the law are only one bad death away from changing their minds.” Many now have, including Ruth Davidson, one time leader of the Scottish Conservative party.6 The BMA has changed its stance from against to neutral. So the omens for a change in the law look quite good. But will the members of our Scottish parliament have the courage to legislate in the direction which the public clearly want? Or will they hold back sheepishly like last time, under pressure from a minority of well meaning opponents?