The law on assisted dying is devolved in Scotland and it is covered by common law, more detail is available in this SPICe briefing on a previous Bill on this matter.
There have been various attempts over the last two decades to change the law to permit assisted dying in Scotland, and other parts of the UK. This blog will consider previous legislative attempts in Scotland and explore some of the issues that have made it difficult to legislate in this area in the past.
Public opinions towards assisted dying
Opinion polls in Scotland seem to show sustained public support for assisted dying in principle, since 2014.
In 2014, the Humanist Society Scotland said that “69% of voters supported the Assisted Suicide (Scotland) Bill. In 2019, 55% of a public sample strongly and 32% somewhat supported the introduction of an assisted dying law. In 2020, the same questions were asked and 46% of Scottish adults strongly and 30% somewhat supported it. This last poll was undertaken in October 2020 at the height of the pandemic and it would be interesting to explore further whether this apparent declining support is related to attitudinal shifts around the pandemic, changes to polling methodologies or for other reasons.
There are a range of organised campaign groups calling for a change in the law, such as Dignity in Dying and Friends at the End. There are also organised campaign groups firmly against a change in the law, such as Care Not Killing and a range of faith groups. Opposition groups have argued that allowing assisted dying would change society for the worse, while others maintain it would increase personal choice and control.
Within professional medical organisations, opinions are divided. The British Medical Association (BMA) had consistently opposed all forms of assisted dying for many years (apart from a brief spell of neutrality in 2005). However, at the end of 2021, it moved to a neutral position to represent the diverse opinions of its Members, while still arguing there was a need for doctors to have protected rights to object conscientiously to participating. The Royal College of Nursing also put plans in place to review its position in 2022.
It’s clear that there is no consensus and that there are deeply held views on both sides of the debate.
Proposals for legislation
A draft proposal for a Bill to enable competent adults who are terminally ill to be provided at their request with assistance to end their life was lodged on 22 September 2021 by Liam McArthur MSP. A consultation on this proposal ran until 21 December 2022. On 8 September 2022, Liam McArthur MSP, lodged the final proposal. The proposed Assisted Dying for Terminally Ill Adults (Scotland) Bill would “enable competent adults who are terminally ill to be provided at their request with assistance to end their life”.
Prior to this proposed Member’s Bill, there had been three previous attempts to legislate in this area.
- 2004: Jeremy Purvis MSP lodged a proposal for a bill to allow capable adults with a terminal illness to access the means to die with dignity. The Bill didn’t get the required number of supporting MSPs (18) to be introduced.
- 2010: Independent MSP, Margo MacDonald introduced the End of Life Assistance (Scotland) Bill (‘the 2010 Bill’) to enable persons whose life has become intolerable and who meet the conditions prescribed in the Bill to legally access assistance to end their life. The Parliament did not agree to the general principles of the Bill on 1 December 2010, by 85 votes to 16 (with two abstentions), and the Bill fell.
- 2013: Margo MacDonald MSP introduced the Assisted Suicide (Scotland) Bill (‘the 2013 Bill’) for certain people who are approaching the end of their lives to seek assistance to end their lives at a time of their own choosing, and to provide protection in law for those providing that assistance. Margo MacDonald lived with Parkinson’s disease and died in 2014. At this time, Green MSP, Patrick Harvie, took over as the Bill’s sponsor. The Parliament did not agree to the general principles of the Bill on 27 May 2015, by 82 votes to 36, with no abstentions, and the Bill fell.
The Health and Sport Committee made no formal recommendation to the Parliament in its Stage 1 report on the 2013 Bill, noting that it was a matter of personal conscience. Unlike most bills, where parliamentary voting tends to be along political lines, the then Cabinet Secretary for Health, Wellbeing and Sport, Shona Robison MSP, set out that Ministers, like other MSPs, would be “entitled to vote on the bill according to their conscience.”
Similar legislation covering England and Wales passed its second reading unopposed in the House of Lords in October 2021 but fell at the prorogation of Parliament on 28 April 2022.
Issues and concerns with previous legislative proposals
Issues around autonomy and capacity often dominate public campaigns for and against assisted dying legislation. They are central to the rationale underpinning assisted dying legislation to date and have been examined at length in the Health and Sport Committee reports for Stage 1 of the 2010 Bill and the 2013 Bill.
Autonomy has been the focus of much debate in health spheres. The introduction and rise of realistic medicine is built on principles of empowerment, person-centred care and facilitating choice to refuse and/or exploring other options to treatment. It is generally accepted individuals have the right to make decisions about their care.
Capacity too has been discussed in detail during scrutiny of the two previous bills. However, for the proposed Bill there are new questions over how the Scottish Government’s proposed reform of adults with incapacity legislation, discussed in this SPICe briefing, will impact on future legislation.
“The assessment of capacity and its use as a determining factor in incapacity legislation is currently under review by the Scottish Mental Health Law Review […], changes to the Adults with Incapacity (Scotland) Act 2000 are likely and any proposed Bill should take steps to align with their proposals on capacity and supported decision-making.”The Scottish Human Rights Commission
During the Stage 1 debate of the 2013 Bill, there was recognition that the Bill was an improvement on previous legislation, but there were several unresolved issues and uncertainty in a range of areas.
MSPs reported concerns around definitions, examining not just definitions of what, or was not, a criminal offence, but also of who would be eligible under the Bill. MSPs spoke about the lack of definition of terminal illness and the need for more clarity. Interestingly, since that debate, a new definition of terminal illness, based on clinical judgment rather than a timescale of remaining life expectancy, has been enshrined in Scottish law under the Social Security (Scotland) Act 2018.
Other concerns centred on regulations relating to the process of assisted dying; what specific acts a licensed facilitator may or may not undertake, what drugs would be administered and timescales surrounding the process. Coupled with this focus on process was the concern around safeguarding against coercion and abuse. MSPs thought the previous bill did not adequately:
- Protect vulnerable individuals or sufficiently set out regulations to minimise the risk of coercion.
- Address public safety considerations such as access to lethal drugs.
- Protect the rights of practitioners to decline to participate, and when they would, or would not, be protected from liability. Given divided opinion within professional medical organisations, this is a significant concern.
Views on the Proposed Assisted Dying for Terminally Ill Adults (Scotland) Bill
The public consultation on Liam McArthur MSP’s proposed Bill received 14,038 responses. A summary of the responses has been published along with all the individual submissions, that gave permission to be published.
Views on the proposal to introduce assisted dying for terminally ill competent adults in Scotland were broadly polarised, with strong views expressed both in support and opposition.
A clear majority of respondents (10,687 – 76%) were fully supportive of the proposal, with a further 244 (2%) partially supportive. Many respondents gave first hand experiences of living with, and caring for, family, friends and patients with a terminal illness who had experienced great pain and suffered what was often described as a “bad death”. Many of these respondents believed that assisted dying should be available for people in Scotland, as it is in other parts of the world.
A minority of the overall number of respondents (2,975 – 21%) were fully opposed to the proposal, with a further 52 (0.4%) partially opposed. One of the most common reasons given for opposing the proposal was a fundamental belief, often founded in a particular religion, that human life is sacred and must not be purposefully ended under any circumstances. A large number of those opposed also believed that no safeguards would ever be able to prevent some people from feeling pressure to end their lives, perhaps through fear of being a burden on family, friends, health care services and/or wider society, or even being coerced for various reasons into deciding to choose an assisted death.
Views on the details of the proposal, and how assisted dying should be implemented in Scotland, were more nuanced, with a wide range of issues, questions, and concerns raised by respondents on both sides of the debate.
Liam McArthur’s has earned the right to introduce a Bill. He gained support from 36 MSPs from across all five parties. While the detail of the Bill is not yet known, what is apparent is that the high-level of interest and polarised views around this subject persist and assisted dying will continue to be an issue debated both in the Scottish Parliament and wider Scottish society.
Susan Brown and Lizzy Burgess, Health and Social Care Team, SPICe.