This coming Friday (29th November 2024), the House of Commons will debate the Terminally Ill Adults (End of Life) Bill. The introduction of the Bill has coincided with the Scottish Parliament’s Stage 1 scrutiny of Liam McArthur MSP’s Assisted Dying for Terminally Ill Adults (Scotland) Bill. As a result, SPICe has received several questions about how the two compare.
The following blog discusses some of the more significant differences between the Bills.
Much of the commentary is drawn from the evidence submitted to the Scottish Parliament’s Health, Social Care and Sport Committee. Please see the Bill’s webpage for summaries of the written evidence and links to the recent oral evidence.
Please note that the UK Bill only applies to England and Wales but is referred to here as the ‘UK Bill’.
Eligibility
Table 1: Overview of eligibility criteria in the Scottish and UK assisted dying bills
Scottish Bill | UK Bill |
Assisted dying would be available only to terminally ill adults aged 16 or over with capacity. The Bill defines someone as terminally ill if they: “[…]have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death.” To be eligible a person would also need to be registered with a GP practice and have been ordinarily resident in Scotland for at least 12 months. | Assisted dying would be available to terminally ill adults aged 18 or over with capacity. The Bill defines someone as terminally ill if: “[…](a) the person has an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment, and (b) the person’s death in consequence of that illness, disease or medical condition can reasonably be expected within 6 months.” The person would also need to be registered with a GP practice and have been ordinarily resident in England or Wales for at least 12 months. Specifies that a treatment which only temporarily relieves the symptoms of a disease is not to be regarded as a treatment for the purposes of the definition. The UK Bill also explicitly provides that a person is not to be regarded as terminally ill by virtue of only having a mental disorder or a disability. |
One of the standout differences between the two bills is the age requirement: the Scottish Bill sets it at 16, while the UK Bill sets it at 18.
The age of 16 is more aligned with Scots law on legal capacity, where even competent under 16s can consent to medical care and treatment. However, this age is generally out of step with international assisted dying laws, which typically set the minimum age at 18.
Both bills apply to individuals with a terminal illness, but they differ in their specifics. The UK Bill requires that death is expected in six months, whereas the Scottish Bill applies when a condition can reasonably be expected to cause premature death.
Both approaches have been criticised. One for the inherent difficulties in predicting the length of time someone may have left to live, and the other for being imprecise and potentially capturing conditions that some may not consider terminal or within the intent of the Bill.
Additionally, the UK Bill mentions conditions that are untreatable, while the Scottish Bill refers to conditions that are unrecoverable.
This latter term has faced criticism for potentially including individuals who refuse treatment for otherwise treatable conditions.
It is also worth noting that the UK Bill explicitly excludes mental illness or disability as the sole qualifying criteria for assisted dying. The Scottish Bill does not, although people with a mental disorder which may affect their ability to make such a decision would not be eligible in Scotland. The UK provisions seem to be for the avoidance of doubt and the lack of equivalent provisions in the Scottish Bill does not mean it would not have the same effect.
Potential ‘slippage’ in the definition to encompass other groups who are not terminally ill has been raised in relation to both bills. This argument has been made on the grounds of possible human rights challenges against eligibility alleged to be discriminatory.
This is discussed in more detail in the House of Commons Library briefing on the UK Bill.
Process
Table 2: An overview of the processes in the Scottish and UK assisted dying bills
Scottish Bill | UK Bill |
The process in the Scottish Bill includes the following steps: 1. First declaration 2. Coordinating doctor assessment 3. Coordinating doctor statement 3. Referral to independent doctor 4. Independent doctor’s assessment 5. Independent doctor statement 6. Second declaration 7. Request for assistance 8. Provision of assistance The process aims to ascertain the person who made the declaration(s) is: – a terminally ill adult, – is eligible to be lawfully provided with assistance to end their life, and – made the declaration voluntarily and has not been coerced or pressured by any other person into making it. There would be a 14-day reflection period in between making the first and second declarations. This can be shortened to between 2-13 days if both doctors agree death is likely to occur in less than 14 days. | The process in the UK Bill includes the following steps: 1. Preliminary discussion (optional) 2. First declaration 3. Coordinating doctor assessment 4. Coordinating doctor statement 5. Referral to independent doctor 6. Independent doctor assessment 7. Independent doctor statement 8. Application to the High Court 9. Second declaration 10. Provision of assistance The process aims to establish: – the person is terminally ill, – is eligible to be provided with assistance, – has a clear, settled and informed wish to end their own life, and – has made the decision voluntarily and in the absence of coercion or pressure from another person. There would be two periods for reflection; one 7-day reflection period in between the coordinating doctor statement and referral to an independent doctor, then a second 14-day reflection period in between approval by the High Court and the second declaration. The second period of reflection can be shortened to 48 hours in cases where it is believed the person has less than one month to live. Both doctors must discuss with the person their wishes in the event of complications arising in connection with the self-administration of an approved substance. |
The processes outlined in the UK and Scottish Bills share many similarities, but there’s a key difference: the UK Bill mandates approval from the High Court, while the Scottish Bill leaves the decision entirely in the hands of doctors.
The High Court provision has been presented as a significant additional safeguard, but its inclusion has also been questioned for potentially adding a bureaucratic barrier to those seeking assisted dying, as well as adding strain to the judicial system.
The former President of the Family Division of the High Court, Sir James Munby, has questioned whether this is a role for the judiciary at all and raises many questions about the practical application of the involvement of the High Court.
There is also the issue of cost. Taking action at the High Court typically involves significant expense (for instance court fees and paying for lawyers). There is no information on the face of the UK Bill about how potential cost-barriers to access might be dealt with.
Nevertheless, there have been some calls for the Scottish Bill to add oversight or review mechanisms, for example:
The Bill does not make any specific post-decision review requirements in a judicial sense. The UN Human Rights Committee has recommended that, in order to comply with the right to life, states should consider introducing, in an independent or some sort of judicial capacity, prior reviews of requests for assisted dying. Eleanor Deeming, Scottish Human Rights Commission
Finally, unlike the UK Bill, the process in the Scottish Bill does not mention complications and what to do should they arise. Some fear this raises a difficulty for Scottish doctors in that they may be uncertain whether they are under a duty to administer first aid, or if they should act to ensure that the assisted dying process continues.
However, questions have also been raised as to whether the provisions in the UK Bill provide adequate clarity on what English and Welsh doctors should do in the event of complications.
Capacity
Table 3: An overview of the approach to capacity in the Scottish and UK assisted dying bills
Scottish Bill | UK Bill |
Describes a person as having capacity if they are not suffering from a mental disorder which might affect the making of the request, and they are capable of: 1. Understanding information and advice about making the request 2. Making a decision to make the request 3. Communicating the decision 4. Understanding the decision, and 5. Retaining the memory of the decision ‘Mental disorder’ is defined in accordance with the Mental Health (Care and Treatment)(Scotland) Act 2003. | The UK Bill says references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005. The 2005 Act sets out what incapacity is. “S2(1) – a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” |
Both bills require the person to have capacity at every stage of the process. The UK Bill references the existing law on incapacity to define capacity, while the Scottish Bill takes the approach of describing what capacity entails.
It has been argued that the Scottish Bill reverses the typical approach in law, whereby people are assumed to have capacity unless shown otherwise. This was raised in evidence to the Scottish Parliament’s Health, Social Care and Sport Committee:
The bill reverses the usual presumption. Under the [Adults with Incapacity (Scotland)] 2000 act, it is presumed that we all have capacity to make all decisions until somebody—a relevant professional—proves, on the balance of probabilities, that we do not. I do not fully understand the reasons for reversing that in the bill, requiring that capacity rather than incapacity is proved. Dr Stephen Potts,
However, others have suggested this reversal may be appropriate for assisted dying decisions.
The Scottish definition of capacity would also exclude people who have a mental disorder which ‘might affect the making of the request’. Mental disorder includes people with a mental illness, learning disability or personality disorder and this has raised some questions as to whether the Bill is potentially discriminatory.
Assistance
Table 4: An overview of assistance in the Scottish and UK assisted dying bills
Scottish Bill | UK Bill |
Describes assistance as; – providing the substance to end the person’s life, – staying with the adult until they have decided they wish to use the substance or, – removing the substance if they decide they do not wish to use it. The policy memorandum and explanatory notes to the Bill stress that the substance must be self-administered. | The approved substance must be provided directly and in person by the coordinating doctor to that person. The coordinating doctor may— (a) prepare that substance for self-administration by that person, (b) prepare a medical device which will enable that person to self-administer the substance, and (c) assist that person to ingest or otherwise self-administer the substance. The Bill would require that the decision to self-administer the substance and the final act must be taken by the person themselves. The Bill specifically rules out the option of the doctor administering the substance. |
Both bills have an intent that the substance will be self-administered but the drafting is different and may have a different effect.
The term ‘self-administration’ does not appear on the face of the Scottish Bill but is emphasised in the policy memorandum and explanatory notes published alongside the Bill. The Bill also emphasises self-administration with several references to providing assistance and a substance for the person to ‘end their own life’.
The UK Bill specifically describes methods of assistance, including some which would allow people with physical impairments to access assisted dying. Whether the Scottish Bill would permit these methods is unclear and questions on types of assistance and administration were raised in the Health, Social Care and Sport Committee’s call for views on the Bill.
Both bills permit a proxy to sign declarations for those physically unable to do so, but the Scottish Bill does not specifically say whether any third-party assistance is allowed to help overcome physical impairments that prevent self-administration.
The Scottish Bill also does not specifically rule out doctor administration, unlike the UK Bill, but again the UK provisions seem to be for the avoidance of doubt.
Conscientious Objection
Table 5: An overview of conscientious objection in the Scottish and UK assisted dying bills
Scottish Bill | UK Bill |
Sets out that no one is under any duty to participate in anything authorised under the Bill if they have a conscientious objection. States the burden of proof with regards to conscientious objection lies with the person claiming to rely on it. The coordinating doctor must also be willing to carry out the functions provided for by the Bill. | Sets out that no doctor or other health professional is under any duty to provide assistance under the Bill. It also includes a specific clause stipulating that an employer must not subject an employee to any detriment for not participating. |
The UK Bill has a broad ‘no duty’ to participate clause whereas the Scottish Bill allows objection for conscience reasons. This could be described as an ‘opt-in’ approach versus an ‘opt-out’.
The Scottish Bill does also require the coordinating doctor to be ‘willing’ to carry out the functions of the Act so it could be argued that the Scottish Bill also requires an element of opting in, although this provision is not replicated for the independent doctor.
The Scottish Bill also does not specify which professionals can conscientiously object whereas the UK Bill specifies it is doctors and health professionals who have no duty to participate. Health professionals are defined in the UK Bill as registered medical practitioners, registered nurses, registered pharmacists and pharmacist technicians.
The Scottish approach has been criticised by some as lacking clarity, although the broader drafting is potentially more inclusive of ancillary staff such as social workers and care home staff. However, court decisions in relation to the, almost identical, provision in the Abortion Act 1967 suggest it will only apply to staff who are directly involved in assisted dying. As a result, it may ultimately have the same effect as the UK provision.
The Scottish Bill also does not contain a ‘no detriment’ clause. The inclusion of such a clause in the UK Bill may be intended to address the concerns of commentators who are worried about staff being pressured to participate.
Other Key Differences
Some other differences of note include:
- The UK Bill specifies that a doctor is under no duty to raise the topic of assisted dying but can use their professional judgement as to when it might be appropriate. The Scottish Bill is silent on whether a doctor has an obligation or not to raise assisted dying as an option.
- The UK Bill has a specific provision to record assisted death alongside the underlying terminal illness on the death certificate, whereas the Scottish Bill would record the underlying terminal illness as the cause of death.
- There is a regulation making power for Ministers in the UK Bill in relation to the prescribing, dispensing and storage of approved substances. The Scottish Bill does not have comparable provisions.
- The UK Bill has offences not covered by the Scottish Bill, including: inducing someone to self-administer the substance, inducement by means of dishonesty, and an offence for falsifying or destroying records with the intention of causing the death of another person.
- The UK Bill gives Chief Medical Officers an oversight role in terms of monitoring compliance and investigating matters associated with the functioning of the Bill. There is no equivalent oversight provision in the Scottish Bill.
- The UK Bill would require a 5-year review report to contain an assessment of palliative care services. There is a similar 5-year review provision in the Scottish Bill but no requirement to include an assessment of palliative care.
Regardless of the UK Bill’s fate after its second reading, the differences between the two Bills have generated interest among Scottish politicians and may lead them to consider whether any of its provisions are relevant to the Scottish Bill.
Kathleen Robson, Senior Researcher, Health and Social Care