Författare: Mary Neal Reader in Law University of Strathclyde

Scotland took the first step towards legalising assisted dying on March 27 with the publication of the assisted dying for terminally ill adults (Scotland) bill. If the law is passed, Scotland would become the first UK nation to offer terminally ill people assistance to end their lives.

The bill’s promoter, the Liberal Democrat MSP Liam McArthur, cites uncontroversial-sounding principles of compassion, autonomy and legal clarity as the bill’s objectives.

He argues that the law of Scotland is “unacceptably unclear” and must be changed to give people who are suffering at the ends of their lives some autonomy over the timing of their deaths.

Few would deny that compassion and autonomy are desirable or that the law should be clear. And polling has consistently shown that most adults in Scotland support assisted dying.

Yet there is plenty in this bill to cause concern. One important issue is the terminology it uses. Whereas the last Scottish bill of this kind was transparently titled the assisted suicide (Scotland) bill, the term “assisted suicide” has been replaced this time around with the vaguer “assisted dying”.

Understandably, many of those who campaign to change the law dislike the term “assisted suicide”. Suicide is tragic and something that governments – including the Scottish government – strive to prevent.

By contrast, the term “assisted dying” is designed to conjure images of things we all support: hospices, palliative care and respect for patients’ choices about their treatment at the end of life.

But the Scottish bill is not about these things, which are all lawful already. Rather, it proposes a fundamental shift in the relationship between doctors and their patients – one that would cross a moral, ethical, cultural and professional red line: the prohibition against killing.

The euphemism “assisted dying” disguises how seismic this would be by implying that what is being proposed is on a continuum with what the law already allows. The law allows patients to refuse treatment, even if they will die without it. It allows doctors to withdraw treatment that is no longer in an unconscious patient’s best interests, even if death will result.

If the family agrees with the medical team, there is now no need to get permission from a court before doing this. The “doctrine of double effect” allows doctors to make patients comfortable at the end of life by administering pain relief even at doses high enough to cause death. This is permitted provided the purpose is not to kill, but to relieve suffering.

All of these things are lawful – and ethical – because they do not cross the ultimate line and allow doctors to deliberately kill (or assist in killing) their patients.

The therapeutic relationship between doctors and patients is often described as a “relationship of trust and confidence”. Erasing the prohibition on killing risks eroding that trust and changing the nature of this crucial relationship irrevocably.

Liam McArthur, a Liberal Democrat MSP, tabled the new assisted dying bill.
Colin Fisher / Alamy Stock Photo

The term “assisted dying” also muddies the distinction between assisted suicide (where the person who dies performs the final act that causes death) and euthanasia (where someone else performs the final act). The Scottish bill ostensibly provides only for assisted suicide when it refers to the “coordinating registered medical practitioner … providing a terminally ill adult with an approved substance with which the adult may end their own life”.

However, although the bill envisages the adult taking the substance by him or herself, the medical practitioner is obliged to “remain with the adult … until the adult has died”. And the bill does not make clear what they are permitted to do should the person get into difficulty or distress.

There is evidence from jurisdictions that have already legalised assisted suicide “that some patients who ingest the prescribed lethal drugs experience distressing complications”. In Oregon, US, where assisted suicide is legal, annual complication rates as high as 14.8% have been reported.

The Scottish bill is silent about what the role of the professional is in such circumstances. Are they permitted to step in and provide more direct “assistance” to complete the dying process? If so, this could amount to euthanasia, not assisted suicide. And the term “assisted dying” obscures exactly what would be allowed.

This is the kind of point that should be explicit in a bill of this kind, particularly one that cites a lack of clarity in the current law as a justification for change.

Worryingly vague

Other aspects of the Scottish bill are also worryingly vague. For example, the eligibility criteria are poorly defined, leading some to wonder whether conditions like anorexia nervosa might qualify someone for assisted dying.

The status of the conscience clause in the bill is also unclear, meaning that doctors who would wish to take no part in ending their patients’ lives cannot rely on assurances that they would be able to opt out.

Doctors in the UK worry that it would be “deeply dangerous” to introduce assisted dying here, with some citing the “horrific state of the NHS” and the funding crisis in hospice care.

Others point out the danger of introducing assisted dying while disability discrimination is still so prevalent in the UK.

Stories emerge regularly from other countries of how assisted dying, once introduced, is soon used in ways not originally envisaged. And former supporters of the practice have changed their position on it as they observe its inexorable expansion – for example, to include children and people with mental illness.

Against this background of widespread concern, the longstanding public support for assisted dying in Scotland may be weakening.

The next step for the Scottish bill will be scrutiny by the health, social care and sport committee of the Scottish parliament, which will hear evidence from a range of stakeholders, who are likely to include health professionals’ representative bodies, faith groups and disability rights activists. As this process unfolds, the bill’s promoters will face serious and legitimate questions about its safety. Läs mer…

On May 2, the Scottish Parliament will debate whether it should be a crime in Scotland to cause the loss of a partner’s or former partner’s pregnancy through violence or abuse.

In not having such a crime already, Scotland is an outlier in the UK. In England, Wales and Northern Ireland, someone who attacks a pregnant woman and causes the loss of her viable foetus can be charged with the crime of “child destruction” as well as being charged for assault. This has been the case in England and Wales since 1929, and in Northern Ireland since 1945.

The case for a new crime in Scotland is clear, and the most appropriate way to create it would be to amend the Domestic Abuse (Scotland) Act 2018. The Ministry of Justice categorises “child destruction” as a “domestic violence offence” in England, Wales, and Northern Ireland.

It is well known that domestic abuse can escalate during pregnancy or may begin when a woman becomes pregnant, even where the relationship has not previously been abusive.

During the past few decades there has been a rise in the number of prosecutions for child destruction, and victims of the crime have spoken about how important it is to them that the loss of their pregnancy is acknowledged in a separate charge, as opposed to merely reflected in sentencing.

This stands to reason: the loss of a wanted pregnancy is a unique and traumatic kind of harm to a woman, distinct from the injury suffered during an attack. However, while the law in England, Wales and Northern Ireland is able to acknowledge this kind of serious harm, the law of Scotland currently cannot.

Harrowing cases

Domestic abuse during pregnancy is no less an issue in Scotland, of course, and there have been harrowing Scottish cases which, had they occurred elsewhere in the UK, would undoubtedly have resulted in charges of child destruction.

Scotland does have one existing crime – the common law crime of “procuring abortion” – which perpetrators in Scotland could be charged with. The crime of abortion has never been used in this way, however, and with good reason. The harm of losing a wanted pregnancy through violence or abuse is wholly different from a situation in which a woman has decided that she no longer wishes to be pregnant.

Legally, these scenarios must be kept separate. The creation of a new crime would ensure that they are.

In the rest of the UK, the crime of child destruction is deeply entangled with abortion law, and this has been problematic. Because anyone can be guilty of the crime of child destruction, it can be used to prosecute women who end their own pregnancies after the point of viability – now judged to be 24 weeks.

In practice, women are almost never charged with child destruction, and there has been only one conviction. The possibility exists, however, and one recent prosecution involved a woman being investigated for three years and taken to court before the case was dropped due to “evidential difficulties”.

Scotland can avoid any risk of prosecution for pregnant women by creating a new crime that sits firmly within the framework of domestic abuse legislation, and that can only be committed by partners or former partners. Framed in this way, the sole purpose of the crime would be to recognise and punish a unique kind of harm to women, and neither pregnant women nor their doctors could be charged with it.

It is well known that domestic abuse can escalate during pregnancy.
Edward George/Alamy Stock Photo

The proposed Scottish crime could also improve on its UK counterparts in another way. Elsewhere in the UK, perpetrators can only be convicted of child destruction if it can be shown that they intended to cause stillbirth.

This can make it difficult to hold attackers to account for the loss of the pregnancy. They can only be convicted if they admit that they intended to end the pregnancy or if there is evidence to indicate such intention; for example, if they attempted to coerce the woman into having an abortion, targeted the woman’s stomach in the attack or made statements of intent during the attack. If none of this can be shown, no conviction for child destruction would result.

Campaigners in England have complained that the difficulty of proving intention shields perpetrators. Learning from this, Scotland could allow the crime to be committed through recklessness, making it easier to convict those responsible by removing the need to prove intention.

On May 2, Holyrood can take an important step in the right direction. Instead of remaining the only part of the UK that lacks a specific crime punishing this kind of behaviour, Scotland can take the lead and develop a truly workable and woman-centred approach to this particularly intimate and distressing kind of harm. Läs mer…