Holyrood Committee makes no recommendation on the general principles of the Assisted Dying Bill, saying the vote is a ‘matter of conscience’

The Assisted Dying for Terminally Ill Adults (Scotland) Bill is a Member’s Bill introduced in the Scottish Parliament by Liam McArthur MSP on 27 March 2024.

The Committee has highlighted a number of areas which it says will require further consideration at Stage 2, should MSPs vote to approve the Bill at Stage 1.

Concerning those rights set out in the European Convention of Human Rights that may be affected by the Bill, the Committee notes that individual MSPs will need to consider a number of ‘important factors’ before deciding how to vote at Stage 1. These include the extent to which the Bill strikes an appropriate balance between providing a right for terminally ill adults to access assisted dying and the requirement to protect vulnerable groups; and the likelihood that the Bill may be subject to a human rights based legal challenge that could result in eligibility for assisted dying being extended over time.

Should the Bill progress to Stage 2, the Committee says that creating an independent oversight mechanism or assigning responsibility to the Chief Medical Officer for monitoring its implementation could help to strengthen safeguards in the Bill and its compliance with human rights requirements.

The Committee concludes that the requirements that individuals must be at least 16 years of age and must have been ordinarily resident in Scotland for at least 12 months prior to making a request for assisted dying may require ‘further clarification’ should the Bill progress to Stage 2.

The Committee acknowledges that the definition of terminal illness in the Bill does not include a life expectancy timescale and that this would mean widening eligibility for assisted dying to include individuals who, although living with an illness or condition that is progressive and untreatable, may not be approaching death for a considerable period of time. However, it also recognises that life expectancy can be very difficult to predict and that determining whether an individual does or does not meet the eligibility criterion of being terminally ill is ultimately better left to clinical judgement.

The Committee has also concluded that the issue of conscientious objection for healthcare workers will require further attention should the Bill progress to Stage 2, to ensure the relevant provisions of the Bill provide an appropriate level of legal clarity and certainty for all parties involved in the assisted dying process.

Concerns from those opposed to the Bill around the issue of coercion are highlighted in the report and the Committee welcomes Liam McArthur’s commitment to look at reviewing and updating guidance on coercion should the Bill be approved at Stage 1. The Committee emphasises the importance of comprehensive guidance to ensure health practitioners can assess coercion effectively and to allow the related offence created by the Bill to be appropriately policed.

The Committee’s report notes a number of competence-related issues involved with practical implementation of the Bill, were it to become law, which have also been recognised by Mr McArthur. Should the Bill progress beyond Stage 1, the Committee welcomes the Scottish Government’s commitment to open dialogue with the UK Government in order to resolve these matters, to enable the Bill to take full legal effect.

Speaking on publication of the report, Clare Haughey MSP, Convener of the Health, Social Care and Sport Committee, said:

“Our Committee understands the strength of feeling about this Bill and that assisted dying is a complex and sensitive issue.

“We have considered this Bill and the issues related to it in great detail, hearing views from a variety of individuals and organisations, and from those both for and against assisted dying. Ultimately, our Committee believes the Stage 1 vote is a matter of conscience for each individual MSP and as a result has made no overall recommendation as to how they should vote on the general principles of the Bill.

“However, should the Bill progress to Stage 2, we have highlighted a number of areas which we feel will require further consideration before the Bill can become law. These include issues around human rights, coercion, eligibility criteria, provision of assistance, self-administration and conscientious objection for healthcare workers.

“We also recognise that there are particular complexities associated with those aspects of the Bill which extend beyond the limits of the powers currently devolved to the Scottish Parliament. If the Parliament approves the Bill at Stage 1, there will need to be an open and constructive dialogue between the Scottish and UK Governments to resolve these issues and to allow the Bill to take full legal effect.

The Convener added:

“I’d like to thank all of the individuals and organisations who provided evidence to our Committee. Their considered and detailed responses have aided our scrutiny of this Bill and we hope our report can help inform Members as they decide whether to vote for or against the proposals at Stage 1.”

Other key findings in the report:

• The Committee highlights the substantial evidence it has received on the importance of palliative care and expresses its hope that, irrespective of the outcome, the current debate will provide a catalyst for further improvements to be made to the quality and availability of palliative care services in Scotland.
• The Committee calls for further consideration of issues around capacity should the Bill reach Stage 2. This includes the resource implications for medical services assessing the capacity of those requesting assisted dying; and ensuring the capacity of people with a mental disorder is assessed in a way that is fair and non-discriminatory, while also giving suitable protection for vulnerable individuals.
• The Committee highlights concerns over the risk of "doctor shopping", where an individual’s initial request for an assisted death is declined and they seek another medical practitioner’s assessment. Should the Bill progress to Stage 2, the Committee say it may be beneficial to explore further amendments to guard against "doctor shopping", including creation of a central register of psychiatrists or an independent body or ethics committee to oversee, monitor and review medical practitioners' decisions.
• The Committee recognises the intention that, should the Bill become law, assisted dying would be delivered as an integrated part of existing healthcare services rather than a stand-alone service. At the same time, it emphasises the importance of monitoring the impact of the Bill on existing services. It also suggests that certain aspects of assisted dying might be better delivered on a stand-alone basis, in particular to ensure consistent access across the country.
• The Committee also emphasises the need for a combination of further amendments at Stage 2 and detailed guidance on self-administration and provision of assistance as part of the assisted dying process to ensure absolute clarity and appropriate protection for all parties involved, should the Bill become law.
• The Committee notes Mr McArthur’s willingness to explore further the possibility of creating an “opt-in” model of participation in assisted dying for health practitioners and says this warrants further debate should the Bill progress to Stage 2.
• The Committee notes the potential inclusion of a sunset clause (meaning the legislation could not remain in force beyond a defined period without a further vote in the Parliament) may be the subject of further discussion, if the Bill progresses to Stage 2.