On the 8th Dec last year, Margo McDonald launched her ‘End of Life Choices’ consultation. This was a follow on from Jeremy Purvis’s ‘Dying with Dignity’ bill, which was an assisted suicide bill but was unsuccessful. On 8th March (next Sunday), the consultation period will come to an end and the bill will be circulated in Holyrood for a month to gather support. If it gets the support of eighteen MSPs or more, then it will pass, subject to a vote in Holyrood.
As someone who has been a carer for a dementia sufferer for ten years, and as a health campaigner, I want to contribute to this debate. My next couple of posts will be devoted to the proposed bill itself and the backdrop to it. The implications of this document are wide ranging, and I think it is important that people understand exactly what is likely to happen if this bill becomes law.
The ‘End of Life Choices’ consultation is a fairly free flowing document, informal in structure. It describes in detail the case of Diane Pretty, Daniel James and other high profile assisted suicide cases. Further on into the document, it starts to outline the details of what the bill would consist of.
Definition of ‘assisted dying’
The normal definition of assisted suicide or “assisted dying” as it is called in this bill, is where a physician supplies the medication and the means by which the person will end their life, but the patient has to administer the medication themselves. This is distinguished from euthanasia, where the physician can also administer the medication to the patient. This is a fine, but an important difference between the two, because with assisted dying it is clearer that the patient actually gave consent. Assisted dying has been favoured as a middle ground for this issue; in Oregon, patients can take their medication home and in around half of these cases, the patient has chosen not to go ahead.
However, in this bill, assisted dying has been defined as follows;
‘ A medical practitioner administers a lethal dose of medication to terminate a patient’s life, or supplies the means, and assists the patient to self administer.’
This means that this bill is not an assisted dying bill, but it is actually a euthanasia bill under this definition. Therefore, in considering the possible consequences of this bill, we should be looking at the example of Holland, which it most closely resembles. Examples such as the Northern Territories in Australia and Oregon in America should be discounted.
Who can apply for this?
The bill states that it applies to ‘capable adults who are residents of Scotland,’ ie those who are over 16 and sound of mind. The circumstances under which they can apply for this are if they are terminally ill, suffering from a degenerative condition or if they become unexpectedly incapacitated. However, it then goes on to say,
‘Patients who are not terminally ill, suffering from a degenerative condition or unexpectedly incapacitated, but who find their life to be intolerable may request assistance to end it..’
This is a very wide ranging definition and it is not clear who it is referring to. This might be someone who is medically ill. Then again, it might be someone who is not medically ill, in which case the role of the doctor towards the person requesting assistance is unclear. The word ‘patient’ has been put in inverted commas all through the document. Does this mean that someone who requests this does not need to be ill to do so?
Who can perform this?
The bill states that an ‘assisting physician’ should be the person to carry out the request. What is normally understood by this, is that it will be a doctor. However, at the back of the draft, ‘attending physician’ is defined as follows;
..ordinarily, the GP or physician who has primary responsibility for care and treatment of the patient, but may be another suitably qualified health professional.
This does not define what a 'suitably qualified health professional' is. This might be a doctor; then again it might refer to a nurse, a nurse practitioner, a health worker or even a pharmacist. It is simply not clear what this means.
Documentation
The condition for allowing a request for assisted suicide, is that the patient makes two verbal requests, 15 days apart. These requests are documented in the attending physician’s notes. Apart from this, no written evidence or corroboration is required from a witness. The request can be carried out by one doctor on the patient, without a third party intervening at any point. Post mortem, he is required to request that a review committee verify that the specified criteria and safeguards had been observed, but it is difficult to see how they could do this, if the only documentation comes from the physician who carried out the request. In cases where the patient’s mental capacity is in doubt, there needs to be a ‘consulting health professional’ to give a second opinion, but in all other cases, one physician is sufficient.
Because the definition of ‘assisting physician’ is so vague, it is unclear as to who is actually going to be responsible for keeping the documentation. If, for example, a nurse practitioner carried this out, would they be responsible for the documentation or the doctor that the patient was registered to?
Further Considerations
People who are mentally incapacited are excluded from this bill at present. It is worth noting however, that the ‘rule of thumb’ test for someone’s capacity esp in the case of dementia, is whether they can sign their name. There are many people with dementia who can sign their name, but have no idea what they are signing and this could be abused.
Under the Adults with Incapacity Act, if a person has not previously arranged a power of welfare attorney with a relative, welfare attorney goes by default to the nurses and doctors responsible for their care at that time. This could result in a conflict of interest especially in a hospital setting, if the bill’s definitions widened. There is a possibility that this could happen, because under European law, omitting the mentally incapacitated from a service could be classed as discrimination. As I speak, the Dutch are drafting legislation to include people with mild dementia under their euthanasia laws.
I understand that this is currently a consultation document and not a legal document at present. However, I am surprised at the lack of detail, at the re-definitions of terms like ‘physician’ and ‘assisted suicide’ which are going to lead to a great amount of confusion and the wide range of the bill. If this ever gets to committee stage, it will have to be completely re-written or ditched altogether; there are too many holes in it. Whether you are for or against euthanasia, this is not fit for purpose.
6 comments:
I am putting in a proviso here that I am completely ignorant about Scottish law but having just come off a four day course about capacity, the 'signature' test is absolutely inapplicable regarding dementia sufferers. We had a considerable discussion about this issue as some doctors felt that having someone signing their name was an indication of capacity but it is not. A full capacity assessment which can (and certainly would be in these instances) take hours over a few days would be necessary to prove or otherwise capacity. Of course, someone with dementia does not automatically lack capacity, there are lots of levels but to make a decision such as end of life it would be an extensive test and not just a signature.
As for the other issues, I find them quite difficult. My gut instinct is against assisted death because I am concerned the powers that might be forcing someone into taking those choices but there are circumstances that I can see it.
On a personal level, my father is very unwell and has been talking about exactly these issues (he has capacity) so that brings it home. I know (because he talks about it a lot) he has a definite idea at which stage he would want to be assisted to die but it makes me sad considering it.
Again, I am referring to English examples.
Hi cb,
Thanks for the comparison re English law. As far as I know, it is still the case in Scotland that the signature test applies; it did for my mum.
I'm against assisted death in law as well, but it is a difficult subject. I'm going to do another post on it tomorrow.
“Margo MacDonald’s Euthanasia Bill”
If Margo MacDonald were to be asked to support the reintroduction of capital punishment, “a law that would put to death the guilty”, both she and her colleagues would refuse, calling it barbaric; yet they have no qualms about putting to death innocent vulnerable people, who in their depressed state of mind have little or no control over their behaviour, or what they say.
“Dignity”
Margo speaks of dying with dignity, where is the dignity in putting down a human-being like one would a dog?
Margo MacDonald links Euthanasia with dignity, as if those who die without its use are dying undignified deaths. How insensitive of her and those who support her Bill.
In countries that have Euthanasia, is it no longer the case that the terminally ill are put down, Euthanasia has moved to take on board old age and dementia also, where on earth will it stop?
Alexander Lennox
History can teach us a dark lesson where the subject of euthenasia is concerned if we fail to observe this lesson then it could come to be repeated. The Nazi t-4 programme which was conducted under the guise of euthenasia led to the systematic murder of hundreds of thousands of vulnerable individuals who resided within the third reich. The elderly, the mentally ill and the disabled all became targets for their megalomania: namely that their will came to be imposed on the citizens of that ill-fated nation without their direct consent all with the good intention of elavating human suffering.
The hospice system which operates within the uk has demonstated that an individual can die with dignity free from pain and distress when appropriate palliative care is provided. Medications such as diamorphine can be administered intravenously and if needed a syringe driver that enables the patient to self -mediacate. Patients who are suffering from terminal illnesses will succumb to respiratory failure and pass away peacefully. Although individuals who are admitted to hospices will not recover from their illness,hospices promote the idea that they are still very much alive and they are treated with respect and made to feel special.
When does this right to die translate and become the duty to die. Britain has an ageing population and the individual life expactancy is increasing so this in turn results in more elderly people having to be admitted to care homes and long-term stay geriatic hospitals. The cost for all of this has to be funded by the tax payer and with many stressed hospital administrators seeking to free bed space and cut hospital waiting lists, could there be a possibility thatb if euthenasia were to become legal, financial considerations could overtake personal ones? Doctors may persuade patients to consider decisions which the individual may not have entertained. The pressure which could be exerted upon the patient may encourage complience especially if they are elderly and their cognitive abilities have been severly impaired by a brain wasting illness such as Alzheimer's or stroke disease. Also families of patients who are unwell may come to believe that the only option for their loved ones may be to request that their life be ended.
The campaign that is now being published to usher in a change in the law rtelating to euthenasia can be compared to the politically charged debate which was contested prior to the legalisation of abortion. The pro-abortionists claimed that there would be strict guidlines which would be drafted into the law and that abortion would only be carried out after all other alternatives had been explored (sound familiar) abortion would not be used as a form of birth control and that in a domocratic nation the choice must lie in the hands of the individual (presumedly the unborn child had no rights. Since 1967 abortion has resulted in the deaths of 42 million worldwide. Now consider the same analogy namely that any change in the law could lead to euthenasia being accepted by society as a 'normal' medical procedure. Even when medical treatment's are available the cost of medication, the age of the patient and how much the individual contributes to society may be considered and medical intervention declined.
Sorry Margo but i don't agree with you. The facts that you present in this bill may induce a dangerous precident which comes to be in force. With all the intention of elevating human suffering you are presenting a future hypothesis for society, a community devoid of love, compassion, care and kindness one which values perfectionism above individual differences
I hate to think that we have not learned the lessons of history Alexander and Anon, but there was a report today on the news about people with learning difficulties that had been completely neglected in hospital and had died as a result. Its place on the news bulletin? Third. It should have been the first article if we cared at all.
Julie,
From one point of view Ms MacDonald is deserving of great sympathy; yet for her to seek to impose her own wishes for her own death on an unwilling, or at best indifferent, people through the mechanism of a just another very badly drafted Holyrood law could be construed as rank egotism.
As the sufferer of an incurable and untreatable neorological disorder, I have no compunction in saying to anyone who will listen that this law frightens me more than any I have come across in the 22 years I've spent studying law, talking about law, hanging around lawyers and sometimes even practicing law myself. This is a euthanasia bill, a killers' charter, no more and no more less. What is very unfortunate for those who dread the needle in the arm is that it will become law for no more compelling reason than the sympathy that a very small group of her fellow parliamentarians will feel for its sponsor. This is not satisfactory.
Like abortion, also foisted upon us by a private member's bill, this policy will never be put before the public for their mandate. This is not democracy; this is parliamentary tyranny.
As for the quality of the draftsmanship that you complain of, it looks as if it belongs up there with such classics as the Mortgage Rights (Scotland) Act 2001 and the Anti-Social Behaviour, etc (Scotland) Act 2004. One day, one of our more puckish judges will gather such classics together into one volume and publish it as an upmarket novelty jokebook. At least they'd then be useful. That the one constant of 21st Century Scottish jurisprudence, the poor quality of Scottish legislative draftsmanship, might also be considered to be a national scandal doesn't seem to register with anyone. Ms. McDonald might even have written it herself.
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