Andrew Tickell: Assisted dying law must be reformed

DANIEL James was a rugby player, a rugby fanatic. Capped by the English juniors squad, the engineering student lived the physical life, active, robust, embodied. On 12 March 2007, at a training session at his Nuneaton club, a scrum buckled on top of the young hooker, dislocating two of Daniel’s vertebrae and compressing his spinal cord. He awoke tetraplegic, paralysed from the chest down. He could not move his hands, or feel his fingers.

Medics concluded that Daniel’s condition would never improve. In the months that followed, anger and despair gripped him tight. Feeling imprisoned in his immobile body, Daniel attempted to kill himself three times during his final eighteen months on this earth. Having exhausted their reserves of hope that their son would come to see life differently, and find reasons to persevere, Daniel’s parents helped their broken wee boy to fly to a Dignitas clinic in Zurich. On 12 September 2008, he was assisted to die. He was 23.

The James case divides opinion sharply. Many people who experience catastrophic spinal injuries know the despair Daniel knew, but persist. They attain rich lives, full of the colour and fulfilment which seemed unreachable in the immediate, numbing aftermath of their accidents. Daniel seemed impossibly young to die. But who am I to say how folk ought to feel? I never knew this young man, but his sad case makes me think of other people I have known, whose whole self, whose whole being in the world, is rooted in having their two feet planted on the ground, being under the open sky, scoured by the wind and rain. Shepherds, sportsmen, gamekeepers, farmers. I am a fairly abstract, physically useless specimen. But to deprive these men and women of the exercise of their bodies would be to rob them of their sense of themselves. Thus, I always imagine Daniel James. I cannot find it within me to condemn his choice, or the brave, reluctant aid his poor parents gave him.

But the law sees these matters differently. On their return to the UK, Mark and Julie James were separated and interrogated by police officers for many hours. In England, it is a criminal offence under the Suicide Act to “aid, abet, counsel or procure” the suicide of another person. If you prepare a lethal cocktail of drugs for your spouse in England, or help a friend to Switzerland to end their suffering, you violate the law. For many months, the threat of imprisonment hung over them. The Director of Public Prosecutions eventually determined that a prosecution would not be in the public interest.

But what of Scotland? The Suicide Act does not apply north of the Border. Would I be at risk of prosecution if I prepared a fatal dose of drugs for a sick friend to administer to themselves? Might I face a homicide conviction and life imprisonment for ordering tickets to bear a terminally ill relative to Switzerland? The disgraceful answer to these questions is – we really don’t know. Holyrood has concluded taking evidence on Margo MacDonald’s bill to legalise assisting suicides, if stringent conditions are met. It must now decide whether its basic principles are sound. But the uncertainty of the current law is intolerable.

Pleading sub-judice, the Crown Office refused to give Holyrood any real understanding of how prosecutors see the criminal law. James Chalmers, professor of law at the University of Glasgow, told MSPs “the scope of the criminal law” in Scotland on assisted dying “cannot be stated with any degree of certainty whatsoever.” This is not a nice academic point. These are fundamental questions of liberty and power. Just ask Mark and Julie James.

Opponents of this bill criticise the proposals on the grounds that they have insufficient “safeguards” to prevent the vulnerable and suggestible from being coerced to end their lives prematurely. Just this week, Nicola Sturgeon described this as “a major stumbling block”. But what safeguards does the law as it stands afford to folk, in the most agonising circumstances, trying to do the right thing by their suffering relatives and friends, within the law? None. The status quo is indefensible.

Prosecutors must decide whether there is sufficient credible and reliable evidence that a criminal offence has been committed. They must take a view about whether it would be in the public interest to proceed. But the Crown Office is not a law-making body. It is for parliament to decide what should and should not be criminal. Holyrood cannot sit back and wait for Lord Advocate Frank Mulholland to indict some luckless assister to clarify the law. It is for legislation, to make these tough choices.

Holyrood’s deference to the judgement of the Lord Advocate fundamentally misunderstands the democratic responsibilities we elect MSPs to discharge. Whether or not Holyrood endorses these proposals, one thing is clear: the law in Scotland on assisted dying is a scandal, and must be reformed.