Cross-border differences throw up major assisted dying questions - Chris Dunn
Holyrood and Westminster are debating legislation which, if passed, would allow a defined group of people to receive assistance to end their lives. There has been much impassioned debate from those for and against such a change. What has received fewer column inches are the differences that would arise north and south of the border, for patients and for doctors.
There are many similarities between the two Bills, but one immediately notable difference. The Westminster Bill provides that assistance to a terminally ill person to end their life would be subject to the High Court’s consent. The Court of Session’s consent would not be required in Scotland.
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Hide AdWhy, a patient may ask, do I need the court’s permission if I live in Berwick but not if I live in Banff? Likewise, a doctor may ask, why do I not have the comfort of the authorisation of the court for a patient in Carluke when I would in Carlisle?


Both Bills would allow a doctor to refuse to assess a patient’s suitability on conscience grounds. In such a scenario, they must refer the patient to a colleague. What of regional variations? Parts of the UK, particularly in Scotland, might have a higher likelihood of a doctor refusing, or fewer suitably qualified doctors such as in rural areas. What do those doctors and patients do?
Another area ripe for dispute (and perhaps litigation) is the definition of “terminally ill”. In Scotland, that is defined as a person with “an advanced and progressive disease…that can reasonably be expected to cause their premature death”. Is there uniform acceptance amongst doctors as to what amounts to a “premature death”? Would diabetes or Parkinson’s or dementia fulfill this definition? Could we see litigation over whether a patient is “terminally ill”? Could patients challenge a doctor’s professional opinion? Can they instruct their own ‘expert’ to rebut their conclusions?
Next, doctors must be satisfied there is no coercion. How are they to satisfy themselves? They are used to performing a safeguarding role, but this is a much greater burden. Clear guidance and training will be needed to help doctors identify patients where there is an apparent risk of coercion. In England and Wales, there is the backstop of the High Court’s involvement, but the court still relies on doctors’ assessments. There is no requirement for the court to hear from the patient, though they can do so.
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Hide AdBoth Bills provide varying levels of detail on how life is to be ended, and the role of medical professionals. Gaps exist. In some respects, those gaps are worryingly large, particularly with respect to the requirement to self-administer. Such gaps will be filled by guidance and codes of practice from Ministers, along with guidance from the Chief Medical Officers. But what if something goes wrong? What if the process is not followed to the letter? Does that remove protections against criminal and civil sanction? Would it be of interest to the General Medical Council?
Unless this legislation is properly thought through, it risks placing doctors in an invidious position. There needs to be proper regulation, and regulatory guidance, to make clear a doctor’s role. There needs to be greater protection for doctors. There needs to be an independent and transparent system of oversight and regulation.
There has been much debate on the merits of assisted dying. What is also needed is debate on the impact – practical, legal, and regulatory – on those who would be responsible for much of the process.
Chris Dunn, senior associate, Clyde & Co
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