The End of Life Assistance (Scotland) Bill: Views from the trenches. Part 3

This posting is the third part of the article that Dr Stephen Hutchison MD FRCP(Glasg, Consultant Physician in Palliative Medicine at the Highland Hospice has written on the End of Life Assistance (Scotland) Bill. The article will be posted in 4 parts to facilitate reading.

The House of Lords Select Committee made several recommendations to guide the drafting of legislation about assisted dying. It would have been wise to have accommodated these when drafting the present Bill, but unfortunately they have been largely disregarded. The Bill does not draw a clear distinction between assisted suicide and voluntary euthanasia or set out clearly the actions which a doctor may and may not take in either case. There is no guidance whatsoever on what a doctor may or may not do, or agree to, in bringing about the person’s death. It does not adequately address the need to identify psychological or psychiatric disorders. Whilst the wording regarding prognosis in terminal disease is an improvement on previous legislative attempts, the Bill does not acknowledge the everyday clinical realities of prognostic inaccuracy. It does not focus on unrelievable suffering, but only on intolerability. In making provision only for discussion of palliative care, the Bill does not require patients to experience such care before taking a final decision. And finally it makes no allowance for conscientious opt-out for doctors.
I mentioned safeguards. The Bill requires a staged formal process, with stipulated discussions at each to determine that the person knows exactly what they are asking for, is aware of the alternatives and that they can stop the process at any time. Two psychiatric assessments are required, but it is permissible for both to be conducted by the same person, who is only required to report that the patient is acting voluntarily and with capacity, and not on how appropriate it is to continue with the process. The decision as to whether the process should be carried through rests solely with the designated practitioner. Approval of the second request must be by the same doctor who approves the first. It is a stretch of the imagination to construe this as an independent second opinion! The doctor is expected to ensure, at several points in the whole process, that the patient is not acting under undue influence. There is no indication as to how this should be determined, or of what amounts to undue influence. Is it enough to ask the requesting person? Will that also require a formal statement? The witnesses also have to attest that the requesting person has not come under undue influence. Yet again there is no indication as to how this should be determined. What enquiry are the witnesses required to undertake? How would reliability be assured? What happens where there is a conflict of opinion amongst all these people about the influence? It is impossible to ascertain undue influence, because the influences under which we function are many and varied, internal and external, and can be very subtle. Doctors are used to dealing with uncertainties. Clinical judgments are not always binary – yes or no. But when the outcome is deliberate action to end a human life, the opposite principle to that under which doctors currently work, uncertainty cannot be entertained.