Top lawyer: Liam McArthur’s assisted suicide Bill discriminates against those with disabilities

Liam McArthur’s assisted suicide Bill discriminates against people with certain disabilities and could be challenged under human rights law, a top lawyer has stated.

Tom Cross KC’s legal opinion on the Private Member’s Bill for The Christian Institute concludes that, as it stands, the Scottish legislation is not compatible with the European Convention on Human Rights (ECHR). This is because suicidal thoughts (also known as suicidal ideation) are a known symptom of certain disabilities, and the right to life of people with such conditions would be violated as this would not be accounted for.

In its current form, the Assisted Dying for Terminally Ill Adults (Scotland) Bill would enable adults deemed to be terminally ill to get help to kill themselves.

Discriminatory Bill

Mr Cross, who also wrote a legal opinion criticising Kim Leadbeater’s assisted suicide Bill, and fellow barrister Ruth Kennedy explained that the Bill is not compatible with human rights legislation, as it “unjustifiably discriminates against those persons whose disabilities manifest in the expression of suicidal ideation”.

They stated: “By virtue of Article 14 of the ECHR, disabled persons enjoy special protection from discrimination, including in the enjoyment of the right to life”.

However, they noted that “without justification, the legislation fails to provide any adequate safeguard to address that greater vulnerability”, and so leaves the Bill open to a legal challenge if it became law.

Mr Cross also warned: “The time for ensuring that the Bill protects the most vulnerable is during its passage through Parliament. In our view, it is inadequate, on analysis, to adopt a ‘wait and see’ approach, by which the State may come to learn in due course whether rights of its citizens have been violated.

“By that time the Bill will be law, and the horse will have bolted.”

Offer hope, not death

The Christian Institute’s Deputy Director Simon Calvert said: “This stark warning about discrimination against disabled people embedded in this terrible Bill must surely force MSPs into action – especially those who voted in favour of the Bill at Stage 1 earlier this year.

He added: “this document should set alarm bells ringing for them. It shows authoritatively that, among its many other fundamental flaws, the Bill discriminates against disabled people in a very specific way by failing to provide for any assessment of whether what appears to be a settled wish to die is actually a manifestation of their condition.

“It’s time MSPs gave up on this dangerous and discriminatory Bill and focused on improving healthcare and end-of-life care for everyone. If the many hours wasted on debating assisted suicide had been spent on debating how to improve palliative care, we’d be in a much better position, offering people life and hope instead of death and despair.”

‘Do no harm’

Dr Gordon Macdonald, Chief Executive of Care Not Killing has endorsed the KC’s views, explaining: “The primary danger of assisted suicide is that individual lives are devalued by society because they are ill, disabled, confused or that their contribution to society is perceived to be minimal.

“For more than 2000 years the underlying ethic of medicine has been to ‘do no harm’, preserve life and alleviate suffering by seeking to heal or palliate.

“For doctors to facilitate the deaths of their patients is to betray their professional responsibilities and will prepare the ground for more pressure to be applied on disabled people, the elderly and others who are in a vulnerable situation to end their lives prematurely.

‘State-sanctioned killing’

He called Liam McArthur’s assisted suicide Bill “an attack on human dignity” and stated: “Any change in the law to allow assisted suicide would place pressure on vulnerable people to end their lives for fear of being a financial, emotional or care burden upon others.

He said: “This would especially affect people who are disabled, elderly, sick or depressed. We don’t want the state-sanctioned killing of old, ill and disabled people”, but rather, “want support for people to live – not to die.”

Dr Macdonald warned: “In addition, there are other potential human rights and equality law challenges to the Bill including that health professionals may be forced to participate, despite conscientiously objecting as medical regulation is reserved to Westminster and that there is no opt out for religious hospices and care homes.

“And this would open up any legislation to judicial reviews and court challenges which would be both lengthy and enormously costly to the Government at a time of financial crisis.”