Assisted suicide: Scottish Government warned of legal challenge over human rights breaches against disabled people if MSPs back Holyrood Bill

The Scottish Government faces the prospect of a legal challenge if the proposed assisted suicide Bill going through Holyrood is approved by MSPs.

That’s the opinion of a leading KC who believes the Assisted Dying for Terminally Ill Adults (Scotland) Bill, promoted as a Members’ Bill by Lib Dem MSP Liam McArthur, breaches the European Convention on Human Rights (ECHR).

Tom Cross KC, who is on the panel of counsel for the Equality and Human Rights Commission, states in a legal opinion prepared for The Christian Institute that the legislation contains inadequate safeguards for people with disabilities.

He says the Bill is in breach of Article 14 of the ECHR, which contains the provision that everyone’s rights must be protected equally. He says it would unfairly discriminate against people with conditions such as autism, bipolar disorder and depression.

The 14-page critique of the Bill states:

“… without justification, it contains no adequate safeguard protecting the position of those with disabilities where suicidal ideation is more likely, and who are, because of that feature of their disability, more likely to express a wish to die.

“By virtue of Article 14 of the ECHR, disabled persons enjoy special protection from discrimination, including in the enjoyment of the right to life under Article 2 of the ECHR.

“In law, ‘very weighty reasons’ may be required to justify the same. Persons with disabilities of the above sort are in a significantly different situation from persons who do not have such disabilities, because they are … more likely to express the wish to die required under the legislation to be eligible to be assisted to die.

“They are on that basis more vulnerable both than persons whose disabilities are not of that sort and than persons who are not disabled at all.

“Accordingly, they are on well-established principles required to be treated differently under Article 14 unless there is justification not to do so.

“However, without justification, the legislation fails to provide any adequate safeguard to address that greater vulnerability.”

Writing the opinion with barrister Ruth Kennedy, the KC concludes:

“We consider that, on that basis, an application for judicial review in respect of the legislation once enacted could result in a declaration that it is ‘not law’ for the purposes of section 29(1) of the Scotland Act 1998 (‘the Scotland Act’).”

Under the Scotland Act, if Holyrood passes legislation incompatible with the ECHR, a court can strike it down by declaring it “not law”, as the Supreme Court did when The Christian Institute challenged the ‘named person’ scheme in 2016.

The Law Society of Scotland has already expressed concerns about the Bill’s compliance with the ECHR, as have organisations representing disabled people. The Health, Social Care and Sport Committee Stage 1 report on the McArthur Bill states (para. 126): “those witnesses representing disabled people’s organisations who gave oral evidence to the Committee were strongly of the view that the provisions in the Bill as introduced represented a direct threat to disabled people’s rights”.

The KC states the Bill fails to ensure people with certain disabilities are adequately protected and adds:

“There is clear and cogent evidence that particular disabilities are more likely to manifest in the sufferer expressing a wish to die, because they are more likely, by virtue of the disability, to experience suicidal ideation.”

“… we observe that there is well-documented medical evidence that, for example, those who have been diagnosed with the following conditions have greater rates of suicide and attempted suicide than the general population:

a) Bipolar disorder, in respect of which the latest research suggests 15–20% of people with bipolar disorder die by suicide and 30–60% will make at least one attempt to end their own life;

b) Depression; and

c) Autism, as to which the latest research suggests that 35% of autistic adults had planned or attempted suicide in their lifetime with 72% reporting suicidal ideation.

“The Bill fails to treat those suffering with these disabilities in a way that reflects their significantly different situation.”

Mr Cross, who also wrote a legal opinion criticising the assisted suicide Bill currently being scrutinised at Westminster, issues a stark warning about the Scottish Bill and says:

“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.”

The KC says the numbers expressing a wish to die are ever increasing and cites Canada, where one in twenty deaths are now as a result of assisted suicide. In addition, he says, in the Netherlands 5.4 per cent of all registered deaths are through assisted suicide, with the uptake rising 8 per cent every year.

He writes:

“We have no basis to suppose that a similar trend will not broadly be seen in Scotland should the Bill in its current form be enacted. If it is, the volume of cases in which the risk we have identified will arise will increase, correspondingly, over time. The prejudicial impact on the particularly vulnerable cohort will, over time, become greater.”

And the KC concludes starkly:

“… the State has not sought to justify the discrimination at all, because it has failed to engage with the discrimination”.

“We have explained why we consider that the Bill unjustifiably discriminates against those persons whose disabilities manifest in the expression of suicidal ideation.”

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. Some allowed the Bill to proceed to allow for more debate, or to see if it could be improved.

“But 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.

“This puts at risk some of the most vulnerable people in our society. Do we really want a situation where disabled people are given drugs to end their lives, by the State, due to a lack of care and insight into their particular health needs?

“MSPs must open their eyes and see waving through a piece of life-and-death legislation drafted by a backbench MSP is a colossal failure of responsibility by Holyrood.

“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.”

ENDS