October 2021 – Assisted Dying Bill & Advanced Directives Compared

Author: Mitchells Roberton
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  • Last month a proposal for a Member’s Bill to allow adults who are terminally ill to be provided with assistance to end their life was lodged with the Scottish Parliament. There is as yet no actual draft Bill setting out what the legal rules might be. This is a difficult, sensitive and controversial matter and at this stage the proposal launches a consultation so that people can voice their views about whether the law should be changed in this way and, if so, how. The consultation closes just before Christmas.
  • Of course, there is already scope for people to make what are known as “Advance Directives”. These are sometimes called “Advance Decisions” or sometimes “Living Wills”. But this note simply uses the term “Advance Directive”.
  • Advance Directives are very different to the new proposal to allow for assisted dying. Perhaps one of the key differences is that an Advance Directive is intended to apply when you have lost capacity and can no longer communicate your wishes. Whereas, the proposed Bill would only apply when you still retain capacity to communicate your wishes.
  • It is worth re-capping on what Advance Directives are before going on to touch on what the new proposal for assisted dying.

Advance Directives

  • An Advance Directive allows you to record any medical treatments that you don’t want to be given in the future if you later lack capacity and cannot make or communicate a decision for yourself.
  • You can use an Advance Directive to say that you do not want to be given any medical treatments including life-sustaining treatment. Life-sustaining treatment may include:
    • cardiopulmonary resuscitation (CPR) if your heart stops;
    • being put on a ventilator if you cannot breathe on your own;
    • being given food or fluids artificially, for example through a drip, a tube through the nose or through a tube directly into the stomach; or
    • antibiotics for a life-threatening infection.
  • If you live in Scotland and lack capacity, the Adults with Incapacity (Scotland) Act 2000 will apply. This Act says that when making a decision about a medical treatment, the healthcare professional must take into account the “past and present wishes” of the adult. Because an Advance Directive is evidence of a person’s wishes it should therefore be taken into account when a decision is made on their behalf.
  • In England and Wales, Advance Directives that meet certain requirements must be followed. That is not so in Scotland. But Advance Directives are still widely recognised here and used by healthcare professionals. If a decision ever had to be made in court, the general view is that the Scottish courts would take the same approach as England and Wales and say that a clear and specific Advance Directive should be followed.

The proposed Assisted Dying Bill

  • The aim of the proposal is to enable adults who are mentally capable and who are suffering from a terminal illness to be provided with assistance to end their life at their request.
  • In Scotland, for social security purposes, “a terminal illness is regarded as a progressive disease, which can reasonably be expected to cause an individual’s death” and that is the definition adopted for the purposes of the consultation on the proposed Bill.
  • The person must be at least 16 years of age and have been resident in Scotland for at least twelve months.
  • It is proposed that the following list of safeguards would apply before someone ends their life:
  • Two doctors independently confirm the person is terminally ill.
  • Two doctors establish that the person has the mental capacity to request an assisted death.
  • Two doctors assess that the person is making an informed decision without pressure or coercion.
  • Two doctors ensure the person has been fully informed of palliative, hospice, and other care options.
  • The person signs a written declaration of their request, which is witnessed and signed by both doctors.
  • A suggested waiting period of 14 days allows the person time to reflect on their decision. This time-frame is shorter if the person is expected to die within 30 days.
  • The life-ending medication is stored at a pharmacy and is delivered to the person by a registered healthcare practitioner.
  • The practitioner brings the medication, checks the person continues to retain their capacity, and still has a settled intention to die, and remains present.
  • The person must administer the life-ending medication themselves.
  • It would continue to be a criminal offence to end someone’s life directly.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Heather McKee: email Heather@mitchells-roberton.co.uk

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