Clarity, compassion and choice — what next for Assisted Dying for Terminally Ill Adults (Scotland) Bill and why status quo is 'anything but safe'

The Assisted Dying for Terminally Ill Adults (Scotland) Bill can provide clarity, compassion and choice, writes Dr Sarah Sivers, Associate Dean for Research, School of Law and Social Sciences at Robert Gordon University.

On the evening of 13^th May 2025, the Scottish Parliament did something it’s never done before. It passed an assisted dying bill at stage 1.

"The debate was an illustration of a respectful and robust exchange"

Prior to this, three earlier attempts at Members’ Bills had failed, either by not gathering the required support to be introduced at all (2004), or by failing at stage 1 (2010 and 2013). By agreeing to the general principles of the Bill, MSPs have taken a momentous decision, by a majority of 70 to 56, to take those general principles and the content on the face of the Bill, and scrutinise and consider proposed amendments to it through the stage 2 and then stage 3 process. Given the nature of the issue, and the strength of views displayed in the chamber, the expectation must be that there will be many proposed amendments for the Committee to consider and determine how, or if, to address them. It will also require some cooperation with the UK government over issues with the practical implementation of the Bill, particularly around the regulation of healthcare professionals, and the Misuse of Drugs Act 1971. All of which is to say that there remains a considerable amount of work, debate, and input into the detail of how the proposed assisted dying regime would work in Scotland.

Wrestling with the legal and ethical issues

The debate was an illustration of a respectful and robust exchange. Powerful arguments were put forward in opposition to and in support of the Bill. Issues were highlighted that require more detail and further consideration, and ethical arguments were put forward both in support and against the purpose behind the Bill.

Perhaps the most forceful of these is around personal autonomy, and the individual’s right to self-determination which is upheld through the law. Specifically, autonomy gives the individual the right to choose for themselves, and in a number of areas (for example, refusal of treatment) that right to choose is absolute for an individual who has the necessary capacity.

Capacity then becomes the foundation on which autonomy rests and, in the case of assisted dying, prevents those who lack capacity from meeting the eligibility criteria. To say that this Bill has sufficient safeguards built into simply because capacity is a necessary criterion does not adequately answer its critics, as the mechanisms for carrying out that capacity assessment, the professionals who would carry it out, and the provision of necessary training to equip those professionals to do so all have to be addressed. These will no doubt be issues that arise and are considered in more detail as the Bill progresses through the next stage. The same will likely also be the case for thresholds for determining that the individual made a free and voluntary choice, unaffected by coercion.

The 'slippery slope'

Ethical issues engaged by the Bill also include the slippery slope argument: that once something becomes accepted, the original restrictions or limitations are gradually eroded, such that we end up in a position far beyond what was originally intended. In legislative terms, the concern is that criteria put in place to limit, for example, eligibility to a restricted group of individuals, will become diluted and the range of individuals able to access assisted dying will expand. This concern is raised under a number of headings; that the age at which assisted dying could be accessed would creep downwards, or that terminal illness would be replaced or added to by some other category that widened eligibility further.

However, the evidence from jurisdictions with experience of having implemented a terminal illness model of assisted dying simply does not demonstrate a gradual slide towards widening criteria. The Oregon Death with Dignity Act, passed in 1994, is one example of a piece of legislation that has stood, virtually unchanged, for 30 years. The Canadian model, often held up as an illustration of gradual widening and loosening of eligibility criteria, is not an appropriate comparator as the situation experienced in Canada following the ruling in Carter v. Canada ([2015]1 SCR 331 - Carter v. Canada (Attorney General) - SCC Cases) could not happen in Scotland. The model it uses is not the terminal illness model used in the Bill, and the constitutional position of the Canadian Supreme Court is fundamentally different. In Carter, the Supreme Court of Canada declared that the blanket ban under s. 241(b) of the Criminal Code of Canada was unconstitutional and a breach of the Canadian Charter of Rights and Freedoms (specifically the right to life, liberty, and security of the person under s7). As a result, Bill C-14 was introduced  to allow for Medical Assistance in Dying (MAiD). This was initially a more restrictive law, which was subsequently expanded further, in order to implement the original judgment in Carter.

"The law can and does stand as a bulwark against sliding down the slippery slope"

This mandated introduction, and then subsequent widening of a statute is a particular feature of the Canadian constitutional arrangement which could not be replicated in Scotland. And even if a future Scottish Parliament were to consider changes, the ‘legislative creep’ that could effect change to eligibility criteria would have to go through the same robust parliamentary process as any other Bill. Gradual and increasing loosening of criteria specified in an Act is not a foregone conclusion, and the law can and does stand as a bulwark against sliding down the slippery slope.

Maintaining the status quo is not a tenable position

That palliative care would be diminished by the existence of a choice of an assisted death for those who meet the criteria is also not borne out by evidence. Data from other jurisdictions shows that the vast majority of those who access an assisted death are already in receipt of palliative care, and that the two can operate side by side in an individual’s journey. The option of an assisted death does not mean that a qualifying individual will access one. It means that the option is there if they choose to access it. The need to fund the provision of high-quality palliative care does not disappear if assisted dying becomes law. It becomes a stage in the individual’s end-of-life journey which may still continue through to their natural death, as for some individuals, the knowledge that assisted dying is available to them is sufficient reassurance as they face their terminal illness.

Maintaining the status quo is not a tenable position. The current legal position is at best unclear, and at worst internally contradictory. The only framework for the law to deal with an assisted death at present is that of the criminal law, which simultaneously applies the law on homicide to cases where family members or friends have assisted a death, and then applies as much leniency as possible in the disposal of those cases, because to sentence within the letter of the law is widely considered to be inappropriate and inhumane. The only other option under the current law is for the individual to travel to a permissive jurisdiction, which imposes significant (and for many, unmanageable) financial cost, the emotional cost of a death away from home, and the possibility of prosecution for the assister. And perhaps most importantly from an ethical perspective, it requires the individual to access an assisted death while they are physically able to travel, which may well mean they do so earlier than they would otherwise choose, for fear of being unable to access it at all if they wait until they are ready.

Conclusion

It is in this context that stage 2 and 3 of the Bill should be approached. Yes, there will be amendments to the current text. Yes, there will be fiercely fought battles over the details of the measures needed to implement an assisted dying regime. Yes, there will be arguments over how a safe and compassionate regime can be brought into being. But the safety of sticking with the status quo is an illusion. It is anything but safe, and anything but compassionate.