The Royal College of Psychiatrists say the Bill is open to legal challenges and could expand to other conditions
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Scots with mental illness, diabetes or dementia could end their lives early using proposed assisted dying laws thanks to the “unhelpfully vague” definitions used, experts have warned MSPs.
The Royal College of Psychiatrists (RCP) said the definition of “terminal illness” used in the Assisted Dying for Terminally Ill Adults (Scotland) Bill was “very wide”.
Holyrood’s health committee, which is examining the legislation, was also warned that it could be open to legal challenges that could expand the range of eligible medical conditions.
The Bill would give mentally competent people over 16 who have been diagnosed with a terminal condition the right to end their life. Safeguards would include independent assessments by two doctors and a 14-day cooling off period.
It states that someone is eligible if they have “an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death”.
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But the RCP said some of these terms were “unhelpfully vague for such a crucial role in the proposed legislation” and had been developed from a definition used to determine access to benefits for people with serious illness.
Terminal illness was not defined by “anticipated life expectancy”, the RCP said, and there was no requirement that patients should experience “intolerable suffering”.
While dementia would satisfy the requirement that the condition be “progressive”, the submission said that the legislation did not define “advanced”.
Many people with advanced dementia would not have the “decision-making capacity” to request assisted dying, the submission said, but it is “likely” that others would.
It also warned that diagnosing dementia can be complicated, raising the prospect of someone being misdiagnosed and wrongly assessed as eligible for assisted dying.
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Although a survey showed a majority of RCP members supported dementia being an eligible condition, some raised concerns that some sufferers may request assisted dying “earlier than they would otherwise wish, for fear of losing capacity” later.
Other members expressed fears that people with dementia would request assisted dying “out of fear of becoming a burden to relatives, financially or otherwise”.
Dr Mary Neal, a reader in law at Strathclyde University, told the committee: “I think it’s tricky because, on the one hand, the definition of terminal illness in the Bill doesn’t refer to a specific life expectancy, it’s just any illness... from which a person can’t recover.
“There are some mental health issues from which people can’t recover and which might be expected to shorten life.”
She added: “There is risk baked into the definition of terminal illness in the Bill that someone could foreseeably decide to end their life because they’re unable to recover from a mental condition that’s causing them considerable suffering.”
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Dr Sandesh Gulhane, a GP and the Scottish Tories’ shadow health secretary, asked the witnesses if court challenges could lead to people with conditions like diabetes accessing assisted dying.
Dr Murray Earle, a lecturer in medical law at Edinburgh University, said there was a risk of a “slippery slope” where people with some conditions could argue they should be included in access to assisted dying.
“I think at the moment this Bill is quite tight but what we’ve seen abroad is it has been slippage,” he said.
“There has been the so-called slippery slope, and we’ve seen it because people have claimed a rights basis for their exclusion, or rather their rights being invaded, because they’ve been excluded.”
Two previous attempts at Holyrood to change the law on the issue were decisively defeated but Liam McArthur, the Liberal Democrat who tabled the Bill, has expressed confidence it would pass this time.
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It has won support from Dame Esther Rantzen, who is considering travelling to Switzerland for an assisted death after being diagnosed with stage four lung cancer, and Dame Prue Leith.
MSPs are to get a free vote on the Bill but John Swinney’s SNP government has warned that Holyrood is unable to legalise assisted dying without Westminster’s authority.
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