Professor David Albert Jones
In relation to law, culture, welfare and healthcare, Scotland is much closer to Canada than it is to the United States. The United States is the richest country in the world, but it does not have universal healthcare provision. In relation to health, it is fundamentally individualistic. It prizes choice over solidarity. Things have improved with the Affordable Care Act (‘Obamacare’) but it still spends more money for poorer health outcomes than any other developed nation. This is perhaps why the United States was the first English-speaking country to embrace ‘assisted dying’. It was an option, a matter of choice. This is clear from the first line of the first official report on the practice: ‘On October 27 1997 physician-assisted suicide became a legal medical option for terminally ill Oregonians.’
On the other hand, this attitude is also why assisted dying in the United States has had less impact than in some other countries. It is a matter of individual choice not State policy. In the United States healthcare is a money-making business and States do not have a financial interest in people dying early. Another reason that expansion in numbers, practice and law has been less rapid in America than in some other countries, is that the focus was at first on spreading it across America. Until other States adopted similar laws Oregon was cautious about changing its law or its overt practice. However, after assisted dying had become legal in nine States plus the District of Columbia, this attitude began to change. In the last five years Oregon has twice amended its law, as have four other States. It has also expanded its practice. In 2021 Oregon reported, for the first time, that someone had been given assisted suicide on the basis of having anorexia. In the United States the assisted-dying agenda has shifted, from geographical expansion across the States to expansion of law and practice. It is becoming more like other countries.
Canada legalised ‘medical assistance in dying’ in 2016 and at first this was restricted to people whose death was ‘reasonably foreseeable’ on the basis of their medical condition. However, in 2021 this was expanded to anyone whose condition is physical and incurable. This expansion from terminal illness to chronic conditions also happened in Colombia which established regulations for assisted dying in 2015 for people with terminal illness but expanded this to chronic illness in 2021. Of fourteen countries where assisted dying is legal, only three still restrict it to terminal illness: the United States, New Zealand and Australia. Canada shows what lies ahead.
“In relation to law, culture, welfare and healthcare, Scotland is much closer to Canada than it is to the United States.”
In Canada now there are two tracks to ‘medical assistance in dying’: Track 1 for those whose natural death is reasonably foreseeable; and Track 2 for those whose natural death is not reasonably foreseeable. Track 2 has extra requirements including a waiting period of 90 days. However, out of 13,241 assisted deaths in 2022, only 463 were Track 2. This is because, when someone has a chronic condition and wants to die, they can state that they intend to stop eating or to refuse antibiotics or other medication, and their deaths then become ‘reasonably foreseeable’. They switch tracks. This happens. It happened to the father of someone I know. It happened in a recent court case of a young woman with autism. It is a common phenomenon. The real expansion was not the change in the law but the way that terminal illness was defined in practice. It now applies to anyone who might be expected to die if they stopped receiving all medical treatment or care.
In some ways the proposed law in Scotland is more like that of Oregon than that of Canada (for example, people must self-administer the lethal drug) but in relation to the definition of terminal illness, the Scottish Bill is much more similar to Canada’s law of 2016 than it is to Oregon’s law. Like the Canadian law, there is no requirement for a prognosis of natural death within six months. Natural death may be years away, so long as the condition is incurable, progressive and ‘advanced’.
In the Financial Memorandum the Non-Government Bills Unit estimate that in the first year there might be 25 assisted deaths. This figure was based primarily on Oregon, which is two thirds the size of Scotland and had 16 deaths in its first year. However, as we have seen, Oregon has been the exception not the rule. It is instructive to look at countries or provinces that are similar in size to Scotland (5.4 million) and have similar in culture and have introduced such laws. In British Columbia, Canada (present population 5.5 million), in the first year there were 194 assisted deaths, in New Zealand (population 5.1 million) there were 328 deaths, and in Queensland, Australia (population 5.5 million) there were 598 deaths. It is likely that far more than 25 people would die in this way in Scotland in the first year.
“In the Scottish legislation, there is no requirement for a prognosis of natural death within six months. Natural death may be years away.”
In British Columbia in 2022, which was its seventh year, there were 2,515 assisted deaths. In Canada, assisted dying is not only for those who are dying, in the sense of having only weeks or months to live. It takes the chronically sick. It takes the disabled. Scotland should look to Canada as a warning. If the dam of the current law is breached assisted dying could rapidly expand in numbers, practice, and law. What were ‘safeguards’ could soon become ‘barriers’ to be swept aside.
David Albert Jones is a Professor of Bioethics at St Mary’s University, a Research Fellow at Blackfriars Hall, University of Oxford, and Director of the Anscombe Bioethics Centre. He has given evidence on the dangers of assisted suicide in various parliaments.