The Assisted Dying for Terminally Ill Adults (Scotland) Bill was recently introduced to the Scottish Parliament. If passed the Bill will allow terminally ill adults in Scotland, who are eligible, to request and be provided with assistance by health professionals to end their own life. What impact would the Bill have on regulated professionals?

To be eligible to receive assistance to end their life the Bill sets out that a person must: 

• be terminally ill (have an advanced and progressive disease, illness, or condition which they cannot recover from, and which is expected to cause their premature death);
• be aged 16 or over;
• have been resident in Scotland for at least 12 months and be registered with a GP practice in Scotland; and
• have sufficient capacity to make and understand the decision. 

Though the Bill was introduced in March by Liam McArthur MSP, following several years of campaigning, it has gained recent press attention due to the Scottish Government’s comments that it falls outwith the competence of the Scottish Parliament. The Scottish Government seems particularly concerned about the Bill’s attempts to regulate the use of lethal drugs. That is a matter reserved to Westminster. 

One aspect that perhaps understandably has received little press attention is the impact it may have on the regulation of medical professionals in Scotland. The regulation of the health professions is a reserved matter in terms of section G2 of schedule 5 of the Scotland Act 1998.

The Bill provides for healthcare professionals to conscientiously object to provide assistance, mirroring the approach taken to abortion. The Bill’s policy memorandum indicates that the doctor should then refer the person to another registered medical practitioner who is content to participate. However, the Bill does not set that out. What if a doctor refuses to do that, again as a matter of conscientious objection? 

The Bill includes various other elements that would seem to have the effect of regulating the medical profession. For example, the Bill includes clauses that define what a “coordinating registered medical practitioner” is. That would allow Scottish Ministers to specify the qualifications and experience required for medical practitioners to be involved in assisted dying. In his letter to the Health, Social Care and Sport Committee the Health Secretary, Neil Gray MSP said: 

“[…] noting that the Bill represents a novel and fundamental shift in the role of medical practitioners, and the regulatory framework in which they operate, from protecting/enhancing patients’ lives to assisting in termination of life, it is considered that […] the Bill may relate to the reserved  matter of regulation of the health professions”.

The Bill has wide cross-party support, but in its present form it seems likely that it is bound for the Supreme Court, unless there can be agreement between Holyrood and Westminster about the transfer of further powers with a section 30 Order. That is a slow process. 

Matters might be simpler given that proposals for assisted dying in England and Wales are shortly to be debated at Westminster. It may be that both Parliaments end up speaking as one on the issue.