Assisted dying: if not now, then when?

Sunday National, 27th June 2021.

On the morning of the 28th of April 2016, in Troon, Ian Gordon killed his wife Patricia. The couple had been married for 43 years. Ian was self-employed painter and decorator. He stopped working to look after Patricia in 2015. She suffered from chronic obstructive pulmonary disease. Her health was seriously deteriorating, and continued to deteriorate into 2016. Experiencing pain, lethargy, and breathlessness, the 63-year-old believed she was suffering from lung cancer. So it proved. But she also suffered from acute anxiety, particularly associated with hospitals and medical treatment. This had an obvious impact on her capacity to engage with her physicians.

The diazepam and tramadol were providing only very temporary relief from the chest and back pain caused the extensively necrotic malignant tumour in her lungs. In the early hours of the morning, Patricia attempted to end her life by taking an overdose of the pain-relief medication she had been prescribed. The evidence suggested her husband assisted with their administration. Mr Gordon explained what happened next to his daughter. “The tablets were not working; I could not see her in that pain. I am not going to tell you what I did. I know I am going to go to jail, I do not know how long for but I do not have a single regret. There will be a post mortem and the cause of death will be asphyxia but she was in so much pain.”

Having called the police, Gordon was arrested on suspicion of having murdered his wife. His answers in the interview were candid: “He said that his wife was the only woman he had ever loved and that love was the reason he had done what he did.” When charged with murder he replied, “I did it because she wanted me to. I loved her and still love her and that’s all.”

Indicted for murder, the Crown changed its mind half-way through the trial and accepted a plea to culpable homicide. Initially sentenced to 3 years and 4 months imprisonment, Mr Gordon was freed on appeal in 2018. The Appeal Court described the custodial sentence as “putting tragedy on tragedy.”

“What is the good reason for this man to stay in jail?” they asked. “We see no good reason. We see no benefit as accruing to the appellant from his continued incarceration. Rather, it can only add to his distress and that of his family, particularly his children.”

In many ways, the prosecution of Ian Gordon emblematises the problems and hypocrisies of the current Scots law on assisted dying – problems and hypocrisies a cross-party group of MSPs hope to eliminate from the statute book by introducing a new Assisted Dying Bill to Holyrood this week. The proposal will create a legal route for people experiencing terminal conditions to end their lives lawfully, with safeguards.

The current legal position is complex. The Suicide Act 1961 – which criminalises any act “encouraging or assisting the suicide or attempted suicide of another person” – does not apply in Scotland. Instead, Scots law analyses assisted dying through the lens of the law of homicide. Murder in Scots Law is defined as “any wilful act causing destruction of life,” either with intention to kill or “wicked recklessness about whether the victim lives or dies.”

As the Appeal Court recently explained, “neither the attitude of the victim of a homicide, nor the fact that he was suffering from a terminal disease, nor the compassionate motives of the perpetrator in killing him, are of any relevance to the question of criminal responsibility.”

Consent doesn’t matter. Motive doesn’t matter. The concept of a “mercy killing” – whether by a medical practitioner or an ordinary member of the public – has no legal standing. If a doctor administers a fatal dose of morphine to a patient intending that they should die, they are a murderer in law, and exposed to a mandatory life sentence if convicted.

The Crown have been prepared to accept culpable homicide pleas in some cases, giving the judge a much wider discretion to determine the appropriate punishment. The harrowing experience of watching a parent or sibling diminish and suffer can give rise to diminished responsibility, the perpetrator’s actions “substantially impaired by reason of abnormality of mind.”

In September 2016, former nurse Suzanne Wilson admitted to killing her husband. She had been the carer for her housebound husband who suffered from chronic heart disease for a number of years. Diminished responsibility being established, Lady Rae admonished her for the crime.

In 1996, Paul Brady killed his brother James – described as the “most miserable picture of misery” by another family member – who was in the advanced stages of Huntington’s disease and asked for assistance to end his life. Like Gordon and Wilson, Brady was admonished for his actions. Responding to the judgment, the churches roundly condemned Lord McFadyen’s decision. Any objections to the judicial treatment of Gordon and Wilson have been much more muted.

In each of these cases, the courts stressed that what these men and women did was illegal. They have also tended to describe these situations as “exceptional” – justifying the exceptional disposals of admonishing them. But these situations are not exceptional.

It seems to me that our legal system is guilty of the most profound hypocrisy on assisted dying. On the one hand, the letter of the law continues to insist that this behaviour is illegal and blameworthy in all circumstances, prohibited, and capable of exposing anyone who assists another person to die to the starkest of penalties and the long-term loss of their liberty.

But at the same time, we are content for judges to discharge people who have killed their relatives from the court with an admonition, recognising the impossibility of the human situations they found themselves in, the terrible choices they had to make when faced with the moral hazard of being in a painful situation with no painless outcomes.

If what you believe Ian Gordon and Paul Brady and Suzanne Wilson did was morally indefensible, if you think the law should classify what they did as murder, meriting life sentences – then throw the book at them. If you think people who help their family members to make one-way trips to Dignitas are essentially accessories to murder – then why are we so intensely relaxed about allowing these people to walk free?

Estimates suggest one person a day leaves the UK every eight days to end their lives abroad. The costs of doing so are, incidentally, eye-watering. If you truly believed that the law as it stands is necessary, just and fair, then make an example of Brady, Gordon and Wilson. But you almost never hear this argument – even from the most stubborn opponents of reforming the law in this area. Even setting these arguments down on the page like feels somehow jarring.

Why? Because, I think, most people share the Appeal Court’s moral intuition that dealing with these cases harshly only piles “tragedy on tragedy.” As consistent opinion polls have shown, most people in Scotland do not support the current state of the law.

Ensuring such tragedies do not happen again is within our power. For years now, our politicians have been running behind public opinion on this issue, voting for an easy life, finding excuses to stymie and obstruct proposals for Scotland to take proper responsibility for the bad deaths our laws consign too many of our fellow citizens to.

The status quo lets us – and our politicians – off the hook too easily. It allows us to fail to confront the manifest injustices of the law, to let things lie, hypocritically confident that sympathetic perpetrators like Brady, Gordon and Wilson will not face the punishment many of us believe they do not deserve. But this isn’t good enough. People in their situation should not have to throw themselves on the mercy of prosecutors and judges to avoid being incarcerated for life for choices the overwhelming majority of people in Scotland can only sympathise with.

We choose to leave our fellow citizens in jeopardy by leaving our laws unreformed, just as we choose to extend no legal consolation to people experiencing agonising final days. The cruel logic of the law as it stands says – you must suffer, and your family and friends must watch you suffer, and suffer in turn, till the shrinking candle of your life finally gutters and mercifully goes out.

This week, Magnus Linklater argued that “now is not the time” to talk about assisted dying, in the wake of the pandemic. But if not now, then when? During the last year, we have all had occasion to contemplate our mortality, solidarity, and our individual and collective vulnerability to illness and suffering. If Fear of the Reaper is a good reason not to talk about assisted dying, then we are never going to confront the issue.

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