Assisted dying legislation discriminates against disabled people, warns top KC

Tom Cross KC, a counsel to the Equality and Human Rights Commission, said the Bill contains inadequate safeguards for people with disabilities and breaches the European Convention on Human Rights (ECHR).

He made the comments in a legal opinion prepared for the Christian Institute, which previously successfully challenged the Scottish Government’s named person scheme in the Supreme Court.

The Assisted Dying for Terminally Ill Adults (Scotland) Bill would give people over the age of 16 with a terminal illness the option of requesting an assisted death.

The proposal by Liberal Democrat MSP Liam McArthur passed an initial vote in Holyrood in May, but will need to clear two more stages to become law.

In an opinion written with barrister Ruth Kennedy, Mr Cross said the Bill as it stands would not be compatible with the ECHR.

“That is because, without justification, it contains no adequate safeguard protecting the position of those with disabilities where suicidal ideation is more likely, and who are, because of that feature of their disability, more likely to express a wish to die,” the pair wrote.

They argued those with certain disabilities “are in a significantly different situation from persons who do not have such disabilities, because they are - all else being equal - more likely to express the wish to die required under the legislation to be eligible to be assisted to die”.

The lawyers added: “They are on that basis more vulnerable both than persons whose disabilities are not of that sort and than persons who are not disabled at all. Accordingly, they are on well-established principles required to be treated differently under Article 14 [of the ECHR] unless there is justification not to do so.

“However, without justification, the legislation fails to provide any adequate safeguard to address that greater vulnerability. In our opinion, this failure to treat these different cases differently in the enjoyment of the right to life is in breach of the ECHR.”

They conclude: “In order to avoid an Article 14 violation, it would be necessary to include within its safeguards an assessment by a suitably qualified person of whether a person’s expression of a clear and settled wish to die is in manifestation of a disability.”

Simon Calvert, deputy director of the Christian Institute, said: “This stark warning about discrimination against disabled people embedded in this terrible Bill must surely force MSPs into action –especially those who voted in favour of the Bill at Stage 1 earlier this year. Some allowed the Bill to proceed to allow for more debate, or to see if it could be improved. But this document should set alarm bells ringing for them.”

Mr McArthur said: "In May, MSPs backed the general principles of my Bill in a landmark moment for Scotland. In doing so they reflected public polling which shows that across age range, political affiliation, disability status, geographic area and religious belief, Scots want to see dying people in this country given more choice at the end of life.

"It comes as no surprise that groups who are implacably opposed to this legislation intend to use every possible method at their disposal to attempt to delay or derail it. However, I am confident that this legislation is robust enough to deal with any legal challenge.”