Age and Assisted Death in Scotland

The Scottish Parliament recently sought evidence in relation to the End of Life Assistance (Scotland) Bill; I responded to that call, and most of what I said would not be new to people who know me, or who read this blog.  However, I did make a point there that I’ve not given an outing before; this part of my evidence is reproduced below the fold.

(One factor that’s occurred to me since submitting by evidence, by the way, is that I’m not sure how much impact Gillick has under Scottish law.  But I think that’s a minor point.)

Are you satisfied with the requirements for age and connection with Scotland as set out in the Bill?

The age requirements are potentially problematic.  I take it as read that laws have to be workable, and that this means that there are requirements for them to be as simple as possible.  Therefore an attempt to draw a “bright line” in respect of age restrictions is perfectly understandable.

However, there are potential objections to placing an age limit at 16.  One of these is easily dismissed; the other is not so straightforward.

The easy problem is this: that there may be a child under the age of 16 who satisfies the demands of Gillick competence, and who would, in normal circumstances, be considered competent.  Why should assisted dying be denied to her?  Yet two responses can be made here.  The first is that competence tests refer to consent, rather than requests.  Since a patient would not – one can assume – be consenting to a medic’s suggestion of assisted dying, appeals to consent seem to be de trop.  The second is that, if assisted dying is available as a matter of permit rather than entitlement, it is in the gift of the legislature to allow it or forbid it to whomsoever it pleases.

However, this leads to a more difficult problem.  If we accept that a person has the moral right to seek assistance in bringing about their own deaths, and that another person has the moral right to provide it, and if we accept that these moral rights ought to be reflected in law, it is not immediately obvious why there should be a lower age barrier imposed.  To insist that Smith has fewer (legal) rights than Jones simply on the basis that Smith is younger looks to be ageist: it makes age do the work of a morally relevant consideration when it is not clear, exactly, what the relevance of age is.  It might be that age is felt to be important because of worries about establishing maturity – but, in this case, it is not clear why the specification in the law could not refer directly to a maturity test of some sort.  That is to say: if maturity is what matters, then the law should say so.  (I have already noted [elsewhere in my submission, not reproduced here] that the right to provide assistance does not imply a duty to provide it, so any maturity test could be quite demanding, on the assumption that refusing assistance to die to someone who actually is sufficiently mature is preferable to providing it to someone who is not.)  Appeals to age on this basis would risk depriving some people of their entitlements without justification.

mutatis mutandis, the same worries would apply should age be treated as a cipher for any other consideration.  In all cases, it’s hard to see why mere chronological age is different from sex or ethnicity; and since we would not think of restricting access to something like end of life assistance to someone based on appeals to sex or ethnicity, it’s not obvious why we think we can restrict access based on appeals to age.