Following the publication of the Terminally Ill Adults (End of Life) Bill on 11 November, the debate surrounding assisted dying continues to capture the public's attention. The bill seeks not only to lift the absolute ban on assisted dying within England and Wales but also to implement this change responsibly. Achieving the right balance is crucial; it involves establishing robust safeguards to prevent misuse while simultaneously granting those who are suffering the autonomy to end their lives on their own terms. As the next reading of the bill approaches in the House of Commons on 29 November, MPs must decide whether the legislative proposal strikes the correct balance between compassion, autonomy, and the protection of the vulnerable in society.
Overview of the current law
The Suicide Act 1961 makes it a criminal offence to assist in another person's suicide, carrying a penalty of up to 14 years' imprisonment for those convicted. This legislation leaves no legal avenue for medical practitioners to assist patients in ending their lives.
As a result, individuals with a determined wish to end their life travel to jurisdictions such as Switzerland, where assisted dying is lawful in certain circumstances. Often an individual cannot make the arrangements or the journey on their own; and they require assistance. This places family and friends in a precarious legal position, as any form of assistance they provide could be deemed a criminal act under UK law.
The CPS are responsible for deciding whether to pursue such cases, considering the likelihood of securing a conviction and the public interest. This deliberation process can extend over several months, leaving those who assisted in a state of uncertainty regarding potential legal repercussions. Factors such as the informed and voluntary nature of the decision to die and the compassionate motivation of the assistor are taken into account, potentially reducing the likelihood of prosecution. Nevertheless, the legal risks persist until there is a change in the law, which the new assisted dying bill seeks to address by proposing specific circumstances under which medical practitioners could lawfully assist patients in dying.
What the new Bill proposes
Eligibility
The Terminally Ill Adults (End of Life) Bill, sponsored by Kim Leadbeater, is set for debate on 29 November 2024. It outlines a process for terminally ill individuals to receive assistance in dying. The eligibility criteria is as follows:
- Being 18 or over;
- Having at least 12 months' residency in England and Wales;
- Being registered with a GP in England or Wales;
- Having capacity to make a decision to end their own life, with capacity assessed under the Mental Capacity Act 2005.
The person seeking assistance must be terminally ill. Terminally ill is defined in the proposed legislation as having an inevitably progressive medical condition that cannot be reversed by treatment, and the person's death due to the condition must reasonably be expected within six months.
A mental disorder under the Mental Health Act 1983, or a disability under the Equality Act 2010 is not sufficient to be considered terminally ill.
The Proposed Process
The process that must be followed under the proposed legislation is outlined below:
- Initial Discussions: The person can have initial discussions with their registered medical practitioner about their wish to seek assistance to end their life. The practitioner is not obligated to raise the subject but can do if they think it is appropriate.
- First Declaration: The person must make a first declaration stating their wish to be provided with assistance to end their life. This declaration must be signed and witnessed by the coordinating doctor and another independent witness.
- Assessments by Doctors: Two registered medical practitioners must independently assess the person. The coordinating doctor makes the first assessment, and an independent doctor, who meets specific criteria, makes the second assessment after a seven-day period of reflection for the individual. Both doctors must determine if the person is terminally ill, has the capacity to make the decision, and has a clear, settled, and informed wish to end their life without coercion or pressure. Once satisfied, both doctors must sign statements.
- Court Approval: After the assessments and statements by the doctors, the person can apply to the High Court for a declaration that the requirements of the Act have been met. The court can question anyone they see fit – including the person seeking assistance, the doctors or a third party. If the court declines to give approval, the person seeking assistance can apply to the Court of Appeal.
- Second Declaration: If the court makes the declaration, the person must make a second declaration after a 14-day reflection period, confirming their wish to proceed. This declaration must also be signed and witnessed. The coordinating doctor must make a statement here that they are satisfied by the person's declaration.
- Provision of Assistance: If all conditions are met, the coordinating doctor may provide the person with an approved substance to end their life. The doctor must be satisfied that the person still has the capacity and a clear wish to proceed, and the final act of self-administration must be taken by the person.
- Final Statement: If the person dies as a result of self-administering the approved substance, the coordinating doctor must complete a final statement to that effect.
Throughout the process, there are provisions for recording all declarations, statements, and cancellations in the person's medical records. There are also protections for health professionals who do not wish to participate in the provision of assistance – meaning that no registered medical practitioner is obliged to participate in providing assistance under the Act.
Additionally, the draft legislation proposes the creation of two new criminal offences to safeguard the integrity of the process. The first offence targets individuals who, through dishonesty, coercion, or pressure, induce someone to make or refrain from cancelling a declaration, or to self-administer the prescribed substance. The second offence addresses the creation or use of false declarations or the concealment or destruction of such declarations.
Strengths of the Bill
Kim Leadbeater's objective was to craft assisted dying legislation with the "strictest protections and safeguards of any legislation anywhere in the world", and the bill reflects this through stringent eligibility criteria and a comprehensive, multi-stage process that includes mandatory reflection periods. These safeguards are designed to ensure that only those who are terminally ill and have a clear and settled intention to end their life can access assistance, thereby minimising the risk of abuse or coercion.
The high level of safeguards and the bill's limited scope may increase its chances of passing, as it aims to address concerns from various stakeholders about the potential for misuse. By setting a high bar for eligibility and a thorough vetting process, the bill seeks to reassure legislators and the public that assisted dying would be a tightly controlled option available only in specific and dire circumstances.
Shortcomings
Despite its strengths, the bill's rigorous approach may limit access for many individuals who are advocating for a change in the law. The strict definition of terminal illness and the requirement for a prognosis of six months or less could exclude those who are suffering but do not meet the precise criteria.
The time required to navigate the bill's process appears at odds with the six-month prognosis requirement. The potential delays in obtaining High Court approval could act as a deterrent, as individuals with limited life expectancy may not see the value in pursuing an option that could be protracted and uncertain.
The requirement for High Court approval in assisted dying cases has come under direct scrutiny. Critics, including Sir James Munby, the former President of the Family Division, have raised concerns about the potential issues arising from the inherent conflict between the need for an open and transparent judicial process and the privacy desires of individuals seeking assisted death. Furthermore, Sir Nicholas Mostyn, a former High Court judge, has argued that the court's role might amount to nothing more than a "symbolic rubber stamp". If the assessments by medical professionals are thorough and the criteria are met, the role of the court could be perceived as redundant, adding an unnecessary layer to an already complex process.
It is crucial to note that the proposed bill does not repeal the existing offence of encouraging or assisting suicide under the Suicide Act 1961. Therefore, any individual who assists someone in an assisted death, such as by assisting with a trip to Switzerland's Dignitas clinic, outside the parameters of the proposed procedure would still be committing an offence. The introduction of this bill could have unintended consequences on the DPP's exercise of discretion. If the legislation is passed, there is a risk that the DPP might view the decision of an individual to pursue assisted dying outside the established legal procedure as a factor against them. The existence of a legal pathway for assisted dying within England and Wales could potentially influence the DPP's decision-making process, leading to a greater likelihood of prosecution for those who assist in such deaths abroad but do not meet the strict criteria set out in the bill.
This potential shift in prosecutorial discretion could be seen as a downside of the proposed legislation. Individuals who do not meet the eligibility requirements, or who would prefer the services offered by organisations like Dignitas for personal reasons, may find themselves in a more precarious legal situation than before. The bill's stringent safeguards, while designed to protect vulnerable individuals, could inadvertently create a more hostile legal environment for those who choose to seek assistance outside the proposed legal framework.
Conclusion
As MPs approach the debate on the Terminally Ill Adults (End of Life) Bill, they must ask themselves: Do the proposed safeguards strike the correct balance between protection and the actual needs of terminally ill individuals? Should they find the balance lacking, they must then consider further: Is flawed assisted dying legislation preferable to the absence of any legislation at all?