Medically assisted dying: addressing moral questions through legislative and regulatory procedure
Terminally Ill Adults (End of Life) Bill
The issues this Bill gives rise to are amongst the most profound for any society and its approach to end of life and assisted dying. The topic of medically assisted dying has gained traction around the world in recent years, with many countries opting to make it a legally permitted and regulated practice. Notable instances of legislation have occurred in the Netherlands, Oregon and other states in the USA, and Canada.
In the UK, there has been decades of lobbying and repeated attempts to legalise assisted dying in both the courts and Parliament, including a number of Private Members’ Bills. Most of these Bills have followed the Oregon model of legislation. Kim Leadbeater MP’s latest bill, Terminally Ill Adults (End of Life) Bill, is the latest of these attempts, and also follows the Oregon model.
Whilst proponents of the Bill would argue that assisted dying occurs already in an unregulated space (571 UK citizens have travelled to the Dignitas facility in Switzerland to end their own lives since 1998), the passing of this Bill would of course increase its frequency. It is undisputed that there is potential for abuse, and safeguards should be included in any legislation. So, the proposed legislation which will govern assisted dying would be put to the test in practice, and should undergo heavy scrutiny in Parliament.
Developments made by successive attempts to legalise assisted dying in the courts were ultimately ground to a halt by the courts’ reasoning that it was not the proper forum to discuss such a tense ethical debate (R (Nicklinson) v Ministry of Justice [2014] UKSC 38). It is significant therefore, that the Prime Minister has promised that there will be sufficient time for the issue to be debated before a vote is held on 29 November 2024 as to whether the Bill should be given a second reading. He has also confirmed that MPs will be free to vote in line with their conscience and their own principles, rather than be guided by the whip.
Procedure
In brief, the Bill proposes to allow adults aged 18 and over with mental capacity and a confirmed terminal diagnosis of six months to live, to request assistance from a doctor to end their life. The form of that request and the circumstances for granting permission form a large part of the proposed Bill. As with all medical procedures, the person seeking assistance must have the decision-making capacity and be deemed to have expressed a clear, informed and voluntary request. The Bill would make it a criminal offence for someone to pressure a person to make a declaration that they wish to end their life, and this comes with a potential 14-year prison sentence.
The person seeking assistance must approach a healthcare professional for a preliminary discussion before making a signed declaration of their intention and voluntariness, which must also be signed by two separate doctors and a further independent witness. This includes a seven-day period of reflection between being assessed by the two signing doctors. Once this declaration has been made, the person seeking assistance can apply to the High Court for a judge to give their approval. If the judge refuses to give that approval, their decision may be appealed in the Court of Appeal. Notably, however, there is no option to appeal a judge’s decision where they give approval. This is arguably a heavy burden for a High Court judge to carry – not to mention the increase in work that will come through the court as a result of this legislation.
If approval is granted, the person seeking assistance enters a second period of reflection for 14 days. After that period, a second declaration must be made and signed by the individual seeking assistance and the doctor making the initial assessment. At each stage of the process, the doctor will discuss with and explain to the individual (a) their diagnosis and prognosis; (b) any treatment available and the likely effect of it; and (c) any available palliative, hospice or other care, including symptom management and psychological support, or the judge will approve that this has been diligently carried out. The court may also hear from and question the individual seeking assistance, the relevant healthcare professionals, and any other related person before making its determination. It is said that the process will be a lengthy and rigorous one, and has the potential to put further burden on already strained health and judicial systems. However, it will be up to MPs to debate whether it is lengthy and rigorous enough, in light of the potential concerns and objections to the Bill.
Conscientious objection and regulation
Clause 23 of the Bill provides that no healthcare professional would be under any duty to provide assistance with dying under this legislation. This is similar in setup to the law on abortion procedures under the Abortion Act 1967, and is common for new legislation which is ethically controversial and could split opinions in the healthcare profession. However, for those healthcare professionals that do not wish to conscientiously object, it is to be seen precisely how they would be regulated.
The Bill provides that the Secretary of State may issue one or more codes of practice in relation to the assessment of whether someone seeking assistance truly intends to end their own life, and other related points. Furthermore, regulators, such as a the Care Quality Commission, will need to ensure that their regulations sufficiently address this practice. It is uncontroversial that the monitoring regime will be a crucial part of assessing whether these regulations are effective in practice. However, Friday’s vote will require MPs to perform a prospective, rather than retrospective assessment of the effectiveness of this regulatory framework.
Mental health and assisted dying
One point which will doubtless be raised by those MPs seeking to oppose the Bill is the interaction between mental health and assisted dying practice. Empirically, it has been shown that depression and other mental health issues have a strong correlation with those who seek an assisted death. However, because depression and other mental health issues also have a strong correlation with terminal illness, this is not necessarily to say that mental health is the cause of these requests. Nonetheless, this correlation is something that any proposal to legalise assisted dying must contend with.
Under Clause 2(3) of the Bill, a person is not to be considered terminally ill by reason only of the person having a mental disorder. This rules out any individual who requests assistance solely on the basis of their mental health. However, the Bill does not explicitly address the situation where an individual’s mental health issues are secondary to a physiological primary illness which gives rise to a terminal diagnosis. Unlike in the Dutch law, there is no provision for psychiatric referral in the Bill, whereby those with mental health issues undergo additional safeguards. Instead, it would be left to the Secretary of State’s Codes of Practice and other soft law to regulate this space. In general capacity law, the presence of a mental health condition is not a sufficient reason, in and of itself, to conclude that an individual does not have capacity. It will be interesting to see how the Code of Practice and regulators address this issue with this in mind.
If you would like to discuss any of the above issues or anything in the public law field, please contact Melanie Carter, Partner and Head of our Public Law and Regulatory Team.