Assisted Dying Bill (HL Bill 13): a commentary

The latest Assisted Dying Bill (HL Bill 13) (a Private Members' Bill), (“the Bill”) is currently undergoing a second reading in the House of Lords. This article presents a brief commentary on the provisions, and the extent to which the Bill addresses some important issues highlighted in recent caselaw that s.2 of the Suicide Act 1961 has generated.

In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take their own life (s.1 Suicide Act 1961). However, at present, such a person does not have a right to call on another person to help them to end their life as the person offering such assistance is liable to prosecution (per s.2 Suicide Act 1961).

The Bill seeks to permit individuals who are ‘reasonably expected’ to die within six months as a result of a ‘terminal illness’ (s.2 of the Bill) to seek assistance to end their lives without prosecuting those who offer such assistance or requiring a coroner’s investigation (s6(1) and s7(1) of the Bill). By limiting the standard of prognosis of death to a ‘reasonable expectation’, the Bill appears to be grappling with the difficulties inherent in predicting death with any reliable accuracy, and some of the consequent sanctity of life concerns, raised by the Court of Appeal in R (Conway) v SSJ [2018] EWCA Civ 1431 [142].

The Bill makes it clear that the patient must take the final step to end their life (s.4 of the Bill) – maintaining the crucial distinction between assisted dying and euthanasia - and their decision to do so must be ‘voluntary, clear, settled and informed’ (s.1(2)(a) of the Bill). The attending doctor signing the patient’s documented consent to take their own life, and the independent doctor countersigning must be satisfied that the patient has the capacity to do so under the Mental Capacity Act 2005. The doctors can refer the patient to an ‘appropriate specialist’ (defined in s3(9) of the Bill) if they have any doubts regarding capacity.

Section 8 provides that the Secretary of State may issue codes of practice in connection with the assessment of a person’s ‘clear and settled intention to end their own life’, including in relation to assessing capacity to make the decision, but also as to how the effects of depression or other psychological disorders that may impair decision-making should be taken into account (raising interesting questions about the extent to which psychological disorder, such as anorexia, might ever constitute a “terminal illness”).

The Bill allows assistance from medical professionals only; ‘relatives’ (as defined in s.12 of the Bill) are excluded, which arguably is designed to protect ‘those who feel that their lives are worthless or that they are a burden to others and therefore that they ought to end their own lives even though they do not really want to’ (per Lady Hale [311] in R (Nicklinson) Ministry of Justice [2014] UKSC 38; see also the reference to ‘insidious pressures’ in the Supreme Court permission refusal in Conway [6]).

Medical professionals have historically opposed the Bill’s predecessors. These concerns are, at least in part, taken into account by the inclusion of conscientious objection provisions (s.5 of the Bill). This, however, raises issues about the availability and access to medical professionals who would be willing to participate in assisted dying. Does this inadvertently create two categories of medical professionals: those with and without a conscientious objection to assisted dying? This does not necessarily allay concerns raised primarily by doctors themselves about “doctor shopping” (see [89] and [151] in Conway).

The Bill requires the process of assisted dying to be overseen by the High Court (Family Division). A High Court judge would determine whether the scheme's five substantive criteria are met in any particular case (per s.1(2) of the Bill). Many questions remain as to how this process would work – for example, will there be any sort of public funding for patients applying to the court?

Overall, the Bill attempts to strike a balance between permitting those wanting to end their lives to legally seek assistance while attempting to protect those who might take the same decision for more ‘insidious reasons’. Such efforts, however, raise considerable practical, ethical and regulatory challenges, including possible discrimination against those who need assistance to end their lives but do not meet the proposed statutory criteria (while the Bill provides for those with terminal conditions, those with chronic, but still unbearable, conditions, such as locked in syndrome, are excluded).

Most Private Members’ Bills do not make it into law but some key changes to medical law, such as the Abortion Act 1967, started as Private Members’ Bills.  It is unclear at present whether this Bill will make parliamentary progress but it will be interesting to see how the government and other parliamentarians respond to these proposals.

Hannah Gibbs an expert across public law, including health and social care law. She is also a longstanding teacher in medical law at the London School of Economics.

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