On 29 November 2024, the House of Commons voted in favour of the Terminally Ill Adults (End of Life) Bill, a watershed moment in the discussion in England & Wales around the evolution of that most morally and legally difficult subject of whether a person should be allowed to ask for assistance to end their own life.
This outcome is unsurprising and reflects the desire to create a permissive regime that has the potential to ease the pain and suffering of an unfortunate few. Rather than opening the door to a slippery slope, this is a niche, closely controlled opportunity to support those who might need and want help in ending their lives to have the ability to do so. But what questions remain unanswered, and can we draw any international comparisons?
The proposals in Kim Leadbeater MP’s draft Bill bear some striking resemblances to the Bill proposed in the House of Lords by Lord Falconer in July 2024. Both, for instance, require at least two assessments by medical professionals and would require the approval of the court before a request for access to assisted dying could be granted. However, the current Bill goes in several respects much further than the original Lord Falconer proposal. The Bill now provides for no fewer than five separate assessments four by medical professionals and one by the court. The Bill also mandates that the ‘lead’ doctor certifying the validity of the request for assisted dying must give evidence to the court on the application for an order to be made that assistance can be provided in ending that person’s life.
The Bill (if passed ultimately into law) will create the most tightly regulated regime, with the most safeguards, in the world where access to assisted dying is legal.
Questions of capacity & access
The law in England & Wales already has an established mechanism for assessing mental capacity, under the Mental Capacity Act 2005. However, the fact of an established regime does not mean capacity in the context of the draft Bill will be easy to assess assessments of capacity to end a life will be unprecedented, and imposed on a system of assessment which has never had to grapple with how to approach the question.
A further consideration arises on capacity assessments here, too in many cases of terminally ill patients, their most immediate medical contact will be the medical professional responsible for the treatment of their condition, rather than an expert in capacity assessment. While medical professionals are used to assessing capacity every day in one form or another, those assessments mostly relate to straightforward medical decisions that a patient needs to take not one likely to be scrutinised firstly by another, independent, doctor but also then by the court. There must consequently be some concern about the need to train doctors to conduct capacity assessments in this context, or to employ specialist capacity experts in the process so that a robust view can be taken.
In turn, requiring the court to sanction a declaration made by a patient that they wish to end their life provides a strong safeguard to protect the system from abuse, but also provides a probable barrier to access for many—assuming that a patient or their family will need to pay for the court application themselves, probably (at least early on in the scheme) needing the assistance of lawyers to do so. With the addition of a requirement that the ‘lead’ doctor must give evidence to the court on that application, administrative and financial burdens are undoubtedly being created which are likely to restrict access to the scheme.
Yet further, it is well documented that both the medical system in the NHS and the court system (in particular the Court of Protection, which routinely deals with capacity issues) are already hugely overburdened, with long delays in non-urgent matters often arising. This most time-sensitive of applications—for assisted dying—must therefore risk either an inability to get the application dealt with quickly enough, or consequent delays to other matters.
International comparisons
The proposed regime would differ substantially from many of the more liberal regimes around the world—mostly notably Canada and Belgium, where the requirement for a patient to be terminally ill is lacking from the threshold requirements of those regimes. Having a system that requires a patient to have a maximum time left to live (in this case six months) is a hotly-debated threshold criteria. Firstly, accurate predictions and determinations of life expectancy are notoriously difficult, and there must be concern about how medical professionals are going to form opinions on this with any certainty, or at least sufficient certainty to satisfy the court.
Secondly, in the other direction, the threshold excludes those who have a terminal illness but may have longer life expectancies, as is the case for many degenerative conditions. That will be seen by some as too restrictive and illiberal, although it must be accepted that a threshold probably needed to be created somewhere unless our regime was going to adopt a much more expanded approach. That approach is not favoured by the majority of jurisdictions that allow assisted dying, allowing the England & Wales proposals to sit in the much more conservative environment of the majority.
This article was first published in New Law Journal and can be accessed here.
James Lister