Assisted Dying Bill: Commentary

Today saw a historic vote by British MPs on legalising assisted dying, with MPs voting 330 to 275 in support. The Terminally Ill Adults (End of Life) Bill (the “Bill”) is the first time that politicians have formally debated assisted dying in nearly a decade, which has seen vigorous public debate on the implications for healthcare and society.

In short, the Bill describes a narrow set of circumstances in which mentally competent adults with terminal illnesses, and less than six months to live, may choose assisted dying under strict safeguards, including medical and judicial oversight.

We bring you a summary of the Bill and its implications for clinicians, lawyers and the healthcare environment in England and Wales*.

Current position in England and Wales

The current position in England and Wales is enshrined in the Suicide Act 1961, S1, which prohibits encouraging or assisting suicide.

Existing law allows an adult to refuse treatment if they are deemed to have capacity, even where it is not in a person’s best interests. Where a person is unable to make decisions for themselves, it can be lawful to discontinue treatment.

Current position outside England and Wales

In Scotland, a Private Member’s Bill was introduced, calls for views have been completed and oral evidence is being taken on a timetable running to February 2025. The Scottish Government’s position is that the Bill in its current form is outside the legislative competence of the Scottish Parliament.

Forms of assisted dying are legal in several countries and territories abroad. Much of the debate takes cues and safeguards from foreign jurisdictions.

Views from the European Court of Human Rights (ECtHR)

In Mortier v Belgium (2022)¹ the ECtHR considered the compatibility of assisted death with the European Convention on Human Rights (ECHR). A majority held that permitting assisted dying – including in cases of mental illness – is not incompatible per se with a state’s positive obligation to protect life under Article 2 ECHR.

In Karsai v Hungary (2024)² the ECtHR rejected the applicant’s claim that not permitting assisted suicide – at least for individuals with terminal illnesses – violated Article 8 (the right to respect for private life).³

Key elements of the Bill include:

1. Eligibility:

• Restricted to mentally competent adults diagnosed with a terminal illness and expected to have six months or less to live.
• People with disabilities or mental illnesses alone are not eligible.
• Must be registered with a GP for at least 12 months.
• Must make two separate declarations, witnessed and signed, about their wish to die.

2. Medical Oversight:

• Requires approval from two independent doctors to confirm the patient's eligibility and ensure the decision is informed, voluntary, and free from coercion.
• Additional specialist consultation is mandated if there are doubts about mental capacity or diagnosis.

3. Judicial Oversight:

• A High Court judge must approve each case to confirm all legal requirements are met.
• The judge must hear from at least one of the doctors and can also question the dying person, or anyone else they consider appropriate.

4. Reflection Period:

• A minimum of seven days between the two medical assessments, followed by at least 14 days after judicial approval.

5. Self-Administration:

• Medication must be self-administered under medical supervision.
• A doctor would prepare the substance.

6. Safeguards:

• Creates new offences to protect against coercion and abuses of the system.
• All stages of the process are to be regulated and documented.

Comment

Assisted dying is a polarising topic, with staunch views held either side of the debate. To many, this is of fundamental and existential importance to society no matter which side of the argument they fall. Its significance is exponentially amplified in that failure is simply not tolerated in the court of public opinion if the State is said to have failed in its obligations when it comes to any category of death.

Previous attempts to bring similar Bills to Parliament have emanated from the obvious conflict with the notion that a doctor’s role is “to do no harm”. A large number of GPs and palliative care specialists have, historically at least, opposed a change in the law with many referencing the “slippery slope” argument.

The case in favour of a change in the law has been properly made out with many examples of inhumane suffering and promoting the concept of a dignified death. However as with previous debates, many of the concerns revolve around how this framework would work in practice (such as the expectations on medical professionals, including if there were any medical complication mid-way through the process) and whether there are sufficient safeguards in place to protect the vulnerable individuals involved. There is a real prospect of clinicians finding themselves in a conflicted position.

Regulatory Impact

Were the law to be changed, it is unclear how the healthcare regulators, such as the General Medical Council, might view complaints about doctors either advising or choosing not to advise patients on assisted dying as a treatment option and where this sits within the concept of consent. Medical professionals would no doubt look to their professional bodies for clear direction and so it seems inevitable that they would be forced to publish guidance on how best to navigate this very difficult situation that could, by its mere mention, cause alarm and distress to patients and their families. Further high-profile guidance from the courts would appear inevitable.

Without such guidance, healthcare professionals will no doubt be very concerned about the likelihood of criminal, civil and regulatory action, not to mention intense hostility from family members where their actions are likely to generate significant distress and emotive criticism whichever side of the line they fall.

Impact on the NHS

Critics of the Bill have warned of the resource implications of introducing a further burden onto the existing palliative care medicine system. Proponents of the Bill have cited the stringent safeguards and scrutiny in place, but equally, such safeguards imply a time and resource cost to the clinicians involved in making such careful decisions.

There is potential concern that, in order to pay for a new service, cuts may need to be made elsewhere. It is not clear whether palliative care medicine would suffer or be bolstered by such an extension of the law, whilst some working in the sector argue that any additional funding should go to improving existing palliative care pathways which face significant demand for services.

The practicalities for palliative medicine clinicians of any future legislation are not yet clear, in particular the precision of any judgement of “6 months or less to live”.

Physicians who estimate life expectancy will be familiar with such estimations, but they are necessarily just that, estimations. As above, this may create regulatory and ethical considerations where clinicians feel uncertain of their prediction; or may not wish to be involved at all in the process. The Bill does allow healthcare providers to opt out, raising logistical and ethical challenges if patient access is limited by local refusal to participate. This could have implications for complaints against a service and/or transfers of sick and vulnerable patients into other services with a greater number of clinicians or resource for taking such decisions.

This could create a new arena for clinical negligence litigation, be it on aspects of the decision-making process, examination and supervision of capacity assessments, or administration of any medication itself.

Clinicians must independently verify terminal diagnoses and assess mental capacity, which could lead to disputes and require additional expertise in mental health or palliative care. It is not clear whether the “independence” aspect would still be led by organisational policy guidance within individual NHS Trusts.

Given the truncated timeline of the private members’ Bill, there has been little consultation with industry bodies nor impact assessments on the possible effects and unintended consequences beyond those used in previous debates. However, now that the Bill has passed and we are now very much in unchartered territory (as no previous Bill has reached this far), expect there to be increased debate and for intensified calls for detailed reports and impact assessments.

Enhanced reporting requirements may intend compliance, but may equally add to the administrative burden on practitioners. The Bill's implementation would require significant collaboration among legal, medical, and ethical bodies to address these complexities effectively.

Extension and a Slippery Slope?

Now that MPs have supported the Bill, how the law in this area might develop cannot be predicted. In Oregon and Victoria (Australia), for instance, since their assisted dying legislation was passed, the requirement for a doctor to be present to supervise the safe provision of life-ending medication has since been removed.

Despite the vote in favour of the Bill today, this does not ensure that the legislation becomes law – only that it would pass to the next stage of parliamentary scrutiny. Clearly, the debate and examination of the legal details has only just begun.

Our healthcare team comprises regulatory, Court of Protection and claims and insurance specialists who are well placed to advise practitioners on any coming developments.

Please come and talk to our legal experts here at Clyde & Co should you have any questions on the proposed legislation and how it may affect you.

*The Bill does not apply to Scotland.

1. Mortier v Belgium, App No. 78017/17, European Court of Human Rights, 4 October 2022
2. Karsai v Hungary, App No. 32312/23, European Court of Human Rights, 13 June 2024
3. Martin, D.S. (2024) Dániel Karsai v. Hungary: Further clarification of state obligations in the context of Assisted Dying, DÁNIEL KARSAI v. HUNGARY: FURTHER CLARIFICATION OF STATE OBLIGATIONS IN THE CONTEXT OF ASSISTED DYING. (Accessed: 27 November 2024).