Terminally Ill Adults (End of Life) Bill

This Bill seeks to permit “assisted dying” and it passed its second reading in the House of Commons on 29 November. It has a long way to go and will be subject to debate and amendment at the next “committee” stage.

It has been brought forward as a Private Members’ Bill, meaning it is not officially backed by the Government. The text of the Bill, along with Explanatory Notes and Briefing Papers, can be found on the UK Parliament website.

There has been significant commentary on the Bill, both for and against. It is still in its early stages, and it is unclear whether it will become law. Previous attempts to allow for assisted dying have not succeeded, with the last attempt being in 2015. This article provides a brief overview of the Bill and some potential issues, with a more detailed analysis to follow as the Bill progresses.

Assisted Dying

The Bill does not permit anyone to end another person’s life, even with their consent or to relieve suffering. Instead, it allows assistance to be given to a person to end their own life if the process set out in the Bill is followed. Legislation is necessary because assisting someone to take their own life is currently a serious offence under the Suicide Act 1961.

The process set out in the Bill is more involved than in previous Bills for this purpose. It may be criticised for being too complex to satisfy proponents of assisted dying while still being insufficient to reassure opponents who fear it is the “thin end of the wedge” or, just by existing, could lead to pressure on individuals to end their lives prematurely.

Key Points of the Terminally Ill Adults (End of Life) Bill

Coverage

  • The Bill only applies to England and Wales.

Eligibility

The individual must:

  • Have the capacity to make the decision to end their own life.
  • Be aged 18 or over.
  • Have lived in England and Wales for at least 12 months.
  • Be registered with a GP practice in England or Wales.
  • Be terminally ill, with an inevitably progressive illness, disease, or medical condition that cannot be reversed by treatment and is expected to cause death within six months.
  • Neither a mental disorder nor a disability (as defined by the Equality Act) by itself, or together, qualifies as a terminal illness.

Health Professionals

  • There is no duty for health professionals to raise the subject of assisted dying. If a patient raises it and the doctor is unwilling to discuss it, the doctor must refer the patient to another doctor who will.
  • No health professional is under a duty to participate in the provision of assistance. I anticipate there will be further debate on exactly what that means.

Process

The purpose of the process is to show a “clear, settled and informed wish to end their own life” free of coercion or pressure by any other person.

  • Preliminary Discussion: When the individual first raises the issue, the doctor must have a specific discussion about diagnosis and prognosis, available treatments, and palliative care options.
  • Initial Declaration: The individual must make an initial declaration in a prescribed form, setting out their wish to seek assistance if eligible. This declaration must be witnessed by two people, one of whom must be the coordinating doctor. The declaration must be accompanied by two forms of identification, to be specified in Regulations.
  • First Medical Assessment: The coordinating doctor will conduct a first assessment to determine whether the qualifying criteria are met. This assessment must take place after the initial declaration but it appears it could be during the same consultation. The coordinating doctor must complete a prescribed form and refer the patient for a second medical assessment by an independent doctor.
  • First Period of Reflection: There is a compulsory seven-day reflection period that must elapse before the second assessment.
  • Second Medical Assessment: The independent doctor will conduct a second assessment. If satisfied that the criteria are met, the independent doctor must complete a prescribed form. If the independent doctor does not agree that the criteria are met, there is provision to seek one further independent opinion.
  • Specialist Referrals: There are provisions for other referrals if more specialist input is needed for the prognosis or capacity assessments. These are likely to be used if the coordinating doctor is the individual’s GP. Referrals would take additional time.
  • Application to the High Court: Once the initial declaration and the two medical statements are obtained, the individual must apply to the High Court for a declaration that the requirements of the Act have been met. The level of Judge is not specified, but it is likely to be a High Court Judge from the Family Division. The Court may hear from the individual and must hear from at least one of the doctors. It is unclear whether this will be a checklist exercise or a more probing examination of opinions but if not the latter why include review by a High Court Judge? A refusal can be appealed to the Court of Appeal, but not the granting of the declaration.
  • Second Period of Reflection: The individual must wait for 14 days from the Court’s declaration (reduced to 48 hours if they are likely to die within a month).
  • Second Declaration: After the second period of reflection, the individual must complete a second declaration in a prescribed form, witnessed by the coordinating doctor and another person. The coordinating doctor must also complete a further statement confirming that the individual remains terminally ill, has the relevant capacity, has a settled intention, and has not been coerced. This must be witnessed by the other person who witnessed the individual’s second declaration.
  • Providing Assistance: Once all steps are completed, the coordinating doctor may provide the individual with an approved substance to end their life. The approved substances and their prescribing, dispensing, and transporting will be dealt with by Regulations. The coordinating doctor must provide the substance directly and in person (or authorise another doctor) and may be accompanied by other healthcare professionals. The doctor can prepare the substance for self-administration by the individual, prepare a device to enable self-administration, and assist the person to ingest or self-administer. However, the decision to self-administer and the final act must be taken by the individual. The coordinating doctor must remain in or near the room until the individual has died, the procedure has failed, or the individual has decided not to proceed.
  • Final Statement: After the individual has died, the coordinating doctor must complete a final statement.

Comment

The process is complex, with many steps and forms, creating potential for errors and having to repeat steps or even challenging whether the process was lawful after the event. The complexity may make it a strenuous and stressful process for someone expected to die within six months. There is limited scope to expedite the process if the individual might die sooner. The Bill appears to favour the individual’s GP taking a leading role, which may not be welcomed by all GPs.

Overall, the Bill does not provide an easy way for individuals to obtain assistance with dying earlier than their terminal illness would naturally cause. It can be said that’s the point: it shouldn’t be easy. That may not appeal to those with a terminal illness who don’t want to spend their last weeks or months jumping through so many hoops.

Further Discussion

For more commentary on the Bill, you can read:

For the Hansard record of the Second Reading see:

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If you have any questions or concerns relating to the issues covered in this article, or would like to talk to one of our specialist healthcare lawyers, contact us below.

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