The Terminally Ill Adults (End of Life) Bill would enable adults to receive assistance to end their lives. Tim Spencer-Lane explains its proposed process for, and safeguards around assisted dying
November 13, 2024
By Tim Spencer-Lane
On 11 November 2024, the Terminally Ill Adults (End of Life) Bill was published. This bill makes provision for a person who is terminally ill and meets the eligibility criteria to choose to request and lawfully be provided with assistance to end their own life.
This will be of particular interest for social workers who work with people who have a terminal illness or practise in specialist palliative care settings.
This is a private member’s bill, introduced by the Labour MP Kim Leadbetter. The government has confirmed it will “remain neutral on the passage of the bill and on the matter of assisted dying”. MPs, including government ministers, will therefore have a free vote on whether to support the bill at its second reading, which involves a debate on its principles.
The House of Commons has not voted on the issue since September 2015.
The legal framework for assisted dying
The Suicide Act 1961 makes it an offence for a person to do an act capable of encouraging or assisting the suicide or attempted suicide of another person. A person guilty of this offence is liable to imprisonment for a term of up to 14 years.
The European Court of Human Rights recognises that states have a “wide margin of appreciation” when it comes to the lawfulness of assisted dying. For example, since 1942, assisted suicide has been lawful in Switzerland, which is also a signatory to the European Convention on Human Rights (ECHR).
But to be compatible with the ECHR, assisted dying must be accompanied by suitable and sufficient safeguards to prevent abuse and ensure that the person’s decision to end their life fully reflects their free will.
Who would be eligible for assisted dying?
Under the bill, there are four criteria that must be met before a terminally ill person can be assisted to end their own life. The person must:
- have capacity “to make a decision to end their own life” (with capacity to be determined in accordance with the Mental Capacity Act 2005);
- be aged 18 or over;
- be ordinarily resident in England and Wales, and have been ordinarily resident there for at least 12 months, and
- be registered as a patient with a GP practice in England or Wales.
A person is “terminally ill” if they have an inevitably progressive illness, disease or medical condition that cannot be reversed by treatment. The person must also reasonably be expected to die within six months.
A person must not be regarded as terminally ill merely by reason of them having a mental disorder, under the Mental Health Act 1983, or a disability, within the meaning of the Equality Act 2010.
The bill also requires that steps to be taken to ensure that the person has a clear, settled and informed wish to end their own life. They must also have made the decision voluntarily and have not been coerced or pressured by any other person in making that decision.
What will the process be?
The process of seeking assisted dying consists of three stages:
- The person makes a “first declaration” (and two medical statements are provided).
- The approval of the court.
- The person makes a “second declaration” (and a medical statement is provided).
The first declaration
At the first stage, the person must make a declaration confirming a number of specified matters, including that they are “eligible” for assisted dying and understand they can cancel the declaration at any time.
This is known as the “first declaration” and must be signed by the person themselves and witnessed by the “co-ordinating doctor” and another independent person. The “co-ordinating doctor” is a registered medical practitioner who meets certain requirements and is willing to carry out the functions under the bill in relation to the person.
The co-ordinating doctor is also required to assess the person and confirm a number of matters, including that the person has the requisite capacity and has not been subject to coercion or third-party pressure.
They must also refer the person for a second assessment by another registered medical practitioner (referred to in the bill as “the independent doctor”). There is a period of at least seven days (“the first period of reflection”) between the first and second assessments.
Approval of the court
At the second stage (ie once the person has made a first declaration and the two medical statements have been made), the person may apply to the High Court for approval of assisted dying. This would require the court to make a declaration that the requirements of the bill have been met in relation to the first declaration.
If the High Court refuses to make the declaration, the person can appeal to the Court of the Appeal. The Court of Appeal can confirm the decision of the High Court or make the declaration. There is no appeal against a decision of the High Court to make the declaration.
The second declaration
At the third stage, if the person still wishes to be provided with assistance to end their own life, they must then make a further declaration (referred to as “the second declaration”).
There must be a period of at least 14 days (“the second period for reflection”) between the court declaration and the person making the second declaration (or if the person is expected to die within one month of the court declaration, a period of at least 48 hours).
The second declaration must be witnessed by the co-ordinating doctor and by an independent witness. The co-ordinating doctor must sign a statement confirming certain matters and that must be witnessed by the same independent witness as witnessed the second declaration.
How would assisted dying be provided?
The bill sets out that in order to administer assisted dying, an “approved substance” must be provided directly, and in person, by the co-ordinating doctor. Approved substances are not defined in the bill but will be specified in regulations.
The co-ordinating doctor may prepare that substance for self-administration by that person, prepare a medical device that will enable that person to self-administer the substance, and assist that person to ingest or otherwise self-administer the substance.
The bill sets out that the decision to self-administer the approved substance and the final act of doing so must be taken by the person themselves, not by the co-ordinating doctor.
The co-ordinating doctor may authorise another named registered medical practitioner to exercise the co-ordinating doctor’s functions in connection with the provision of assistance to a person.
What about healthcare professionals who don’t want to offer assisted dying?
The bill sets out that no doctor is under a duty to raise the subject of the provision of assistance under the bill with a patient. Where a patient indicates to a doctor that they wish to seek assistance to end their own life in accordance with the bill, the doctor may (but is not required to) discuss the matter with the patient.
Clause 23 explains that no registered medical practitioner or other health professional is required to participate in the provision of assistance under the bill. Also, an employee cannot be discriminated against because they choose not to participate in the provision of assistance under the bill or because they choose not to participate in the provision of that assistance.
What are the protections against legal liability for providing assistance?
The bill sets out that a person is not guilty of an offence by virtue of providing assistance in accordance with the bill.
The Suicide Act 1961 is, accordingly, amended to ensure that the provision of assistance to a person in accordance with the bill is not an act which constitutes an offence under section 2 of that act (criminal liability for complicity in another person’s suicide).
The offence under section 2 of the Suicide Act 1961 will continue to operate for other cases where assistance is provided. But the amendment to that act also provides a defence to a charge under section 2 of the Suicide Act 1961 where the person proves that they:
- reasonably believed they were acting in accordance with the bill, and
- took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
The bill also sets out that providing assistance to a person to end their own life in accordance with the bill does not give rise to any civil liability.
What new criminal offences are created?
The bill creates a number of new criminal offences, including the following:
- where dishonesty, coercion or pressure is used to induce a person to make (or not to cancel) a first or second declaration, or self-administer an approved substance;
- to make or knowingly use a false first or second declaration, or willingly destroy one;
- to knowingly or recklessly provide a medical or other professional opinion which is false or misleading;
- to wilfully ignore or otherwise conceal knowledge of a cancellation of a first or second declaration.
Other matters
The bill provides that the duty to investigate a death under the Coroners and Justice Act 2009 does not arise just because the person died as a consequence of the provision of assistance in accordance with the bill.
The secretary of state is required to issue codes of practice in relation to the bill, such as on the assessment of whether a person has a clear and settled intention to end their own life and the assistance which a person may be given to ingest or self-administer an approved substance.
The chief medical officers for England and Wales are required to, separately, provide guidance relating to the operation of the bill. In particular, they must have regard to the need to provide practical and accessible information, advice and guidance to persons considering requesting assistance under the bill, their families, and the general public.
The secretary of state is also given powers to secure that arrangements are in place for assistance to be provided in accordance with the bill, including arrangements for the funding of any provision made. This would enable the secretary of state to provide for services to be provided through the health service or by a separate service.
The secretary of state is also required to review the operation of the bill. The review must take place at least five, but not more than six, years after the passing of the bill. The report of the review must be laid before Parliament.