What is the Assisted Dying Bill?

On 29 November 2024 MPs made a significant step towards legalising assisted dying, voting in favour of the Terminally Ill Adults (End of Life) Bill (“the Bill”).

The Bill seeks to enable individuals with a terminal diagnosis to receive advice and assistance to end their own life.

Is this new?

The concept of assisted dying has existed in some countries for more than 20 years. Currently, more than 24 jurisdictions across the world offer assisted dying legislation in some form. Each of them feature requirements for mental capacity and require the individual applying to have been resident in that country for a specific period, in order to avoid ‘death tourism.’ However, there are also many differences in the approach that countries have taken.

In several countries such as Switzerland, Austria, Spain and Canada, assisted dying is available on the basis of ‘intolerable suffering’ rather than a terminal diagnosis.

Like our proposed Bill, New Zealand, Australia and 10 US states have assisted dying available on the basis of a terminal diagnosis. Some even have a longer prognosis of 12 months, rather than the six our Bill proposes.

Around the UK, other jurisdictions are considering and taking forward similar steps towards the legalisation of assisted dying, including the Isle of Man, Jersey and Scotland. Jersey’s approach even suggests a doctor themselves can administer the approved substance.

Anticipated process

• (1) A first declaration is signed by the individual confirming that they wish to end their own life. This must be witnessed by a co-ordinating doctor and another witness, who is not a relative or a beneficiary of the individual’s estate. This can also be signed by a proxy if the individual is physically incapable of signing.
• (2) The co-ordinating doctor is required to sign a statement to confirm that the individual applying for the procedure:
  • (a) Is resident in England and Wales
  • (b) Is registered with a medical practice in England and Wales
  • (c) Has capacity to decide to end their own life
  • (d) Has a terminal diagnosis with a six-month prognosis
  • (e) Has a clear, settled and informed wish to end their own life
  • (f) Has made the decision voluntarily and free from coercion.
• (3) An independent doctor then considers and confirms the same items 2 (c)-(f) above.
• (4) An application can then be made to the High Court. The judge must satisfy themselves that all requirements have been met. If so, they must make the declaration permitting the application. As part of this process, the judge may hear from and question the applicant, the doctors and any other person they feel appropriate.
• (5) If the application is refused, an appeal to the Court of Appeal is possible.
• (6) At least 14 days after the court’s declaration – or 48 hours if death is expected within one month – the applicant makes a second declaration confirming their intention.
• (7) The co-ordinating doctor confirms items 2(c)-(f) again.
• (8) If satisfied at this stage, an approved substance is to be provided directly in person to the individual from the co-ordinating doctor. This can be delegated to another medical professional. The matters at 2(c)-(f) are checked again by the co-ordinating doctor.
• (9) Final administration of the substance must be done by the person – not by the doctor. The doctor must remain until the individual has administered the substance and died, the procedure has failed or the individual changes their mind.
• (10) The co-ordinating doctor then makes a final statement.

Some key considerations for the Bill

Capacity

Perhaps the biggest area for consideration as the Bill progresses is the issue of mental capacity.

Conflict with Mental Capacity Act 2005 (“MCA”)

Currently, the Bill references the MCA for capacity as the appropriate test. However, Principle 1 provides for a presumption of capacity, which is undermined by the requirement in the Bill for capacity to be proactively assessed at several stages.

Consistency

There are three stages of the Bill which require the individual’s capacity to be assessed. The Bill in its current form also does not account for the potential for individuals who are terminally ill to have fluctuating or deteriorating mental capacity. Receiving pain medication and palliative care may impact capacity for those individuals. As a result, individuals may choose to refuse pain-relief in order that they can retain capacity throughout this process.

Capacity to decide what?

On the issue of capacity, other countries have sought for individuals to have ‘general capacity’ – as is the case in Austria, Belgium, Luxembourg. Others have sought for individuals to have capacity to decide medical treatment – USA, Canada, Spain – or to decide whether to follow the process for assisted dying, as in Australia, New Zealand, Switzerland.

Under the Bill, the decision proposed is one to ‘end one’s own life’. This approach has only been taken otherwise by Germany, with the Isle of Man also suggesting this test under proposed future legislation.

Practicalities

Resources

With extensive delays in court proceedings due to a lack of resources, skilled staff and training, it is difficult to consider how this additional process will function through the court. There is also a continued strain on the NHS, which could add additional pressure when completing the various assessments, declarations and the supervision of the administration of the substance required under the proposals.

Costs

It is yet to be considered how the court process will be funded and whether legal aid will be made available.

Timelines

It is unknown how long the process is likely to take, particularly when we consider questions around court resources and timetables.

Liability

Under the Bill there is to be no civil or criminal liability in supporting an individual with this process. However, it will be an offence to induce the individual to make either declaration through dishonesty, pressure or coercion. This will be met with a potential sentence of up to 14 years in prison.

It will also be an offence to make or use a false instrument for any of the declarations or to wilfully conceal or destroy a declaration, or cancellation, duly made by the individual.

Consideration should be given to how best individuals can be supported with their decisions in accordance with MCA Principle 2, before this is considered pressure or coercion.

Next steps

Whilst MPs have made this historic and significant first step towards a change in the law, it is clear from the questions above that the Bill is yet to come under closer scrutiny before it can be made law.

The Bill will now proceed to a detailed examination and further legislative consideration, and we await with interest to see how it develops further.