Assisted Dying – The Legal Process and Practicalities

Friday saw Parliament vote in favour of Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill (the ‘Bill’), meaning the Bill will be the subject of further parliamentary discussion and scrutiny. Whilst the vote does not mean that the Bill will eventually become law, it does confirm that there has been a shift in thinking since the last iteration of an Assisted Dying Bill was voted down in the Commons in 2015.

The purpose of this briefing is to summarise how the Bill, as currently drafted, would work on the ground and to highlight some of the questions which as yet remain unanswered. Where relevant, we refer to the Explanatory Notes (drafted to be read alongside the Bill) which provide useful policy background.

We recognise that this is a divisive issue, and our focus is on the proposed legal process and practicalities; it is certainly not our place to comment on the ethical issues.

What is proposed

The Bill makes provision for a person who is terminally ill, (to be referred to as the ‘Patient’ throughout), and who meets the relevant criteria to request and lawfully be provided with assistance to end their own life. The Patient must also have mental capacity to make the relevant decisions, reflecting models in place in the United States, Australia and New Zealand.

The Patient must have a clear, settled, and informed wish to end their life and must have made the decision voluntarily, free from coercion or pressure from another person. The Patient must be registered with a GP and have been ordinarily resident in England and Wales for 12 months.

Assistance

Assistance, in this context, means a doctor preparing the drugs with which the Patient may end their life to be self-administered. The Bill also contains provision for a doctor to prepare a medical device which enables the Patient to self-administer the substance and/or assisting the Patient to ingest it. The Secretary of State is to enact regulations specifying drugs for the purposes of the Bill and which deal with regulation of prescribing, dispensing, and handling the relevant substances.

Amendment to the Suicide Act 1961

At present, a person commits an offence under s.2 Suicide Act 1961 where they ‘do an act capable of assisting or encouraging the suicide or attempted suicide of another person, where the act was intended to encourage or assist suicide or an attempt at suicide’. The offence carries a maximum penalty of 14 years imprisonment.

The consent of the Director of Public Prosecutions (DPP) is required before an individual may be prosecuted for this. Guidance published in February 2010 following the decision of the Appellate Committee of the House of Lords in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL45, sets out the public interest factors tending for and against prosecution. The guidance confirms that a prosecution is less likely to be required in circumstances where the suspect was ‘wholly motivated by compassion’, their acts were only of ‘minor’ encouragement and/or they sought to dissuade the individual beforehand. Other relevant factors are the reporting of the suicide to the police and the degree of co-operation with the subsequent police investigation. At present, those prepared to assist their loved ones travel abroad for assistance must be prepared to be arrested on their return, a concern which has been widely highlighted by Rebecca Wilcox, daughter of prominent assisted dying campaigner Esther Rantzen.

The Bill amends the Suicide Act by providing an exemption to the offence of encouraging or assisting suicide for those who comply with the terms of the Bill, or can prove that they reasonably believed they were acting in accordance with the terms of the Bill, took all reasonable precautions and exercised all due diligence to avoid the commission of an offence.The Bill also makes clear that provision of assistance in accordance with the terms of the Bill will not give rise to any civil liability.

No obligation to provide assistance

No registered medical practitioner or health professional is obliged to provide assistance in accordance with the Bill. Those who choose not to participate are to be protected from discrimination.

The conscience clause does not apply to the judges in the High Court who are tasked to consider whether the steps taken comply with the law, (described below).

Terminally ill

The Patient must have an inevitably progressive illness, disease or condition which cannot be reversed by treatment and must be expected to die within six months. A person is not to be regarded as terminally ill simply by virtue of suffering from mental illness or living with disability.

The Bill’s limits on eligibility have faced criticism to date. Sir Nicholas Mostyn – a former High Court judge now living with Parkinson’s Disease - has raised that the options of assisted dying will be out of reach for those suffering from that disease and other neurological conditions, whom clinicians are unlikely to determine as having less than six months left to live, no matter how advanced the condition may be.

The stages

The stages described in the Bill are:

Preliminary discussion: it is envisaged that there will be a preliminary discussion between the Patient and their general practitioner, although this is not mandated. In any such discussion, the doctor must explain the Patient ’s diagnosis and prognosis together with any available treatments and available palliative care: (a doctor who chooses not to have this conversation on request, must refer the Patient to another doctor).

Identification of Co-ordinating Doctor: The Co-ordinating Doctor has a range of important duties under the Bill; they are responsible for the assessment of the Patient, making of witness statements in relation to the assessments, providing assistance to the Patient and remaining present when the Patient administers the substance. The Co-ordinating Doctor must have specified training, qualifications, and experience which is to be set out in regulations and must have agreed to undertake the role.

Patient’s First Declaration: the Patient must make a written declaration (in the form set out in Schedule 1). It must be witnessed by the Co-ordinating Doctor and witnessed by a second person. Neither the Co-ordinating Doctor nor the independent witness can be a relative of the Patient, nor can they know or believe that they are a beneficiary under the Patient’s will or may otherwise benefit from the Patient’s death.

First Doctor’s Assessment: the Co-ordinating Doctor must assess the Patient and if they consider that the Patient is terminally ill and meets the eligibility criteria, they must sign a statement to that effect (the Co-ordinating Doctor’s First Statement, in the form set out in Schedule 2) and refer the Patient to doctor who is independent for the purposes of further assessment. The Bill sets out the matters which must be discussed as part of the assessment and includes the requirement to advise the Patient to discuss the decision with their relatives and those they are close to, in so far as this is appropriate. The Bill explains that to ensure independence the medical practitioner must not have provided the Patient with treatment or care in relation to their terminal illness and must not be in the same medical practice or clinical team as the Co-ordinating Doctor.

There remain concerns regarding a clinician’s ability to accurately assess the extent to which a Patient may be subject to coercion or undue pressure in the context of assisted dying, and the practicalities of such an investigation.

Second Doctor’s Assessment: after 7 days (a ‘first period of reflection’) the Independent Doctor must carry out a second assessment. If satisfied the Patient is terminally ill and meets the eligibility criteria, they must sign a statement to that effect (Independent Doctor’s Statement, in the form set out in Schedule 3). If the Independent Doctor is not satisfied that the requirements are met, the Co-ordinating Doctor may refer the person for a second opinion, (i.e. to another Independent Doctor, there is no provision for a third opinion).

High Court Declaration: where the first declaration and the statements from Co-ordinating Doctor and the Independent Doctor have been prepared as required, the Patient must then seek a declaration from the High Court. If the declaration is made, there is no right of appeal. If the declaration is not made, the Patient may appeal to the Court of Appeal.

Sir James Munby, former President of the Family Division of the High Court, has queried whether the role envisaged for the High Court is a ‘proper role for a judge’. The Bill sets out the steps a judge ‘may take’ in relation to the application, but does not detail whether there is to be a hearing or matters can be dealt with ‘on the papers’, or how the evidence is to be tested, (and if so by whom and when). The Bill does not require the judge to hear from or to question the Patient. Sir James has calculated that 34,000 hours of judicial involvement per year may be needed to consider relevant applications. High Court Judges in the Family Division are currently sitting around 19,000 hours per year in total. This prompts two obvious questions: where are we going to find more judges? and what does this mean for the wider administration of justice which, “as is unhappily notorious, is already under enormous strain”?’

Patient’s Second Declaration: the Patient must undertake a ‘second period of reflection’ (for 14 days from the date of the court declaration or 48 hours where the Patient is expected to die within one month). If the Patient wishes to proceed as planned, they must make a second written declaration of their intent (in the form set out in Schedule 4). The Second Declaration must be witnessed by the Co-ordinating Doctor and an independent witness. Declarations may be cancelled by the Patient with immediate effect.

Second Statement from Co-ordinating Doctor: the Co-ordinating Doctor must sign a statement in the form set out in Schedule 5 confirming that they remain satisfied the Patient is eligible for assistance. This must be witnessed by the same independent witness as witnessed the Second Declaration.

Assistance: the substance is to be provided directly and in person by the Co-ordinating Doctor (this role can be delegated). The final act must be initiated by the Patient, the Co-ordinating doctor must remain with the person after the approved substance has been provided, although they need not be in the same room. The Co-ordinating doctor is also responsible for removing the substance if the Patient chooses not to take it.

Final and Third Statement of Co-ordinating Doctor: a final statement made by the Co-ordinating Doctor in the form set out at Schedule 6 must be added to the Patient’s medical records, recording the details of the assistance provided. Records must also be made if the Patient chooses not to take the substance or the process fails.

The Bill confirms the duty to investigate a death under section 1(2)(a) or (b) of the Coroners and Justice Act 2009 does not arise just because the Patient died as a consequence of the provision of assistance in accordance with the Bill. The Secretary of State will be permitted to make regulations to modify the operation of the Birth and Deaths Registration Act 1953.  It is anticipated the regulations would deal with how deaths arising in these circumstances would be certified.

The Explanatory Notes explain that a Code of Practice may be issued pursuant to the Bill, which may deal with matters such as assessment of whether a Patient has a clear and settled intention to end their own life and the assistance which a Patient may be given to ingest or self-administer an approved substance.

Five New Criminal Offences

The Bill contains five new criminal offences:

• if, by dishonesty, coercion or pressure:
  • a person induces another to make a first or second declaration, or to not cancel a first or second declaration; or
  • they induce another person to self-administer the approved substance
• to make or knowingly use a false instrument which purports to be a first or second declaration or a court declaration under clause 12, or to wilfully conceal or destroy a first or second declaration made by another person
• to knowingly or recklessly provide, to a person who has made a first declaration, 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.

Commissioning

The Secretary of State is to secure arrangements for the provision of relevant services, either through the NHS or by way of a separate service. The Health Secretary, Wes Streeting MP, has tasked officials to review the costings and resource implications associated with the proposals, saying that the services ‘would have to come at the expense of other choices’.

International comparison

The Health and Social Care Committee’s Second Report on Assisted Dying/ Assisted Suicide (2024) (the ‘Report’) refers to evidence from other jurisdictions confirming introduction of assisted dying has led to improvements in palliative care. Despite the UK being recognised as a world-leader in palliative and end of life care, the Report found provision and access to this to be ‘patchy’. The Report acknowledges the pressing need to identify how to better provide mental health support for those with a terminal illness, and recommends targeted research is commissioned. The Report also advocates for a National Death Literacy Strategy to enable us all to have meaningful conversations about death and dying, and to make informed choices as a result.

Our Services

We understand many organisations and individuals will have questions and concerns about how the Bill may affect their practices should it become law. The Weightmans national healthcare advisory team is on hand to address any and all issues on policy, implementation, training and in practice.

In the meantime, please to contact us to discuss how this might affect you and your organisation, and we will provide further commentary and updates as the Bill progresses.

Author

This insight was authored by Holly Bridden, an Associate on our Regulatory Healthcare team. If you have any queries regarding this article, please contact Holly: holly.bridden@weightmans.com