Kim Leadbeater MP has tabled a Private Members Bill in the House of Commons concerning assisted suicide. The text of the Bill has not been published so all we know about it so far is the short and long titles as set out on the House of Commons website[1]. What do they tell us?
The Long & Short Titles of a Bill are not just labels or titles. They have legal significance and are subject to strict rules.
Short Title
The ‘short title’ of the Bill is the “Terminally Ill Adults (End of Life) Bill”.
According to Erskine May, the Parliamentary rulebook, the short title of a bill must “describe the content of the bill in a straightforwardly factual manner. An argumentative title or slogan is not permitted”[2]. The short title of a bill is set out in the ‘citations’ clause, which is the last clause in the Bill[3].
The short title of Ms Leadbeater’s Bill suggests that the Bill, when published, will contain clauses about the ‘end of life’ for ‘terminally ill adults’. This is in line with her public statements on the matter[4]. However, we do not know if the short title has been approved by Parliamentary lawyers yet, so the actual content of the Bill may be wider than this short title suggests.
A Wrong Title?
Even as set out, however, BuDS feels that the short title of the Bill ought properly to be the ‘Terminally Ill Adults (Assisted Suicide) Bill’ or the ‘Assisted Suicide (Terminally Ill Adults) Bill’. The phrase ‘end of life’ seems to us to be vague and potentially misleading and thus in breach of Erskine May: the Bill seems to be concerned solely with assisting people to take their own life, an act of assisted suicide; it does not deal with other common ‘end of life’ issues such as palliative care or making a will. The use of the phrase ‘end of life’ is arguably ‘an argumentative title or slogan’ in this particular context. The Suicide Act 1961[5] is also an important short title precedent which ought to be followed.
Titles Change!
It’s important to note that the short title doesn’t restrict future changes to the Bill. If the Bill was amended by Parliament to include, for example, people who did not have a terminal illness, or to add children, the short title would simply be changed to reflect the new content of the Bill[6]. Lots of Bills end up with different short titles at the end of their passage through Parliament than they had at the beginning.
Long Title
The Long Title of Kim Leadbeater’s Bill is “A Bill to allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life; and for connected purposes”. Again, we don’t know if the long title has been approved by the Parliamentary lawyers, so it may not be completely accurate. It is certainly clumsily drafted, which suggests it is not yet the ‘official’ long title.
The long title of a Government Bill must ‘set out in general terms the purposes of the bill, and should cover everything in the bill. The phrase ‘and for connected purposes’, with which it commonly ends, makes it possible to omit an express reference in the long title to minor matters related to the main substance of the bill’[7]. However, this rule does not apply to Private Members Bills, like Kim Leadbeater’s[8], so the Bill could include material and issues not listed in the long title as published.
Assuming, however, that the long title of Kim Leadbeater’s Bill as published is accurate, it is clear that the Bill will allow ‘terminally ill adults’ ‘to request and be provided with assistance to take their own life’, ie to complete their suicide.
Adults
The short and long titles both refer to adults. In English law, a child is defined as someone under the age of 18, and an adult as someone aged 18 or older. It follows that terminally-ill teenagers of 18 & 19, and young adults of 20-25, will be able to request and receive assistance to take their own life, but terminally-ill children aged 17 will not. This raises the question about whether those caring for terminally-ill children will be required to keep them alive until they are old enough to request assistance to complete their suicide.
Safeguards and Protections
The long title is poorly drafted and probably should read ‘A Bill to allow, subject to safeguards and protections, adults who are terminally ill to request and be provided with assistance to end their own life; and for connected purposes’. This makes it clear that the ‘safeguards and protections’ apply to whether the person is allowed to request and receive assistance to complete their suicide.
The reference to safeguards and protections in the long title only means, in practical terms, is that terminally ill adults will not have complete freedom to request and receive assistance to take their own life. The long title would work equally well for weak safeguards and protections as it would for strong ones.
A Criminal Offence?
The long title does not specifically say that the criminal offence in the Suicide Act 1961[9] of encouraging or assisting another person to complete their suicide, or attempt suicide, will be repealed. This could be bad drafting, or could imply that this offence will continue in place, but acts done under the authority of Kim Leadbeater’s bill will be excluded from the scope of the criminal offences in the Suicide Act. This could mean, for example, that someone who gave poison to someone who was not terminally ill so that they could take their life might be found guilty of a criminal offence and jailed for up to 14 years, but someone who did exactly the same to someone who was terminally ill would not be punished at all. The legal complications of this are obvious – what if the person assisting the suicide thought the person they were assisting was terminally ill? Or if they turned out to be a child aged 17 rather than an adult aged 18?
Nothing about Capacity?
Kim Leadbeater MP has repeatedly said that only people who ‘have capacity’[10] to make that decision should be eligible to ask for, and receive, assistance to complete their suicide. (There is more information about mental capacity in the footnote). However, despite this, the long title does not specify that terminally ill people must have ‘capacity’ to request assistance to take their own life.
This is a very odd thing to leave out. It may be that ‘having capacity’ to make a decision is one of the ‘safeguards and protections’ in the draft Bill. However, it is notable that Kim Leadbeater included the words ‘terminally ill’ and ‘adults’ in both the long and short titles, very obviously limiting the scope of the Bill to terminally-ill adults. It may be that ‘capacity’ is not thought to be as important as being terminally-ill, or an adult. The long and short title give that impression.
BuDs feels that the long title of the Bill should be amended to make having mental capacity one of the ‘headline’ eligibility conditions for assisted suicide, like being an adult or being terminally ill. It might read: ‘A Bill to allow, subject to safeguards and protections, terminally-ill adults with the mental capacity to do so to request and be provided with assistance to end their own life; and for connected purposes’.
Mental Capacity in the Real World
Under Kim Leadbeater’s Bill, adults who are terminally ill will be allowed to ask someone to end their life. Judging whether a person has mental capacity to make that decision will be extremely complicated. Some people, such as those in great pain, or who are sedated or taking medications which impair their judgement, will not be able to ask someone to end their life because they lack the capacity to make that decision. Neither will anyone with significant mental health conditions, dementia, Alzheimer’s, or many neurological conditions. Yet it is exactly this sort of person who Kim Leadbeater has said she wants to ‘help’ by ‘ending their suffering’.
This strongly implies that the Bill will permit terminally ill adults who do lack capacity, or who lack it at the time their life is ended, to ‘request and receive’ assisted suicide. The only way for this to be achieved is for the Bill to allow people to appoint someone else – a deputy – to authorise the taking of their life if, in the future, they are terminally ill, lose capacity to make a decision themselves, and the deputy then feels it is their best interests to end their life.
The practical consequences of this are huge. What if the deputy makes the decision not in the person’s best interests but for the wrong reasons, perhaps because they will gain from the person’s death in some way? Are they then guilty of assisting a suicide under the Suicide Act, or of murder? What if the person originally thought they would prefer to die when they developed a terminal illness, but later changed their mind and wanted to live a while longer? Would they be seen as lacking capacity to reverse their first, capacitious, decision to authorise a deputy to end their life?
The practical problems around capacity are huge and not easy to solve. The House of Commons will not be able to make an informed decision about assisted suicide in a short debate on 29 November. This exposes the folly of trying to deal with this issue in a Private Members Bill rather than a Government Bill after a Royal Commission or similar has fully explored the issues and made recommendations.
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References & Sources
[1] https://bills.parliament.uk/bills/3774
[2] https://erskinemay.parliament.uk/section/4975/short-title-and-citation
[3] https://erskinemay.parliament.uk/section/4975/short-title-and-citation#footnote-item-5
[4] https://www.theguardian.com/commentisfree/2024/oct/03/assisted-dying-bill-parliament-kim-leadbeater-labour-mp
[5] https://www.legislation.gov.uk/ukpga/Eliz2/9-10/60/data.pdf
[6] https://erskinemay.parliament.uk/section/5351/title
[7] https://erskinemay.parliament.uk/section/4976/long-title
[8] https://erskinemay.parliament.uk/section/4976/long-title#footnote-item-2
[9] https://www.legislation.gov.uk/ukpga/Eliz2/9-10/60/data.pdf
[10] Mental capacity is whether or not you are legally competent to make a decision affecting you. You might ‘have capacity’ to take some decisions and not others, or you might have capacity sometimes and ‘lack capacity’ at other times. If you do lack capacity to make some or all decisions, sometimes another person can take decisions on your behalf, acting ‘in your best interests’. That other person might be someone that you have authorised to make decisions for you, or someone appointed by a court to take decisions for you, or sometimes a doctor treating you.
Whether you have capacity to make a decision or not is very complicated. You must have the mental power to take in and remember (for as long as necessary) the information needed to understand the decision and its consequences, and the mental power to weigh up and understand the consequences of the decision. This might vary from time to time and from decision to decision: someone might be able to understand and choose to have tea rather than coffee, but not be able to understand a financial decision such as a new tenancy. A person in acute pain, or taking strong painkillers, might not be able to listen properly and fully understand a decision, especially an important or complicated decision like making a will.
Some people are also very vulnerable to outside influences, like the opinions of their partners or family or friends. Or they may be suggestible or easily swayed into making a decision without really understanding the consequences, like older people scammed by telephone fraudsters. All this can affect whether they can make a ‘capacitous’ decision.
Professionals like lawyers and doctors often disagree about whether a person ‘has capacity’ for a particular decision. Capacity is often a matter of individual judgement. Courts and tribunals often have to make hard decisions about capacity, especially when professionals disagree.