BuDS has independently analysed the Terminally Ill Adults (End of Life) Bill due to be debated by MPs on Friday 29th November. Our analysis is below.
About The Bill
Kim Leadbeater MP has introduced a Private Members Bill to the House of Commons to legalise assisted suicide for terminally ill people. Kim Leadbeater is acting on behalf of the pressure group Dignity In Dying, and the Bill has been drafted by that pressure group.
The Bill is not ‘official’ Government legislation, and will not have a lot of debating time in Parliament. All the political parties in Parliament have said that their MPs can vote on the Bill as they see fit – none of the parties will be telling their MPs how to vote. We do not know if MPs who are members of the Government will be told how to vote – the ‘payroll vote’.
Parliamentary rules require the Government to take an official position about Private Members Bills, especially when they will involve spending public money. This Bill effectively makes assisted suicide available through the NHS and could cost many millions to implement. However, the Government has said it will neither state its official position, nor say how much the Bill will cost, until after MPs have voted in favour of it at second reading. It is unprecedented and extraordinary that MPs are being asked to approve a Bill without even knowing whether it is practical or affordable.
The Prime Minister has said he is personally in favour of the Bill, but many cabinet ministers have said they are opposed. Cabinet ministers personally opposed to the Bill include the Health Secretary and Lord Chancellor, who will both have to implement the Bill should it become law.
The Bill In Outline
Kim Leadbeater’s Bill would require the NHS to provide assisted suicide to any adult, regardless of their actual fitness, who has received a terminal diagnosis of less than 6 months.
Who Can Ask For Assisted Suicide?
The Bill says that only people meeting all of the criteria below can apply for assisted suicide.
- Registered NHS patients with a GP, who have lived in England or Wales for at least 12 months.
- “Inevitably Progressive” Medical Conditions, i.e. patients who have a “inevitably progressive” medical condition. The Bill does not say which medical conditions are to be treated as “inevitably progressive”.
- “Cannot be reversed by treatment”, i.e. the medical condition mentioned in 2. “cannot be reversed by treatment”. The Bill states that relieving the symptoms of a medical condition does not count as reversing the condition. Again, the Bill does not explain what is meant by “reversing” a medical condition.
- Less than 6 months to live, i.e. their death from the medical condition mentioned in 2. “can be reasonably expected within 6 months”. The Bill does not say who must reasonably expect the person’s death within 6 months, or what happens if there is disagreement about this point. The Bill also does not say whether a patient who refuses life saving treatment is to be treated as “reasonably expected to die within 6 months”.
- Have capacity to decide to apply, i.e. the patient has capacity under the Mental Capacity Act 2005 to make the decision to end their life. People are presumed to have capacity to do this unless it can be proven otherwise. It is up to the two doctors who assess the patient to decide whether they have mental capacity.
- Have to be an adult (18 or over)
- “Clear, settled and informed wish to end their life”. The Bill is ambiguous on this point. On the one hand, the two doctors are required to certify that a patient has a “clear, settled and informed wish to end their life”, and the High Court is required to certify that the doctors have done that. But this is not the same as saying that a person has such a wish to end their life, only that the doctors have said they do.
- Wish to end their own life voluntarily. Again, the Bill requires two doctors to certify that a patient has voluntarily decided to end their own life without coercion or pressure, and the High Court is required to certify that the doctors have done that. However, this not the same as saying that a person has a voluntary wish to end their life, only that the doctors have said they do.
The Bill does not require that a person has to be suffering or in pain or close to death to apply for assisted suicide. Most of the publicity for the Bill has described gravely ill people at the very end of life, or people ‘dying in agony’ that medicine cannot stop. However, the Bill itself allows anyone with a terminal condition, even if they are fit and active, to apply for assisted suicide as soon as ‘it is thought’ they only have six months to live.
Process
The Bill sets out a process whereby a doctor may discuss assisted suicide with terminally ill patients. If the patient (or someone acting on their behalf) then signs a declaration that they want assisted suicide, the same doctor then checks if they meet the criteria set out in the Bill. The doctor then chooses another doctor and asks them to repeat the same checks a week later.
If both doctors feel the patient meets the criteria in the Bill, the patient then has to apply to the High Court for confirmation that they do meet the criteria in the Bill. The High Court has to certify the application if it thinks the patient meets the criteria. To do this, the Court only has to hear from the two doctors who certified the application, although it may decide to hear from the patient themselves. Other doctors (e.g. a treating consultant) or the patient’s partner, family, and friends, can be consulted by the High Court, but only to establish whether the patient does want to end their own life, and that they are not being coerced to do so. There is no way for other doctors or the patient’s partner, family, and friends to challenge whether the patient meets any of the other criteria (including whether the patient is actually terminally ill). An application to the Court cannot be challenged by anyone else, for example another doctor who disagrees, or the patient’s family.
If the High Court decides that the criteria are met, after 2 weeks, the patient (or someone on their behalf) must then make a second personal declaration that they want assisted suicide.
Once the patient (or someone on their behalf) has made the second declaration, the first doctor (or another doctor that they have authorised) can give them a toxic substance which will end their life. The intention of the Bill is that the patient will take the toxic substance themselves (drink or swallow it, or press a button to start an injection). However, the first doctor can assist the patient to take the toxic substance as well.
The Bill does not give any role or involvement to patients’ partners, family, friends, or medical professionals involved in their care. It is perfectly possible for the partner or family of a patient to only hear about their assisted suicide after they are dead.
The decision to authorise an application for assisted suicide rests entirely with the two doctors, one of whom is the person who first discussed suicide with the patient. While the doctors are required to make a lot of individual declarations about the patient, the Bill does not allow for any objections or alternative points of view to be taken into account at any stage. The two doctors have the final word, and everything hangs on their judgement, breadth of knowledge and honesty.
The patient can cancel their declaration that they would like assisted suicide by informing the first doctor or their GP practice. However, there is nothing in the Bill to allow an assisted suicide to be stopped in any other way, for example by a court order or on the application of the family.
Assisted Suicide On The NHS
As well as setting out the process for assisted suicide, the Bill also sets out how the overall scheme will work.
The Bill allows the Health Secretary to provide assisted suicide as an NHS service, paid for by the taxpayer. The Health Secretary also has the option to allow assisted suicide to be offered as a private service outside the NHS, or both. Although the Health Secretary is not explicitly required to provide assisted suicide as an NHS service, the Bill is drafted in such a way that it would be very hard for the NHS not to provide it.
The Bill requires the Health Secretary to say which toxic substances can be used for assisted suicide, and to say how the toxic substances will be prescribed, provided, etc.
The Bill prevents a coroner carrying out an inquest on patients who die by assisted suicide simply because they have died in that way. This contrasts with people who die by suicide in other ways, where an inquest is automatic.
The Bill requires the Health Secretary, and the NHS Chief Medical Officers, to issue detailed guidance (‘codes of practice’) about how the assisted suicide process will work, and the information that patients will be given. The Chief Medical Officers also have to monitor and annually report on assisted suicide activities, and these reports must be laid before Parliament and responded to by the Health Secretary. The Health Secretary also has to produce a report after assisted suicide has been in force for 5 years saying how successful it has been.
Protecting Assisted Suicide Participants From The Law
The Bill says that assisting a terminally ill patient to die in accordance with the Bill is not a criminal offence. The Bill also prevents any doctors taking part in assisted suicide as set out in the Bill from being sued.
The Bill makes it an offence to induce a patient to make a declaration that they wish to take part in assisted suicide, if “dishonesty, coercion or pressure” is used. It would also be an offence to prevent a patient from cancelling a declaration that they have made, again if “dishonesty, coercion or pressure” is used. These offences would apply to everyone, including the doctors involved in the assisted suicide process, relatives and friends of the patient, etc.