By Angelina Koval, Undergraduate Law Student at LSE
For the first time in nearly a decade, UK politicians have formally debated on the topic of assisted dying
Following the landmark Second Reading debate in Parliament on the 29th of November, 330 MPs voted in favour of the Terminally Ill Adults (End of Life) Bill, which seeks to legalise assisted dying in England and Wales. It is now undergoing the next legislative stage of scrutiny by the House of Commons and House of Lords, more specifically, by a Committee of a melange of 22 MPs and Ministers and Kim Leadbeater, the Labour MP who proposed the Bill. Before the next Parliamentary vote, anticipated to occur at the end of April 2025, considerable amendments to the socio-politically contentious Bill are expected.
According to a recent survey carried out by the Policy Institute and the Complex Life and Death Decisions group at King’s College London, 63% of people in England and Wales have expressed their desire for the current Parliament to make assisted dying legal for terminally ill adults in the next five years. Hence, it is unambiguously clear that we are experiencing an opportune moment for Parliament to be considering this pressing matter.
The Bill’s current proposals
The Bill proposes to legalise assisted dying for over-18s who are suffering from terminal illness, subject to a host of constraints.
Broadly speaking, the main overarching safeguards and requirements are as follows :
- The patient must have the mental capacity to make the choice and be deemed to have expressed a clear, settled, and informed wish, voluntarily made and thus free from coercion or pressure
- Only the patients themselves can administer the medication
- They must be expected to die within 6 months from a terminal illness
- They must make two separate declarations, witnessed and signed, about their wish to die.
- Two doctors, one coordinating and the second independent, must be satisfied that the person is eligible, and there must be at least seven days between the doctors’ assessments.
- A High Court judge must hear from at least one of the doctors and can also question the dying person or anyone else they consider appropriate. There must be a further fourteen days after the judge has made the ruling.
What are the underlying principles of the Bill ?
Perhaps the principal value underpinning this, and previous, bills on the topic is the concept of personal autonomy. The House of Lords Assisted Dying for the Terminally Ill Bill Committee, writing in 2005 in relation to a previous bill on assisted dying, phrased it in this way :
“The [Joffe] bill is founded on the principle of personal autonomy. Its supporters believe that terminally ill people should have the right, subject to prescribed safeguards, to have medical assistance to die in the same way that patients, whether or not terminally ill, already have the right to refuse life-prolonging treatment.”
Hence, granting terminally ill patients the capacity to exercise their autonomy in death amplifies their dignity; one might consider that dying with dignity should, in fact, become a human right. Indeed, respecting the wishes of those who genuinely wish to end their suffering due to a terminal illness is a compelling reason for considering legislation on assisted dying.
The Bill additionally proposes that ‘a person who, by dishonesty, coercion or pressure, induces another person to make a… declaration [of their wish to die]… [or] includes another person to self-administer an approved substance’ would be guilty of an offence punishable by up to 14 years of jail time. This would heighten the sacrosanct status of personal autonomy, providing a more just and safe route for those who are terminally ill.
A second, equally salient point is the fact that the current law fails to protect vulnerable individuals who seek out alternative solutions in order to relieve their pain, which induces precarious ramifications for both the patients as well as their families.
The current law stipulates that ‘it is an offence for a person to do an act capable of encouraging or assisting the suicide of another, with the intention of encouraging or assisting suicide or attempted suicide’, as per section 2(1) of the Suicide Act 1961. Those found assisting in suicide can be subject to up to 14 years of imprisonment, which places a morally onerous burden on the families of those seeking solutions in, say, Switzerland, where assisted dying is legalised.
Lord Neuberger identifies the fact that the current legal status quo engenders the premature and clandestine deaths of those who are terminally ill. Some vulnerable individuals may choose to end their life in secret, whereas others seek out assisted dying abroad prematurely while they still retain the physical capacity to do so, and thus not legally endanger family or friends who might otherwise help them. This is reaffirmed by the research of the campaign group Dignity in Dying, which found that, on average, every ten days, one Briton travels abroad to die. Moreover, the current law perpetuates economic inconsistencies; a trip to Dignitas, for instance, can cost more than £10,000, leaving those with the wish and mental capacity to pursue assistance stranded and their suffering prolonged.
Ultimately, these underpinning values speak to the desire to minimise the pain and suffering of those nearing death.
Semantic uncertainties
Despite its laudable aims, if the Bill is to pass to subsequent legislative stages, it is imperative for Parliament to resolve the difficulties associated with navigating terms which can be construed ambiguously, such as “terminal illness” or “coercion”. The Bill does delineate the scope of some of these terms, albeit briefly, leaving campaigners, patients and doctors alike concerned about the de jure and de facto distinction.
Firstly, the definition of “terminally ill”, as well as the accompanying 6-month prognosis condition that patients must fulfil, may appear medically equivocal. The Bill defines terminal illness as “an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment”. However, professionals such as John Martin, Professor of Cardiovascular Medicine at University College London, have highlighted that the choice of a prognosis of six months (or less) may appear somewhat arbitrary, given that illness has the capacity to change positively in a drastic manner in this timeframe. More fundamentally, the notion that doctors can even provide a prognosis estimate with complete legal or empirical certainty, save for very particular circumstances, is presumptuous. This is bolstered by a 2023 paper demonstrating that clinicians were only 32% accurate when determining who would be likely to live weeks or months.
Secondly, concerns have been raised about the Bill’s treatment of coercion and pressure. Dominic Grieve, a former attorney general, has voiced resistance to the seemingly narrow definition of coercion and control and the discretion it grants to the judiciary. In the case of Conway, Lord Justice Sales considered a hypothetical proposal akin to Leadbeater’s, whereby the role of determining whether a person seeking assistance had been subjected to coercion would be delegated to judges. Sales noted that ‘external pressures might be very subtle and not visible to the court’, a criticism that was recently reaffirmed by Sir James Munby, who attests that only an independent agency that could carry out ‘rigorous independent investigation’ should preside over this delicate issue. In any case, it is of the utmost importance that patients are afforded professional support in reconciling themselves with the mental, emotional, and physical dimensions that arise when making a decision as crucial as pursuing assisted death. In this way, external pressures can be overcome with more certainty, protecting disabled and vulnerable individuals.
Thirdly, the manner in which “capacity” is to be treated has also elicited contentions. David Lock KC has emphasised the oscillatory nature of capacity, which is particularly prevalent in terminally ill patients whose intentions may be clouded by a multitude of factors such as medication, fatigue, or emotional anxiety. The Committee would certainly benefit from further consultations with medical practitioners, although, nonetheless, it could be an onerous task to align the medical definition of capacity with a legal one.
A slippery slope ?
Opponents have used “slippery slope” rhetoric to argue that legislating on this issue will create a culture of normalisation around assisted dying, exacting a subtle form of coercion upon vulnerable individuals who do not wish to be burdens to their families or to society.
Consultant radiologist and chair of Healthcare Professionals for Assisted Dying Jacky Davis has demonstrated that the “slippery slope” argument is not empirically substantiated; she points to research from Oregon which indicates that, in fact, vulnerable groups are under-represented in statistics on individuals undergoing assisted dying. Nonetheless, it is important to acknowledge the fact that sick and disabled people are still one of the most at-risk groups for coercion and abuse.
The wording of the Bill has made it abundantly clear that disabled or older people without a terminal illness would not be eligible. Indeed, Leadbeater has avowed that the legislation will be the “strictest” in the world for terminally ill adults. This may suggest that the legislation would include a narrow scope for future deviation, preventing scenarios where assisted dying is permitted for under-18s, as in Belgium and the Netherlands, for instance.
Although the future possibilities following the legalisation of assisted dying may appear disquieting, simply doing nothing in the hopes of preventing the materialisation of these hypotheses is not an option either.
The role of the Committee
During the Committee stage, the aforementioned group of MPs will convene to scrutinise the Bill line-by-line and propose amendments. Given the bill’s salience, the Committee will be able to call upon expert external witnesses to aid them. It is hoped that the committee’s diverse composition in relation to views, roles within the Commons, and expertise will provide for a thorough and balanced evaluation of the Bill.
Ultimately, it is imperative to provide a recognised legal domestic route to obtain assistance in dying. Clearly, the Committee has been tasked with an arduous challenge. They must be meticulous in their assessment of the Bill, balancing the need for comprehensive safeguards while recognising the medical implications that may arise. Despite the complexities, there is one inescapable conclusion: avoiding regulation on this question can only prolong the alienation of individuals wishing to avoid a protracted and distressing death.
Angelina Koval
Angelina is an undergraduate at LSE studying Law. She is particularly interested in English and international public law, as well as the intersections between jurisprudence and practical manifestations of the law. She enjoys exploring ambiguities in the law, especially insofar as technology and AI is concerned.