Public Policy Researcher Carys Moseley analyses in detail the Terminally Ill Adults (End of Life) Bill and examines the flaws and dangerous ambiguities that leave it open to abuse
The Terminally Ill Adults (End of Life) Bill, for legalising assisted suicide in England and Wales, will have its second reading on Friday 29 November this year. The bill was tabled by Kim Leadbeater MP (Labour, Spen Valley). Both the bill text and the Explanatory Notes as well as a briefing by parliamentary researchers are available. The Explanatory Notes were written by Kim Leadbeater herself and have not been approved by Parliament.
‘Assisted dying’ is misleading – the intention is to legalise assisted suicide
The very first problem with this bill is its claim in the title of section 1 to be dealing with ‘assisted dying’. The fact that the bill intends to legalise assisted suicide is revealed by the actual text of this section, which says:
“A terminally ill person…may, on request, be provided with assistance to end their own life in accordance with sections 5 to 22.”
Section 29(2)(2) requires the death to be recorded as an ‘assisted death’, along with a record of the terminal illness.
Ending one’s own life is not ‘dying’, it is suicide. Assistance to do so is not ‘assisted dying’, it is assisted suicide.
There is no such thing as assisted dying. Dying is a natural process. Suicide is a deliberate act.
When is assisted suicide not assisted suicide?
The deceit and dishonesty at the heart of this bill is exemplified by clause 24(3), which would amend the Suicide Act 1961 by adding the following clause:
“In sections 2(1) and 2A(1), a reference to an act that is capable of encouraging or assisting suicide or attempted suicide does not include the provision of assistance to a person to end their own life in accordance with the Terminally Ill Adults (End of Life) Act 2024.”
In other words, an act that currently counts as assisted suicide under the Suicide Act 1961 would no longer be deemed as such if this bill were to become law. At the stroke of a pen therefore, assisted suicide is no longer ‘assisted suicide’ in law, but ‘assisted dying’.
Terminally ill persons are eligible
Section 2 says that a terminally ill person may request assistance to end his or her own life. Such a person is defined in section 2(a) and (b):
“(a) the person has an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment, and
(b) the person’s death in consequence of that illness, disease or medical condition can reasonably be expected within 6 months.”
The six-month period is used in other jurisdictions where assisted suicide has been legalised. However, it should be treated with a great deal of suspicion. A prognosis of six months to live is not infallible; medicine is always advancing. As has been pointed out already, under the bill’s definition type 1 diabetes would count as a terminal illness as it is not reversible – only its symptoms can be relieved. Those who stop taking insulin are not likely to live more than a few days. Experts in eating disorders have also warned that those with anorexia could be considered eligible.
The bill tries to provide a safeguard against exploitation of those with a mental illness or disability, by stating at section 3 that a person with either or both of these is not to be considered terminally ill. The difficulty is that this safeguard has already been removed in those countries that have previously legalised assisted suicide. People with mental illnesses including depression and trauma are now eligible for assisted suicide in Belgium and the Netherlands. If the bill passes, there are likely to be attempts to widen this clause.
Initial discussions
People who want to die could ask any doctor to assist their suicide
Section 4 deals with a person’s initial discussions with registered medical practitioners about assisted suicide.
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person. (2) But nothing in subsection (1) prevents a registered medical practitioner exercising their professional judgement to decide if, and when, it is appropriate to discuss the matter with a person.”
This means that any registered medical practitioner can raise the issue; this immediately sends the message to vulnerable patients that they might be a burden upon others. This should never be allowed under any circumstance.
There are no restrictions on which doctor a person who wants to end their life could ask to help them do so. They could ask any doctor. Even though a doctor can refuse, the culture of medicine and healthcare would inevitably have to change should the bill become law, so that training would be given to all doctors on how to handle such requests.
It is clear that what counts as sound professional judgment will inevitably be changed by the passage of this bill into law so as to include making early judgments as to whether patients should be permitted to choose assisted suicide. This begs numerous questions about which doctors in which medical specialisms would be most likely affected. One would suspect initially that those in geriatric medicine, palliative care and cancer specialists, to name but three areas, would obviously be more affected than some other fields.
The doctor that conducts the initial discussion with the person must discuss the following (section 4(4)):
“a) diagnosis and prognosis, b) any treatment available and the likely effect of it, c) any available palliative, hospice or other care, including symptom management and psychological support.”
The problem here is that this clause deliberately conflates these normal medical discussions with terminal patients with pointing them towards assisted suicide. This risks changing the culture in medicine and healthcare. A culture where assisted suicide is permitted, especially if it is rationalised as a cost-cutting policy as some have already done, risks allowing more pessimistic prognoses to be deemed more credible than they would ordinarily be. This also risks doctors giving less information than they should really give, including omitting information on clinical trials that patients could choose to take part in. Where palliative care is less available there would be a greater temptation in this direction.
The bill provision for conscientious objection is weak
Clause 4(5) forces the doctor who doesn’t want to participate in assisting suicide if requested by the person to refer him or her to a medical practitioner whom he believes ‘is willing and able to conduct the discussion’. This is worse than the provisions of the Abortion Act 1967. It makes even conscientious doctors part of the overall process of assisted suicide. This is bound to lead to disunity and conflict in the medical profession, increasing pressure on doctors to cave into the policy of assisted suicide. The clause undermines the conscience of doctors who would refuse to refer patients for assisted suicide, by requiring them to refer a patient onto another doctor who would assist suicide. This fundamentally sets up a notion of a conscientiously objecting doctor as a hindrance to the patient’s self-defined ‘best interests’.
Procedure, safeguards and protections
First and second declaration by person who requests assisted suicide
The person (patient) requesting assisted suicide is required to make a first declaration to that effect. The format for this is given in Schedule 1 of the bill. The person needs to sign and date the declaration, and this must be witnessed by the co-ordinating doctor who has agreed to help him or her, and one other person.
Section 36(2) disqualifies any relative of the patient from being a witness, as well as any health professional who has treated or cared for the patient in relation to their terminal illness. Also disqualified are those who know or believe they are beneficiaries of the person’s will, or any others who ‘may benefit financially or in any other material way from the death of the person’. There are no criteria in the bill for proving whether or not a potential witness should be disqualified on those grounds. Thus, whilst the clause appears to function as a safeguard against financial exploitation of vulnerable patients, it is very hard to see how such a safeguard could be enforced in practical terms.
Assessment of the patient by the co-ordinating (first) doctor
Section 4(4) says this about the patient seeking out a registered medical practitioner to request assisted suicide. This is expanded in section 7:
“7(1) The coordinating doctor must, as soon as reasonably practicable after a first declaration is made by a person, carry out the first assessment.
(2)5 “The first assessment” is an assessment to ascertain whether, in the opinion of the coordinating doctor, the person— (a) is terminally ill, (b) has capacity to make the decision to end their own life, (c) was aged 18 or over at the time the first declaration was made, (d) is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration, (e) is registered as a patient with a general medical practice in England or Wales, (f) has a clear, settled and informed wish to end their own life, and (g) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it.”
This was the topic of an interview conducted by Victoria Derbyshire on the BBC with Liberal Democrat MP Christine Jardine.
It is important to note that the coordinating doctor conducts a first assessment to find out whether the patient really has a terminal illness and has mental capacity (as per section 3 of the bill) after the patient has made the first declaration. Section 9(3)(a) says that the assessing doctor
“must, if they have doubt as to whether the person being assessed is terminally ill, refer the person for assessment by a registered medical practitioner who holds qualifications in or has experience of the diagnosis and management of the illness, disease or condition in question.”
Section 9(3)(b) says that the assessing doctor
“may, if they have doubt as to the capacity of the person being assessed, refer the person for assessment by a registered medical practitioner who is registered in the specialism of psychiatry in the Specialist Register kept by the General Medical Council or who otherwise holds qualifications in or has experience of the assessment of capability.”
Assessment of the patient by a second doctor
Once the coordinating doctor has satisfied all the legal requirements for assessment, he or she must refer the patient to a second, independent doctor for a second assessment. According to clause 8(6)(d), this second doctor cannot be a partner or colleague in the same practice or clinical team as the coordinating doctor. This means a second doctor might be from a team not dealing with terminal illnesses, and not a specialist in the relevant conditions.
As with the first doctor, who could be from any branch of medicine, there is a real risk that the patient’s illness will not be well understood. Clauses 5(3)(a) and 8(6)(a) state that the first and second doctors may carry out these functions only if they have ‘the training, qualifications and experience as the Secretary of State may by regulations specify.’ It is not clear what such training, qualifications and experience could be meant here. Could this simply refer to specific medical specialisms? Or will the government start to bring in training and qualifications in assisted suicide? We don’t know, and this is left entirely at the discretion of the Secretary of State with parliament having no say in what is required. It is likely that only pro-assisted suicide doctors will agree to be involved, which would make any training and qualifications useless in practice as a safeguard.
Next of kin and loved ones are sidelined
Both assessing doctors must “in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.” (Clause 9(2)(f))
The bill allows the two doctors to decide whether the patient should even consider discussing their request for assisted suicide with their next of kin or loved ones. There is no requirement for next of kin to be informed, even though they may well be the best people to persuade the patient that their life is worth living and though they may be shocked to hear about the patient’s assisted suicide only after the event. The doctors are given too much power and influence over the person’s mindset and relationships at the end of life. There is great potential here for unscrupulous or ideological doctors with biases towards believing death is always in a terminally ill patient’s best interests to brainwash, bully or coerce vulnerable and suggestible patients.
Second opinion from a third doctor allowed
If the second assessing doctor, having conducted an assessment, refuses to make a statement supporting the request for assisted suicide, the first doctor is allowed (but not required) to refer the patient to a third doctor (clause 10(1)). Clause 10(3) permits only one such referral for a second opinion. Nevertheless, a form of doctor-shopping would been allowed as the patient could merely seek out a different coordinating doctor to start the whole process all over again until they get their desired result. It’s important to note that there is no provision for any doctor who disagrees with the assessment to challenge the decision. He or she can only refuse without having any further say in the patient’s welfare.
This will only put further pressure within medicine and healthcare to allow doctors who support assisted suicide. This pressure will be introduced by the euthanasia lobby from the very bottom in medical schools. It can be expected to result in discrimination against pro-life students in sixth form as they make applications to do degrees in medicine.
Limitations on patient’s ability to cancel declaration for assisted suicide
Section 14(1) only allows the person to cancel their declaration for assisted suicide by giving notice to the co-ordinating doctor or a member of their GP practice.
This excludes the possibility of giving notice to another doctor in the hospital or hospice where they might be. The patient might be too weak to contact their GP practice.
This clause excludes other doctors, especially specialists, who would naturally see the patient in a hospital or hospice setting, or other communal establishment, from being accessible to them on this matter.
The person/patient is isolated at their most vulnerable point from other doctors and their family. The bill doesn’t even say that they are allowed to speak through a relative.
Problems with allowing a patient to sign the declaration by proxy
If a patient is unable to sign their own name, they may use a proxy (section 15). Clause 15(2) says that the proxy should be a person who has known the person requesting assisted suicide for at least 2 years, or one who is ‘in good standing in the community’.
Knowing a person for 2 years is not a long time. This means that people who are not relatives or long-term friends are allowed to be closer to the patient’s decisions about assisted suicide. Nor does the bill set a threshold for how well they must know the person before they can serve as a proxy. Once again, relatives are sidelined.
As for the notion of someone being ‘in good standing in the community’ this is completely subjective and depends on the dominant morality in society at the time.
Provision of assistance to end life
Effecting assisted suicide
Section 18(2) says that the co-ordinating doctor ‘may’ provide the person with the approved substance for ending their own life. Section 18(5) says the doctor may be accompanied by those health professionals he or she thinks fit. Section 18(6) says the doctor ‘may’ prepare the substance or a medical device, and ‘assist the person to ingest or self-administer the substance or device for committing suicide’ (clause 18(6)(c)’.
This would lead to medical training for doctors and other health professionals to prepare drugs for assisting patients to kill themselves.
Section 18(8) says this:
“Subsection (6) does not authorise the coordinating doctor to administer an approved substance to another person with the intention of causing that person’s death.
This appears to be a safeguard against doctors killing patients. However, in practical terms many patients could be too weak to commit suicide themselves. They would be too weak to sit up in a bed to ingest a substance. It is therefore reasonable to foresee that some patients would not be able to ingest a substance or self-administer a device for committing suicide, but that they would in fact require a doctor or other health professional to kill them. No doubt many in the medical profession will dispute this section.
Supposed safeguard if patient changes their mind at the last minute
Section 18(11) says the coordinating doctor must remove the substance immediately from the person if the person decides not to self-administer it, or if there is any reason the substance is not used.
It is not clear to whom the coordinating doctor is answerable in the medical profession in this respect. It is also not clear how a patient would be deemed to have decided against self-administration. No independent witnesses are required at the point of administering the drug or using the device. It is perfectly possible that a vulnerable patient who has changed his or her mind at the last minute doesn’t feel able to tell the doctor, due to internalised social pressure, feeling sorry for the doctor, etc.
Section 19 allows the coordinating doctor to authorise another doctor to assist the patient to commit suicide. The patient has to consent to this in writing.
Protections for health professionals
Weak conscience clause at the end of the bill
A conscience clause for doctors and healthcare workers is inserted right at the end of the bill, in section 23:
“No registered medical practitioner or other health professional is under any duty (whether arising from any contract, statute or otherwise) to participate in the provision of assistance in accordance with this Act. (2) An employer must not subject an employee to any detriment for exercising their right under subsection (1) not to participate in the provision of assistance in accordance with this Act or for participating in the provision of assistance to a person in accordance with this Act.”
Conscience clause excludes institutions; it threatens integrity of Christian institutions
It does not include health boards, hospitals or hospices, or even care homes. This leaves Christian hospitals, hospices and care homes at risk of being pressured into permitting assisted suicide. This in turn will put pressure on church denominations and networks to change their stance against assisted suicide and start permitting Christians to ‘agree to differ’ on the matter.
Offences
Safeguards against coercion are weak
Section 26 of the bill sets out safeguards against dishonesty, coercion or pressure of the person requesting assisted suicide. However, in a submission to Parliament on assisted suicide, the Royal College of Psychiatrists has stated that it is very difficult to prove subtle forms of coercion such as patients feeling they are a burden on their loved ones. The Scottish branch of the Royal College of Psychiatrists has expressed similar reservations in its submission to the private member’s bill in the Scottish Parliament. It is very difficult to envisage effective training for doctors to detect this kind of subtle coercion.
Giving a false medical opinion about a person is an offence
Section 27(2) says “a person [health professional] commits an offence if they provide a false medical opinion about a person”.
Codes and Guidance
Code of Practice for assessing patient’s intention optional
According to section 30, the Secretary of State may publish codes of practice for enabling assessment of whether a person has a ‘clear and settled intention’ and capacity to end their own life. Section 30 also says this may take into account how depression or other mental health disorders may impair a person’s decision-making. Section 30(6) only requires a person responsible to have regard for such a code of practice. Section 30(7) says a failure to do this does not render anyone liable for criminal or civil proceedings.
The fact that the Secretary of State is only permitted and not required to publish such a code of practice shows that this clause may be worthless, a disingenuous sop to opponents should the Secretary of State decide not to publish a code of practice.
Section 30(1)(a)(ii) says that the Secretary of State needs in drawing up this Code of Practice to be
“recognising and taking account of the effects of depression or other mental disorders (within the meaning of the Mental Health Act 1983) that may impair a person’s decision-making.”
Section 31 states that the Chief Medical Officers for England and Wales must publish guidance providing information on the operation of the act.
Provision through the NHS
Section 32 states that the Secretary of State ‘may’ make regulations to ensure assisted suicide is available on the NHS.
There is no doubt that supporters of legalisation will try to amend ‘may’ to ‘must’ here.
Monitoring and Reviewing
Section 33 states that the Secretary of State ‘may’ ‘by regulations, require any registered medical practitioner to notify the relevant Chief Medical Officer of any notifiable event.’
This arguably weakens the efficacy of section 34, which says that the ‘the relevant Chief Medical Officer’ (for England or Wales) ‘must’ monitor the workings of the act and investigate and report accordingly.
MPs should vote down this bill at second reading
This bill is filled with problems. First it is misleading in that it speaks of ‘assisted dying’ only subsequently to admit that the aim is to legalise assisted suicide. A patient could ask any doctor to facilitate their request for assisted suicide. The patient’s next of kin and loved ones are sidelined from the outset. Nothing stops a patient from going to a new co-ordinating (‘first’) doctor to start the process all over again if their wish isn’t granted. If the patient wishes to cancel their declaration for assisted suicide, they can only do so by contacting the co-ordinating doctor or their GP practice; they can’t ask another doctor (or nurse) in a hospital or hospice, should they be in one. There are doubts as to the safeguards for patients changing their mind once they are given the means of committing suicide. The bill’s conscience clause does not safeguard institutions such as hospitals or hospices. The bill’s safeguards against coercion of patients are weak. The provisions for a Code of Practice to assess a patient’s intention and the framework to monitor and review the bill are weak. Supporters of assisted suicide have had ten years since the last comparable bill to propose meaningful safeguards. They have completely failed to propose any. MPs would be exceptionally naive to think this problem could be fixed in handling a private member’s bill. All of these many problems point in one direction: MPs should vote down this bill at second reading.
