Briefing: Assisted suicide bill more flawed after Committee stage

We produced this briefing after the assisted suicide bill committee finished its scrutiny of the Bill last week. It is a recap of what happened in committee and is designed to expose how, despite promises to the contrary, this Bill is even more flawed, dangerous and open to abuse than it was originally.

Overview

The assisted suicide Bill committee has now completed its scrutiny of the Bill. The committee process has attracted some strong criticism. Firstly, the make-up of the committee was stacked to favour proponents of the Bill, and witnesses called during oral evidence were either mostly in favour or neutral on assisted suicide in principle.

Secondly, committee members were hostile to concerns of the Bill’s opponents, and the latter were accused on several occasions of scaremongering.  Additionally, the majority of amendments intended to add safeguards to the Bill were rejected – the majority of those accepted were from the Bill’s proponents.

There were some important changes to the Bill – most notably removing the requirement for a High Court judge, and changing the basis of the NHS – which further weakened the Bill. Also, the government forced the committee to delay implementation of the Bill until 2029 because of the complexity of implementing such a significant change to the NHS.

Committee Bias

Makeup of the Committee

From the outset, the committee was significantly biased in favour of assisted suicide: the Bill’s sponsor – Kim Leadbeater – handpicked members, and the committee was stacked 14-9 in favour of the Bill’s proponents. This meant that 61% of the committee was in favour of assisted suicide, which overrepresents support for the Bill in comparison to the actual vote share in the House (55%).

Almost all those MPs representing support for the Bill were strongly in favour of assisted suicide, whereas on the opposing side, only one – Danny Kruger – was opposed to assisted suicide in principle, rather than just the specifics of Kim Leadbeater’s Bill.

Jack Abott, chosen to represent the opposition to the Bill, did not speak against assisted suicide and voted with supporters in almost every division. He voted to reject most amendments tabled by the Bill’s opponents.

Witness Selection

• The committee met in private to discuss which witnesses to hear from.
• The committee voted against hearing from the Royal College of Psychiatrists. Only after criticism did Kim Leadbeater back down.
• The committee initially declined to hear from any physical disability organisations. Only after public criticism did the committee choose to invite disability campaigners at the last minute.
• The committee did not hear from any opponents of the Bill in other jurisdictions where assisted suicide is legal, nor did they hear from anyone in Canada where assisted suicide accounts for 4.7% of all annual deaths.

Key Changes to the Bill

Removal of the High Court judge

Several changes were made to the Bill, the most notable of which is the removal of the requirement for High Court judge to approve each request. This has been replaced with a panel consisting of a psychiatrist, a social worker and a senior lawyer.

• The panel will have no power to compel or question witnesses and is not obligated to hear from anyone besides the patient and the coordinating doctor.
• Decisions made by the panel to approve an assisted suicide request are not appealable, but the person requesting assistance can appeal if their application is refused.
• Given its voluntary nature, the panel is most likely to consist of people in favour of assisted suicide, further diluting proper scrutiny.
• This move has proven to be quite unpopular, with several Labour MPs – in a joint statement – arguing that it ‘breaks the promises made by proponents of the Bill, fundamentally weakens the protections for the vulnerable and shows just how haphazard this whole process has become.’
• Over 60 MPs cited the safeguard of a High Court judge as a reason for supporting the Bill.

• Over 60 MPs cited the safeguard of a High Court judge as a reason for supporting the bill.

Amending the NHS Act

A new clause tabled by Kim Leadbeater will alter the NHS Act 1946 in order to enable it to facilitate assisted suicide. Such a change will fundamentally alter the nature and purpose of the NHS. In the Act establishing it in 1946 (updated in 2006), its stated purpose was to ‘secure improvement in the physical and mental health of the people of England… and the prevention, diagnosis and treatment of illness’. If this Bill passes, the NHS’s functions will also include helping patients to end their lives.

• Several MPs on the committee cautioned against this change. Rebecca Paul, a Conservative MP and prominent opponent of the Bill (despite supporting assisted suicide in principle), stated that this would “monumentally” alter the NHS, and worried that including assisted suicide as part of the NHS “forces [the] provision of the service through the same channels as normal healthcare”.
• Danny Kruger, another Conservative and opponent of the Bill stated that this would change the NHS into “the national health and assisted suicide service.”
• The new clause also does not rule out the possibility that private companies could provide assisted suicide services. Danny Kruger argued persuasively that even the most virtuous doctors could be influenced by financial incentives, particularly if doctors received more money by facilitating more assisted suicides.

Multiple safeguards rejected

The Bill committee has consistently voted (mostly but not always) in blocs of 15-8 against amendments to make the Bill safer. Examples include amendments strengthening tests for mental capacity, ensuring patients have not been encouraged, unduly influenced, or manipulated into requesting assisted suicide and tightening the definition of terminal illness to exclude those with anorexia, mental illness, and disabilities. Amendments ensuring assisted suicide is not discussed with children, assisted suicide services are not advertised and that doctors do not assist patients to take the lethal drug have also been rejected.

Some amendments were passed – e.g. the establishment of independent advocates for disabled people – but the majority of those approved were tabled by proponents of the Bill. Having said that, the committee did pass some opposition amendments: Danny Kruger’s amendment requiring the co-ordinating doctor to inform the patient that they can still change their mind (just before they administer the lethal drug) was passed. Jess Asato’s amendments requiring both the coordinating and independent doctors to be trained to spot coercive control, domestic and financial abuse also passed.

Mental illness and disability

The committee rejected several amendments specifically intended to safeguard those with mental illnesses and disabilities.

• While the Bill excludes those who only have a mental condition or disability without a terminal diagnosis, those who have a mental illness or disability alongside their terminal condition are still included. Most concerningly, those whose terminal illness arises from a mental illness, such as anorexia patients, are not excluded from the Bill, as explained below.
• The committee heard powerful oral evidence from Chelsea Roff, and received written evidence from eight specialists in different jurisdictions, warning that anorexia patients could meet the eligibility criteria for assisted suicide under this Bill. Dr Simon Opher told the committee not to ‘get too hung up on anorexia’ because a patient would need to have failing organs in order to be considered terminal. However, Chelsea Roff informed the committee in oral evidence that at least 60 women around the world had been assisted in suicide or euthanised as a result of anorexia alone, and that these women did not have failing organs.
• The Royal College of Psychiatrists stated that “The wording of the Bill could also be interpreted to include those whose sole underlying medical condition is a mental disorder. While anorexia nervosa, for example, does not itself meet the criteria for terminal illness as it is not an ‘inevitably progressive illness, disease or medical condition which cannot be reversed by treatment,’ its physical effects (for example, malnutrition) in severe cases could be deemed by some as a terminal physical illness. Eating disorders are treatable and recovery is possible even after decades of illness”.
• Nonetheless, an amendment to ensure that a person could not be considered terminally ill by reason of having a mental illness or disability and an amendment to restrict a person from bringing themselves within the definition of “terminally ill” by stopping eating or drinking were both rejected. Therefore, anorexia patients could still be deemed eligible for assisted suicide under this Bill.
• The committee additionally rejected an amendment to ensure that those requesting assisted suicide were not doing so because their judgement was impaired as a result of a mental illness or other condition.

Coercion

Proponents of the Bill have consistently argued that vulnerable people will be protected from coercion, as doctors are required to ensure that a person requesting assisted suicide has not been coerced or pressured. However, the committee heard multiple times during oral evidence that coercion is not always overt, and concerns were raised that these more subtle forms of coercion would go undetected by doctors.

Amendments were tabled to strengthen these safeguards, by adding requirements that the patient had not been encouraged, manipulated, or unduly influenced to request assistance to end their lives. Danny Kruger and Rebecca Paul argued that these amendments were necessary to protect those who were vulnerable to coercion due to power imbalances within relationships.

Naz Shah, who spoke powerfully throughout the committee about domestic abuse, argued that safeguarding against encouragement would help to protect victims of abusive relationships, who could be encouraged by an abusive partner to request assistance in a way that would not be apparently malicious.

• The committee voted 15-8 to reject all three amendments, leaving only explicit coercion on the face of the Bill. This endangers vulnerable people who are not subject to behaviour that is overtly problematic, but are nonetheless requesting assistance because of the words, actions or influence of another person.
• Additionally, the Bill does not attempt to protect against internal coercion, which can occur irrespective of the actions of others but simply because the person believes that they are doing what is best for their loved ones and caregivers. Despite statistics from other jurisdictions showing that feeling a burden to others is a key motivating factor in choosing assisted suicide, the committee rejected an amendment intended to prevent a person from requesting assisted suicide in order to benefit others.

Mental Capacity

The bill requires that a person receiving assisted suicide must be shown to have capacity, which is determined according to the Mental Capacity Act (MCA). The capacity threshold is very low; capacity is presumed unless proven otherwise. A decision that is deemed to be ‘unwise’ has no bearing on the capacity assessment. This means that a person could be suicidal because of depression and still be deemed to have capacity under the Act.

• Several committee members argued that the MCA was never designed for the purpose of assisted suicide and was not suitable to be used in this bill. Daniel Francis argued that its intended purpose was to ensure that people were “not challenged in every transaction in their life.”
• Three psychiatrists gave oral evidence that the Mental Capacity Act was not suitable for this bill. Professor Chris Whitty, who was in the minority in supporting the use of the MCA, was found to have misled the committee, informing them that the more serious the decision, the greater the degree of capacity required. In fact, there is no such requirement in the MCA, so doctors would not be required to ensure a greater degree of capacity for assisted suicide than they would for other medical decisions.
• Sarah Olney argued that a terminally ill person’s capacity can be affected by mental conditions such as depression and anxiety, and external factors such as loneliness and access to palliative care, yet the bill does nothing to safeguard people in these situations. Olney noted that these considerations are at the heart of ‘suicide prevention’.
• Amendments to increase the capacity threshold required by the bill and to add further clarity to the capacity assessments were rejected.
• While an amendment to require doctors to seek psychiatric counsel if in doubt about capacity was accepted, this is still left to the doctor’s discretion. The bill does not require psychiatric assessments.

Palliative care

The Bill, if passed into law, will detrimentally impact access to palliative care and the sector more widely. The committee voted against ensuring that a patient seeking assisted suicide has met with a palliative care specialist, ensuring that the patient has access to all ‘relevant and available’ palliative care options and against ensuring a specialist informs the patient of any available palliative care. The only amendment approved was one requiring the doctor to ‘offer’ a referral to a palliative care specialist.

• During the Bill Committee stage, Danny Kruger questioned why the Bill enabled the government to fund assisted suicide but made no corollary requirement to fund palliative care, despite repeated claims that the former would not undermine the latter.
• Earlier in the process, Dr Sarah Cox – the head of the Association of Palliative Medicine – gave evidence that 43% of its members would leave if assisted suicide were offered in their workplace. It is therefore remarkable that the committee not only rejected almost all the amendments listed above, but it also refused to allow care homes and hospices to exempt themselves from assisted suicide provision, making this loss of crucial palliative care staff a very real possibility if the Bill is passed into law.

Process from here

The bill now enters Report stage where MPs can propose and debate further amendments to the bill. Report stage is set to begin on Friday 16 May. Third Reading follows Report stage, and this will be the last chance MPs have to vote on the bill. It is not clear whether Third Reading will also be on 16 May, or a later date.

In the meantime, we await the government’s impact assessment of the Bill. The impact assessment should explain the anticipated costs of implementing the Bill and should also include an equality impact assessment which should show how the Bill is expected to impact people with various protected characteristics such as disabilities.

Conclusion

This committee has not properly scrutinised the assisted suicide Bill in the manner promised to MPs at Second Reading. The committee was stacked to favour proponents of the Bill, chose witnesses for oral evidence who were overwhelmingly in favour of, or neutral on the Bill, and has exhibited outright hostility to genuine concerns. The delayed implementation shows how concerned the government is about the complexities of implementing an assisted suicide service on the NHS.

While many amendments were tabled in an attempt to address serious concerns raised in oral and written evidence by experts, the majority of these were rejected. The Bill has also been significantly weakened by several changes to the Bill, including removing the requirement for a High Court judge, changes to the NHS Act and the rejection of additional safeguards.

Finally, despite repeated promises made by the Bill’s proponents that the legalisation of assisted suicide will not impact palliative care, the committee squandered its opportunity to protect this crucial sector. It is now more likely that this Bill will be detrimental to palliative care, which will in turn result in more vulnerable patients requesting assisted suicide.

We therefore urge MPs to vote against this Bill at Third Reading.