Assisted Dying Bill: an overview of the key provisions and proposed safeguards
On 26 May 2021 Baroness Meacher presented the Assisted Dying Bill to the House of Lords. The aim of this Private Members’ bill (i.e. a public bill and not one introduced by a government minister) is to enable adults who are terminally ill to be provided, at their request, with specified assistance to end their own life in what is expected to be the final six months of their life.
The bill has had its First Reading and the next stage is to have the key principles and main purposes of the bill debated in the House of Lords. A minority of Private Members’ bills become law.
Here we provide an overview of the key provisions and proposed safeguards set out in the current version of the bill.
The proposed law
The bill provides a mechanism for an adult who is terminally ill to apply to the High Court (Family Division) for an Order confirming that they may lawfully be provided with assistance to end their own life.
Section 2(1) of the bill provides (and is of course subject to the bill becoming an Act) that:
“For the purposes of this Act, a person is terminally ill if that person –
(a) has been diagnosed by a registered medical practitioner as having an inevitably progressive condition which cannot be reversed by treatment (“a terminal illness”); and
(b) as a consequence of that terminal illness, is reasonably expected to die within six months.”
Under section 1(2)(a) to (c) of the bill, the Court must be satisfied that the person:
“(a) has a voluntary, clear, settled and informed wish to end his or her own life;
(b) has made a declaration to that effect in accordance with section 3 [of the bill]); and
(c) on the day the declaration is made:
(i) is aged 18 or over;
(ii) has capacity to make the decision to end his or her own life; and
(iii) has been ordinarily resident in England and Wales for not less than one year.”
Section 3 of the bill stipulates that an application to the High Court may only be made if the individual “has made and signed” a ‘Form of Declaration’ (see Schedule to the bill) in the presence of a witness (not a relative or directly involved in the person’s care or treatment). That declaration must be countersigned by an attending doctor who under sections 3(b)(i) and (ii) must be “a suitably qualified registered medical practitioner from whom the person has requested assistance to end their life” and also by an independent doctor “who is not a relative, partner or colleague in the same practice or clinical team, of the attending doctor”. The witness cannot be the attending doctor or the independent doctor.
There are several requirements set out at section 3(3) that the independent doctor and attending doctor (through separately examining the person and their medical records) must be satisfied have been met, before they countersign the declaration. These include being satisfied that the person is terminally ill, has the requisite capacity to make the decision and that they have “a clear and settled intention to end their own life, which has been reached voluntarily, on an informed basis and without coercion or duress.”
In addition, under section 3(4), both the attending doctor and independent doctor must be satisfied that the person making the declaration has been informed of the “palliative, hospice and other care available” to them.
Under section 3(5) of the proposed legislation, if the attending doctor or independent doctor has any doubts about the person’s capacity before countersigning the declaration the doctor must:
“(a) refer the person for assessment by an appropriate specialist [a registered practitioner in the specialty of psychiatry]; and
(b) take account of any opinion provided by the appropriate specialist in respect of that person.”
Section 7 provides that a person who has made a declaration “may revoke it at any time and revocation need not be in writing.”
Assistance in dying
Section 4 of the bill sets out a number of important safeguards and steps that must be taken in relation to the prescribing and delivery of medicines to enable the person to end their own life. Under section 4(7), the Secretary of State may through regulations, specify which medicines may be prescribed; the “form and manner in which such prescriptions are to be issued” and “the manner and conditions under which such medicines are to be dispensed, stored, transported, used and destroyed.”
Under section 6 of the bill, a person who provides assistance in accordance with the proposed legislation is not guilty of an offence.
Inquests and death certificates
As set out at section 7 of the bill, a person who dies as a consequence of the provision of assistance in accordance with the proposed legislation is not to be regarded as having died a violent or unnatural death (i.e. the circumstances to which section 1(2)(a) or (b) of the Coroners and Justice Act 2009 (duty to investigate certain deaths) would apply). The bill provides that a death will be recorded as an “assisted death”.
Codes of Practice
The bill includes a section specifically on codes of practice (section 8), which the Secretary of State may issue in connection with “the assessment of whether a person has a clear and settled intention to end their own life.” By way of a summary these may include matters relating to the assessment of capacity; disorders or conditions that may potentially impair a person’s decision-making; making information available on end of life care options; counselling and guidance; and “the arrangements for delivering medicines to the person for whom they were prescribed” and “the assistance which such a person may be given to ingest or self-administer them”.
Responsibility for monitoring and reporting on the operation of the Act (if the bill is enacted) falls to the Chief Medical Officer (see section 9). The Chief Medical Officer must monitor compliance with the provisions of the legislation, regulations or codes of practice and produce an annual report to the Secretary of State.
The UK Parliament website explains that: “A minority of Private Members’ bills become law but, by creating publicity around an issue, they may affect legislation indirectly.” It may be that this bill, as with previous attempts, is defeated in Parliament. Its introduction, however, sets in motion the first debate on prospective legislation for more than five years. It follows debates by MPs about the functioning of the current law on assisted dying, which in January 2020 saw the majority of MPs who spoke calling for a review of the law.
The politically sensitive nature of the debate cannot be underestimated. It is one that raises a balancing act between important ethical questions about a person’s right to die with dignity, whilst ensuring patient safety measures. As such, the government’s interest will be in ensuring an evidence-based debate, and it has already requested data from the Office for National Statistics, including on assisted deaths in Switzerland of British nationals.
Meanwhile, in recent months New Zealand, Spain and states across the US and Australia have passed assisted dying laws and Germany and Austria are considering legislation. A bill in Ireland is making its way through the Dáil and Jersey is holding a citizens’ jury on the topic. In Scotland, two parties made manifesto pledges on assisted dying and legislation is due to be introduced in Holyrood later this year.
Westminster will be mindful of the passing of laws elsewhere, which are indicative of growing public support in the last five years. Nevertheless, the bill is now required to go through Parliamentary scrutiny to ensure, quite rightly, that all the checks and balances are considered for any change or further review of the law.
The extent to which the Assisted Dying Bill is given parliamentary time will provide an indication of the current cross-party support on the issue in the UK. Whatever the outcome, the call to reform assisted dying laws appears unlikely to go away and we will continue to monitor the bill’s progress with interest. The Second Reading of the bill is to be announced.