Terminally Ill Adults (End of Life) Bill Assisted Dying: How far will the law go for choice?

Introduction

The Terminally Ill Adults (End of Life) Bill, a private member’s bill, that seeks to legalise assisted dying for terminally ill adults, has made its way through a second reading in the House of Commons and could become law. In 2015, the House of Commons voted against giving a similar bill a second reading.

Currently under the Suicide Act 1961, it is an offence (in England and Wales) for a person to intentionally encourage or assist the suicide (or attempted suicide) of another. The bill would amend the Act to allow those over 18, who have mental capacity, are terminally ill and in the “final six months” of their life to request assistance to end their life. The Suicide Act would continue to apply to assistance outside this framework.

Safeguards and Oversight Mechanism

Under the Bill, applicants must reside in England or Wales. Two independent doctors must assess each case, at least seven days apart, to confirm the individual meets the criteria. This includes having a voluntary, informed, and settled decision to end their life, free from coercion. If both doctors agree, the individual can seek approval from the High Court.

If the court approves, a 14-day reflection period applies, shortened to 48 hours if death is imminent. Following this, the applicant can reaffirm their request. If the doctor remains satisfied with the eligibility, a self-administered life-ending substance may be prescribed, in the administering of which the person can receive assistance.[1]

The role of the High Court remains questionable, while some have criticised it for being a mere ‘rubber stamp’ to the approval of doctors, others more notably call out the involvement of the Court for representing the sanction of the state for a person’s death.

Sir James Munby, former President of the Family Division of the High Court of England and Wales, criticises the proposed legislation for not defining the involvement of the judiciary more adequately, including the specific role of the judge, dealing with evidence and public funding.[2]

Freedom of Choice and Human Rights

Opponents believe a blanket ban protects the vulnerable. In R (Nicklinson) v Ministry of Justice, Lord Neuberger recognised that a blanket ban on assisted suicide ‘will protect the weak and vulnerable’[3]. The Bill has received notable criticism for its potential to be abused against vulnerable groups such as the elderly and the disabled. Even with safeguards, the Bill may leave vulnerable people feeling pressured to end their life prematurely.

Proponents of the Bill center their arguments on choice and autonomy, that a person suffering should be empowered with the ability to choose to end their life. And that it is only a kindness that through an assisted death their pain is alleviated in a way. However, this raises larger questions of how awarding the choice to a certain group is justified while those who may be suffering equivalently cannot avail such a choice.

The European Court of Human Rights, judgements of which are binding on the UK, has allowed a significant Margin of Appreciation (which allows states flexibility in how they fulfill certain obligations under the European Convention of Human Rights) in blanket bans on assisted suicide (as is the current case in the UK) under Article 8 of the Convention, the Right to respect for family and private life.[4]

However, with the end of the blanket ban, the narrow focus of the Bill can be challenged under Article 14 of the Convention, Prohibition of discrimination when read along with Article 8, to extend the right to other groups. While it would be a largely novel challenge, considering that the laws on the subject across ECHR states are much wider, an argument based on European consensus could be successful, leading to expansion of the law.[5]

Should the State sanction death?: The Slippery Slope

Two significant questions remain unclear. First, whether the state should sanction death and second, where is the line drawn on assisted death. In 1998 when the death penalty was abolished for all crimes in the UK, it created an important principle, that the state should not sanction death. The passing of the Bill would be moving away from this principle.

Expanding the eligibility of assisted dying seems inevitable. The law established by the Bill could be expanded over time to allow assisted death or even suicide in more circumstances. These concerns are exacerbated by the possibility for litigation under Articles 8 and 14 of the ECHR that may seek to extend assisted death to more groups.

In a letter written to the Observer, over 50 legal academics and practitioners, drawing a comparison to other jurisdictions, brought up the tendency of such laws to expand. In Canada, the legal requirement of “legal foreseeability” of death has been dropped and euthanasia for mental illness is set to be legalised in 2027, while the Netherlands already allows it. The Netherlands has also proposed extending the law to elderly people with “completed lives”.[6] This shows the possibility of expanding the law down a “slippery slope” in the UK over time.

Several commentators suggest shifting focus entirely from assisted dying to improve end of life care instead.[7] While others have also raised concerns over further burdening the judicial system. Kim Leadbeater, the MP who introduced the Bill, argues that assisted death and palliative care should not be viewed as mutually exclusive and goes further to suggest a positive correlation between legalised assisted dying and improvement in palliative care.[8]

Conclusion

To become law, the bill would have to go through the committee and report stage, and a third reading in the House of Commons, then make its way through the House of Lords before receiving Royal Assent. In the process, it can be amended to strengthen the proposed safeguards and oversight mechanism. The government has so far remained neutral and the Prime Minister has set aside collective responsibility for ministers on the merits of the bill.

As lawmakers grapple with the implications of enacting the Bill into law, public debate must go beyond the struggle between choice and conservatism to account for the significance of the legal principle the Bill establishes and the potential for expansion that can redefine life and death in the legal system.

[1] Terminally Ill Adults (End of Life) Bill (2024-25) 12

[2] Sir James Munby, ‘Assisted Dying : What Role for the Judge? Some further thoughts’ (Transparency Project, 14 November, 2024) <https://transparencyproject.org.uk/assisted-dying-what-role-for-the-judge-some-further-thoughts/> accessed 11 December, 2024

[3] R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [85]

[4] Pretty v United Kingdom App no 78017/17 (ECHR, 2002)

[5] Philip Murray, ‘Looking down the slippery slope: Can assisted suicide be restricted to the terminally ill?’ (UK Constitutional Law Association, 30 October 2024) <https://ukconstitutionallaw.org/2024/10/30/philip-murray-looking-down-the-slippery-slope-can-assisted-suicide-be-restricted-to-the-terminally-ill/> accessed 11 December 2024

[6] Prof Mark Elliott and others, ‘The perils of assisted dying’ (The Guardian, 27 October 2024) <https://www.theguardian.com/news/2024/oct/27/austerity-hurts-more-than-a-smack> accessed 11 December 2024

[7] Nick Triggle and Smitha Mundasad, ‘Palliative care is not good enough - there's no plan to fix it’ (BBC, 1 December 2024) <https://www.bbc.com/news/articles/cn9x00v88pzo> accessed 11 December 2024

[8] Sky News, ‘Kim Leadbeater MP explains assisted dying bill’ (12 November 2024) <https://www.youtube.com/watch?v=f1TG-SIX1eM> accessed 11 December 2024