MPs have now voted in favour of proposals to legalise assisted dying in England and Wales. The bill will face more debate and scrutiny by MPs and peers, who could choose to amend it before it becomes law. It is anticipated that a change in the law is not likely be until 2025, at the earliest.
The bill and what is assisted dying?
Assisted dying generally refers to a person who is terminally ill receiving lethal drugs from a medical practitioner, which they must administer themselves.
If the bill is eventually passed it would make it legal for some adults who are over 18 and who are terminally ill to be given assistance to end their own life.
But there are very strict requirements:
- They must be resident of England and Wales and be registered with a GP for at least 12 months
- They must have the mental capacity to make the choice and be deemed to have expressed a clear, settled and informed wish, free from coercion or pressure.
- They must be expected to die within six months.
- They must make two separate declarations, witnessed and signed (by them or a proxy on their behalf), about their wish to die.
- Two independent doctors must be satisfied 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 14 days after the judge has made the ruling (although this can be shortened to 48 hours in some circumstances)
There are however challenges to be faced by both the medical and legal professions involved in this process, including the High Court judges, who will ultimately make the final ruling regarding the persons’ wish to die.
This is an emotive issue but let’s deal with the proposed law and the possible pitfalls or issues that may arise.
Medical professional’s role
Do medical professionals have to agree to deal with the assisted dying process?
There is a specific clause in the bill that allows for doctors or other health professionals to opt out of assisting someone to die.
What if a doctor refuses to assist with the process?
The bill also allows for the applicant to seek the opinion of another doctor if they are refused an assisted death.
What happens if the second doctor refuses to assist with the assisted dying process?
If a second doctor refuses to affirm the patient’s right to an assisted death, then the first doctor - who granted approval - can refer the patient to another medical practitioner.
Can a doctor suggest the assisted dying process to a patient?
Under the bill, no medical professionals are stopped from using their judgement to “decide if, and when, it is appropriate to discuss the matter with a person”. However, doctors would not be under a duty to raise the option of assisted dying with a patient
What does the patient have to do?
The patient is required to provide two separate declarations, witnessed and signed, about their wish to die.
How do the medical professionals ensure the requirements that the person has less than six months to live and has the mental capacity to make their decision, are complied with?
The process must involve two independent doctors being satisfied the person is eligible and the medics can consult a specialist in the person’s condition and get an assessment from an expert in mental capacity, if deemed necessary
Doctors would also have to be satisfied the person making their declaration to die has made it voluntarily and not been coerced or pressured by anyone else.
They would also be required to ensure the person is making an informed choice, including being made aware of their other treatment options such as palliative and hospice care.
Potential problems for the medical professionals
- There is a risk that the medics involved may not be able to identify control or coercion.
- It may be difficult to provide a prognosis of six months or less to be expected to live
- The NHS are already under enormous pressure and are short staffed and the availability of finding two separate doctors to review the patient and opine on the request is likely to take a lot of time.
- Is there any training or guidance to be provided to the doctors engaged in these requests?
- Will there be standard consent like forms to be completed or will this be left to the discretion of the doctor making the decision?
What is a High Court judge’s role in the process?
Can a judge opt out of this process?
Unlike for the medical professionals, there is no clause in place for High Court judges in opting out of making a decision on whether to approve a request for assisted dying.
What will the format of the decision making be?
It is not yet clear from the bill whether the judge will make a decision based on the papers, forgoing a formal hearing, or whether a court hearing will take place.
What evidence will be considered by a judge with regard to satisfying that there has been no coercion?
Judges can “hear from and question any other person” that they wish in order to determine that the applicant has not been coerced. This would suggest a hearing would be necessary.
Will the hearing be heard in public?
If a hearing takes place, it is unclear whether it will be in public or in private. It remains to be decided if anonymity will be granted to the assisted person.
Is there any right of appeal against the judge’s decision?
Presently it is proposed that there is no right to appeal a decision made in favour of refusing an assisted death.
Potential problems for judges and the court
- Although, under the current proposals, a judge cannot opt out of this process the Equality and Human Rights Commission (EHRC) has suggested this might be something Parliament can consider allowing.
- The court system is under so much pressure and there are often lengthy delays in fixing a hearing date. Will the High Court have capacity to deal with the applications for assisted dying in a timely manner?
- Are there enough judges who have significant experience in making such difficult and complex decisions?
It remains to be seen if the bill passes the necessary legislative stages and, if it does, how much it will be altered to address the issues concerning the challenging roles of the medical and legal professionals in the assisted dying process.
There will be inevitable delays in the process involved for assisted dying and during this time, the patient who has made the request will be deteriorating. If the process becomes too protractive then the patient could lose their mental capacity whilst waiting for the decision or no longer be able to physically administer the medication.
By Colette Crowley, solicitor
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