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Author: Adam McCann, Associate Professor of Criminal Law and Criminal Justice, University of Reading
Original article: https://theconversation.com/assisted-dying-bill-would-create-the-worst-thought-out-legal-framework-anywhere-in-the-world-legal-expert-244362
The terminally ill adults (end of life) bill will allow adults in England and Wales who are terminally ill to be provided with assistance to end their own life. The current law on assisted dying needs to be reformed, but this bill is not the solution. It proposes a morally questionable law that is likely to cause serious practical issues for the judicial system.
The bill, put forward by Labour MP Kim Leadbeater, requires every application to be submitted to the High Court for approval. Of the 27 jurisdictions worldwide that have legalised some form of assisted dying, not one has opted for this approach. England and Wales should not become the first.
The rationale behind this aspect of Leadbeater’s bill is that doctors cannot be trusted, on their own, to assess the patient’s capacity to make a decision to end their own life. The court must do so.
However, court approval is not considered necessary for other end-of-life medical decisions. For example, patients have the right to refuse life-saving treatment, such as a ventilator or a blood transfusion, even if that refusal is irrational and will lead to their death. The patient is assumed to have capacity and the doctor is trusted to assess this, along with any evidence of coercion or pressure.
By contrast, under this bill, when a patient requests assisted suicide, they are considered vulnerable and in need of the court’s protection. If a patient chooses certain death, it is not obvious why the law is only concerned about the voluntary nature of that choice in some situations (assisted suicide) but not others (refusing life-saving treatment).
The second problem with requiring judicial approval in each case is the bureaucratic burden it could place on frail patients. Some patients may end up seeking judicial approval earlier than they would have wished while they are still strong enough to do so.
The third problem is that the High Court may not be able to manage the sheer number of applications. To get a sense of what might happen, consider the following two places where assisted dying is legal. In Oregon in the US, 0.6% of all deaths in 2022 involved the assisted suicide of a terminally ill patient. In Canada, 3.9% of all deaths in 2022 were assisted dying cases involving patients whose natural deaths were “reasonably foreseeable” – natural death was expected soon and of a predictable cause.
If, for example, a similar proportion of assisted suicide cases had occurred in England and Wales in 2022, this would have resulted in either 5,231 applications (0.6% of all deaths) or 22,509 applications (3.9% of all deaths) before the High Court in that one year alone.
Even that lower estimation of cases should not be dismissed as readily manageable. Adding thousands of highly time-sensitive cases to an already backlogged High Court is neither in the interests of the applicant nor the justice system.
An alternative approach would be to follow the Dutch review system, which involves prior consultation by an independent doctor and retrospective scrutiny by a specialist review committee. The doctor and independent doctor both submit an assessment of the patient’s request and suffering, which is checked by a specialist committee after the assistance is provided.
Under this system, doctors are entrusted with assessing capacity, as they are with other end of life decisions, and there is no overly burdensome court process for the patient or the wider judicial system.
The terminal illness requirement
Only people who have been given six months or less to live can apply for assisted suicide under this bill. This means limiting benevolence to an arbitrary, and often inaccurate, estimate of the time a person has left. It cannot be merciful to effectively exclude access because suffering will be long endured – or at least endured beyond six months.
For this very reason, Lord Neuberger, the former president of the UK Supreme Court, described the terminal illness requirement as “unsatisfactory”. He argued that there is “significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.
The alternative to a terminal illness requirement is to allow access on the grounds of suffering. The obvious issue here is where to draw the line on what is considered suffering. The risks of allowing patients suffering primarily from a neurodegenerative or psychiatric condition, such as dementia or depression, to receive assisted dying are considerable. A major concern is the effect such a condition could have on the patient’s ability to make informed decisions.
A law that seeks to maximise patient autonomy and respond compassionately to suffering could, and arguably should, be limited to patients whose suffering is unbearable and incurable, and due primarily to a physical medical condition.
This would allow access not only for terminally ill patients but also patients such as Tony Nicklinson, who suffered from locked-in syndrome (full and permanent paralysis apart from limited eye-muscle movement). Using technology to communicate through these eye movements allowed Nicklinson to describe his life as a “living nightmare”.
PA Images / Alamy Stock Photo
The assisted dying bill, as it stands, does not extend mercy to patients like Nicklinson.
The bill, if passed, will lead to the worst thought-out legal framework on assisted dying seen anywhere in the world. Proponents of a fair and workable system should think twice before voting to pass it.