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On 4 July 2024, a Bill was introduced in the House of Lords by former Lord Chancellor - Lord Falconer of Thoroton. It is the Assisted Dying for Terminally Ill Adults Bill [HL] - Parliamentary Bills - UK Parliament
This is
quite a complex Bill extending to 43 clauses and 6 Schedules. Explanatory Notes have been published - Terminally Ill Adults (End of Life) Bill. The notes state that they are 'not intended to be a comprehensive description of the Bill' but, frankly, they are as detailed an explanation as we are likely to find at the moment ! Terminally Ill Adults (End of Life) Bill (pdf - 22 pages).I recommend a full reading of the notes.
The Bill deals with who is eligible to receive assistance and eligibility is confined to those who are terminally ill (as defined in Clause 2). Basically, the person must
• be terminally ill (as defined by clause 2);
• have the necessary capacity to make the decision (which is determined by the existing provisions of the Mental Capacity Act 2005);
• be aged 18 or over,
• be ordinarily resident in England and Wales and has been ordinarily resident there for at least 12 months, and
• be registered as a patient with a GP practice in England or Wales.
Clauses 4 to 22 deal with the process to be followed .....
It can be noted here that, according to Clause 12, the High Court is not necessarily involved. The Clause states that a person may apply to the court for a declaration that certain of the requirements specified by the legislation have been met.
Clause 23 states -
Clauses 24 and 25 deal with criminal and civil liability when assistance is provided in accordance with the legislation. Clause 26 addresses dishonesty, coercion or pressure and creates new offences punishable with up to 14 years imprisonment. Clause 27 creates criminal offences relating to falsification or destruction of documents.
Clause 28 enables the Secretary of State to make Regulations covering Prescribing, dispensing, transporting etc of approved substances. Notably, such Regulations will be subject to Parliamentary approval only via the negative procedure.
Clause 29 covers certain changes relating to Coroners and investigations and registration of deaths.
Clause 30 enables the Secretary of State to make one or more Codes of Practice. The Secretary of State is given total discretion as to who will be consulted about such Codes. There is some parliamentary control in that Codes come into force by Regulations which will be subjected to affirmative procedure.
Clause 31 - gives the Chief Medical Officer authority to issue certain guidance
In fact, under the Bill, the Chief Medical Officer obtains a considerable number of new functions since certain "notifiable events" must be reported to the CMO and the CMO obtains a monitoring role and must make annual reports.
Under Clause 35, the legislation will be reviewed by the Secretary of State after 5 years.
There are further clauses (36 to 43) and 6 schedules.
Please note that the above merely indicates some of the features of this proposed legislation.
The following is a brief look at Lord Falconer's Bill.
Lord Falconer's Bill
This Bill begins by stating that, subject to the consent of the High Court (Family Division), a person who is terminally ill may request and lawfully be provided with assistance to end their own life.
The Bill sets out the conditions which must apply before the High Court may give consent. The court has to be satisfied that the person has a voluntary, clear, settled and informed wish to end their own life and has made a declaration to that effect.
On the day the declaration is made, the person must be (i) aged 18 or over, (ii) has capacity to make the decision to end their own life, and (iii) has been ordinarily resident in England and Wales for not less than one year.
Terminal illness means that the 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. (Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition).
A person is not to be considered to be terminally ill solely by reason of - (a) being diagnosed with a mental illness, within the meaning of the Mental Health Act 1983, or (b) having a disability, within the meaning of section 6 of the Equality Act 2010; unless the person is also considered to be terminally ill as defined by the Bill. The aim of those provisions appears to be to limit assisted dying ONLY to those who are within the definition of terminal illness.
Falconer’s Bill does not entitle medical professionals to actually administer the lethal drugs but they will be able to supply the drugs for self-administration and even to prepare equipment for the individual to use when self-administering the drugs.
There are various other clauses in the Bill including conscientious objection (Clause 5), Codes of Practice (Clause 8), Monitoring by the Chief Medical Officer (Clause 9), New offences (Clause 10). These are not considered in detail here but important questions arise. For instance, a Code or Codes of Practice will be issued by the Secretary of State who may consult others about the proposed content. (Who to consult is left to the Secretary of State). The Code(s) will address matters such as assessing whether the person has capacity to make such a decision. Thorough scrutiny by Parliament of the entire Bill will be essential.
Application to the High Court appears to have the merit of keeping assisted dying within the applicable legislation but the full role of the judiciary remains to be fully clarified. In addition, applications to the High Court are usually expensive processes and it is not clear how costs will be funded.
In relation to the possible role of judges, a former President of the High Court Family Division (Sir James Munby) has offered his analysis published (30 October) - ASSISTED DYING : WHAT ROLE FOR THE JUDGE? | The Transparency Project. It is argued that there are numerous problematic areas and unanswered questions.
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Both bills appear to me to be riddled with medical and legal problems and both build a complex framework of law, codes of practice, guidance, and monitoring (with limited resources). Vast detail is left to the Secretary of State and the Chief Medical Officer. Parliamentary oversight will suffer from the usual problems with secondary legislation.
There is nothing in either Bill to require additional services to be provided for matters such as palliative care.
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