Wednesday 16th October saw the formal introduction of the Terminally Ill Adults (End of Life) Bill before the House of Commons.
Full details of the Bill and the scheme it will propose have not yet been published, although some sources have suggested that the Bill might follow a similar path to the Bill introduced by Lord Falconer to the House of Lords earlier in July this year.
The Bill will be debated by MPs on 29 November, with details to be published in advance of that date. Whilst comment in the absence of the full proposals is naturally difficult, we can expect considerable debate around the moral and legal implications of creating a system to choose legally to end a life.
Mental Health and Capacity
The Falconer model (and indeed a majority of other models internationally) excludes mental health alone as a basis for making a request for assisted dying. This is said to be because a mental illness is not of itself a terminal illness, although the likelihood for overlap between mental health deterioration and a terminal diagnosis for a different condition is obvious.
Assessing capacity to make a decision is something with which the Court system in England & Wales is already very familiar, particularly through the Court of Protection. That familiarity will be helpful in formulating what the assessment for capacity in a life-ending decision might look like, and the framework set out in the Mental Capacity Act 2005 could accommodate this.
However, in this most vital of decisions, the need for care and scrutiny of capacity will be at its highest, especially in circumstances where the individual may well be under significant emotional strain and could be on medication which might impact capacity, in addition to any capacity-related symptoms caused by the underlying condition with which they have been diagnosed.
Even absent an impact on capacity through disease or medication, the mental health impact (with consequential effects on capacity) of a terminal diagnosis providing for a limited life expectancy (6 months under the Falconer proposal) would also need to be carefully considered in making any capacity assessment.
Succession Planning
A further concern arises for individuals who might look to use the scheme and want to put their affairs in order before they do so. It is currently the case and has been in England & Wales for many years, that assisting someone in ending their life can (under our Forfeiture Act provisions) prevent those people who assist from receiving any inheritance to which they might otherwise have been entitled.
Already our Court system sees an increase in applications to the Court for relief from that forfeiture where, for instance, a family helps a loved one to travel to a country (e.g. Switzerland) to end their life. Whilst in most cases the Court has been willing to grant that relief, that does not change the default position which the Bill will need to address – that helping a loved one carry out their wish to end their life under these proposals could also mean that that person’s plans for their assets after their death cannot be implemented.
Internationally
The Falconer model proposed that the Court in England & Wales would have to approve any decision to have access to assisted dying. If implemented, this would give our jurisdiction one of the highest thresholds to meet before a request could be agreed anywhere in the world.
Globally, other jurisdictions favour a regulatory reporting and monitoring regime over one requiring Court-approval. All require the involvement of at least two medical professionals but vary in whether the person making the request needs to be terminally ill. The most liberal regimes (including Canada and Belgium) do not require this but focus instead on the suffering of the individual. The Falconer proposals, and the most likely outcome for Kim Leadbeater’s Bill, is that our legislation would mandate a terminal diagnosis with a proximity of death occurring in the short term (likely to be 6 months). This would make the England & Wales regime one of the most tightly guarded around the world.
Where the NHS and Court systems in England & Wales are state funded, the regime also potentially produces a new debate about the use of state resources in assisted dying. It is well documented that both the NHS and Court systems are under significant if not overwhelming pressure; this would likely be added to if assisted dying were to be made legal. The Court of Protection is part of that system under strain, with non-urgent cases about a person’s capacity and decision-making ability already taking months and sometimes longer to resolve. The tension between that and seeking to require the Court’s consent to assisted dying is obvious and must risk failing to meet the needs of any of the parties involved.
Consequences
We will need the terms of the draft Bill before the debate around this most morally difficult of issues can be better refined. However, we can be certain that questions of capacity (including around “pressure” applied to the terminally ill) and eligibility will be at the top of the focus in that debate. How, and with what safeguards, capacity should be assessed in this new environment if the Bill becomes law will be critical and a challenge to the medical practitioners tasked with doing so.
