How effective is the proposed assisted dying bill?

Reva Naidu, a student at The University of Law, discusses whether the proposed law would achieve its intended aims

The deliberate taking of a person’s life through medical drugs in order to end their suffering is known as euthanasia, commonly referred to as assisted suicide. Under UK criminal law, this may be considered manslaughter or even murder, with a possible sentence of life imprisonment. According to the Suicide Act of 1961, assisted suicide is prohibited and carries a maximum 14-year prison sentence. As a result of these austere laws, residents of England and Wales often travel to other countries that have legalised assisted suicide to end their lives with dignity. This has been dubbed ‘suicide tourism’. An example of this is the Swiss organisation, Dignitas, a non-profit that provides assisted and accompanied suicide to individuals who are “suffering from an illness which will lead inevitably to death, or anyone with an unendurable disability, who wants voluntarily to put an end to their life and suffering”.

On 26 July 2024, Lord Falconer of Thomson introduced a Bill to the House of Lords to, “Allow adults who are terminally ill, subject to safeguards, to be assisted to end their own life; and for connected purposes”. As a Private Member’s Bill, it has passed a First Reading in the House of Lords, and as of August 2024, has been ordered to be printed for a Second Reading, to take place on 15 November 2024.

In light of this proposed legislation, this article analyses the requirements this bill imposes on those seeking permission for assisted dying and whether it is likely to achieve its stated purpose.

Analysing the legislation

The legislation would allow a terminally ill person to seek assistance to end their lives by submitting an application to the Family Division of the UK High Court. A person is considered ‘terminally ill’, if diagnosed as such by a medical practitioner, and, as a result of this terminal illness, is likely to die within six months.

An application can only be successful if the terminally ill person is a legal adult, is a resident in England and Wales, has a “voluntary, clear, settled and informed wish to end their own life”, and therefore has the mental capacity to take such a decision. To certify these requirements, applicants are required to sign a Section 3 Declaration. This declaration must be witnessed by a suitable primary doctor or a qualified medical practitioner in the form of an attending doctor and an independent doctor. Both these professionals must make independent and separate analyses of the applicant’s condition to certify that they meet these requirements before the declaration is signed.

The bill would not legalise euthanasia or assisted suicide in all cases – only in the instance of terminal illness. For example, because the Bill only extends to those who are likely to die within six months, it would not cover those suffering with chronic, reoccurring, and progressive conditions like MS, Ataxia, Locked-In Syndrome, and degenerative nerve diseases that severely impact one’s quality of life. In the context of such conditions, this requirement appears overly cautious.

Additionally, the requirement for a High Court judge to approve of the application appears overly burdensome and could prevent many eligible individuals from accessing their right to assisted suicide. There is no such requirement in any other jurisdiction that has legalised assisted suicide. This illustrates the cautious and heavily safeguarded nature of the proposed legislation and might indicate that it may not achieve its goal of making assisted suicide accessible for those with terminal illnesses.

Despite these drawbacks, the bill goes a significant way to address a large ethical problem – the fear that vulnerable individuals could be intimidated or pressured to opt for assisted dying. Its safeguards ensure the protection of a vulnerable class and establishes harsh consequences to those attempting to coerce applicants into taking this step. Those guilty of such an offence may face a summary conviction in the form of a six-month imprisonment or may be levied a fine. If indicted, they may be imprisoned for up to five years.

Another positive step the bill aims to take is to include a plan for future review within the legislation itself, with a review being required five years after the bill is passed into legislation, according to Section 13. This will ensure that it stays up-to-date and sufficiently addresses the problems faced by those applying for assisted suicide aid. Further bolstering the adequate functioning of the bill, Section 9 requires stringent monitoring of the Act by the Chief Medical Officer, who must submit annual reports regarding the operation of the Act to government authorities.

The potential impact of the Bill can be analysed by applying it to the following cases, which were landmark decisions in the field of assisted suicide and human rights.

Pretty v United Kingdom (Application no. 2346/02) European Court of Human Rights

Diane Pretty suffered from a terminal, degenerative illness and requested an assurance that her spouse would not face any legal consequences if he assisted her in ending her life. Her condition did not affect her intelligence or ability to make decisions. Pretty alleged that Article 2 (right to life), Article 3 (prohibition of torture and degrading treatment), Article 9 (freedom of thought, conscience, and religion), and Article 14 (non-discrimination) of the ECHR were violated. European Court of Human Rights found no such violation and their decision upheld the Suicide Act 1961.

R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38

Paul Lamb, a builder from Leeds, became disabled from the neck down in 1990. He had filed two cases contesting the assisted-dying statute. A majority of judges in the Supreme Court decided that Parliament should be given a chance to discuss assisted dying, as they felt it was a matter for the legislature and not the judiciary. In 2013, the Court of Appeal, similar to the previous decisions of the Supreme Court, declared that since assisted suicide was “pre-eminently a matter for Parliament, not the courts,” there were “no arguable grounds” for his case.

He filed a new lawsuit in 2019 claiming that the existing legislation violated his human rights under Article 14 (prohibition against discrimination) and Article 8 (right to a private and family life) of the European Convention of Human Rights.

Applying the proposed bill to Pretty, it is likely that she would fall within the scope of the legislation, as her disease was terminal, whereas Paul would not be able to seek assisted suicide under this bill, as his disability would not qualify as a terminal illness. Thus, it is reasonable to make recommendations for increasing the scope of the bill – a permanent, paralysing disability that takes away one’s control, such as that suffered by Paul Lamb, should be covered by the bill’s provisions.

Next steps

The bill had previously been put forward by Lord Falconer in 2015, where it failed despite passing the Second Reading in the House of Lords. It is likely to receive more support in Parliament this time, as the current Prime Minister, Keir Starmer, has expressed his support of assisted dying. Lord Falconer has also stated that the bill is “safer and more robust than any previous proposal in Westminster”. This has been preceded in the Isle of Man where a bill with similar purposes was passed in 2023, while the Scottish Parliament is also considering passing corresponding legislation.

As of October 2024, the bill is being brought forward for the Principal Stages of the legislative process, by Peter Greenhill MLC.

The passing of this bill would be an encouraging step forward for those facing incurable conditions, and the safeguards and guarantees it aims to establish would help prevent the abuse of the legislation. Although the bill is a compassionate and welcome change in helping individuals maintain dignity in death by giving them the autonomy to end their life, it could be more inclusive of people suffering with a wide range of medical issues and chronic illnesses that affect their quality of life drastically in order to truly succeed in its purpose.

Reva Naidu is a third-year law student at the University of Law, London Bloomsbury, with an interest in employment law, human rights, and a passion for legal writing. Outside of academics, she enjoys solving the New York Times Daily Crossword Puzzle.

The Legal Cheek Journal is sponsored by LPC Law.