Assisted suicide legislation: Navigating ethical and legal challenges

The Terminally Ill Adults (End of Life) Bill proposes to allow terminally ill adults, with six months or fewer left to live, to access medical assistance to end their own lives. UK Prime Minister, Sir Keir Starmer has promised to provide sufficient time for the Bill to be debated and has indicated that MPs, including government ministers, will therefore have a free vote on 29 November on whether to give the Bill a second reading, allowing them to vote with their conscience or personal belief, as opposed to being whipped to follow the 'party line'. If it passes, the Bill will be scrutinised by a parliamentary committee, and MPs can subsequently table amendments. It will later be voted on by the House of Lords, before returning to the Commons in the new year.

If the Bill becomes law in England and Wales, Scotland, Isle of Man, or as it has in Jersey, a number of ethical, procedural and regulatory issues will come to the fore.

Healthcare professionals who do not wish to offer assisted dying

Clause 23 of the Bill is clear that no registered medical practitioner or other health professional is under any duty (whether arising from any contract, statute or otherwise) to participate in the provision of assistance in accordance with this Act. It also states that an employer must not subject an employee to any detriment for exercising their right not to participate in the provision of assistance in accordance with this Act or for participating in the provision of assistance to a person in accordance with this Act.

Employees may perceive that they have been discriminated against because of their position on assisted dying or their participation (or non-participation) in assistance.  Unions, regulators and representative bodies will need to ensure that they have accurate information and appropriate support available to their members/registrants. Employers will have a vicarious duty to ensure discrimination on this basis does not take place and that relevant workplaces can accommodate the inevitable diversity of views.

In February 2024, the Health and Social Care Select Committee published a detailed report on the issue[2] which included a recommendation that the General Medical Council and the British Medical Association develop detailed guidance to provide clarity to doctors on how to deal with requests for medical reports in respect of assisted dying.

New provisions

Currently, Dignitas report that every 8 days a Briton travels to Dignitas[3] and UK membership is understood to be over 1,900[4]. If the law is changed, we might expect new facility providers to seek to establish themselves in the UK. Regulators such as the Care Quality Commission will need to ensure their frameworks, which already cover end of life care, are fit for purpose to appropriately regulate assisted dying services.

Paperwork and freedom from coercion

The Bill seeks to provide protections from the possibility of coercion. Someone seeking assisted dying 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. The Bill would make it illegal for someone to pressure, coerce or use dishonesty to get someone to make a declaration that they wish to end their life or to induce someone to self-administer an approved substance. Anyone found guilty of these actions could face a jail sentence of up to 14 years.

There are existing provisions in legislation relating to living donor organ transplants and a role for the Human Tissue Authority and “Independent Assessor” in ensuring that organ donors are not under duress (or being rewarded). Under the proposed legislation it will fall on the “co-ordinating doctor” to assess an absence of coercion and every application is expected to go to court for approval

The process of seeking assisted dying will consist of three stages:  

• A “first declaration” (and two medical statements are provided).
• The approval of the court.
• A “second declaration” (and a medical statement is provided).

“First declarations” are to be signed by the person themselves and witnessed by the “co-ordinating doctor” and another independent person. It is at this stage the “co-ordinating doctor” will confirm a number of matters, including that the person has the requisite capacity and has not been subject to coercion or third-party pressure.

They must also refer the person for a second assessment by another registered medical practitioner (referred to in the Bill as “the independent doctor”).

Only once the person has their declaration and these two medical statements can they apply to the High Court for approval of assisted dying. If the High Court refuses to make the declaration, the person can appeal to the Court of Appeal. The Court of Appeal can confirm the decision of the High Court or make the declaration. There is no appeal against a decision of the High Court to make the declaration.

After the Court approval, and after a second period of reflection, usually of at least 14 days (although there is scope for a shorter period if someone is expected to die from their illness within one month, there must be a second declaration.  The second declaration must be witnessed by the co-ordinating doctor and by an independent witness and again certain matters must be confirmed.

Whilst many will want to navigate this process in a non-legal way, all of the above give rise to the possible need for lawyers to help navigate the processes, the Court application, possible appeals and possible challenges.

If you have any regulatory questions or concerns about the legal implications of the proposed legislation, Fieldfisher's Healthcare Regulatory team is available to discuss.