On 3 July 2012 the All Party Parliamentary Group on Choice at the End of Life (the APPG) in partnership with the charity, Dignity in Dying, published a consultation on a draft Bill entitled "Safeguarding Choice: A draft Assisted Dying Bill". Whilst this draft Bill is not written (or sponsored) by a government department and is, therefore, unlikely to be taken forward as draft legislation in the near future, its publication provides the opportunity to engage in the assisted dying debate.
This development is against the background of the Demos Commission’s proposed framework on assisted dying, which was considered earlier this year.
The draft Bill is a welcome start to the long awaited Parliamentary debate into assisted dying.
The key provisions of the Bill are that the person wishing to die:
- Is 18 years or over
- Has a terminal illness which is likely to result in their death within a year
- Has a clear and settled intention to end their life
- Has mental capacity to make such a decision
- Has been fully informed of the alternative palliative treatments available
- Has not been coerced or under duress in coming to their decision
Safeguards include the involvement of two doctors – one who will assist the patient in dying by prescribing the medication and another independent doctor. Both must sign and counter-sign a document confirming the legal criteria envisaged by the Bill are fulfilled before the person may be assisted in dying. That document must be sent to a Monitoring Inspectorate who will scrutinise each case to ensure eligibility before making a declaration that medication can be prescribed.
With the exception of urgent cases, most patients wishing to die will have to wait 14 days from the initial declaration before they can administer the lethal medication, to allow time to consider/reconsider their decision to ensure they do not wish to change their minds. In urgent cases, the 'cooling off'’ period is reduced to six days.
Having made the decision to die, any person may change their minds and such a decision would invalidate the original declaration.
It is of course welcomed that individual autonomy is at the heart of this Bill. The importance of voluntarily reaching a clear and settled decision without coercion or undue influence is vital.
However, heavy reliance is placed on the medical profession in determining that a person suffers from a terminal illness that they are unlikely to survive for more than a year. This can be a very subjective test and may result in differing interpretations and opinions between the medical practitioners and patient concerned.
The need for a cut off period is recognised. Otherwise, individuals with chronic but not immediately life threatening conditions could possibly argue they ought to be provided the same assistance in dying. The fine line between assisted dying and euthanasia would then risk being crossed. That said, I am concerned that such a defined but arbitrary benchmark of one year may restrict some deserving individuals whose condition may result in unbearable suffering leading to an inevitable decline but over a longer period of, say, 18 months. I would like some flexibility within the Bill to allow for this possibility.
Interestingly, another inclusion to the Bill is a clause suggesting that no policy of insurance which has been in force for 12 months on the date of the person’s death shall be invalidated by reason of the person having been assisted to die. Great care will need to be taken by the legislators before this is brought into effect. It is unlikely to be open to abuse from a life assurance perspective, as it is improbable anyone with a diagnosed terminal condition would be allowed to take out such a policy in the first instance. However, there may be other insurance affected by a person’s early and predicted death, which may need to be considered.
An area of concern relates to mental capacity. Following the 'cooling off' period and, immediately before the medication is delivered to the person to administer, the medical professional present must ensure the person still has capacity to decide to proceed with an assisted death.
The reason for this safeguard is clear and is welcomed for those who maintain mental capacity. However, it risks excluding those who, perhaps as a result of their condition, have fluctuating capacity, thereby potentially prolonging suffering unnecessarily. Making an advanced decision (under the Mental Capacity Act 2005) would not provide a solution, as it would only cover a refusal of treatment rather than a positive act.
Proper debate around this potentially troublesome area will, therefore, be needed to ensure such individuals are protected from suffering once their clear and fully informed intention to die is made known.
The End of Life All Party Parliamentary Group was first inaugurated in February 2012, with the aim to "promote greater patient choice at the end of life, particularly where, when and how one dies". Previously, between November 2010 and September 2011, think tank Demos hosted the Commission on Assisted Dying, which was convened to:
- Investigate the circumstances under which it should be possible for people to be assisted to die
- Recommend what system, if any, should exist to allow people to be assisted to die
- Identify who should be entitled to be assisted to die
- Determine what safeguards should be put in place to ensure that vulnerable people are neither abused nor pressured to choose an assisted death
- Recommend what changes in the law, if any, should be introduced
The Commission’s work was led by former Attorney General, Lord Faulkner, who maintains a key role in progressing the work of the draft Bill. The Commission published a final independent report in May 2012 which concluded that the "current legal status of assisted suicide is inadequate and incoherent". It concluded that it is possible to "devise a legal framework that would set out strictly defined circumstances in which terminally ill people could be assisted to die, while providing upfront safeguards to protect potentially vulnerable people".