How will the assisted suicide bill impact the health sector?

As labour makes plans for the second reading of The Terminally Ill Adults (End of Life) Bill 2024-25 in the House of Commons this month, Business and Crime Regulatory Lawyer John Hartley considers how the Bill will work from a legal perspective – and the strain it may place on an already stretched health sector.

Over the years I have been involved in several cases that have involved advising families on the laws around assisted suicide.

The current laws are very draconian and it is a criminal offence under the 1961 Suicide Act to assist someone to take their own life. Suicide itself, and attempting to take your own life, is not an offence.

It is of course an incredibly emotive topic and crosses the narrative between one’s own beliefs, the beliefs of others and the interaction of the state and religion.

What is the current law around suicide in the UK?

The legislation in its current form has attracted criticism for many years as it is incredibly broad and there are no statutory exceptions. So even if a terminally ill person makes it clear that they wish to end their life, but cannot physically do it alone, then they place anyone who assists them in the position of committing a criminal offence which can carry up to 14 years imprisonment.

In recent years, there has been a decline in the number of prosecutions for the offence. This was driven largely by the amendments to the policy for prosecuting the offence made by Sir Kier Starmer when he was the Director of Public Prosecutions in 2013. It is therefore no surprise that this legislation has been tabled early on in the new Government.

However, as it remained a criminal offence, the police have been required to investigate, which would involve potential arrests and interviews of grieving family members. Once the police have investigated the matter, they then pass it to the CPS for consideration as to whether it would be in the interests of the public to prosecute the case. In the vast majority of cases, they have not done so.

Even though the number of prosecutions is low, there has been mounting pressure for the introduction of assisted dying laws, so that those who are terminally ill may make a decision themselves without the fear of incriminating their friends or family. For example, assisting a person to travel from the UK to a country where assisted suicide is legal is technically a criminal offence in the UK and the relevant person may be prosecuted.

How will the law change around assisted suicide?

The proposed legislation is known as the Terminally Ill Adults (End of Life) Bill and it will, if passed into law, make it legal for a person to end their own lives with assistance.

The proposals do however come with significant safeguards and restrictions.

For a person to be ‘eligible’ to request assistance to end their life they must:

1. Have mental capacity and have made a clear, settled and informed wish to end their own life – free from coercion or pressure
2. Be over 18
3. Be a UK resident (for at least 12 months)
4. Be registered with a UK GP
5. Suffer from a terminal illness
6. Not be reasonably expected to live longer than 6 months

It is interesting to note that the Bill only covers terminal illness and includes a defined period of life expectancy. Therefore, some individuals with physical disabilities who have no defined ‘life expectancy’ would not be considered eligible, even if they may have the capacity to make the decision to end their own life.  There have been many examples of people who have suffered life changing injuries and who have travelled abroad with family or friends with the intention of ending their lives at a relevant clinic in that jurisdiction.

Once those criteria have been met, it is then proposed that there is a legal process to adopt. What this entails is a multi-stage process that involves two independent doctors, an independent witness and a High Court Judge. This process will include:

         A request for assistance

The person who wishes to be provided with assistance needs to obtain a declaration that has been signed off by an appropriate doctor and has been independently witnessed. Should this legislation be passed in its current form then the government will provide guidance as to what qualifications and training such a doctor is required to have.

        A doctor’s initial assessment

Essentially the first assessment is to confirm the eligibility of the person seeking the assistance as set out above. The assessment is then to be referred to a second doctor.

        A second doctor’s assessment

A second independent doctor is then to consider the assessment – but not before a minimum period of 7 days has passed as a period of ‘reflection’.

         Court approval

Once the above processes have been completed the person seeking assistance may submit the assessments and declarations to the High Court. The Court will reserve the right to question the applicant but must also hear evidence from one or both of the doctors concerned. Once the High Court has considered the information it may either approve or refuse the application. The applicant has the right to appeal any refusal.

        The Provision of Assistance

If the matter is approved, then the original doctor who carried out the first assessment may provide the appropriate substance to the person. The legislation does not permit the doctor to directly administer any medication or substance and that must be carried out by the person themselves by way of self-administration.

However, the doctor may prepare a device to help in the administration or assist the person with their self-administration. The doctor must then stay with the person until they have either taken the substance or decided not to take it.

Moving forward, it will be a defence for any person charged with an offence under S.2 Suicide Act if they reasonably believed that they were acting in accordance with the new legislation (if enacted in its current form). However, the offence of encouraging or assisting suicide or attempted suicide will remain in force and so any allegation is likely to still fall to the police to investigate.

How will the assisted suicide bill affect patients and the health sector?

As one would expect, this draft legislation is complex and has multiple layers of protection before any end-of-life substance may be issued and it is of course a significant step for a government to consider such legislation.

It does appear however to be placing a significant burden on the relevant doctors, or healthcare professionals who are to be involved in the process.

If this legislation is enacted, it will remain to be seen how many doctors will volunteer to be part of the process, as there is no positive obligation to do so. One may expect healthcare professionals to be cautious about such emotive scenarios – in particular when it comes to end-of-life substance administration.  Will there be an increased risk of doctors receiving complaints or being investigated by their regulator? Perhaps, although the draft legislation does afford some protection from both a civil and criminal perspective.

The legislation does not address those situations where a person wishes to travel out of the country and is assisted by friends and/or family – such situations will remain open to a criminal investigation.

Likewise, the Bill only addresses those individuals with a terminal illness.

It is unclear too, until guidance and regulations are issued in due course, as to whether this proposed Bill would encourage the creation of assisted suicide clinics.

In short, whilst many will find some comfort in the steps that Labour is taking to make assisted suicide a reality in the UK, I suspect that many will still be cautious and concerned about the practicality of these measures – and fearful of legal repercussions.

For more information about business regulation, visit the Business Crime and Regulation advice page, or contact John Hartley.