Assisted dying

Even more questions remain than when this piece first appeared

Nearly 50 leading teachers and practitioners of law signed a letter to the Observer yesterday expressing “serious misgivings about the proposal to legalise physician-assisted suicide for the terminally ill”.

Their main concern was the risk of undue influence on the vulnerable. But they were also concerned that the proposed legislation — a private member’s bill on which the government remains officially neutral — would not stop there:

Other jurisdictions show both the difficulty of drafting effective legal safeguards and the obvious tendency of such laws to expand. Canada has dropped its legal requirement that death be “reasonably foreseeable” and is set to allow euthanasia for mental illness in 2027. The Netherlands already allows euthanasia for the mentally ill and has proposed extending the law to elderly people with “completed lives”. Oregon has repealed its residency requirement and it is only a matter of time until its limitations to assisting suicide and to terminal illness — now being criticised as “barriers to access” — are dropped.

Views differ on the moral issues involved and we cannot be sure that what has happened in other countries would come to pass in England and Wales. But what stood out from the lawyers’ letter yesterday was their assertion that the involvement of High Court judges would be no panacea — “not least because our justice system is already under immense pressure”.

Kim Leadbeater MP

What involvement would the judges in fact have? We do not know because the bill introduced by Kim Leadbeater MP on 16 October has not yet been published. Pretty much all we have to go on is its long title, which says it will “allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life”.

This and its short title — the Terminally Ill Adults (End of Life) Bill — suggests it will adopt a similar approach to the Assisted Dying for Terminally Ill Adults Bill introduced in the House of Lords by Lord Falconer of Thoroton, the former Labour lord chancellor, which I wrote about in the summer.

The main difference between Falconer’s first draft 10 years ago and the bill he introduced in July is the involvement of the courts. This stems from an amendment moved by Lord Pannick KC during the original bill’s committee stage in 2014. Falconer’s latest bill says that “a person who is terminally ill may request and lawfully be provided with assistance to end their own life” only if the High Court family division “by order, confirms it is satisfied that the person has a voluntary, clear, settled and informed wish” to do so — and other specified requirements have been met.

How would this work in practice? As the letter-writers say, our courts are already under great pressure. Would judges have time to investigate the validity of declarations made by every applicant and countersigned by doctors? Or would the courts simply presume that a declaration was valid unless there were indications to the contrary?

Once Leadbeater’s bill is published — and before it is debated on 29 November — she will need to answer these questions. We also need to hear from the judges. Would their involvement amount to a real safeguard? Or would it merely be the sort of routine “rubber-stamp” approval we saw until recently in divorce cases? And would proper scrutiny depend on securing more funding from the government?

Plenty of questions, then. I hope to bring you some answers in the coming weeks.

Update 31 October: Sir James Munby, a former president of the High Court family division, has addressed some of these issues in comments published by the Transparency Project.

Sir James Munby

In his view, we must now choose between an open and transparent procedure that might deter those for whom the scheme was designed and a secret process that would destroy the scheme’s integrity and be corrosive of the judicial function.

Munby writes:

Serving judges are, by constitutional convention, limited in what they can say in public about proposed legislation. Retired judges are not. It is, I believe, important for me, as a retired judge and former president of the family division, and for the benefit of the vital public debate on this very anxious topic, to make some points which have not, so far as I am aware, yet received the scrutiny they need.

I make clear that I say nothing at all about the essential merits or demerits of what is proposed. That I leave to others. I confine myself solely to the proposal that there should be judicial involvement in the process. This will be problematic, to put it mildly…

First, what does the Falconer bill mean by “the High Court (Family Division)”? More precisely, who is to exercise this novel and anxious jurisdiction? A deputy district judge of the principal registry of the family division? Surely not. A deputy judge of the family division? I think not. Or, as I would argue is a necessary requirement, only by a High Court judge of the family division or the president of the family division?

Second, a key question which the Falconer bill does not answer:  what is the function of the judge? To what extent is the judge expected to exercise a discretion? Clause 1(2) seems to require the judge only to be satisfied as to certain facts and seems not to confer any discretion. Clause 3(8) on the other hand gives the judge a discretion, albeit only on a very narrow point (the date when the patient’s declaration, assuming it has been approved by the judge, is to take effect).

Clarification is essential. Is there to be some kind of general discretion? If so, discretion as to what? And exercisable according to what criteria? Specifically, If the judge is satisfied as to each of the matters referred to in clause 1(2), is the judge nonetheless entitled to refuse to make an order?

The Falconer bill is wholly silent as to the process and procedures which are to apply to this novel jurisdiction. This is a major omission. Let me identify some obvious and vitally important questions:

• Who can apply to the court and who should be joined as parties?

• Is there to be a hearing or is the application to be dealt with “on the papers” and without a hearing?

• If there is to be a hearing, is this to be in public or in private? Are there to be reporting restrictions? Are the identities of any of the participants, in particular the patient, the witness and the countersigning doctors, to be anonymised?

• Given that many, or even most, applications are likely to be unopposed, what procedures are to be adopted for testing and, if need be, challenging the evidence? Who should exercise that function?

• Should the judge be required to give a judgment in every case (clause 9(2) of the Falconer bill seems to assume there will be a judgment if the application is refused, but what if the application is granted?) and be required to publish the judgment?

• How are appeals to be incorporated in the process?

• What public funding arrangements will there be?

Some may say these are all technical points which can appropriately be left for rules of court, or for guidance to be issued by the president of the family division or, indeed, left to be decided on a case-by-case basis. I strongly disagree.

The process and procedures by which such a novel and anxious jurisdiction is to be exercised will be fundamental to the integrity and efficacy of the scheme. They will be crucial to the confidence which those directly involved and, more generally, society and the public at large must have if the scheme is not to sink into discredit and worse. These are matters on which parliament must make its intentions plain.  

For my own part, I am strongly of the view that the integrity of the process and the maintenance of public confidence demand that there be a hearing in public in every case, and with an absolute minimum of reporting restrictions; that there should be no anonymisation of any of the participants (except, perhaps, for the patient during his or her lifetime); that there must be a rigorous procedure in every case for testing and, if need be, challenging the evidence; and that the judge must be required to give and publish a judgment in every case. This, after all, was the approach adopted in end-of-life cases as long ago as the 1990s.

There can be no room here for secrecy or concealment. If there is to be a judicial process it must be open and transparent.

Thus far I have not addressed what is the most fundamental question: should the judges be involved at all in this process? Is what is proposed a proper judicial function?

Since the late 1980s, the judges of the family division have become increasingly used to deciding, both in the family division and more recently in the Court of Protection, cases involving the most complex and ethically challenging medical issues, including matters of literally life and death. But it has been fundamental, ever since the case of Tony Bland in 1993, that in life-and-death cases the judicial function — the role of the court — extends no further than deciding whether or not life-supporting treatment should continue to be given.

In an appropriate case the court can decide that life-supporting treatment should no longer be provided. But it is fundamental that the court cannot authorise the administration of treatment intended to kill. Specifically, a judge cannot authorise the administration to a patient of a drug intended to bring about the patient’s death.

The Falconer bill, and it would seem also the Leadbeater bill, stand this fundamental and unchallenged principle on its head. What is proposed is that a judge by court order should facilitate the administration to a patient of a drug intended to bring about the patient’s death.

It is difficult to over-emphasise the profound impact of this on what has hitherto been seen to be the proper role and function of a judge.

There are two inter-related issues here. The first arises because of clause 5 of the Falconer bill, which provides that “a person is not under any duty… to participate in anything authorised by this Act to which that person has a conscientious objection”.

Does this conscience clause apply to the judges? It would seem that it does. But whether or not it does, there are, I believe, very serious problems.

If the judges are not entitled to the benefit of clause 5, then why not? Why should medical professionals have the benefit of clause 5 but not the judges? And what of those judges appointed at a time when this new jurisdiction was not “part of the job description”?

Is a judge with a conscientious objection to be faced with the choice of compliance or resignation? Or would this fundamental matter of principle be smoothed away by an unprincipled and necessarily secret manipulation of court listing? There must, as I have said, be openness and transparency.

If, on the other hand, the judges are entitled to the benefit of clause 5, then parliament will have legislated (I believe for the first time) a principle that many will think wholly incompatible with the very essence of the judicial function: the principle that a judge can refuse to hear a particular type of case on the basis of individual conscience. It has never been accepted that a judge of the family division can choose not to hear some particular type of case because of a conscientious objection to, for example, divorce, sterilisation, abortion or surrogacy. And if the precedent is here established, where will the process end?

There is also a further very troubling problem. If the judges are entitled to the benefit of clause 5, is the public to be told the names of those who have a conscientious objection? Or is the public to be left to speculate as to the implications (if any) to be drawn from the fact that Mr Justice A and Mrs Justice B have sat on such cases while Mr Justice X and Mrs Justice Y have not? Again, I emphasise, there must be openness and transparency.

But behind the issues arising under clause 5 the more fundamental problem remains. Is this a proper function for the judges? Is this, indeed, truly a judicial function at all? Many would say that it is not. Where else in our judicial system does one find a judge, sitting judicially as a judge, whose function is not to decide some disputed issue or (as with the declaratory jurisdiction) to resolve some controversy but only to certify, as it were, that some decision taken by a private individual complies with the law? That, it might be said, is not what judges do and not what judges are for.

There is here, I suggest, a fundamental dilemma. If there is to be a judicial process, it must, as I have said, be open and transparent. The very suggestion that the process should be private, confidential, shrouded in secrecy, is surely anathema to any judge who might be involved. But the idea of these cases being heard in public, with all the details being published, is, I suspect, anathema to those who want to be able to slip away quietly and without fuss.

The hard truth, I fear, is that we face an impossible choice: between an open and transparent process that may deter those for whom the scheme is designed and a secret process destructive of the integrity of the scheme and corrosive of the judicial function. 

I am aware that the former High Court judge, Sir Nicholas Mostyn, in the episode of the podcast Movers and Shakers issued on 19 October 2024 about assisted dying, expressed strong opposition to the involvement of the High Court bench in this process. He argues that the judge will be no more than a symbolic rubber stamp. I would not go that far, though agreeing that it would be disastrous if the judge were to be seen as no more than a rubber stamp.

But unless all of my concerns are addressed and resolved — and I doubt they can be — there would appear to be insuperable obstacles to the proposal for judicial involvement.

Update 6 November: a rejoinder to the “slippery slope” argument mentioned in the Observer letter has been published on the UK Constitutional Law Association blog.

Update 7 November: a rejoinder to claims that the bill would breach the human rights convention has been published by the UK Human Rights Blog.