Assisted dying safeguards

Former senior family judge questions effectiveness of planned new panel

A recent amendment to the assisted dying bill proposed by its backbench MP sponsor “still falls lamentably short of providing adequate safeguards”, according to a former president of the High Court family division.

Sir James Munby, who retired in 2018 as the senior family judge of England and Wales, assessed plans by Kim Leadbeater MP to replace High Court oversight in the first draft of her Terminally Ill Adults (End of Life) Bill with approval by a multidisciplinary panel. That followed concerns that an overstretched judiciary would not be able to cope with the additional work of assessing whether the statutory requirements had been met in each case.

The former judge questioned whether the proposed panel would be able to identify and prevent possible abuses. Could it detect what Munby thought might be very subtle external pressures on people requesting help to take their own lives?

“My answer is very simple,” he writes in a paper published by the Transparency Project on Friday.

Only those who believe implicitly in the omniscience and infallibility of judges and of tribunals such as the panel — and I do not — can possibly have any confidence in the efficacy of what is proposed.

Kim Leadbeater MP. ©House of Commons

Leadbeater announced in the Guardian two weeks ago that she was proposing to make her bill “even more robust without making it so difficult to navigate that it would be too much of a burden for people in the last months of their lives to undertake”.

She proposed a voluntary assisted dying commission chaired by a serving or former High Court judge that would authorise expert panels to look at every application for an assisted death. In short, said Leadbeater, what she was proposing could be termed “judge plus”.

But Leadbeater’s published amendments would no longer require any involvement by serving judges.

There would be a voluntary assisted dying commissioner, whose main responsibilities would be:

• receiving documents made under the legislation;

• appointing people to sit on assisted dying review panels;

• referring cases to these panels; and

• deciding applications for reconsideration of panel decisions.

The review panels would consist of a legal member, a psychiatrist member and a social worker member. The legal member, who would chair the panel, could be

• a former or serving judge of the High Court or a more senior court;

• a lawyer or judge who has previously been authorised to sit part-time in the High Court; or

• a KC.

It seems unlikely that any serving judge would have the time — or the wish — to serve as a panel member or even as the commissioner. In practice, the commissioner would most likely be a retired member of the senior judiciary while panel legal members are likely to be lawyers with time on their hands.

It’s clear from the proposed amendments that these panels would replace the court approval process outlined in clause 12 of Leadbeater’s original bill. Some changes have been made and gaps filled: the panels would now decide referrals in public unless the chair decides, “at the request of the person to whom a referral relates”, that the panel is to sit in private. And panels would now have to give reasons in writing.

“These changes are to be welcomed, so far as they go,” writes Munby. But in his opinion they do not go anything like far enough. The process that the panel must comply with — hearing from the doctors, from the person seeking assistance and from others — “is simply not apt to enable the panel to perform its function” of deciding, among other things, whether the person is terminally ill, has capacity to decide to end their life and was not coerced or pressured into requesting assistance.

The former senior family judge stresses that he is not commenting on the merits or demerits of the bill. But he raises a number of concerns about the proposed tribunal, as he calls it. In summary:

1. The bill makes clear that the application is to be made by the patient but is otherwise completely silent as to who (if anyone) should be joined as parties or notified of the proceedings. This is an astonishing omission for a number of vitally important reasons… The participation of others is necessary if the process is to have that degree of rigour which is essential if it is to be capable of identifying and preventing possible abuses and in particular be adequate to detect what may be very subtle external pressures; and if it is to command public confidence.

2. The bill is entirely silent as to how the panel is to deal with the kind of issue exemplified by a Canadian case last year where the patient’s partner intervened and obtained an interim injunction because of concerns about what was happening.

3. How can the panel be satisfied that the law’s requirements have been met — including terminal illness; capacity; clear, settled and informed wish; and lack of coercion — if all that the panel members are told is that doctors have stated their opinion or said they are satisfied on these matters?

4. How is the panel to be satisfied in relation to the voluntary nature of the “application”, in contrast to the “declaration”, since that is a topic on which the doctors’ statements are necessarily silent?

5. How is the panel to assess whether the application before it is voluntary if it does not hear from the patient? The panel is given an extraordinary degree of discretion in relation to the process it is to adopt.

6. The bill says nothing about the procedures for testing the evidence; nor about any independent evidential investigation; nor what public funding arrangements, if any, there will be for the applicant, for the two doctors, and for any other parties or expert or lay witnesses.

7. Without a rigorous procedure in every case for testing and, if need be, challenging the evidence, it will not be proper for a judge to be involved in the process as a member of the panel. Otherwise, the judge is little more than a rubber stamp providing a veneer of judicial approbation — and that is fundamentally unacceptable.

8. Why is the decision to sit in private to be taken by the chair alone and not by the panel collectively? Will the media and legal bloggers be able to make representations before a decision is made to sit in private and, if so, what will be the relevant procedure? If not, why not?

9. Are the panel’s reasons to be published and, if so, subject to what if any redactions? If not, why not?

In short, says Munby, an application could be dealt with:

• in accordance with a wholly inadequate procedure; and

• without the public knowing anything about it.

Finally, he says,

these difficulties are compounded by the extraordinary provision… providing that an application for reconsideration by the commissioner… is possible only if the panel has refused to grant a certificate of eligibility…

What if the panel in granting a certificate has misunderstood its function…? What if the panel has adopted a procedure which… would not pass muster with the commissioner?

Indeed, and even more alarmingly, what if the panel has arrived at a decision which the commissioner, if given the opportunity, would require to be reconsidered? There can be no reference to the commissioner — and the patient dies.

MPs will resume detailed examination of the private member’s bill this week although the committee is not scheduled to reach these amendments until after tomorrow’s meeting.