The author of this article says that the balance of presenting an individual’s right to seek to end their own life with the safeguards that must accompany that most significant of decisions will be a difficult one to strike. 

The following article, on this most important of matters – legislation, applying to England and Wales, addressing how or whether to legally end a life – comes from James Lister, partner and head of private wealth disputes, Stevens & Bolton. The usual editorial disclaimers apply to views of guest contributors. Email tom.burroughes@wealthbriefing.com if you wish to respond.

On Wednesday 16 October, the Terminally Ill Adults (End of Life) Bill was formally introduced as a Bill before the House of Commons. 

Whilst the detail of the Bill has not yet been released, many commentators anticipate that it will follow a similar path to the Bill introduced by Lord Falconer to the House of Lords earlier in July this year. 

Form aside, the introduction and forthcoming debate on the Bill will represent the latest opportunity for the English Parliament to look at (and vote on) this most hotly debated of motions – the legal right to choose to end a life. Without the detail of the Bill, comment on the practical implications are difficult to make but some points of principal seem certain to arise.

Safeguards and duty of care
If the Falconer model is adopted, England and Wales would require the court to approve any decision to have access to assisted dying. This would single out the jurisdiction as having one of the highest thresholds needed before help to die could be provided. The majority (if not all) other jurisdictions where assistance in dying is legal adopt a regulatory reporting regime but stop short of requiring the court system to intervene. 

Any decision to end an individual’s life must be made when the individual has capacity and has been given less than six months to live, where the terminal illness cannot be reversed by treatment. Mental illness is not, under the Falconer proposals, considered to be a terminal diagnosis in and of itself.

Whilst we will have to see what the Bill proposes when it is published, if the Falconer model is adopted it would put substantial regulatory safeguards in place, including a requirement for two separate medical practitioners to approve a declaration that a person wished to have help to end their life, in addition to the court’s approval being required. 

The declaration would have to be “voluntary, clear, settled and informed,” and these states of affairs (assuming they would be treated separately) would have to be assessed by the medical professionals and the court involved.  

LPAs and decision-making 
The scope for disputes over mental capacity for those in the last stages of a serious illness is obvious, particularly in conditions which might require a high level of medication which in turn may affect a person’s decision-making ability. 

Commentators have already mentioned that people with a terminal illness might feel obliged to seek assistance in ending their lives, possibly because they perceive themselves as being a burden on those caring for them or those having to witness their suffering – the requirement for a “voluntary” declaration will be critical to this. 

Any access to assisted dying would likely immediately bring the role of Lasting Powers of Attorney (LPA) into focus. Currently, a person is able to leave an LPA granting other(s) the ability to make decisions about their care if they lose capacity to make those decisions themselves. 

That regime includes the ability to set out in advance whether or not the person wants treatment in particular circumstances (e.g. life-sustaining treatment, or a decision not to resuscitate). Logically, it should be possible therefore for an LPA to authorise a person’s attorneys to make a decision to end their life with some expansion of that advance decision regime – but this would conflict directly with the Falconer proposals which require the decision to be taken by the person themselves to the exclusion of all others. 

No other jurisdiction permits a decision to end a life to be made on behalf of a person and, given the high bar set by the court-approved route set out in the Falconer proposals, it would be very surprising indeed if such a step were to be permitted here. It must be a critical part of access to assisted dying that the final decision comes from the person themselves, meaning tha they must have the mental capacity to make that decision at the time (and be certified to be such).  

International comparisons 
The Falconer proposals would (if adopted by Kim Leadbeater’s draft Bill) sit at the higher and less liberal end of assisted dying regimes around the world. The regime in Canada, for instance, allows for an individual to seek assistance in ending their life without a terminal diagnosis, instead being driven by reference to the level of pain and suffering the person endures as a result of a serious illness, disease or disability. Closer to the UK, the regimes in some European countries (including Belgium and Luxembourg) allow similar applications, where a terminal diagnosis is not a requirement.

Many also allow (in some circumstances) applications by residents of other countries, including Switzerland, where a UK national is permitted to apply to end their life in the country. 

Such an approach is not likely to be followed in England and Wales, where the emphasis appears to be on creating (if approved) a tightly court-controlled regime for terminal cases, which would be open only to residents.

What next?
It is difficult to draw any conclusions at this stage without the draft Bill – but what seems very likely is that the core questions around capacity, perceived coercion and eligibility criteria will need to be very carefully scrutinised when that detail is available in advance of the debate in the House of Commons on the Bill on 29 November 2024. The balance of presenting an individual’s right to seek to end their own life with the safeguards that must accompany that most significant of decisions will be a difficult one to strike indeed.