Just Not Robust Enough

Josiah Mortimer writes:

Last Friday, one of the UK’s leading human rights organisations warned that the “principles first, details later” approach of the Private Members’ Bill on assisted dying could bring “significant risks” to marginalised and vulnerable groups.

Liberty, which publicly supports a change in assisted dying laws subject to strong safeguards being in place, said that “the safeguards in this Bill are just not robust enough, and leave too many details to be decided later, particularly at a time when there is already great inequality in our healthcare system”. 

The statement, on Labour MP Kim Leadbeater’s backbench Terminally Ill Adults (End of Life) Bill, caused some consternation among pro-assisted dying groups – and highlighted some of the complexities around the legislation, beyond a surface-level debate.

It’s an issue that cuts across Left and Right and is dividing parties, because the stakes are high whatever decision is made.

We talked through some of the details and Liberty’s reasoning in an interview with their director, Akiko Hart.

Byline Times: Could you talk us through Liberty’s position on the Assisted Dying Bill?

Akiko Hart: Liberty is supportive in principle of assisted dying, but only subject to the highest safeguards, particularly around coercion.

This vote isn’t on the principle of assisted dying – it’s not a moral vote. It’s a vote on the specific bill before us. We’ve analysed it from our perspective, and it doesn’t meet the level of safeguards required, specifically regarding coercion.

The main concern centres on indirect coercion – people feeling they might be a burden. While the bill includes a 14-year sentence for direct coercion, the real issue is indirect coercion. People may feel they’re becoming a burden on their family or the health service but not disclose these feelings during assessments. This is particularly concerning given the current state of social care and unequal palliative care provision across the country, especially for racialised communities.

The bill has no investigation process. While proponents like Kim Leadbeater keep saying it has the highest safeguards ever, it’s merely bureaucratic – seven approval steps that seem unlikely to be completed thoroughly given the constraints on our health and judicial system. But there’s no actual investigation process; they don’t speak to anyone else. 

What’s particularly worrying is that these concerns are being dismissed. Because it’s a Private Member’s Bill, it’s extremely rushed through, despite claims to the contrary. There’s been no pre-legislative scrutiny, no public consultation, and no impact assessment.

This matters particularly regarding the burden issue. With decisions like older people entering care homes, you can’t screen completely for indirect coercion. Every year, some people will feel they’re a burden when entering care homes. The same will happen with this bill – a number of people will be approved for assisted dying effectively because they feel they’re a burden.

MPs don’t have the information about potential numbers – whether we’re talking about 5, 10, 50, or 100 people. MPs regularly make these types of trade-off decisions, but that conversation hasn’t happened here.

Byline Times: On people feeling like a burden, what realistic legal safeguards could actually identify if people are being indirectly pressured to end their life?

Akiko Hart: Many suggest building investigation processes into the approval system. This could allow practitioners at various levels – GPs through to High Court judges – to question concerns or bring in family members. They could ask questions about wills, for instance. None of this is currently in the bill.

While these might seem like technical details, the Private Member’s Bill process won’t allow enough time for sufficient amendments. Alternative systems in other countries use panels of multidisciplinary experts to review applications. Whether that provides better safeguards is exactly what we need to figure out.

Byline Times: Could this bill be modified to become acceptable to Liberty, or is it primarily the lack of scrutiny and the fact it is being done through a Private Member’s Bill that’s problematic?

Akiko Hart: The main issue is the lack of proper process. That could be solvable, but you absolutely need public consultation – speaking with patients, family members, carers, legal experts, and medical practitioners. That typically takes about a year to do properly. You need consensus building.

People compare this to the Abortion Act of the 1960s, which was also a Private Member’s Bill. However, David Steel built consensus with relevant medical bodies before introducing that bill.

With this assisted dying bill, the body representing palliative care professionals strongly opposes it. There’s significant opposition from geriatric care professionals. The consensus-building hasn’t happened – it’s been entirely campaign-driven and soundbite-driven.

This isn’t the way to pass complex social legislation that needs to be watertight. The process issue isn’t just about time – it’s about the lack of consultation and consensus building. You can’t get to the right legislation on something like this through this process.

Byline Times: What would be a good way forward if this bill fails?

Akiko Hart: There are several options. One positive outcome from this divisive debate has been increased focus on palliative and end-of-life care funding and inequality of provision. Gordon Brown recently wrote about this in The Guardian, calling for proper consultation on improvements.

We could pause this process and look at Jersey or Scotland’s approaches. Scotland will have spent four years discussing this before voting. Jersey, through a Government initiative, is taking 18 months before drafting legislation, with civil servants working on it. That’s the difference in the quality of approach.

Byline Times: You touched on the state of the debate. What aspects of the conversation around this have been most unhelpful, in your eyes?

Akiko Hart: The debate has been framed very binary – for or against – when many people likely sit somewhere in the middle, supporting it in principle but with caveats. That nuance hasn’t been captured. When people raise concerns or questions, they’re portrayed as opposing the principle, which isn’t helpful for complex social legislation.

There’s been an implication that opposition is primarily religiously motivated. For instance, when Shabana Mahmood intervened as Justice Secretary, she disclosed her faith-based position but also provided analysis from her ministerial perspective. The attacks on those positions have been unhelpful.

The campaign has been heavily polling-driven, but polling is complex and depends on question framing. Many people believe certain things about assisted dying are already legal, and many prioritise better care first. The polling is more complicated than portrayed.

The massive tube station advertising campaign by Dignity in Dying raises questions about judgment, including this week when they were covered [by opponents] in Samaritans [suicide helpline] posters.

Many people have reported feeling intimidated by personal attacks. There’s also been concerning rhetoric about MPs needing to follow polling, which misunderstands how representative democracy works. They need to scrutinise the bill in front of them.

Interestingly, there are significant divides within Labour. Some assume everyone with reservations comes from a faith-based or anti-progressive perspective, but you have people like Angela Rayner MP and Antonia Bance MP opposing it from a secular, trade union background.

Byline Times: What’s been the reaction to Liberty’s statement? Was it a difficult decision?

Akiko Hart: It’s interesting for us because, coming out of recent Conservative Governments, our positions and alliances have typically been more straightforward. This is a complex issue where people hold strong views. Liberty takes a principled, rights-based approach, which sometimes means taking uncomfortable positions relative to our friends and allies.

We analysed this carefully from both policy and legal perspectives. We’ve done extensive work with disabled people’s organisations and listened carefully to their concerns. Dignity in Dying isn’t happy with our position, but that’s OK – they’re a single-issue campaign organisation, which we’re not.

Byline Times: Looking ahead to Friday’s vote, how do you see things playing out?

Akiko Hart: No one knows for certain, particularly given the number of undeclared MPs. The decision likely hinges on Labour, especially the new intake, whose positions aren’t well known. The information we’ve received suggests they’re split 50-50.

Some MPs say they’re lending votes for the second reading but won’t support it further. I’m not certain all new MPs fully understand the limitations of the Private Member’s Bill process. The committee stage won’t have public consultation, and the amendments process will be potentially divisive. With limited time, MPs will face pressure to either attempt improvements or let the bill time out.

Based on current patterns, MPs proposing amendments will likely face accusations of trying to block the bill. It’s become quite poisonous within Labour. We’ve heard this might be a significant misjudgement by Labour – they didn’t want it dominating media coverage or causing these internal rifts.

They perhaps misread the strength of feeling within Labour, assuming opposition would mainly come from Conservatives and religious groups.

Byline Times: You’ve worked closely with disability groups on this, some of whom are understandably concerned about feeling pressured to end their lives. Is there any version of an assisted dying bill that would address their concerns?

Akiko Hart: It’s complex. Not all disabled people share one view – that’s never the case for any group. Disabled people typically mobilise politically through recognised Disabled People’s Organisations (DPOs). Interestingly, before this bill, most DPOs maintained neutral positions due to membership divisions.

This bill has prompted stronger reactions due to several factors: attacks on welfare, Covid-era experiences with Do Not Resuscitate orders, worsening disability discourse, and developments in other jurisdictions like Canada, where assisted dying has expanded to include disabled people.

Previously, specific DPOs like Not Dead Yet UK campaigned against assisted dying, but now Disability Rights UK, representing 350 DPOs and previously neutral, strongly opposes this bill. While there might be some distance between Disability Rights UK’s general position and Not Dead Yet UK’s, the current context makes any version of this bill problematic for DPOs.

Our position differs slightly – we support assisted dying in principle with high safeguards, but oppose this specific bill. That nuanced position isn’t being heard enough in the debate.

Byline Times: Do you think the ‘slippery slope’ arguments – about this bill being expanded eventually to cover people suffering, rather than dying – hold water?

Akiko Hart: What most campaigners supporting assisted dying want is criteria that’s something similar to ‘intolerable suffering’. And that’s what you’ve got like in Belgium, the Netherlands and Canada now. 

The ‘slippery slope’ argument is entirely correct here. It is a legitimate campaign strategy [to get a ‘foot in the door’ through this bill], but it’s just being disavowed.

Some MPs strongly support the six-month terminal illness limit [as in the current bill], while others are more flexible. Supporters initially discussed options of six months terminal illness, 12 months terminal illness, and intolerable suffering, and they chose six months as the most politically viable option.

Byline Times: There’s talk about the legislation being expanded later through court challenges. How does that factor into Liberty’s considerations?

Akiko Hart: Parliament remains sovereign – even if courts rule against the Government regarding access equality, Parliament isn’t required to change the law. However, repeated court findings against the Government would create significant pressure for change.

Oregon’s experience is interesting – while their six-month terminal illness criterion hasn’t changed, the interpretation of “terminal illness” has expanded over time to include treatable conditions like Type 1 diabetes.

It raises questions about people refusing treatment for treatable conditions that then become terminal without intervention – they would likely qualify for assisted dying under this bill.

Creating legal amendments to address this is challenging because refusing treatment is an established right. MPs might be comfortable with this, but it’s not part of the current discussion.