The Safest Safeguard Is To Maintain The Current Law

Shannon Hale writes:

Proponents of the Bill point to judicial approval as one of its many safeguards [UK proposed assisted dying law has strong safeguards]. But clause 12 – which creates this requirement – may be impractical if not impossible to operate.

The scheme in cl.12 of the Bill

Once a person has made a declaration that he or she wishes to receive assistance to end his or her own life, and two doctors have assessed that the person meets the criteria for assisted dying, the High Court must make a declaration that the required steps have been followed and the relevant criteria have been met. The High Court may “hear from and question” the person making the request for assisted dying as well as “any other person”. However, the High Court must hear from (and may question) one or both of the doctors who approved the assisted dying request. These provisions in the Bill ensure that the judicial approval process cannot become a mere rubber stamp exercise carried out in a couple of minutes by judges in their room. However, these plans have resource implications by reason of the judicial and courtroom time which will be involved in oral hearings in every case.

Will doctors have time to attend the hearings?

There are also resource implications for the medical profession. The Bill makes plain – and the government have not disavowed – the intention that assisted dying should be provided on the NHS. So, the doctors involved are likely often to be GPs in the NHS: this will not be a regime existing only in the realm of fee-paid private medical services. This aspect alone seems challenging when balanced against growing wait times for GP appointments.

How many applications are likely?

Let’s play through this scenario using Oregon as an example. In 2023, Oregon reported 367 people ended their life with assisted dying. These deaths represent 0.009% of Oregon’s population of 4.237 million. The population of England and Wales is nearly 60 million. Assuming assisted dying proponents are correct and the UK will see numbers comparable to Oregon, and not to other jurisdictions like Canada, this means that England and Wales could see about 5,400 assisted dying cases each year. If cases of assisted dying were to become on a scale comparable to the jurisdictions in Canada, there could be 20,000 cases in England and Wales each year.

Which Division of the High Court?

To assess the judicial resource implications, let’s consider what parts of the judiciary would be involved. The Leadbeater Bill is largely an elaboration of the Assisted Dying for Terminally Ill Adults Bill introduced by Lord Falconer which in clause 1 required a consent from “the High Court (Family Division)”. The Leadbeater Bill still requires the High Court, but is not specific as to which Division. However, it is easy to understand why Lord Falconer, himself a previous Lord Chancellor, specified the Family Division. The High Court judges of the Family Division have experience of handling medical decisions cases which have come before the court in recent years, including the agonising cases involving turning off life support machines. A celebrated example was the Charlie Gard case, Great Ormond Street v Yates.

In theory the work could be split between all three of the divisions of the High Court. But it is hard to visualise the King’s Bench or Chancery Divisions wanting to accept assisted dying cases, when their lists are already full with their own work and when, unlike the Family Division, their existing areas of work have no connection with end-of-life decisions. So, the resource implications of the Leadbeater Bill must surely be assessed in the context of the Family Division.

Which judges in the Family Division?

There are currently 18 High Court judges of the Family Division. These judges would be the principal workforce for handling the new case-load if the Leadbeater Bill is enacted. I do not overlook that High Court work can be discharged by part-time judges. Nor do I overlook that King’s Bench and Chancery Masters, who have a status equivalent to district judges, make orders of High Court order potency, and so in theory something equivalent could happen in the Family Division. But there are several reasons why High Court judges of the Family Division would bear the brunt of the new case-load.

The magnitude and sensitivity of the decisions involved necessitate senior judges adjudicate these applications. This line of reasoning has been expressed by the former President of the Family Division, Sir James Munby:

“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?”

As to part-time judges, there are also government spending implications. Shortage of funding is the explanation for the cap on court sitting days which is responsible for the backlog in the Crown Courts. Considering that assisted dying cases could number in the thousands, is it really feasible that the Treasury will find new money for this novel work load when there is no new money for the creaking criminal courts?

As to a lower judicial tier authorised to make High Court orders, the Family Division’s equivalent of Masters has almost ceased to exist. This is a consequence of the statutory creation from 2014 of the Family Court: this new court handles almost all matrimonial work and is where the High Court (Family Division) judges now spend much of their time. Today the properly so-called High Court work of the Family Division is limited to such rarities as wardships and international child abductions. In consequence, the work for the district judges of the Principal Registry of the Family Division has evaporated; and the district judges themselves have all either been promoted or retired. Therefore, it seems likely that the burden of the new work will have to fall on the 18 High Court judges of the Family Division.

Is this commitment of High Court judges’ time workable?

Accordingly, on Oregon’s figures, each High Court (Family Division) judge would need to hear, perhaps, 300 applications a year, each involving an oral hearing. High Court judges sit for about 190 days per year. This case-load could amount to one quarter (or more) of a judge’s hearings times for the year. Put differently, High Court judges sit for 38 weeks – or 9.5 months – of the year and so would need to hear just over 30 assisted dying applications each sitting month, or nearly 10 per week.

These back-of-the-envelope calculations assume that England and Wales will see a conservative uptake in assisted dying requests. They don’t account for current waiting times or the problem of what happens to assisted dying requests made in between term time or on the Summer Vacation. Waiting times for hearings of family cases are already the longest for five years. Nor would the pressure be eased by transferring cases to the other High Court divisions. Consider that at present the next available hearing date for the King’s bench is in over seven months from now. Similarly, the Chancery division has an upward waiting time of nearly two months depending on the length of hearing.

The experience of Oregon suggests that on even the most conservative assessment the High Court safeguard arrangements in the Leadbeater Bill would not last. This scenario identifies a pressure point which will lead to an amendment – or abolition – of the court approval requirement. If assisted dying cases are comparable to Canadian figures, the court approval safeguard could overwhelm the system such that it grinds to a halt or simplify it into a routine rubber stamp. Judges should not be placed in a situation where pressures on the system result in assisted dying cases being fast tracked and safeguards being bypassed. It is said that justice delayed is justice denied. Given constraints on judicial resources, it is only a matter of time before any waiting time for a court hearing date leads to public outcry about how impractical the requirement for court approval is and the need to amend or remove this requirement altogether.

Without the court approval requirement, the safeguards in the Bill unravel. Court approval is necessary because of the normative force of the law. Assisted dying is not a settled social norm. This is evident by the division on the Labour front bench. It requires the force of the law to normalise the practice. This is one reason why the Bill’s supporters point to judicial approval as an example of the Bill’s strict safeguards, making it palatable for some to support the introduction of assisted dying. But it is clear that it is only a matter of time before this requirement is watered down or removed. When that happens, that strictest of safeguards will no longer exist and the social norm will be breached.

I would also draw attention to two additional factors which diminish the supposed safeguard provided by the court approval feature of the Bill.

The one-sided involvement of the Court of Appeal

First, the calculations above pertain to High Court applications only. Even more judicial resources and court time would be required for the Court of Appeal to hear appeals. On this point, curiously, only the High Court’s refusal to make a declaration may be appealed to the Court of Appeal. The High Court’s decision to make declaration is not subject to appeal. At a minimum, a different standard should not apply. And one would think that family members should be able to bring an appeal especially as a safeguard against coercion, especially as the risk of coercion or pressure is heightened in these cases.

Will this become secret and discredited justice?

Second, it is equally worrying that the Bill would allow the High Court to deal with the applications in private, without any reporting and without relatives of the applicant even being made aware that it is happening. These loopholes exist because the Bill permits the High Court to set its own procedure; and because, by reason of the time pressure explained above, the court will have every incentive to dispose of the applications as quickly as possible. As Sir James Munby argues:

“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…

“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.”

To maintain public confidence, judges must employ an established, uniform, and transparent procedure for adjudicating these applications. Anything less would undermine the rigour and integrity of the regime. The time and attention required to call witnesses, hear and test cases, and provide reasons would occupy a substantial amount of judicial resources, creating further impracticalities with maintaining this intended safeguard.

The High Court “safeguard” will become meaningless

When one takes into account the cumulative weight of all these problems the High Court approval provisions in the Bill appear of little value. The workload which the applications will impose on already busy members of the senior judiciary will be unwelcome at best. At worst they will overwhelm the court lists. It is hard to see the arrangements being operated in such a manner as to provide real reassurance to those who are concerned about the risk of subtle coercion. There is a high risk that the High Court arrangements will soon be stream-lined into a meaningless rubber stamp; or that they will be abandoned altogether.

There are other reasons – too many to go into in this post – why introducing assisted dying creates a slippery slope towards the expansion of the law and reduction of safeguards. I argued these points in a paper for the Society of Conservative Lawyers, which I co-authored with Lord Sandhurst KC and I will not rehearse these arguments here. The UK’s existing law is the gold standard. It is the norm that best protects the most vulnerable. The experiments that have introduced assisted dying in a minority of other countries are the exception to the rule. It is trite that hard cases make bad law. The safest safeguard is to maintain the current law.