This Bill Is Fatally Flawed

Rajiv Shah writes:

Many undecided MPs instinctively want to support the legalisation of assisted suicide but would only do so if they thought the safeguards were adequate.

Proponents of the Bill certainly seem to think that they are. Kim Leadbeater has claimed that her Bill is the “best possible” legislation. When questioned by Victoria Derbyshire, Christine Jardine (one of the backers of the Bill), refused to concede that the safeguards would not be 100 per cent effective.

Daniel Finkelstein, the journalist and Conservative peer, has been more honest and accepted that there might be a “very small residual risk” which, he says, is outweighed by the advantages.

The protections against coercion and pressure are that two medical practitioners and a judge must approve the application. A close examination of the Bill, however, reveals that the risks that vulnerable people might be pressured into assisted suicide (for that what the Bill legalises, see clause 24) are not “very small” and are quite substantial.

Only some pressures invalidate the application

The first difficulty is that the Bill provides that it is only coercion or pressure from “another person” that will invalidate the application (clause 1(2)(b)). This means that self-pressure (people doing it as they feel that they are a burden) and pressure by circumstances) not being able to get assistance in living comfortably, NHS waiting lists, or not having access to palliative care) do not invalidate the application. Therefore the Bill offers no protection at all to patients in that position.

This is made worse by two features of the Bill: medical practitioners (which do not have to be a doctor) are free to suggest assisted suicide as an option (something they are prohibited from doing in Australia) per clause 4(2), and that neither medical practitioners nor judges (which does not have to be a High Court judge) have any discretion to refuse an application if all the criteria are met.

So, if someone says “I am only doing this because I feel like I am burden on my relatives and on the NHS”, because this is not “pressure by another person” both the medical practitioners and the judge “must” approve the application (clause 7(3), 8(5)(b) and 12(2)(a)).

This is not a theoretical risk but a real one. In Oregon, close to 50 per cent of patients seeking assisted suicide said they did so because they are a burden to their families. It is not hard to imagine that people in this country will do so for similar reasons or because they do not want to be a burden on the NHS. 

As for pressure from circumstances, there is not enough palliative care for everyone who wants it and there are huge pressures on delivering social care. People will seek assisted suicide for those reasons and under the Bill the State will be under a duty to provide it.

The Bill has no mechanism to investigate whether they are being pressured by others

Secondly, even for cases of pressure by others (which the Bill does try to protect against), the safeguards are inadequate. The process is that two medical practitioners will have a conversation with you and will ask you whether you are being coerced or pressured by another. But absent you telling them that you are, they have no way of knowing that this is the case. Indeed, they cannot have information on your Will nor can they discuss the matter with your friends and relatives without your consent (and your failure to provide such consent is not grounds for suspicion).

Whilst the Bill makes provision for what the medical practitioners may do if they have doubts about your medical prognosis or capacity (cl 9(3)) but it makes no provision for what they may do if they have doubts about you being pressured. In any event, the statement the medical practitioners are required to sign is only that “to the best of [their] knowledge” they have not been pressured (schedules of the Bill). As one GP put it on Twitter, this is a bit like saying “to the best of my knowledge my house does not have Japanese Knot Weed”: without you having done an investigation this is worthless.

But medical practitioners are not trained investigators. By contrast, if you want to make an organ donation whilst still alive, the Human Tissue Authority will hire an investigator to consider whether or not you are being coerced (or paid) to donate your organ and in case of doubt the process will stop. If this Bill passes organ donors will have more protection against coercion than vulnerable terminally ill patients who wish to end their lives.

The final part of the process is approval by the High Court. This is not limited to High Court judges but can also include district judges sitting in a High Court Registry. In any event, the Court also does not carry out investigations and is necessarily limited to the evidence before it, and so would not be able to detect subtle forms of pressure. As the former President of the Family Division of the High Court put it “the Leadbeater Bill falls lamentably short of providing adequate safeguards.”

Can these be addressed in Committee?

None of this should be seen as simply drafting points. Supporters of reform have had nine years since the last Bill rejected by the Commons. Rather it reflects deliberate policy choices: having more safeguards, especially more intrusive ones like an investigation, would make it more difficult for terminally ill people (including those who are not being pressured) to access assisted suicide.

Furthermore, campaigners dislike that the current approach results in an investigation (albeit after the fact) and so it makes sense that they have chosen not to. When Leadbeater says that the Bill has the best possible safeguards, she means that best possible safeguards within the constraint of ensuring access.

There is no Goldilocks law: any law that provides more robust safeguards would not be acceptable to the campaigners (there are already complaints about this law not going far enough) and this law fails to protect a whole class of vulnerable people (those who feel like a burden or are pressured by circumstances) and provides inadequate protection against pressure from others.

In any event, the Committee stage will have a majority of MPs supporting the Bill, all chosen by Kim Leadbeater as the sponsor. It is, therefore, unlikely that they would agree to such changes. So that leaves the Report stage, but to fix all the problems in the Bill would require a considerable number of amendments and realistically there will only be time for a handful of votes so not all amendments will be selected for discussion.

As for the third reading, it will come straight away after the Report stage, and so MPs will not have time to take stock on whether the Bill’s problems have been fixed. Therefore, none of those issues are going to be resolved at subsequent stages. MPs should therefore make their minds up ahead of Second Reading on whether they are comfortable with the safeguards in the Bill.

If the rumours announced by the Mail on Sunday are true, there might be another Bill in 18 months time, so this might not be the end of the issue. But this Bill is so fatally flawed that it must be rejected at Second Reading.