Physician Assisted Dying: A guide to some of the legal issues arising in the forthcoming debates

Physician-assisted dying is a deeply emotive subject, with strong ethically based positions taken on both sides. MP Kim Leadbeater has now secured first place in the ballot of backbenchers and plans to introduce a Bill for debate in the House of Commons. Whilst this will be a free vote, the government has indicated that it will allow parliamentary time so that Parliament can make a decision for or against such a Bill. The text of the proposed Bill has not been published at the date of writing.

The aim of this article is not to take a position for or against physician-assisted dying in general or regarding this Bill in particular; instead, we are seeking to provide an introduction to the legal issues that Parliament will have to grapple with as the debate unfolds.

The existing legal problem

At common law, suicide was a crime. Anyone who attempted suicide and survived could be prosecuted and imprisoned. The families of those who died or attempted to commit suicide could also potentially be prosecuted if it was suspected they had assisted a suicide. In part, that criminalisation reflected religious and moral objections to suicide as “self-murder”. Whilst that may have represented a commonly agreed view of the sanctity of a God-given life in society in the past, such common agreement no longer exists, and there is now a range of moral and philosophical views held by different groups in society concerning the balance between the limits of personal autonomy, whether life is “sacred” and whether there is a moral duty to continue life for the benefit of one’s self or others.

The common law rule was repealed by the Suicide Act 1961. However, s2(1) of that Act provides:

“A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”

So, under the law at the moment and setting aside rights under the European Convention on Human Rights (“ECHR”), anyone who assists a person to take their own life potentially commits a crime. Thus, a doctor[1] (or anyone else) who assists a terminally ill person to take their own life commits a serious criminal offence.

Following a series of ECHR cases, notably Pretty v. UK (2346/02), R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL45 and Nicklinson v Ministry of Justice [2015] AC 657, the courts have accepted, as has the Director of Public Prosecutions, that a person has a right to life under Article 2, and also a right to autonomy over their own body under Article 8, such that there is a legal right to end one’s life at a point of one’s own choosing. All the Supreme Court judges agreed that the Suicide Act 1961 created a breach of the human rights of Mr. Nicklinson and the others involved in this appeal. The Judges in Nicklinson were split as to whether or not this breach should lead to a Declaration of Incompatibility under s4 of the Human Rights Act (as s2 of the Suicide Act 1961 was found to directly contradict the ECHR right to end life at one’s choosing). The majority considered that a Declaration should not be granted, largely because they considered that it was for Parliament to legislate and discuss these important ethical issues. Lord Neuberger said:

"Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. (…) one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconer's proposals[2]."

Two members of the Supreme Court, Lady Hale and Lord Kerr, would have issued a Declaration of Incompatibility. Their view was that Article 8 confers a right on an individual to decide by what means and at what point his or her life will end, provided that he or she is capable of freely reaching a decision. They held that, in making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current law which criminalises anyone assisting suicide is incompatible with Article 8. Lady Hale identified that the courts make declarations to withdraw treatment from those who have made decisions over which they have capacity, and considered that the decision to end one’s life is no different to those. Lord Kerr emphasised that, when courts make a declaration of incompatibility, they do precisely what Parliament, through the Human Rights Act 1998, has empowered them to do. The effect is that the Court remits the issue to Parliament for a political decision as to how to change UK law so as to give effect to ECHR rights, duly informed by the court’s view of the law. The Judges emphasised that remitting the issue to Parliament did not involve the court making a moral choice or directing Parliament on how to correct the incompatibility. Those choices are properly within the province of the democratically elected legislature. Lady Hale (at paragraph 314 of the Supreme Court judgement) said:

“It would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives. There would be four essential requirements. They would firstly have to have the capacity to make the decision for themselves. They would secondly have to have reached the decision freely without undue influence from any quarter. They would thirdly have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision: that is not the same, as Dame Elizabeth pointed out in Re B (Treatment), as having first-hand experience of those options. And they would fourthly have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. I do not pretend that such cases would always be easy to decide, but the nature of the judgments involved would be no more difficult than those regularly required in the Court of Protection or the Family Division when cases such as Aintree University Hospitals NHS Trust v James [2013] 3 WLR 1299 or Re B (Treatment) come before them.

I mention those courts as the decision-makers, because they are accustomed to dealing with such sensitive life and death questions, some of them (as Lord Neuberger points out) even more dramatic than this. But other bodies, sufficiently neutral and independent of anyone involved with the applicant, and skilled at assessing evidence and competing arguments, could be envisaged. The task would differ from that of the Court of Protection when making decisions on behalf of people who lack capacity, in that there would be no discretion or assessment of the applicant's best interests involved. The whole purpose of the procedure is to respect the autonomous choice of a person who has the capacity to make it. In that respect the task would be very similar to that of Dame Elizabeth Butler-Sloss in Re B (Treatment).

Were there to be such a procedure, it would appear to me to be more than sufficient to protect those vulnerable people whom the present universal prohibition is designed to protect. They simply would not meet the qualifications to be allowed help. The process would not be invoked and even if it were it would not succeed in securing them that help. It would be a more suitably targeted solution than any prosecution policy, however enlightened and humane, could ever be. It would have the merit of resolving the issue in advance rather than relying on ex post facto executive discretion to solve the problem (although it should not preclude the exercise of prosecutorial discretion in a case where prior authorisation had not been obtained). “

In effect, the proposed Bill by Lord Falconer and now by Ms. Leadbeater seem to use Lady Hale’s words and turn them into a Bill. The decision by the government to make time for this Bill appears to be, at least in part, a reflection of the importance that the present government gives to the law of the UK being consistent with ECHR rights.

Following the Supreme Court decision, Mr. Nicklinson’s partner took the case to the European Court of Human Rights. The court held the case to be inadmissible, because the issue of assisted dying was within the state’s “margin of appreciation”.

How has the law developed in other countries?

As is well known, there are laws that permit assisted suicide, including physician-assisted suicide, in a variety of jurisdictions including Canada, various states in the USA, Holland and Switzerland. To give one example, in Canada assisted dying was legalised on a federal basis in 2016 following a decision of the Canadian Supreme Court (which examined very similar issues to those in Nicklinson). This legislation was amended in 2021 to remove the need for there to be a “reasonable foreseeability of natural death” (again following a case which found that this was not a necessary component of an assisted dying law as it infringed autonomy). It was further amended in 2024 to exclude those with a mental health condition alone from being able to use this law. A mental health condition in this context means a psychiatric condition under DSM- V (including personality disorders). It does not include neurocognitive conditions – such as forms of dementia.

The current law in Canada therefore permits assisted dying in the following circumstances:

• be 18 years of age or older and have decision-making capacity
• be eligible for publicly funded healthcare services
• make a voluntary request that is not the result of external pressure
• give informed consent to receive assisted dying, meaning that the person has consented to receive assistance after they have received all information needed to make this decision
• have a serious and incurable illness, disease or disability (excluding a mental illness until 2027)
• be in an advanced state of irreversible decline in capability
• have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable.

The authors consider that looking to the Canadian example may be useful for Parliamentarians and those involved in drafting the Bill, given that, as a common law jurisdiction, it uses some of the same principles and legal constructs as the UK. The Canadian law has also been developed following similar debates and discussions as are currently being considered by the UK Parliament and society. In particular, the removal of the “end of life” condition in 2021 came about after hearing extensive expert and other evidence by a Canadian Parliamentary committee and a consultation involving over 300,000 people who had been involved in assisted dying since its introduction. The authors would suggest that looking at the responses and analysis by the Canadian parliament as to how the law was working in practice may also provide valuable lessons for both those advocating or opposing the Bill.

How will an Assisted Dying act have to work give effect to enforceable legal rights?

The legal model is likely to be the Abortion Act 1967. Abortion is generally a crime under the Offences Against the Person Act 1861 but, the Abortion Act 1967 provides that, if the procedures set out in that Act are followed, no crime is committed.

The Assisted Dying Bill is likely to provide that, if statutorily defined procedures are followed, no offence of assisting a suicide under the 1961 Act will be committed. This was the model adopted by Lord Falconer who introduced a similar provision in the House of Lords, albeit that did not make parliamentary progress.

That raises 6 main issues, namely:

• What will be the conditions a person has to satisfy to gain the potential right to be assisted by a doctor (or anyone else) to die;
• What procedures will have to be followed by a potentially eligible person in order to gain the right to be assisted by a doctor (or anyone else) to die;
• What protections will there be to prevent vulnerable elderly people being persuaded to end their own lives prematurely;
• How can it be shown that a person is giving genuine consent to a proposed physician-assisted death;
• Will doctors be able to assist those who want a physician-assisted death as part of NHS treatment; and
• Will doctors be obliged to take part in such a procedure.

1. What will be the conditions a person has to satisfy to gain the potential right to be assisted by a doctor (or anyone else) to die?

Press reports suggest that the Bill will provide that the right to a lawful physician-assisted death will only be available to someone with a terminal illness, namely someone who “as a consequence of that terminal illness, is reasonably expected to die within six months”[3]. There have been loud objections from those with chronic diseases such as Motor Neurone Disease or Huntingdon’s who may suffer terrible and uncontrollable suffering from their condition but where a doctor may not be able to say that the person would be “reasonably expected to die within six months”.

An ECHR-based response to such a restriction could be framed on the basis that we all have the Article 8 right to select a death at a point of one’s own choice, and that it would be a continuing breach of Article 8 to limit this right to this small group in the population.

Those objecting to this restriction point out that it is often difficult to calculate when someone is expected to die, and as the Canadian example shows, requiring people to live with suffering could be held to be contrary to their rights even if that suffering is not terminal in nature. There may be those who propose that Parliament should adopt the Canadian wording of “advanced state of irreversible decline”. If approved, would that give rights to those who have illnesses which are irreversible but who cannot be said with any degree of confidence to be approaching the end of life?

2. What procedures will have to be followed by a potentially eligible person in order to gain the right to be assisted by a doctor (or anyone else) to die?

It is anticipated that a person will need to show that (a) the individual has capacity to make the decision themselves, almost certainly using the capacity tests under the Mental Capacity Act 2005, and (b) that the individual has made an informed, voluntary decision that he or she wants to die at a point of their choosing. The assessment as to whether a person has capacity and has made such a decision will probably be required to be made by a doctor, and that decision will have to be supported by a second doctor.

That scheme leaves open the following issues:

• What type of relationship should at least one of the doctors have with the person prior to making this assessment;
• What procedures will the doctor have to undertake in order to make the assessment;
• How is the doctor supposed to test the voluntariness of the patient’s decision and/or whether the person is acting under pressure from anyone else;
• Do the doctors have to have had any special training or will any doctor be entitled to undertake this assessment;
• Are both doctors entitled to go through the same assessment process or is there a primary and secondary assessment process; and
• What should the doctor do if the doctor has concerns about the voluntariness of the patient’s decision or is concerned about the case for any other reason.

There are a variety of models for proving capacity and genuine consent in other contexts. By way of example, there are also well-established models for establishing consent for certain inter vivos organ transplants under the Human Tissue Act 2004. These procedures have to be followed prior to approval being given by Human Tissue Authority members. The investigations into capacity and the validity of consent for such organ transplants are thorough and are undertaken by specially trained staff, but not by doctors. There may be issues raised during this debate as to whether specially trained staff following an HTA may be a better model for proving capacity and voluntary consent than involving doctors. In contrast, the requirement for a second doctor to give approval before an abortion is carried out is generally thought to have added little, if anything, to good governance in that procedure.[4]

Again, looking to a model already in existence, Canada has two different ways of assessing eligibility depending on whether death is “reasonably foreseeable”, or in a state of “irreversible decline”. If the former, then a request must be made in writing and signed by an independent witness (either a paid professional or healthcare worker); two independent doctors or nurses must provide an assessment and confirm eligibility; the person must be informed that they can withdraw their request at any time; the person must be given an opportunity to withdraw consent and must expressly confirm their consent immediately before receiving medically assisted dying. Prior to 2021, individuals had to wait 10 days prior to being able to have medical assisted dying. That requirement has now been abolished.

Where someone’s death is not reasonably foreseeable, the criteria are:

• A request must be made in writing: a written request must be signed by one independent witness (a paid professional person or health care worker can be an independent witness)
• Two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
  • *if neither of the two practitioners who assess eligibility has expertise in the medical condition that is causing the person’s suffering, they must consult with a practitioner who has such expertise
• The person must be informed that they can withdraw their request at any time, in any manner
• The person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services
• The person and the practitioners must have discussed reasonable and available means to relieve the person’s suffering, and agree that the person has seriously considered those means
• The eligibility assessments must take at least 90 days, but this period can be shortened if the person is about to lose the capacity to make health care decisions, as long as both assessments have been completed
• Immediately before physician-assisted dying is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent

The Falconer Bill provides that approval for each case of physician-assisted dying has to be given by a High Court Judge of the Family Division. This process appears likely to be reproduced in the Leadbeater Bill. However, this proposal potentially raises some difficult issues including:

• There are only 20 full-time Judges of the Family Division and their time is under huge pressure. There may well be hundreds, or even thousands of requests a year, which will need to be considered with appropriate expedition but also appropriate rigour. There are real questions as to whether, unless the cohort of Judges is expanded, there would be sufficient judicial time and resources to deal with these applications[5];
• What procedure should a Judge follow to give approval, and should this be an entirely paper-based exercise or should a hearing with oral evidence be held;
• Who will be the parties to any declaration or decision by the Court – solely the person wishing to end their life and the NHS body or care home where that person would receive physician-assisted support? Or would there need to be a system for others to be able to intervene? And would this then lead to long and drawn-out legal proceedings with a large number of interested participants?
• Will there be a role for the Official Solicitor to review cases so as to ensure that the person has capacity and that consent is genuine (as happens in medical treatment cases) and, if so, will resources be made available to the Official Solicitor’s office to discharge these duties;
• Will legal aid be available to assist individuals to make this application or, if not, how will individuals meet the costs of making an application to the High Court? Assuming that a hearing is needed, who will pay for legal representation? There may be a strong argument that, if the state imposes a requirement on a person to obtain state approval before an ECHR right can be exercised, the state has to provide legal aid to enable a person to follow the judicial procedure.
• How much delay will be built into the system by the need for a court application, given that, even if given the highest priority by the Family Division, these things take time?

There are also some principled objections which could be made to imposing a requirement for court approval.

It could be argued that, in principle, it is impermissible to require someone to have the approval of the court before they can exercise ECHR rights. Such an argument would be that, in effect, the imposition of the need for a judicial process removes their right to end their own life by their own means and thus continues the breach of human rights.

 It could be argued that it would be more appropriate for a separate, specialised adjudicative body to be set up specifically to examine and give approval for such applications. Such a body could operate with appropriate input from specialists in medical ethics, jurisprudence, palliative care, nursing, psychiatry and medicine and could be more appropriate. It may be argued that such a specialist advisory body whose sole function was to authorise such applications, and having the advantage of relevant multi-disciplinary thought and discussion, could perform this function more quickly, and in a way that protected the public interest better than the courts.

3. What protections will there be to prevent vulnerable elderly people from being persuaded to end their own lives prematurely?

Those who support physician-assisted dying emphasise the importance of ensuring that any decision by an individual is truly voluntary and is taken without any significant level of influence by anyone else, particularly family members who may benefit financially from a person’s death (either through inheritance or by not having to pay care fees) or who may be relieved of onerous caring responsibilities if a terminally ill person were to die. It is unclear how, in practice, the Bill will lay down standards which have to be met to protect individuals against exploitation. There are several possibilities:

• Creating a window or “pause” where the person has to consider matters without their family interfering /discussing (may be easier said than done);
• Providing appropriate additional support to that person by way of care and palliative services so that they can see the alternative options;
• Preventing dispersal of an estate where someone has died by way of physician-assisted suicide for a period of time to prevent pressure from being able to have an effect; and/or
• Providing or requiring a course of counselling/therapy/oversight to ensure that someone is not being persuaded into doing so.

4. Will doctors be able to assist those who want a physician assisted death as part of NHS treatment?

This is a practical issue for NHS commissioners because, without NHS funding, this may only be an option for the relatively wealthy (and that itself may represent a fresh breach of Article 8 for the severely disabled). There may also be concerns that having private clinics may encourage charlatans to operate in this area – although all doctors irrespective of how they undertake their work are regulated by the General Medical Council (“GMC”) and the Care Quality Commission. By analogy, specialist abortion services are frequently provided by organisations which are specialists in this area (such as BPAS) rather than general hospitals. However, it is unclear how the NHS should plan and deliver a network of services to allow individuals to choose to access them. To use the Canadian example again, physician-assisted dying is available through public health services.

Those issues suggest that there may be a need for specific GMC guidance to doctors who are undertaking work in this area or even a specialist regulatory body (similar to the Fertility Body – the HFEA) to provide specific rules and regulations and to provide the kind of multi-disciplinary oversight described above. If so, that will need to be set up and put into operation.

5. Will doctors be obliged to take part in such a procedure?

The Falconer Bill provided that doctors could not be required to take part in physician-assisted dying on the grounds that many doctors may legitimately conclude that this is not a professional service that, in all conscience, they are prepared to provide. The same provisions apply to abortion services but, in that case, the doctor is required to refer the patient to a medical colleague who may be able to assist.

Again, this seems to point to the need to set up and run either a series of specialist services under the NHS, or have a national body which, at least for the first ten years, has specific and sole oversight over any such physician-assisted dying, in order to provide adequate ethical oversight as well as to provide a body of specialist knowledge and understanding of how the law is, or is not, working and creating a body of real expertise.

There will no doubt be other issues that arise during the passage of this Bill, but we hope that the above will assist in identifying the complex issues which lie beneath the surface of this highly contentious subject.

6. What should the doctor do if the doctor has concerns about the voluntariness of the patient’s decision or is concerned about the case for any other reason.

The simple answer to this question is that the doctor should refuse to give the requested certificate. But a refusal gives rise to a more pressing question, namely as to how the procedures should operate so that any doctor subsequently approached by the person, or their relatives, should be informed that a previous doctor has identified concerns and has refused to give the requested certificate. There do not appear to be any present proposals to build in appropriate safeguards to prevent “doctor shopping”. If a doctor has refused to provide a certificate because, for example, the doctor concluded that the person may lack capacity or is not someone with a terminal illness who is reasonably expected to die within six months, it seems important that any other doctor who is approached should be made aware of the concerns previously raised.

One way around this would be to require any doctor refusing a certificate to set out reasons for doing so and for such reasons to be included in the patient’s GP notes; and that any doctor asking for a certificate should be required to be provided with full access to the patient’s GP notes. However, that is not entirely straightforward because compulsory inclusion of material in a person’s GP notes may give rise to other issues, particularly if the person profoundly disagrees with the conclusions in the statement of reasons.

This blog was written by Fiona Scolding KC and David Lock KC [6]

[1] Under the present law, a doctor may face considerable difficulty in asserted justification based on the dying person’s ECHR rights.

[2] Lord Falconer, the former Lord Chancellor, introduced a Bill into Parliament to provide for physician assisted dying but it failed to make parliamentary progress. See https://bills.parliament.uk/bills/3741

[3] See clause 2(1)(b) of Lord Falconer’s Bill at https://bills.parliament.uk/publications/55997/documents/4978

[4] See for example “The two doctors rule for authorising abortion should be scrapped, recommends review” at https://www.bmj.com/content/380/bmj.p563

[5] By way of analogy, the Family Division is already stretched to near breaking point by the number of inherent jurisdiction applications which come before Judges to approve Deprivations of Liberty for children: see https://www.judiciary.uk/guidance-and-resources/revised-national-listing-protocol-for-applications-that-seek-deprivation-of-liberty-orders-relating-to-children-under-the-inherent-jurisdiction/

[6] Disclosure: David Lock KC sits as a Deputy High Court Judge in the Family Division and is a non-executive member of the Human Tissue Authority. This article is written in a private capacity.