Terminally Ill Adults (End of Life) Bill 2024

This blog was written by Alex Goodman KC

Introduction

The Terminally Ill Adults (End of Life) Bill 2024 was published late on 11 November 2024. The Bill is a private members Bill meaning that it is presented to parliament by a member (Kim Leadbeater MP) rather than by the government, supported by a cross-bench number of MPs. It will have its second reading at which the principle of the Bill is debated on 29 November 2024.
This is an explanation of what the Bill would do if it were passed without substantial amendment.
The most important piece of legal background is that section 1 of the Suicide Act 1961 abrogated (i.e. abolished) the offence of committing suicide. However, section 2 of that Act provides that assisting a person to commit suicide is a criminal offence attracting a sentence on conviction of up to 14 years in prison.
If the Bill becomes an Act of Parliament, it will create a limited exception to that offence of assisting suicide. The limited exception is that a doctor may provide a person with an approved substance which they can self-administer so as to carry out that lawful act of suicide. However, that limited exception will apply only in the case of adults who have less than six months to live, who have mental capacity to make the decision and who make a clear, settled and informed wish to end their own life. In practice, the person will need to re-affirm the decision to proceed on at least eight occasions over a period of many weeks[1] and the decision will need to be supervised on at least five occasions by doctors or judges tasked with ensuring that the person is informed, has capacity and is free of pressure or coercion[2].
The procedure before the doctor can provide the approved substance which the person can administer to end their life can be summarised as follows.
Step 1: The Preliminary Discussion. A person indicates to a registered medical practitioner that they wish to end their own life in accordance with the Act, and the practitioner then either has a preliminary discussion or, if the practitioner is unwilling to do that, they refer to another medical practitioner (s. 4(3)-(5)). That discussion will include the person’s diagnosis and prognosis; any treatment available and the likely effect of it; and any available palliative, hospice or other care including symptom management and psychological support (s.4(4)).
Step 2: The First Declaration. If, following that initial discussion, a person wishes to be provided with assistance to end their own life, they must make a signed declaration to that effect set out in the form in Schedule 1 to the Bill (s.5(1)). The form has to be signed and dated and witnessed by the “coordinating doctor” and another person (s. 5(2))[3]. It is referred to as “the first declaration”.
Step 3: Coordinating Doctor’s Assessment. As soon as possible after the first declaration is made, the coordinating doctor must make the first assessment. The coordinating doctor must examine the person and their medical records and make such other inquiries as are appropriate (s. 9(2)). They must explain and discuss with the person being assessed their diagnosis and prognosis; any treatment available; any available palliative, hospice or other care; the nature of the substance that might be provided to assist the person to end their own life; and how it will bring about their death (s. 9(2)). They must also discuss any complications that might arise from administration of the drug (s. 9(2)(c)); the further steps necessary in the process (s.9(2)(d)(i)); and that the person may decide at any time not to take those steps (s.9(2)(d)). They must advise the person to inform their GP that they are requesting assistance to end their life (s. 9(2)(e)) and advise them (if appropriate) to inform next of kin (s.9(2)(f)).
Doubts: If the coordinating doctor has any doubts:

(a) As to whether the person is “terminally ill” then they must refer the person for assessment by a practitioner with relevant qualifications (9(3)(a)).
(b) “As to the capacity of the person being assessed, if there are doubts, they may refer them to a psychiatric practitioner with relevant qualifications/experience (9(3)(b))"
(c)They must then take into account those opinions once received in making any referral to the next doctor.
Step 4: Coordinating Doctor’s Statement. If, following the first assessment the coordinating doctor is of the opinion that all the requirements of s.7(2) of the Act are satisfied they must (s.7(3)) make a signed statement to that effect on the form in Schedule 2 to the Bill, provide a copy of that to the person and (s. 7(3)(c)) refer that person to another registered medical practitioner who is independent (see s. 8). The matters on which the doctor must be satisfied are:

i. The person is “terminally ill” (s.1(1)(a)) meaning that:

(a)they have “an inevitably progressive illness, disease or medical condition which cannot be reversed by medical treatment” (s.2(1)(a)).
(b)Their death can reasonably be expected within six months.
(c)The person is not terminally ill by reason only of a mental disorder, or by reason of a disability within the meaning of section 6 of the Equality Act 2010.

ii. That person has capacity to make a decision to end their own life (ss. 1(1)(a) and 3).
iii. That person is aged 18 years or over when they make their first declaration (s. 1(1)(b)).
iv. That person is ordinarily resident in England and Wales and has been so resident for at least 12 months (s.1 (1)(c)).
v. That person is registered as a patient with a general medical practice in England and Wales (s.1(1)(d).
vi. That person has a clear, settled and informed wish to end their own life (s.1(2)(a))
vii. They have made that decision that they wish to end their life voluntarily and have not been coerced or pressured by any other person into making it (s.1(2)(b))
Step 5: The First Period of Reflection (7 days).If the coordinating doctor issues the statement above, there is then a period of reflection of at least seven days after the coordinating doctor makes the statement (s.8(3)).
Step 6: The Independent Doctor’s Assessment[4]. Following that first period of reflection, the independent doctor must carry out a second assessment independently of the coordinating doctor (s.8(4)) as soon as possible after the period of reflection. The second assessment is tasked with determining that the person is “terminally ill” (see above); has capacity to make the decision to end their own life, has a clear, settled and informed wish to end their own life, and made the first declaration voluntarily and has not been coerced or pressured by any other person into making it (s. 8(2)). The independent doctor must undertake all the same processes as the coordinating doctor (s.9(2)- see paragraph 8 above.)
Step 7: The Independent Doctor Statement: If the independent doctor is satisfied as to all the requirements, he must make a signed statement (s.8(5)) in the form set out in Schedule 3 to that effect and provide a copy to the coordinating doctor.
If he is not satisfied: If following the independent doctor’s examination, that doctor refuses to make a statement that he is satisfied of all the matters set out in s.8, then there is a procedure for the coordinating doctor to refer the person to a different independent doctor for a second opinion (s.10).
Step 8: The Application to the High Court. Where a person has made the first declaration under s.5 and the two doctors have made the statements in sections 7 and 8, the person may then apply to the High Court for a declaration that the requirements of the Act have been met in relation to the first declaration.
Step 9: The High Court Hearing. The High Court must then hold a hearing (section 12(5)) in-person (though that may be by video link- s.12(6)) in which they hear from the person who made the application, and the coordinating doctor and/or the independent doctor and any other person they may wish to hear from.
Step 10: The High Court Declaration: The Court will then have to determine whether all the matters set out in section 12(3) are met and if it is, must then make a declaration it is satisfied as to the requirements, or refuse to make that declaration. The matters on which it must be satisfied are:
(a)That all the requirements in sections 5-9 have been met.
(b)The person is terminally ill
(c)The person has capacity to make the decision to end their own life
(d)The person was aged 18 or over at the time the first declaration was made
(e)The person is ordinarily resident in England and Wales
(f)The person has a clear, settled and informed wish to end their own life, and
(g)The person made the first declaration and the application under this section voluntarily and has not been coerced or pressured.
Appeal: If the High Court refuses to make the declaration the person may appeal to the Court of Appeal (s.12(8)-(9)), but no appeal lies if the High Court makes the declaration.
Step 11: The Second Period of Reflection. Where the High Court or Court of Appeal has made the declaration, there is then a second period of reflection of 14 days (s.13(1)-(2)).
Step 12: The Second Declaration. After the second period of reflection if the person wishes to be provided with assistance to end their life they must make a further declaration to that effect (“the second declaration”). Again, there are formalities to be complied with around the second declaration (Schedule 4), most significantly that the making of the declaration must be witnessed by the coordinating doctor and an independent witness (s.13(3)). The coordinating doctor may only witness the second declaration if they are still satisfied that the person is terminally ill, has capacity, has a clear settled and informed wish to end their life and is making the second declaration voluntarily and has not been coerced or pressured by any other person (s.13(4)).
Step 13: The Coordinating Doctor’s Second Statement. The coordinating doctor must also make a written statement that they are satisfied of all these matters (s.13(5)).
Step 14: Providing the Approved Substance. Where the processes above are satisfied, the coordinating doctor or someone authorised in their place (section 19) may provide the person with an approved substance with which to end their life (section 18(2). The substance must be provided directly to the individual (s.18(3)). Regulations made by the Secretary of State will determine what substances are approved (section 20). The coordinating doctor may prepare the substance for self-administration, for administration by a medical device that will enable self-administration, or assist the person to self-administer (s.18(6), but the decision to self-administer and the final act of self-administration must be by the person themselves (section 18(7)). The coordinating doctor does not have power to administer the approved substance (section 18(6)).
Step 15: The Coordinating Doctor’s Third Statement. Upon provision of the substance, the coordinating doctor must again be satisfied of the person’s capacity, their clear settled and informed wish to end their own life and that they are requesting assistance voluntarily and without coercion or pressure by any other person.
Step 16: The Coordinating Doctor’s Final Statement. After the person’s death, the approved doctor must complete a “final statement” in the form set out in schedule 6

Criminal Liability for Providing Assistance: Section 24
If all of the above steps are taken, then a doctor who provides an approved substance to a person which that person then administers to themselves so as to end their life is not guilty of an offence of assisting suicide (as they would currently be under section 2 of the 1961 Act).
Section 25 provides a shield against civil liability for providing such assistance as well
Section 26 provides that a person who by dishonesty, coercion or pressure induces another to self-administer an approved substance commits an offence liable to a term not exceeding 14 years imprisonment.

Review of the Act after 5 years
Section 35 provides that 5 years after the initial period of the Act, the Secretary of State must undertake a review of the operation of the Act, prepare a report and lay it before parliament with concerns and recommendations as to changes in the Act or in the codes or guidance

Other Features of the Bill
S.4 makes provision for cancellation of the first or second declaration and of course a person can choose to not proceed with any steps in their power at any point.
There are provisions for authorising the signing declarations by proxy (s.15) where a person is unable to sign.
The Bill provides for medical records to be kept of the various aspects of the decisions and process (s.22).
The Bill provides (s.23) that there is no obligation on any medical practitioner or health professional to participate.
The Bill makes provision as to falsification and destruction of the first, second and High Court declarations, the provision of false or misleading medical opinions .
The Bill provides for codes of practice to be issued by the Secretary of State (section 30).
It provides for guidance to be issued by the Chief Medical Officer (section 31).
It provides a power for the Secretary of State to make arrangements for the provision of assistance in England and Wales through the NHS or otherwise (section 32).
There are provisions as to notifications to and monitoring by the Chief Medical Officer of the process (sections 33 and 34).

This blog was written by Alex Goodman KC

[1](i) Following initial discussion with a doctor; (ii) on making the first declaration; (iii) in the first period of reflection; (iv) instructing lawyers or making the High Court application; (v) In front of the judge; (vi) during the second period of reflection; (vii) in making the second declaration; (viii) in self-administering the approved substance.

[2] (i) The preliminary discussion; (ii) the coordinating doctor’s assessment and statement; (iii) the independent doctor’s assessment and statement; (iv) The High Court judge’s hearing and declaration; (v) during the coordinating doctor’s provision of the approved substance.

[3] The “coordinating doctor” is someone who has undertaken training, qualifications and experience specified by regulations made by the Secretary of State in due course (following consultation -s.5(4)) and who is not a relative and is not a beneficiary under their will and who is willing to be the coordinating doctor (s.5(3)). There are provisions as to who may be a witness (ss.5(5) and 36). There are requirements as to proof of identity when making the declaration which will also be in regulations to be made subsequently (s. 6)

[4] Note the independent doctor must have undertaken qualifications and hold such experience as the Secretary of State may specify in regulations following consultation and there are various requirements to ensure independence.