A Detailed Analysis of the UK’s Assisted Dying Bill 2021
Ignoring all irony about promoting Assisted Suicide during the pandemic, Baroness Meacher introduced a new iteration of the Assisted Dying Bill to the British House of Lords earlier this year (Bill-13 HL).
On September 14th, the British Medical Association will vote on maintaining opposition to Assisted Suicide/Voluntary Euthanasia, or whether it will change its stance to “neutral.” Obviously, any “neutral stance” from doctors is far from neutral.
This article reviews relevant sections of the Bill and comments on specific clauses from a Hippocratic view-point.
Euphemism — not definitions
“Assisted Dying” is a Euphemism. Assisted Suicide [AS] is when a poison or overdose is legally provided to a person so they may kill themselves.
“Medicine” as used in Bill 13 is a euphemism. Medicine is used to heal and to treat: a “poison’ or ‘overdose’ is used to kill (though such terms are not acceptable to the public.)
“Attending doctor” implies there will be a normal Doctor/Patient relationship. (Patently not the case.)
(Voluntary Euthanasia [VE]: a consenting person is directly killed by another. VE is barred by Bill 13, but certain deficiencies will lead to VE.)
Preamble
The preamble is quite frank: “A Bill to enable adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes.”
Section 1: Assisted dying
Similar to most countries, two doctors are to process the request for AS. The UK is adding ante-mortem High Court approval.
“(1) Subject to the consent of the High Court (Family Division) …
and,
(2) Subsection (1) applies only if the High Court (Family Division), by order, confirms that it is satisfied…”
The Court confirmation is likely to be a “rubber-stamp” after ensuring basic requirements have been met. That much is good — a hearing or an appeal process would be better.
The Bill requires a written request from a competent adult who, is not under duress, nor coerced and who makes: “…a voluntary, clear, settled and informed wish to end his or her own life.”
The UK should note that many of the stringent requirements in the 2016 Canadian legislation have been loosened already (radically.)
The criteria define an applicant as, “…been ordinarily resident in England and Wales for not less than one year.” Remarkably this suggests that UK has the authority to assist the suicide of people who are not even British citizens! That shows an impressive sense of dominion, which might not be shared by the relevant government (such as the People’s Republic of China, etc.)
Under Section 13 (1) “This Act extends to England and Wales only.” The zealots will push for the introduction of this legislation into Northern Ireland which will lead to ‘Suicide Tourism’ for citizens of the Republic of Ireland, some of whom are resident in the North. Certain elements might consider Britain assisting the death of Irish men and women to be…problematic.
The basis for the whole Bill pivots on the clause: “…has capacity to make the decision to end his or her own life.” In the past, the wish to end one’s own life was viewed as needing psychiatric care. There should be an appeal process for family, friends or other doctors who suspect the applicant is under duress, coercion or incapacity.
Section 2: Terminal illness
A pivotal issue in the lack definition about the ability to treat, “reverse,” or cure an illness:
“(a) has been diagnosed by a registered medical practitioner as having an inevitably progressive condition which cannot be reversed by treatment,”
and,
“(2) Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition.”
Many cancers and other serious illnesses have substantial cure rates so the Bill needs to specify the degree to which an illness is “reversed by treatment” to be excluded under the terms above.
Most prognoses are educated guesses: the assessing doctors are likely to be pessimistic about the prognosis to help their clients meet the criterion: “(b)…is reasonably expected to die within six months.” (Also note: the Canadian requirement for “natural death” to be “reasonably foreseeable” has been removed completely — only 5 years after the original legislation.)
Again, there should be an appeal process for the GP or specialist who disagrees with the prognosis provided by the “attending doctor/s” because Section 10 (“Offences”) could be used to silence doctors: “knowingly or recklessly provides a medical or other professional opinion in respect of B which is false or misleading in a material particular.”
Section 3: Declaration
The restrictions on witnesses include: “…must not be a relative or directly involved in the person’s care or treatment.” Unbelievably, this allows a person to be a witness of the application/declaration even if they will profit from the death of the applicant! (e.g. a non-related beneficiary in the will.)
The “attending doctors” must declare that the applicant: “(c) has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress” Doctors are simply not trained in the identification of subtle coercion and duress. Also usually they will not report societal coercion (such as the lack of palliative care or increasing financial burdens on the family.)
Telling a person repeatedly that they are “so brave” s a form of duress when the applicant becomes unable to withdraw an application for fear of disappointing others. Organ donation can also be used as leverage: “You will save so many lives...”
“…the attending doctor and the independent doctor must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available to that person.” Bizarrely, there is NO requirement to have a palliative-care consultation; social-worker assessment; spiritual guidance, etc.
One assessment is mandated: “(5) If the attending doctor or independent doctor has doubt as to a person’s capacity to make a decision…the doctor must—(a) refer the person for assessment by an appropriate specialist; and (b) take account of any opinion provided by the appropriate specialist in respect of that person.”
If there is doubt about the applicant’s capacity, the process must not proceed. The applicant should have the option of requesting a competency assessment to continue, rather than it being mandated. A mandated assessment would remove autonomy at a time when remaining autonomy is paramount.
Cancelling the application for AS seems easy: “(7) A person who has made a declaration under this section may revoke it at any time and revocation need not be in writing” but it does not specify whom must be told, nor whether it can be through second-hand communication (e.g. from a HC provider or family member. This could put the messenger in danger of an alleged offense under 10.1.b: “wilfully conceals or destroys a declaration made under section 3 by another person.”)
Also, the Bill should specify what happens if the applicant changes their mind a second time and wishes to resume the AS process. If it does not become a new application, the wait-time may have expired.
Section 4: Assistance in dying
There are several appropriate requirements for the delivery and supervision of the poison.
The Bill suggests there will be a self-actuated automatic nasogastric and/or IV pump device to deliver the overdose (much like automated devices used for lethal injections in the States): “(b) prepare a medical device which will enable that person to self-administer the medicine.”
This section appropriately reiterates that: “…the final act of doing so must be taken by the person for whom the medicine has been prescribed.”
All Voluntary Euthanasia is excluded: “(5) Subsection (4) does not authorise an assisting health professional to administer a medicine to another person with the intention of causing that person’s death.” The Bill gives no direction as to what is to happen when AS fails or is complicated. (As in the person is unconscious, but not dying.) Though infrequent, this can occur and such occurrences will make for morbid tabloid news — and will be used to promote Voluntary Euthanasia.
An excellent requirement is: “(6) The assisting health professional must remain with the person until the person has—(a) self-administered the medicine and died; or (b) decided not to self-administer the medicine.” Time of death after AS is variable, so the supervising professionals will not be able to leave at a set time. Later this too will be used to push for Voluntary Euthanasia.
The protocols for AS in Canada are very simple and could easily be administered by non-medical personnel. The main reason governments require doctors and nurses to deliver AS is to make this process “clean” and acceptable to the public.
Section 5: Conscientious Objection
Section 5 consists of a mere three lines: “A person is not under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection.” A similar exclusion clause was specified by the Supreme Court of Canada, yet Ontario mandates doctors to make “an effective referral” for AS/VE though the self-referral system in Alberta is working effectively.
“It is legal so you must do it…” is the justification used in Canada.
Section 6: Criminal liability
Point (1) appears as if it was meant to simply verify that the “attending doctor” will not be committing an offense under the Criminal Code. The problem is that this clause almost fully indemnifies against ALL possible criminal charges when providing “any assistance in accordance with this act.” “(1) A person who provides any assistance in accordance with this Act is not guilty of an offence.”
Section 8: (Codes of Practice) reiterates this protection: “(7) A person performing any function under this Act must have regard to any relevant provision of a code and failure to do so does not of itself render a person liable to any criminal or civil proceedings but may be taken into account in any proceedings” (the convoluted second part needs legal interpretation.)
Section 7: Inquests, death certification etc.
This Bill provides no waiver for the Life Insurances which have a suicide exclusion clause.
Section 10: Offenses.
(Comments above in Sections 2 and 3.)
Section 13: Extent, commencement, repeal and short title
One of the final clauses: “(4) At any time during the period of 12 months beginning on the day 10 years after the provisions in subsection (3) come into force, this Act may be repealed by a resolution of each House of Parliament” seems to indicate that Bill 13 must be in effect for 10 years before it can be repealed by a simple resolution in each House.
Other than being wildly undemocratic, this 10-year stipulation is yet another example of the author’s zealotry in favour of Assisted Suicide.
Dr. Kevin Hay MRCPI MRCGP (inactive) FCFP
Kevin was born in the UK, graduated from UCD and now works as a Specialist Family Physician in rural Alberta, Canada. You can follow him on Twitter: @kevinhay77.
Shocking.