‘MPs have approved the basic principles of assisted dying – the details require further work for us all’

The silence that met the result of the Assisted Dying vote in the House of Commons was a testament to the profound nature of the moment. In the weeks preceding a rare busy Friday in Parliament, a sombre mood had engulfed MPs, all of whom were aware of the serious nature of the decision that was to befall them. I can reassure all readers that every colleague I have spoken to – from all parties – took their duty especially seriously as this issue came across their desk.

For those of us who support a change to the law, the moment was not one of victory. The Bill has a long way to go, but in any event the enormity of the issue, the emotional toil of the debate and the legitimate concerns that must be addressed in the coming months meant there was no celebration. Instead, the acknowledgement that a step forward on the principle of assisted dying had been taken but there was more work to do to ensure it is a safe reality.

Over the weekend, I have been considering issues which need to be analysed, assessed and addressed. The principle has the assent of the House of the Commons, but there remain many details which need rigorous assessment.

These are the result of weeks of carefully reading articles from and speaking with those who oppose the Bill carefully – as well as listening intently during the debate. As the parliamentary processes progresses, I know Kim Leadbetter will work through these with great care. Some are technical. All are important.

Renewed conversation over palliative care

It has been repeatedly, and rightly, said that this change can open the door to renewed conversations and emphasis on palliative care and our treatment of death. If it is to do this, we must ensure that the journey to legalising assisted dying raises standards generally.

I have previously suggested a clause placing a legal duty on the relevant NHS trust to ensure any patient that has begun the assisted dying process had been offered exhaustive palliative care alternatives. This would be an amendment to Clause 4(4)(b) and (c) to place a responsibility to offer such palliative care, not just explain what is available. Hand-in-hand with a renewed mission to transform palliative care in this country, this would help tackle the current postcode lottery in this Parliament.

Currently, Hospice UK suggests 100,000 people die each year without appropriate palliative care. This law change, with a Labour government, could raise standards across the board – permanently.

READ MORE: See if your Labour MP voted for, against or did not vote

Questions over judicial oversight

There remain questions about the judicial oversight function. During the second reading debate, Sir James Munby was quoted on numerous occasions. The former President of the Family Division has written lengthy articles criticising the Bill for, in his view, failing to sufficiently set out the role for the judiciary: What evidence will be put before the judge? What seniority of judge? Will the judge be able to ‘opt-out’ of the process due to conscience? How will the judge consider the issues? Will there be a hearing? Can third-parties apply to be heard? If so, how? Is there a route for appeal? If not, why not? Will there be a judgement, or merely an order? Fundamentally, what are you asking the judge to do? Is there a discretion?

Now, not all of these need to be dealt with in primary legislation. But perhaps the general challenge is to ensure the rules of court and other regulations provide for an exercise which is not mere ‘rubber stamping’ but not so time-consuming as to make the purpose redundant. It may suffice for legislation to provide for third-party applications should they feel the statutory criteria had not been met. Indeed, perhaps this should have been the only means by which courts were involved.

READ MORE: ‘We should be proud of all MPs’ civil debate and serious reflection on assisted dying’

Should doctors be allowed to raise assisted dying with patients?

Another key concern is that under the drafted Bill, doctors are allowed to raise the prospect of assisted death with a patient with a terminal illness. I am sympathetic to the notion that preventing this would be unrealistic – would a doctor not mention to somebody dying in agony who was, perhaps, unaware of this option? Is it right that only those who are aware of their rights are able to exercise them?

But equally, others have suggested that this would be a vital protective step looking at lessons from Canada. The provision needs careful consideration in committee. Ultimately, again, this is likely to be properly dealt with by the NHS, and regulating bodies, in terms of guidance after extensive consultation. After all, the current Bill currently empowers doctors by asking them to use their ‘professional judgment’ on the matter.

I am also sympathetic to the notion that the presumption as to capacity should change in the Bill. Currently, the Bill leans on the Mental Capacity Act which presumes capacity unless evidence suggests otherwise. Perhaps, here, there should be a requirement for clinicians to find that a person has capacity in all cases. Quite apart from another layer of protection, from my experience working as a barrister (not infrequently dealing with clients without capacity) any assessment of capacity would be useful as to assess evidence of coercion.

It would also provide an expert report for the judge to consider. On what other basis can they be sure, or sure on the balance of probabilities, that the person does have capacity?

READ MORE: ‘Starmer’s ‘Plan for Change’ speech needs to deliver real solutions or face testing voters’ patience’

‘The principles have been approved – the details require further work for us all’

What can be done to reassure the BAME community? My colleague, Flo Eshalomi, made a powerful speech in the House of Commons about the fact that too often minorities are let down by the NHS in life, how can we ensure this does not happen in assisting death. This is a fair challenge, and a friend, and colleague, has also made this point to me passionately privately. This will need to be rigorously analysed in committee.

There will, no doubt, be many more. Should there be a mandatory requirement to alert the patient’s GP? Why is there no mandatory requirement to refer the patient to a specialist if there are doubts as to capacity (as opposed to other mandatory requirements for referrals)? What is the appropriate burden of proof for such doubts as to capacity/prognosis period? What are the rights, and wrongs, of being able to seek a ‘second opinion’, if the criteria is not deemed to be met by the second doctor? What, if any, is the time frame for seeking such a second opinion? What factors should a Judge consider when assessing if they should exercise their option to ‘hear from’ the relevant patient, or the doctor, or anyone else? Is the clause relating to civil liability too widely drafted – it appears to suggest that any doctor that acts negligently within the new process would escape liability?

Indeed, many of the issues will be dealt with as Codes of Practice (see Clause 30 and 31) – which is not uncommon nor wrong. Primary legislation does not regulate every area of life. The implementation period for the Bill is two years, an important aspect which has not been fully recognised. The Department of Health and Justice will have time to consider the consequences and, as both Wes Streeting and Shabana Mahmood have stated, ensure the Bill is deliverable. There is the time to get this right.

Second Reading is the opportunity for MPs to debate the main principles of the Bill. The principles have been approved. The details will require further work for us all.

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