Judicial Pre-Approval and the Terminally Ill Adults (End of Life) Bill: Balancing Safety with Accessibility

The Terminally Ill Adults (End of Life) Bill has been described by many as one of the most significant shifts in the legal landscape of England and Wales in our generation. Whether this claim overstates the matter is open to debate. What is not in dispute, however, is that the Bill raises profound questions about the relationship between the state and those it governs. Unsurprisingly, its existence, proposals, and suggested amendments have generated extensive discussion and controversy. In this blog series, leading voices in the field of assisted dying reflect on the Bill, what it means for the state to sanction the deliberate and knowing ending of an individual’s life, and how we might tread a path forward.

Stevie Martin, University of Cambridge

Keywords: Safeguards; Judicial Oversight; Resource Restrictions; Accessibility

Given the jurisprudential controversy that has attended the prohibition on assisted dying in the Suicide Act 1961, it is unsurprising that the Terminally Ill Adults (End of Life) Bill has proved to be so constitutionally contentious. The disagreements between the Lords on the scope and parameters of the Bill seem progressively intractable, and the “death [of the Bill] by 1000 amendments looks increasingly probable” as Alexandra Mullock has observed in an earlier post. This saga has illuminated that while assisted dying may not be legalised in England and Wales by this Bill, it seems highly likely that it will be legalised (particularly given the move in jurisdictions within and around the UK to legalise assisted dying). It is in everyone’s interests, then, that we take the lessons we can from the debates being had in Parliament attending this Bill and seek to address concerns regarding the safety of any system of assisted dying proactively to try to move the discussion away from trenchant line drawing, towards more constructive resolution seeking. Previous posts by Richard B. Gibson and Alexandra Mullock have examined specific aspects of the proposed eligibility criteria and their potential implications if implemented. In a similar vein, this post will concentrate on a specific safeguard proposal that has evoked much debate both in the Commons and again in the Lords following the proposal in the latter of Amendments 25 and 120, which (re)introduces the requirement of prior judicial approval (now by the Family Division of the High Court).

When introduced by Kim Leadbeater MP, the Bill included a requirement that applications for assistance to die be approved by the High Court. No other jurisdiction in which assisted dying has been legalised requires prior approval by a court. Indeed, this was one of the unique selling points of the Bill, with Kim Leadbeater observing that “No other jurisdiction in the world has those layers of safeguarding” (House of Commons, Second Reading Speech, column 1019). The proposal for High Court pre-approval quickly drew criticism from many quarters, including highly experienced judges who noted the resource implications of such a requirement and also, more fundamentally, queried precisely what function such approval would serve. Would it be a tick-box exercise? And if not, what expertise would the judge bring that would not be provided by the (at least) two doctors who would, under the Bill, have to consider the patient’s eligibility? (see, for instance, the comments of Sir James Munby here and here). These concerns were well ventilated during the Committee stage of the Bill’s progress in the Commons and, ultimately, judicial pre-approval was replaced with a requirement of approval by a specialist multidisciplinary panel. That panel – modelled on the Spanish assisted dying scheme – would have comprised legal, psychiatrist and social worker members, overseen by the Assisted Dying Commissioner (Schedule 2, Terminally Ill Adults (End of Life Bill) (as brought to the Lords from the Commons)). In explaining the shift from judicial review to multidisciplinary panel pre-approval, Kim Leadbeater noted concerns that judicial approval would, ultimately, not safeguard applicants but would protract the process of applying for permission, proving “over-engineered, bureaucratic, and coldly inhumane” (here, p.974).

The question of judicial pre-approval has resurfaced as a key issue in the Bill's progress through the Lords. The proposed amendments by Lord Carlile contemplate approval by the Family Division of the High Court. While Lord Carlile has indicated during debates in the Lords that the previous resource concerns could be addressed through the use of designated family judges (specialist circuit judges), the family justice system is already stretched to breaking with a recent report from the Public Accounts Committee observing that “[c]hildren and families are still waiting too long for family courts to resolve their cases” with “4,000 children involved in cases open for longer than 100 weeks”. Given that estimates suggest there may be up to 6,000 applications for assistance to die each year, the resource concerns raised in the Commons persist, even with the addition of the 40 designated family judges suggested by Lord Carlile.

Requiring applicants to seek prior judicial approval also raises accessibility concerns. This is particularly so given that eligibility is (at least as presently proposed) limited to those with an “inevitably progressive illness or disease which cannot be reversed by treatment” and which is reasonably expected to cause death within six months. Data from Spain - where approval must be obtained from a multidisciplinary panel before assistance to die can be provided – indicates that the average weighted time for determination of a request is more than 2 months. In contrast, in Victoria, Australia, which has a form of administrative pre-approval (in addition to assessment by (at least) two medical doctors), the median timeframe from first to final request is 14 days. There is no data to indicate that the process in Victoria poses a greater risk to vulnerable individuals (measured, for instance, by findings of the review body that individuals who were, in fact, ineligible have been assisted to die). The question for legislators in Westminster, then, is how to balance access and safety and, specifically, whether a requirement of judicial pre-approval best secures that balance. In reaching a conclusion on that issue, legislators ought to keep in mind not only the resourcing implications for an already overextended family justice system but also the significant toll such a requirement is likely to take on those who are quite likely to be in the last weeks of their life.

Data from jurisdictions that permit assisted dying consistently reveal that people who have been approved for an assisted death nevertheless die without assistance. For instance, in Victoria (Australia), 30 per cent of people who had been issued permits for assistance in dying died without such assistance. Of course, a number of those individuals will have determined not to avail themselves of assistance (noting that the possibility of assistance often offers reassurance to individuals who have been approved, even if they do not go on to have an assisted death). But it is undeniable that a number will have died before they had an opportunity to be assisted. Given that the Bill requires individuals to be physically able to administer the medication themselves, the additional requirement of a judicial approval process is likely to compound the access issues apparent in other jurisdictions without such requirements.

Only time will tell whether Kim Leadbeater’s Bill is the statute that introduces assisted dying into England and Wales. Given that the preponderance of public opinion is in support of some form of legalised assisted dying regime, it appears to be a matter of when, not if, assisted dying is legalised in this jurisdiction. There are many issues that must be navigated before a legalised assisted dying regime is secured, one central question being what form (if any) pre-approval should take. As this short post has sought to demonstrate, significant concerns regarding resources and accessibility attend Lord Carlile’s proposed amendment to the Bill replacing a multidisciplinary panel with court approval. In considering that proposal, legislators must squarely confront the inevitable implications for accessibility.