The Long Shadow of Prohibition in Assisted Dying Reform

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.

Chay Burt, University of Sussex

Keywords: assisted dying, England & Wales, Canada, regulatory paradigms, law reform.

The Terminally Ill Adults (End of Life) Bill has generated extraordinary parliamentary and academic attention, and the contributions to this blog series reflect the richness of that debate. Colleagues have examined the terminality requirement, the oversight mechanism, the Article 2 tensions, the implementation challenges, and the eligibility controversies that have accumulated through the committee stage in the Lords (see Mullock, Gibson, and Black). These are important questions. But there is a prior question that has received less attention. Why does the Bill look the way it does at all?

The Bill proposes statutory permission for specific conduct within a criminal law framework rather than integrating assisted dying within healthcare regulation. It creates an external oversight panel rather than embedding decision-making within existing professional regulatory structures. It requires self-administration. It restricts eligibility to a six-month prognosis, the strictest terminality threshold of any permissive jurisdiction. These features are not inevitable. They are not the product of deliberate policy optimisation. They reflect, in significant part, institutional constraints that have accumulated over thirty years and which the Bill reveals more than it resolves.

Understanding this matters not because it changes how one should vote on any particular amendment, but because it changes what questions we should be asking as the debate continues, and as it will continue when this Bill falls and its successor is introduced.

How Prohibition Shapes Reform

England & Wales has governed assisted dying through criminal law since the Suicide Act 1961. That position has not simply persisted through inertia. It has been actively reproduced through a series of judicial and institutional choices that have cumulatively defined the terrain on which any reform must operate. Courts have repeatedly declined to resolve the question constitutionally, channelling pressure toward Parliament, whilch has repeatedly declined to act. The DPP's guidelines, developed following Purdy, created a framework of prosecutorial tolerance that reduced the urgency of legislative reform without resolving its underlying tensions.

Stevie Martin has observed, in her book ‘Assisted Suicide and the European Convention on Human Rights’, that the debate has focused on whether proposed alternatives to the ban can achieve its stated aims whilst neglecting to examine whether the ban itself actually succeeds in securing those aims. The burden of justification has consistently fallen on those proposing change rather than on the prohibition itself, and that imbalance has shaped the terms of every subsequent legislative attempt. Furthermore, it helps explain why reform proposals have consistently sought to demonstrate that they are safe enough rather than to ask whether the status quo is effective enough.

Each of these developments was understandable in its own right. Cumulatively, they created a constraint inheritance: a set of institutional assumptions about how assisted dying must be governed that reform proposals absorb rather than question. The most significant assumption is that assisted dying is a criminal law problem requiring a criminal law solution. The question has always been framed as whether to exempt specific conduct from criminal prohibition, not whether to govern a clinical practice through the regulatory frameworks that govern other clinical practices. This framing shapes everything that follows. It determines who has authority to approve requests. It determines what counts as an adequate safeguard. The relationship between patient, clinician, and state is configured accordingly.

What the Paradigm Forecloses

The consequences are evident when the Bill is compared with the experience of jurisdictions that have approached assisted dying differently. Canada's Medical Assistance in Dying (MAiD) framework, developed following the Supreme Court's constitutional decision in Carter, is formally located within the Criminal Code. But the governance of MAiD operates through healthcare mechanisms: provincial professional standards, care coordination services, and quality assurance through established clinical governance structures. The criminal law sets the boundaries of permissible practice. Healthcare law governs what happens within them.

One consequence of that distinction is epistemic. Canada's mandatory reporting regime generates knowledge about the practice itself: who accessed MAiD, what conditions they had, how long the process took, and what track they were assessed under. England & Wales' framework generates data only about prosecutorial outcomes—cases considered, cases prosecuted, cases not prosecuted. It cannot tell you how many people accessed assistance, under what circumstances, or with what level of clinical involvement. That is not incidental. It is a direct consequence of governing a practice through criminal law rather than through healthcare regulation, which has no institutional purchase on practice itself, only on whether to prosecute after the fact.

It is worth being clear about what this observation does and does not mean. Canada's reporting regime has generated data that critics and supporters alike have used to argue about how the framework is operating, including serious arguments that eligibility has expanded beyond what was originally envisaged. That scrutiny is itself a product of the reporting framework. The arrangements in England & Wales do not generate equivalent knowledge, which means reform debates here are conducted largely without an empirical foundation. Whether one views Canadian data as reassuring or concerning, the capacity to have that evidence-based conversation at all is something England & Wales' criminal law framework cannot currently produce.

The Leadbeater Bill, operating within the criminal law paradigm, will face the same limitation if it passes. The oversight panel, however carefully designed, sits outside the clinical relationship. The self-administration requirement reflects criminal law's instinct to minimise professional involvement rather than healthcare law's orientation toward patient need. There is no mandatory reporting or data collection mechanism in the Bill. Whatever system emerges will operate, as the current DPP guidelines regime operates, without any systematic picture of what is actually happening in practice.

Why This Is Hard to Change

None of this is a criticism of the Bill's promoters or supporters. These features are not the product of bad faith or policy failure. They reflect real constraints. A legislature that has inherited thirty years of criminal law framing cannot simply decide to govern assisted dying as a healthcare matter. The professional regulatory bodies have no existing framework for it. The NHS has no institutional memory of this as a clinical service. The legal architecture has no obvious hook for governing the healthcare paradigm. Paradigm shift requires not just legislative will but institutional preparation, and England & Wales have had neither the time nor the political conditions to undertake it.

If the Leadbeater Bill passes, it will create a framework with structural limitations that no amount of amendment can fully address, because the limitations are a matter of how assisted dying is conceptualised rather than which particular provisions are chosen. If it falls, the next attempt will face the same constraints unless the intervening period is used not merely to regroup politically but to build the institutional foundations that a genuinely different kind of legislation would require.

A Different Conversation

The debate this Bill has generated is valuable beyond its immediate parliamentary fate. Colleagues in this series have examined what the Bill does and does not achieve on its own terms. The more important long-term contribution of this legislative moment may be what it reveals about the conditions that make certain kinds of reform possible and others structurally foreclosed.

As Nataly Papadopoulou observed in this series, whatever the fate of this Bill, another will follow, and we need to be more prepared for it. Preparation means more than refining the safeguards. It means asking whether the paradigm within which those safeguards are designed is itself the right one and, if not, what institutional groundwork would need to be laid before a genuinely different answer becomes available.