A number of features of the legislation combine to create a set of incentives for medics
(and health services) involved in this that are likely to be dangerous for vulnerable patients. These are:
- Lack of any prohibition on a medical practitioner proactively suggesting assisted suicide;
- Absolute requirement that doctors start the process when a patient asks about it, whether or not it is against their professional judgement;
- The dangers of creating a specialist cadre of assisted suicide doctors;
- Complete protection from negligence liability for those involved.
Clause 4(2) states that “… nothing … prevents a registered medical practitioner exercising their professional judgement to decide if, and when, it is appropriate to discuss the matter with a person.”
It is clearly intended that doctors may raise the possibility of assisted suicide with a patient who has not asked to die.
The meaning of “professional judgement” and the “appropriateness” of initiating this conversation is unclear. A doctor who decided that it was appropriate to raise the possibility of assisted suicide with all patients over 80, or who were diagnosed with cancer, explicitly to relieve pressure on the ward, would appear to be acting within the legislation.
People who are terminally ill are, by and large very vulnerable, and so even if it is not intended to be so they might take a discussion of assisted suicide as an option to be a hint that they should do it. At best this might be grossly offensive and damage the trust between the patient and institution treating them, at worst this could amount to a subtle form of pressure or undue influence on the patient.
Clauses 4(3)-(5) require a doctor, if a patient asks about assisted suicide, either to explain the process to them (also discussing their prognosis, treatment and palliative care options) or to refer them to another doctor who will explain this to them.
As a conscience protection this is inadequate as clause 4(5) requires a doctor who opposes assisted suicide to nonetheless set the ball rolling for a patient by referring them to someone else who will explain the process. A number of doctors have already publicly stated that they will not do this and it is not clear whether this Bill expects those doctors to be expelled from the profession. Notably the apparent conscience provision in clause 23 only applies to “providing assistance” which is dealt with in clauses 18 and 19 (the actual provision of a lethal substance to the patient): it does not appear to cover clause 4 (at least because clause 4(5) is inconsistent with it).
However, this provision is also positively dangerous: while a doctor may choose to raise assisted suicide if in their professional judgement they think it appropriate, they are not permitted to refuse to discuss or progress it if in their professional judgement they think it inappropriate. If, for example, a patient appears to be wavering greatly in their mood (having suicidal days and optimistic days), or appears very distressed (e.g. shortly after receiving their terminal diagnosis), or appears to be being manipulated by their family (e.g. only asking about suicide after family visits or when in the company of their family), any doctor they ask about assisted suicide must present the options and process to them or find someone else to do so, even if it appears to be clearly not in their best interests. This means that the doctor is required to effectively set the ball rolling, even if in their professional judgment the case is clearly inappropriate.
There is also no limit on which doctor may raise this with a patient: no requirement that be someone already involved with their care.
This matters because in jurisdictions that have introduced assisted suicide or euthanasia laws, many doctors have decided they want nothing to do with it. This has left a small cadre of doctors who are specifically interested in being involved in assisted suicide or euthanasia. The doctors who carry out both the first and second assessments (see clauses 7 and 8) must have “such training, qualifications and experience as the Secretary of State may specify by regulations…” (see clauses 5(3)(a) and 8(6)(a)). This means that there is likely to be a special subset of doctors who choose to qualify for this work. The creation of a small cadre working on this presents various risks.
- There are risks in terms of the assessment of capacity, and whether a patient’s wish to die is “clear, settled and informed,” because the doctors are pre-selected for their interest in being involved in assisted dying. For most people, a request to die is prima facie strange and will be closely scrutinised because the starting assumption is that the suicidal person needs help and encouragement, not to be told they are correct to wish to die. But for the doctors here, they will be faced with requests to die all the time and it may start to seem normal and obvious to them that a sick person would want to die.
- The first doctor (the “coordinating doctor”) chooses the “independent doctor” to make the second assessment. If there is a small dedicated cadre within the profession who are involved in this, they are likely to know each other at least by reputation. As is well documented in other countries, particular doctors may develop a reputation for being more or less willing to approve a death. This means that the coordinating doctor may have a great deal of control over whether the independent doctor says yes or no (and notably, if the second doctor says no, the coordinating doctor is allowed to approach a third).
This is further complicated by the (surprising) removal of negligence liability in clause 25:
25 Civil liability for providing assistance
- Providing assistance to a person to end their own life in accordance with this Act does not give rise to any civil liability.
- Subsection (1) does not limit the circumstances in which a court can otherwise find that a person who has assisted another person to end their own life is not subject to civil liability.
- The references in subsections (1) and (2) to providing assistance to or assisting a person to end their own life include references to providing assistance to or, as the case may be, assisting the person in an attempt to do so.
On its face, this provides a complete indemnity from civil claims for anyone involved in this process. A doctor cannot be sued for negligently assessing someone’s capacity or life expectancy, or for carrying out their obligation to satisfy themselves that the intention was clear and settled, or that there was no coercion, in a negligent manner. Nor can they be sued for negligently misjudging the dose, so that it causes significant suffering (whether or not it is effective to end the person’s life).
That this is the intended meaning of the clause is supported by the fact that the Mental Capacity Act 2005 includes similar provision in s 5, removing liability for those who reasonably assume someone does have capacity when in fact they do not, but s 5 of that act explicitly does not protect someone who has been negligent. No such carve-out applies to clause 25 of this Bill.
The above issues, in combination, present an alarming picture of the sort of medical culture this Bill envisages. There is likely to be a dedicated cadre of “assisted suicide” doctors, for whom approving someone’s suicide will be an ordinary daily task, and who are completely protected from damages claims if they do their job carelessly.