I attended the first day of line by line scrutiny. This post is not a blow by blow account of what happened but these are my reflections on the key themes that emerged from that first day.
The two key sets of amendments today were amendments by Sarah Olney MP (Lib Dem) to replace the test of capacity by a higher threshold intended to protect those who, despite having capacity, had their judgement partially impaired by a mental health condition. The second set were amendments by Danny Kruger MP (Con) to exclude prisoners and homeless people from the scope of the Bill. The rationale for the exclusion of prisoners was based on their vulnerability rather than a more punitive (‘lock them up and throw away the key’) rationale: Kruger is after all the author of the (in)famous hug-a-hoodie speech by David Cameron.
Suicide Prevention v the Bill
Those amendments nicely bring to life a key but rather underexplored theme of this Bill: the interaction between the suicide prevention approach of the Mental Health Act and this Bill. With the honourable exceptions of Prof Louis Appleby (adviser to the Government on suicide prevention and mental health) and Dr Ben Spencer MP (Con; former consultant psychiatrist) this is an issue that has not been touched on. The tension is this: the Mental Health Act seeks to prevent suicide and does so in a capacity-blind manner (if you try to jump off a bridge, the police will not seek to ascertain whether you have capacity to end your own life before stopping you) and this Bill which grants the right to capacitous adults who are terminally ill the right to receive assistance to end their own life.
Yet the cases of the mentally ill and prisoners bring it into sharp focus. This is because under the case-law of our courts and of the European Court of Human Rights the state has particular duties toward those groups.
As Lord Rodger put it in Savage v South Essex Partnership NHS Trust [2008] UKHL 74:
- As to persons known to be a suicide risk, the state has no general obligation, in my opinion, either at common law or under article 2(1) , to place obstacles in the way of persons desirous of taking their own life. The positive obligation under article 2(1) to protect life could not, for example, justify the removal of passport facilities from persons proposing to travel to Switzerland with suicidal intent. Children may need to be protected from themselves, so, too, may mentally ill persons but adults in general do not. Their personal autonomy is entitled to respect subject only to whatever proportionate limitations may be placed by the law on that autonomy in the public interest. The prevention of suicide, no longer a criminal act, is not among those limitations.
- Persons in police custody or in prison are in a different situation. Their personal autonomy has been lawfully restricted by action taken against them by the state. The restrictions imposed may, for some, bring about depression, feelings of hopelessness and thoughts of suicide. Such a state of mind, if apparent to those who have charge of the person concerned, would constitute, in my opinion, a circumstance highly relevant to the standard of protection required by the positive obligation under article 2(1) .
Therefore, the State has particular obligations to seek to prevent the suicide of children, the mentally ill, and prisoners. The Bill already excludes children from its scope, but under the Bill prisoners may access assisted suicide and those who are both terminally ill and have a co-occurring mental illness are also within scope.
It might be thought that those who are mentally ill would lack capacity and therefore be excluded in that way. But that is not the position as the Mental Capacity Act sets a low threshold for capacity. As the Royal College of Psychiatrists put it:
Importantly, under the Bill as introduced, a person with a co-occurring mental disorder that is impacting their wish to end their own life would not necessarily be deemed ineligible; only those whose mental disorder was deemed to impair their capacity to make a decision to end their own life would be excluded.
Elijah Granet has an excellent explanation of the issue here but the gist of the issue is that someone who is only partially able (on account of a mental illness) to use and weigh information is still considered to have capacity because in order to be considered incapacitated one must be totally unable to do those things.
The problem that this gives rise to – that someone could be assisted to end their own life when that desire in part arises from a mental illness – is one which the laws in California and Oregon seek to safeguard against. But there is no such safeguard in the Leadbeater Bill. Sarah Olney’s amendment sought to add such a safeguard but it was rejected 15 to 8 by the Committee.
The Committee’s refusal to grant protection in the Bill to terminally ill adults who are also mentally ill or prisoners is wholly at odds with the existence of duties on the State to seek to prevent suicide of those who are mentally ill and prisoners.
That refusal also makes the exclusion of children, particularly older ones, anomalous. One might suppose that the exclusion of children is because they do not have capacity, but that is not correct. Under s. 8 of the Family Law Reform Act children aged 16 and 17 have capacity to consent to all medical treatments. So, assuming assisted dying is akin to a medical treatment (something which a number of the Committee clearly thought) what’s the reason for their exclusion? Why is it that children continue to benefit from the full panoply of the State’s suicide prevention duties but not the mentally ill and prisoners?
Withdrawal of treatment v assisted suicide
Throughout the discussion, a key argument proponents of the Bill kept coming back to was that assisted dying was analogous to withdrawal of treatment. The argument deployed is that capacity is an acceptable threshold for withdrawal of treatment even when it is certain to lead to death.
Legally speaking the two are very different as the courts explained in the Bland case
Sir Thomas Bingham MR gave four reasons why they were different:
Has the doctor aided and abetted suicide? I think the answer plainly is that he has not. Why not? There are several possible answers. One is that it cannot be unlawful to act in accordance with the instructions of an adult patient of sound mind. Another is that the patient lacked the intent necessary for suicide. A third is that it was not the discontinuance of artificial feeding but the patient’s condition and its underlying cause which caused his death. A fourth is that the doctor lacked the intent necessary for aiding and abetting suicide. It may be all four answers are correct.
And Lord Goff:
I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient’s wishes.
Medically speaking the key difference is that in one case the cause of death is the underlying disease and in the other it is the lethal substance that is ingested.
Professor Sleeman has a very good twitter thread on the key differences: https://x.com/kesleeman/status/1889405699811070327
In terms of capacity, the key point of difference is that the decision to discontinue treatment (or indeed to refuse food and water) is necessarily the same as the decision to accept treatment (or food and water). In other words, the question is “do you want to have treatment?” and so the level of capacity needed for it is necessarily going to be the same whether the answer is yes or no. Therefore raising the capacity threshold for refusal of treatment would mean raising the capacity threshold for consent to treatment, and this would quite understandably be worrying and difficult. So whilst we might find cases of mentally ill patients being deemed to have the capacity to refuse treatment which leads to their death deeply uncomfortable, this is a necessary corollary to making it easy for people to consent to medical treatment (which is a good thing).
By contrast with choosing to end your own life, the alternative is purely passive – i.e. it is to continue living. It does not require any positive act or decision. This is why the decision to end one’s own life is wholly different from a decision to accept or not accept treatment. The upshot is that it is possible to raise the capacity threshold for a decision to end one’s own life without negative unintended consequences. So why wouldn’t we?
The answer of the Committee, however, was no but with the exception of Dr Neil Shastri-Hurst, they did not grapple with the implication of that: namely that it means mentally ill people (say with depression) could end their own lives even though their judgement was partially impaired.
Instead, the Committee appeared to rely heavily on the fact Professor Chris Whitty said that the Mental Capacity Act worked well and was well understood. That evidence was disputed by all the psychiatrists who gave evidence to the Committee and by palliative care doctors such as Dr Rachel Clarke. Furthermore, Professor Whitty stated in his evidence that “the more severe the decision, the greater the degree of capacity that has to be assumed before people can actually take that decision.” This, however, is not a correct statement of the law as the leading expert on the Act, Alex Ruck Keen KC, told the Committee.
With great respect to Professor Whitty the fact he got this wrong does not inspire much confidence in his statement that the Mental Capacity Act is well understood. Professor Whitty has not so far written to the Committee to correct the record and it is deeply worrying that the Committee rejected an amendment on the basis of that erroneous evidence.
The role of the Government
The Government is officially neutral and the two Ministers on the Committee explained that the Government would be neutral on amendments but that they would provide factual explanations on the legal effect of those amendments. However, the two Ministers would still be entitled to vote on those amendments according to their conscience.
That position is incoherent and was challenged by various Committee members. The matter has now been referred to the Clerk of Legislation for advice. But aside from the voting issues, the Government’s position is incoherent.
The Minister, for example, said that in the Government’s view the Mental Capacity Act would be an ‘adequate legal base to operationalise this Act’. This, however, goes to the core of the issue that the Committee was deciding: is the MCA good enough or do we need something more? The Minister was no longer being neutral but was opining on the merits of the amendment despite having said that he would not do that.
But there is a second issue: how could the Government know that the MCA would be adequate if it had not done (as it says it has not) an impact assessment of the Bill? The Government’s refusal to provide an impact assessment ahead of Committee is already a departure from the normal process which requires an impact assessment before Second Reading even on Bills where the Government is neutral. The Government has never explained why it did not follow this normal process which is set out in the PBL Guide to Making Legislation.
But that aside, it is clear that the Government must have considered the impact of using the MCA given what the Minister said, so why does it not publish that assessment in full?
The position is the same when it comes to the ECHR issues. The Minister expressed concerns that the Kruger amendments to exclude prisoners and homeless people would require a justification under Article 14 of the ECHR. But this means that it has carried out an ECHR assessment of the amendments, and therefore, presumably of the Bill as well. Why then not publish it now (especially when normal practice would be to publish it ahead of Second Reading)?
ECHR issues
Ahead of Second Reading, there was a vigorous debate amongst legal scholars on whether the fact that the Bill was restricted to terminally ill people (other such laws in Europe which are not so limited) could be challenged as discriminatory under Article 14 of the ECHR.
The Committee chose to hear oral evidence only from the participants in that debate who felt there was no such risk. Dr Lewis Graham told the Committee that the Courts would give the UK a very wide margin of appreciation given the sensitive moral issues involved. He concluded:
My point is that when it comes to justification, courts are very deferential to Parliament. Courts think that Parliament should be deciding whether treating two groups in different ways is justified or not. That is why, in my view, there is no real truck to the argument that article 14—the anti-discrimination right—will be operative and cause the Bill to be declared incompatible with the convention in any way.
To be fair to the Minister he did not say that the possible justification advanced by Danny Kruger would fail, but in his exposition he did not mention this wide margin of appreciation or say how the legal advice of the Government said it would be received.
But if the prospect of a successful Article 14 challenge is as fanciful as Dr Graham suggests, why say it? There are three possibilities:
- The Government does not actually think that there is a real risk of a successful legal challenge based on Article 14 against the Kruger amendments but in which case why raise the possibility of without explaining that it would most likely fail?
- The Government does consider, with due deference to Dr Graham, that the risk of a successful Article 14 challenge against the Bill (with or without the Kruger amendments) is a real one but in which case why is it not saying so?
- The Government considers that the Article 14 risk in regards to the limitation to terminal illness is remote but that it is real in regards to the exclusion of prisoners/homeless, but if that’s so why does it not explain it?
In any of those three instances, the selective deployment by the Government of legal considerations does not inspire confidence and is hard to square with the Government’s stated neutrality.
Finally, this does also raise the prospect that the Committee was unwise not to hear oral evidence from those who thought that Article 14 consideration was a substantial one. Perhaps those academics were right.
Slippery Slope
The debate on prisoners and the homeless was particularly illustrative of the slippery slope danger. The slippery slope arises when the philosophical or moral principles which are used to defend a Bill actually go much wider than the Bill itself. It means, therefore, that once accepted, the logic of those principles would push towards expansion of the Bill to match the full effect of those principles.
This was on full display during that debate. Proponents of the Bill referred to assisted suicide as either a right or healthcare or both, and questioned what justification there was for discriminating against prisoners and the homeless by denying them access to it.
This makes sense. Both healthcare and human rights are meant to be universal. Rule 1 of the Prison Rules famously states that the only punishment is meant to be the deprivation of liberty. With that exception, prisoners have the same rights as everyone else and are entitled to access to healthcare like everyone else.
But this argument does go much wider. If this is healthcare then why exclude children – especially 16- and 17-year olds? After all, the law does already recognise them as having capacity for medical treatment. And why exclude those, like Sir Nick Mostyn, who are not terminally ill but can nonetheless suffer unbearably? And finally why exclude those who are too physically unable to complete the final act themselves, do they not have a right to healthcare?
It is possible to see assisted suicide as not a human right and not healthcare. One can make the case for it based on tragic circumstances and a recognition of human frailty. Indeed that is broadly the approach the law now takes on it: it is not healthcare or a right but the criminal law prohibition is applied (or rather not applied) with a strong degree of humanity. One could, perhaps, have defended the Bill on such a basis as well and with that sort of argument grounded in compassion, mercy and realism it is easier to make the case for restrictions to a small number of people. Under that frame, excluding highly vulnerable groups like prisoners and the homeless would have been justifiable, and the fact of that exclusion would have made other exclusions easier to justify.
But defenders of the Bill did not choose that route and instead made their arguments based on human rights and healthcare. The logic of those principles go much further than this Bill. We should beware of the slippery slope ahead.