The 10 main points  of concern with the Bill

The illusory judicial safeguard

This is unlikely to provide much of a safeguard without someone who has notice of the application and is able to investigate the matter. The Court can only make a decision based on what is put before it. So unless contradictory evidence is introduced the Court process will simply be a check box approach. As Sir James Munby, the former President of the Family Division of the High Court put it, the Bill “falls lamentably short of providing adequate safeguards.”¹

There seems to be an assumption that the involvement of the High Court means that the safeguards in this Bill are somehow gold-plated. However, as set out below, it is not at all clear either what the Court is supposed to do or what it will be able to do. It is given no residual discretion: apparently if the criteria are made out the judge must approve the suicide. It is unlikely to have the time or resources to examine the applicant in any depth, if at all, to work out if the intention to die is clear, settled or informed, or whether there has been coercion or pressure, and in fact it is not required to do so, only being required to hear from one of the doctors.

As noted above, the judicial safeguard has been commented on, with very serious criticisms raised, by Sir James Munby. As former President of the Family Division, his experience of the practical work of the courts in dealing with questions of this kind is unparalleled, and his views should be taken with the utmost seriousness.
It should also be noted that, because this is a Private Member’s Bill, no investigation on impact on the judiciary has been carried out by the Ministry of Justice. Quite apart from resource implications, there is the question of judicial conscience. There is no provision in the Bill for judges to recuse themselves on the grounds that they do not wish to approve someone’s death. As a change in judicial responsibilities, this is analogous to the reintroduction of the death penalty, which, if introduced, might trigger sudden resignations across the criminal judiciary among those who did not wish to be required to impose it.

Clause 12(1): the judge.
These decisions are not reserved to High Court Judges, and it is not made clear which level of judge is to hear them.

The application is made to “the High Court”. There is no requirement in the Bill that the judge who deals with an assisted suicide application should be a High Court judge. There are 114 High Court judges, of whom 19 sit in the Family Division (which seems likely to be the Division which hears these applications).
It is unclear whether the promoters of the Bill intend that assisted suicide applications should be determined by full-time High Court judges. But the volume is almost certainly too great for the 19 Family Division judges to manage. Applications will need to be heard by Circuit judges and Deputy High Court judges. They could also be heard by District Judges at the Principal Registry of the Family Division or, outside London, at a District Registry. Indeed, the jurisdiction of the High Court may be exercised by “a master, registrar or other officer of the court, or by any other person” if rules of court provide for this.
We do not intend to diminish the importance of junior family court judges. However, applications to the High Court in family matters involving matters of life and death (such as withdrawal of treatment) are invariably heard by one of the 19 High Court judges in the Family Division, in recognition of the cases’ importance as well as the greater expertise of these judges. Indeed, it is also customary for full High Court judges to hear cases such as divorce cases involving large sums of money. There is therefore a serious risk that a big-money divorce will be entitled to a greater level of judicial attention than a case involving an application for assisted suicide.
Ultimately, the Bill does not say who is to determine these applications. It is not realistic to expect that they will generally be heard by full-time High Court judges. Most of them are likely to be determined by junior judges, either at the Royal Courts of Justice in London or at the District Registries outside London.

Clause 12(2): no judicial discretion
Judges are not permitted to make a general assessment as to whether this is an appropriate or inappropriate case

Though the claim that a court provides protection relies to a great extent on the assumption that a judge will be able to exercise their judgment over whether or not this application for assisted suicide should be approved, clause 12(2) makes clear that if a judge determining an application is satisfied that the criteria for assisted suicide in clause 12(3) are met, they must grant the application. They have no power to refuse the application if they are concerned about something outside these criteria. For example, if the applicant has decided to end their own life because a specialist cancer drug is unavailable, or because the palliative care they are receiving is inadequate, or because they do not want to be a burden on their family or the NHS, the judge must still grant the application. Similarly if the judge has doubts about capacity but not sufficient doubts to displace the statutory presumption, they must grant the application.

Clause 12(3): criteria
The rules as to burden of proof, and the rules as to capacity, mean that even if a judge has serious doubts as to whether this is a case where the suicide should go ahead, they will have to approve it.

This sub-clause sets out the matters of which a judge has to be satisfied before granting an application.
In civil proceedings, the burden of proof generally falls on the applicant and the standard of proof is balance of probabilities. This appears to be the intention here as nothing else is specified. So a judge would have to be satisfied, for example, that it was more likely than not that the applicant had not been coerced or pressured by someone else into making the application. The judge would not have to be sure of this: if they thought the applicant probably hadn’t been coerced, but had a reasonable doubt on the subject, they would still have to allow the applicant to end their own life.
Clause 12(3)(b) requires the judge to be satisfied that the applicant is terminally ill (as defined in clause 2). This requires that their death (in consequence of an inevitably progressive illness, disease or condition) can reasonably be expected within 6 months. The Court of Appeal of Northern Ireland has said that these words mean that the person’s death within 6 months would not be a surprise. So all the judge would need to satisfy themselves would be that it is more likely than not that the applicant’s death within 6 months would not be a surprise. One study found that at least 14% of patients who had been found by a doctor to satisfy this test were still alive after 3 years: see section 1 above.
Clause 12(3)(c) requires the judge to be satisfied that the applicant has capacity to make the decision to end their own life. “Capacity” here has to be read in accordance with the Mental Capacity Act 2005 which (as explained in point 4 above) makes clear that “A person must be assumed to have capacity unless it is established that he lacks capacity”. This is known as the presumption of capacity. It therefore appears that a judge must assume that the applicant has capacity, unless the contrary is proved. The application therefore does not need to be supported by evidence of the applicant’s mental capacity in order to succeed. There only needs to be the statements by the two doctors, neither of whom needs to have any expertise in assessing capacity and neither of whom needs to set out their reasoning.

Clause 12(4): procedure
The procedure for the court application is entirely unclear. It is not clear what this will involve.

This gives the court a wide discretion to decide what procedure to use for each application.
There is no requirement in the Bill for the applicant to notify anyone that the application is being made. Nor does the Bill give anyone a right to be heard. So a person is entitled to make the application, and then take their own life, without their spouse or partner, their parents or their children being informed. Even if they are aware that the application is being made, they have no right to review any of the documents in the application or to make representations on it.
There is also no requirement in the Bill for the application to be heard in public. It is therefore unclear whether the applications will be heard in private or in public. If they are held in public, the courts would still be able to impose reporting restrictions, for example to prohibit the identification of the applicant and/or the doctors involved. There is also no requirement for any order or judgment of the court to be published.
It is therefore quite possible to imagine a situation where a person is pressured into taking their own life by an abusive partner, but their adult children were unaware that they were even considering making the application. The first they would hear of it could be a notification that their parent has died this way. The same would be true for the parents of a young adult with a terminal illness who had been pressured into taking their own life by someone they met online.
It is of course possible that rules of court could be made requiring family members or others to be notified of the application, but there is no requirement for this. The fact that someone who objects to the court granting an application has no right to appeal its decision also indicates that the promoters of the Bill do not intend other people (such as family members) to have any real standing to challenge or oppose an application: further, as noted above in section 7, the decision by Parliament, if this Bill passes, that a patient should only be advised to “consider” informing their relatives might mean that rules of court imposing more stringent requirements might be unlawful as undermining the unambiguous choice of the statute.
If nobody apart from the applicant has a right to be heard on it, there will be nobody (apart from the judge) to test the evidence filed in support of it. It appears that the promoters of the Bill therefore envisage that these will be purely inquisitorial rather than adversarial proceedings. This is very unusual in the UK, where the usual function of a judge is to determine a dispute after hearing both sides of the argument, rather than to investigate a matter without hearing argument. Inquisitorial work of this kind is very burdensome for a judge as they have to satisfy themselves of the facts and the correct law rather than relying on the barristers appearing on each side to test the evidence and to draw their attention to the relevant law.
In theory it would be possible for the court to appoint an advocate to the court to review and test the evidence, but the Bill does not provide for this. This would also need to be funded, either by the applicant or by the court out of its existing budget.

8.5 Clause 12(5)-(7): the hearing

This requires the court to hear from one of the two doctors who gives a statement in support of the application. It also allows the court to hear from the applicant, the other doctor, the proxy who signed the declaration on behalf of the applicant, or anyone else. The court can also “question” anyone it hears from (but it does not have to do this). It is important to emphasise that the court does not need to hear from the applicant.

It is not necessary for anyone to attend court physically or even by video-link: a live audio-link (such as a telephone call) can be used instead. So the application could be determined by a judge sitting in their office, not in a public court room, and hearing one of the doctors confirm by telephone that they made the statement supporting the application.

There is no requirement for anyone appearing before the court to give evidence on oath.

It is not clear whether the promoters of the Bill envisage that the judge will hear from any lawyers. There is no requirement for them to do so.

It is hard to work out exactly how the promoters of the Bill see these applications being determined, but a typical process might be something like this:

The judge reads the applicant’s declaration and the two statements to check that they are in the form required by the Bill and that they are dated sufficiently far apart for the reflection periods to have happened.
The judge reviews a medical report from one of the doctors confirming that the applicant meets the definition of being “terminally ill”.
The judge reviews documents confirming that the applicant is 18 or over, has lived in England or Wales for 12 months, and is registered with a GP (e.g. a driving licence, utility bills and a letter from the GP confirming registration).
The judge reads a letter or perhaps a witness statement from the applicant in which they say that they have a clear, settled and informed wish to end their own life and that they are acting voluntarily and without coercion or pressure from others. The judge will not know anything about the circumstances in which this document was put together or whether anyone put pressure on the applicant to sign it.
The judge will hear from the doctor. Given the competing pressures on the doctor’s time, this will probably be by telephone or video-link from their hospital or surgery. It does not have to be on oath.
The judge will not need to read a report confirming mental capacity, as they are required to assume that the applicant has capacity unless the contrary is proved (see the note on clause 12(3) above).
The judge will generally not hear from the applicant. Unless there is something in the other documents that the judge is not satisfied about, there is no reason for them to do so.
The judge will generally not hear from any family members or anyone else. Indeed, there is no reason to think that anyone else will be aware of the application, unless they have been told about it.

Clause 12(8)-(11): appeals

These provisions give the applicant the right to appeal to the Court of Appeal if the court refuses to make a declaration. But nobody has a right to appeal if the court does make a declaration. This is a very unusual provision. Judges, like everyone else, make errors from time to time: this is why we have rights of appeal. But here, even if a judge makes a serious and obvious error in deciding to permit an assisted suicide, nobody is able to appeal against that error.

This also means that if someone finds out about the application after the judge has granted their declaration but before the death, they appear to have no way of challenging it, even if they have crucial evidence (e.g. of coercion) that was not provided to the court. Even if they could apply to court to be joined to the application after it was determined, they would not be able to appeal it.

The provision permitting appeals to the Court of Appeal is also very unusual in that it appears to require the Court of Appeal to determine the matter afresh, including by hearing from the doctor (and anyone else it wishes to hear from) again. Usually, appeal courts review the decision of the lower court, rather than rehearing the matter.

Resources

While almost all the procedure has been left to ministers and judges to design, the level of scrutiny that will be possible is going to depend on the resources and capacity of the courts.

A great deal depends on how many people apply for this. While Kim Leadbeater has said she expects this initially to involve only hundreds of applications per year, she has also said that between 0.5% and 3% of deaths could be expected to take place via assisted suicide.² As Sir James Munby has pointed out 3% of deaths in England and Wales would be c. 17,000 (even 0.5% would be 3,000).³

Supporters of this legislation have held up Oregon as a model: but in Oregon last year 560 cases were approved.⁴ Oregon has a population of 4.2 million and England and Wales a population of 60 million: we would therefore expect around 14 times as many cases, or c. 7,800.

There are 19 High Court Family Division judges. Even at Kim Leadbeater’s bottom estimate they would be dealing with three each per week: if we resemble Oregon it would be eight a week; if we reach Kim Leadbeater’s higher, 3% estimate, 17 each week. The courts are already seriously overburdened. This does not suggest that the judiciary would be given time to give such applications more than the most rudimentary scrutiny.

The 10 main points of concern with the Bill

The illusory judicial safeguard

The 10 main points  of concern with the Bill