The wide eligibility of the Terminally Ill Adults Bill

Overview

The Bill has been widely sold as a straightforward solution for those adults of sound mind who are in unbearable pain due to a terminal physical illness to shorten their death and opt for a pain-free death. 

The Bill’s actual text, however, tells another story: the Bill is much wider than that. Committee stage provided an opportunity to probe those lacunae and seek to fill them. However, the majority the Committee declined to do so.

To put it starkly, under the Bill the State is under an obligation to help someone end their life even if all the following apply to them:

  • They are not in pain (see section 1)
  • They are depressed, and the shock of their diagnosis is having a detrimental effect on their mental health (see sections 2, 3 and 4)
  • They worry that they are a burden on others and do not want their family to have to pay social care costs (see section 5)

In addition, intial discussions of assisted dying can be initiated by health professionals with people, such as children, who are plainly ineligible (see section 6).

1. No need to want to die because of pain and suffering

Much of the debate on the Bill has been about sparing people agonising deaths. Ahead of second reading the Sponsor of the Bill wrote that “My proposed legislation is less about ending life, but very much about easing suffering and shortening death.” 1And almost all of the case studies she relied on during the Second Reading debate involved great suffering. Furthermore, a very large number of MPs cited pain and suffering in explaining to their constituents why they supported the Bill.

But that, notwithstanding, the Bill does not contain a requirement that one must be in pain or be suffering. The eligibility requirements are listed in clause 1 and there is no requirement of pain or suffering. Nor does the definition of terminal illness in clause 2 require that illness to be painful or cause suffering.

In that regard the Bill is less strict than the law in New Zealand which requires both that the person be terminally ill and “experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable” (End of Life Choice Act 2019 s. 5).

In Committee Amendment 235 sought to add a requirement that the purpose for the request be the avoidance of physical pain but this was rejected by the Sponsor. She said it was not about pain but about autonomy: 

“Choice at the end of life is not just about physical pain, be it current or potential. It can also be about psychological suffering and mental torment as a result of being terminally ill —and it is of course about taking back control, bodily autonomy, dignity and choice.” (Col 467)

This tallies with the position in other jurisdictions. For example, in Oregon (cited as a model for this legislation), in 2023 only 1 in 3 people who had recourse to assisted dying cited “inadequate pain control, or concern about it” as a reason for seeking assisted dying whereas 91% cited “loss of autonomy” and 88% cited “less able to engage in activities making life enjoyable” (respondents could cite multiple reasons).2

Is it right for the State to assist people to end their own lives because they are less able to engage in activities that make life enjoyable? The answer to that question is far less straightforward than if the individual was suffering unberably and their pain could not be relieved.

Lack of pain and suffering also impacts public support for the Bill. Polling last November from More in Common found that 58% of people thought that people should be able to access medical assistance to end their lives “if they are terminally ill with a condition like cancer which causes constant severe pain” but only 40% thought they should be able to access such help “if two doctors independently confirm that they have six months of fewer left to live”.3

2. The desire to die does not need to come from the terminal illness

Underlying the misconception that the Bill is about terminally ill patients who are suffering is the belief that under the Bill the reason why someone wants to die is tied to their terminal illness. All the examples given at Second Reading were instances where someone wants to die because of the effects of their terminal illness.

Dr Neil Shastri-Hurst MP (supportive of the Bill) put the point as follows in Committee:

“I think there is a difference between somebody who is depressed and somebody who is depressed and suicidal. I have no personal moral objections if someone who has a terminal illness, who suffers from depression and who has capacity as set out through the two-stage test in the Mental Capacity Act, ultimately wishes to end their life because of their terminal diagnosis. If they are doing it because they are suicidal as a consequence of their depression, that is a different and distinct issue. We are talking about individuals who want to end their life because of their terminal diagnosis, not because of their mental disorder.” (Col 311)

Leaving aside the practical difficulties in distinguishing between the two cases, this quote does neatly illustrate the importance of a requirement that the wish to end’s one’s life is because of the terminal illness: without such a requirement a suicidal person who has suffered from lifelong depression who happens to have a terminal illness can be assisted by the State to end their own life. As Dr Shastri-Hurst MP implicitly recognises this would be morally very problematic.

Yet, the Bill contains no such requirement. Clause 1(2)(a) requires a “clear, settled and informed wish to end their own life” and clause 1(2)(b) requires that this wish be voluntary and without coercion or pressure by any other person. But at no point in the Bill is there a requirement that this wish arises “because of their terminal diagnosis”.

In Committee there were various attempts to solve that lacuna. 

Firstly, there was an attempt to specify some reasons (which are unconnected to the terminal illness) which would not qualify: Amendment 94 sought to ensure that those who sought assisted dying “for the benefit of others” rather than “their own sake” would not be eligible, this was voted down by the Committee. 

Secondly, Amendment 235 sought to specify a qualifying reason which was tied to the terminal illness (namely the desire to avoid physical pain) but it was opposed by the Bill Sponsor and so not pressed to a vote.

Finally, Amendment 468 sought to require the doctors to ask the patient’s why they wanted an assisted death. This would have allowed for doctors to then explore those reasons with the patients and probe further in cases where the patient gave a reason unconnected to the illness. That amendment was also voted down by the Committee. Then Sponsor did not make a speech explaining why Amendment 468 was rejected but Rachel Hopkins MP did explaining the rejection in the name of autonomy:

“To a certain degree, the patient may think, “So what? Do I have to tell you why? It is none of your business why I want to pursue this legal course of action down the line.” I appreciate where the hon. Member for Reigate is coming from, but with the best of intentions, her amendment would actually lessen the individual’s autonomy and their right to choose what if the Bill passes will be a legal course of action.” (Col 906)

Rachel Hopkins MP is correct in that if the Bill does not specify that the wish to die must be connected to the terminal illness, then making it a requirement that the question be asked is pointless. 

But the point is that it is a grave lacuna of the Bill that it requires the State to assist terminally ill adults who want to end their lives to do so for reasons wholly unconnected to their illness (e.g. because they have an underlying mental health condition, have low self-esteem, or feel they are a burden on others).

It seems clear that they are not the intended beneficiaries of the Bill, but as drafted, the Bill includes them when, it might be thought, it ought to have excluded them for their protection.

3. Mental illness and disability are not excluded

It is not the case that mental illness and disability are excluded from the Bill.

Clause 2(3) provides 

“For the avoidance of doubt, a person is not to be considered to be terminally ill only because they are a person with a disability or mental disorder (or both). 

Nothing in this subsection results in a person not being regarded as terminally ill for the purposes of this Act if (disregarding this subsection) the person meets the conditions in paragraphs (a) and (b) of subsection (1).”

The legal effect of this provision is, however, nil. This is clear from the last paragraph of clause 2(3) which makes it clear that if a person meets both limbs of the definition of terminal illness under clause 2(1) then clause 2(3) has no effect.

Clause 2(1) provides:


“For the purposes of this Act, a person is terminally ill if— 
(a) the person has an inevitably progressive illness or disease which cannot be reversed by treatment, and 
(b) the person’s death in consequence of that illness or disease can reasonably be expected within six months.”

As the second paragraph of clause 2(3) makes it clear, only the two limbs are legally relevant, and neither of them say that the illness or disease cannot be a disability or a mental disorder.

Suppose a doctor, as has happened in other jurisdictions, considers that anorexia has attained such a stage that it cannot be reversed by treatment and that death can reasonably be expected within six months. In that case, it will qualify and clause 2(3) is totally powerless to stop it.

This is why major anorexia charities are concerned about the Bill.

Several amendments were tabled at Committee stage to seek to exclude mental illness and disability properly, but they were all rejected.

4. Implications of reliance on the Mental Capacity Act

The core of the test of capacity under the Mental Capacity Act is that the person must be unable to do one of the following four things:

  1. to understand the information relevant to the decision,
  2. to retain that information,
  3. to use or weigh that information as part of the process of making the decision, or
  4. to communicate his decision (whether by talking, using sign language or any other means).4

Here “the decision” is the “the decision to end their own life” (Clause 1(1)(a).

As the High Court said 

“It is important to note that the question for the court is not whether the person’s ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof.”5

In other words, someone who is able to weigh information as part of decision-making process but whose ability to do so is impaired would still count as having capacity. This is why Baroness Hale said that the threshold for capacity under the Mental Capacity Act is “not a demanding one”6

People suffering from mental illness have been held to have capacity for a wide range of decisions, including decisions to end medical treatment which would result in their death.7 This is significant because supporters of the Bill in Committee have repeatedly made the analogy between assisted dying and withdrawal of treatment/life-support, which causes death, and said the same principles ought to apply to both.8

It follows that someone who has a wish to end their own life as a result of a mental illness will not necessarily be held to lack capacity under the Bill. As the Royal College of Psychiatrists put it:

“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.”9

Therefore, reliance on the Mental Capacity Act is not an effective safeguard for those who suffer from mental illness.

Contrary to the claim that the Bill has the toughest safeguards in the world, several other jurisdictions, including California and Oregon, rely not just on mental capacity but also require the absence of a mental health condition that impairs the decision-making ability.

A number of amendments were tabled to seek to address this lacuna at Committee stage. 

Sarah Olney’s Amendment 34 sought to replace the Mental Capacity Act test with a bespoke test of ability which requires no impairment of decision-making ability, it was voted down. 

Wera Hobbhouse’s Amendment 363 sought to add a requirement that the person “is not seeking assistance to end their own life because of an impairment of judgment arising from a mental disorder or other condition” and was also voted down.

5. Internalised pressure

If all the criteria are met, there is no discretion on the part of the doctors or Panel to refuse an application if they think there are good reasons why it should not proceed: they “must” approve the application.10

It follows that someone who is terminally ill, has capacity, and is not being coerced or pressured by any other person must be provided with assisted suicide even if they are acting for the following reasons:

  1. They are in great pain and are not being provided with access to proper palliative care
  2. They feel that they are a burden on others or on the NHS
  3. They wish to save care costs for their family
  4. They wish to die because they have low-self esteem for reasons unrelated to the terminal illness

This is because none of those reasons mean that the eligibility requirements are not met: the person still has capacity, is acting voluntarily and has not been coerced or pressed by another person.

Amendments were tabled at the Committee to solve this lacuna. 

Amendment 281 required that the patient must have “met with a palliative care specialist for the purposes of being informed about the medical and care support options.” This would have gone some way to address the first concern, but it was rejected by the Committee.

Amendment 94 sought to ensure that those who sought assisted dying “for the benefit of others” rather than “their own sake” would not be eligible. It would have addressed the second and third concerns, but it was voted down by the Committee.

Amendment 94 was in part, rejected because it was thought to interfere with autonomy (by preventing people from choosing to die in certain circumstances).11

In the course of the debate on Amendment 94 the Sponsor could not deny that someone who wanted AD to save care costs would be eligible under the Bill. In the end, she said that “Ultimately, it comes down to a question of autonomy, dignity and choice for patients, but they are not simple conversations.”12

Dr Simon Opher MP sought to avoid this conclusion by saying

“As a doctor, if I, under this legislation, came across someone who gave their main reason for ending their life as being that they wanted to save money for their family, that would come under pressure or coercion, even if it was from themselves.” (Col 466)

But clause 1(2)(b) of the Bill is clear that the person “has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it.” There is no concept of self or internalised pressure under the Bill.

It should be acknowledged that another reason given for the rejection of Amendment 94 was the risk that it might be ineffective because people would “game the system”13 (i.e. that they would say to the doctor “I am not doing this for the sake of others/because I feel I am a burden”). The response to that is that it is better to have a Bill that tries to safeguard against this risk rather than one that does not even try.14

In any event, an alternative solution is to grant the Panel a residual discretion not to approve the application even if all the core criteria are met.15 That power could be used in a case where someone says they want to do it to save care costs. Amendment b to New Clause 21 sought to do just that but was voted down by the Committee.16

6. Medical professionals can raise AD with people who are not eligible

Ostensibly, the eligibility criteria are clear, but under the Bill doctors are allowed to proactively raise assisted dying with individuals who are not eligible for assisted dying.

For example, there is no requirement under clause 5, which governs preliminary discussions, that the doctor must consider whether the person might be eligible or not. Of course, it would not make sense for the doctor to conduct a full examination of whether the person meets all the criteria prior to having a preliminary discussion. But there will be cases where it is clear that the person is not eligible; the most obvious category is children.

Whilst the Bill as amended in Committee does require that there must have been a preliminary discussion when the person was 18 or over (clause 7(3)(b)(ii)), there is no prohibition on doctors (or other health professionals) raising it with a child (see clause 5(2)). 

There are also other vulnerable people who may or may not be eligible for assisted dying which the Bill allows doctors to raise assisted dying with them without additional safeguards.

Daniel Francis MP tabled Amendment 319 to ensure that doctors could not proactively raise it with a child but it was voted down by the Committee.

Amendments 339 (Daniel Francis MP) and 368 also sought to add additional protection for those with learning disabilities, autism and Down’s Syndrome in cases where doctors wanted to proactively raise assisted dying with them. Neither of those amendments prohibited doctors from raising the issue but they sought to add protections. Both of those amendments were voted down.

Clause 20 (added by amendment by Dr Marie Tidball) sought to address the concerns raised by Amendments 339 and 368 by creating an independent advocate for people who have learning disabilities, a mental disorder or autism. However, as the clause itself says the role of the independent advocate is:

“to provide support and advocacy to a qualifying person who is seeking to understand options around end of life care, including the possibility of requesting assistance to end their own life, to enable them to effectively understand and engage with all the provisions of this Act.” (clause 20(3))

In other words, the independent advocate’s presence is initiated by the person with a learning disability (or mental disorder or autism) when they want to get information. There is, therefore, no requirement for one when the doctor proactively raises assisted dying.

Finally, there is no bar on the doctor conducting a preliminary discussion about assisted dying with someone who is suicidal. Amendment 270 would have required that the registered medical practitioner, before conducting a preliminary discussion, “must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.” It was voted down.

7. Conclusion

Supporters of the Bill ask us to imagine someone suffering from terminal cancer who is in great pain that palliative care cannot resolve and who has a clear and unshackable desire to die; someone like Esther Rantzen. MPs are then asked to vote for the Bill on the basis that people like that need help.

But the difficulty is that the actual eligibility criteria in the Bill are much wider. The Bill extends assisted dying to those who are not in pain, to those who feel they are a burden, who are depressed, and to those who wish to die because they are not receiving the support and palliative care they need. 

The Committee process has exposed that the Bill does not so by quirk of poor drafting but due to a deliberate policy choice driven by a belief in autonomy. The question for MPs is whether they are comfortable with this extension beyond just the Esther Rantzens.

  1. https://www.theguardian.com/society/2024/oct/17/kim-leadbeater-assisted-dying-bill-archbishop-of-canterbury-meeting ↩︎
  2. https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year26.pdf page 14 ↩︎
  3. https://www.moreincommon.org.uk/media/jrko2fog/proceeding-with-caution.pdf page 11 ↩︎
  4.  See section 3 Mental Capacity Act: https://www.legislation.gov.uk/ukpga/2005/9/section/3 ↩︎
  5.  Kings College Hospital NHS Foundation Trust v C & Anor [2015] EWCOP 80 at [31] ↩︎
  6. MH (by her litigation friend, the Official Solicitor) v Health Secretary [2006] AC 441 at [26], per Baroness Hale of Richmond. ↩︎
  7. Kings College Hospital NHS Foundation Trust v C & Anor [2015] EWCOP 80 ↩︎
  8. Dr Tidball MP: “[The Mental Capacity Act] is used in cases where treatment is withdrawn. It is important to understand that in those circumstances, such withdrawal is not seen as an omission; it is seen as a deliberate act. It is therefore analogous to the usage in the Bill as proposed.” (Col 302), “does the Minister agree that a reasonable person on the street would believe that the act of disconnecting a respirator was a positive act? Currently, the Mental Capacity Act is applied to that act in relation to decision making; that is therefore analogous to the process for which it will be
    used in relation to this Bill.” (Col 607).

    Kim Leadbeater MP: “I think dying people should be given that choice. In the same way that they are given the choice to have treatment withdrawn or the machine turned off, they should be given the choice to take control and to have the autonomy and dignity that assisted death will provide.” (Col 328-9). See also Col 345 where she says the MCA should apply to assisted dying in the same way in applies to withdrawal of treatment.

    See also Dr Shastri-Hurst MP (Col 307), Kit Malthouse MP (Col 327-8, 337), Lewis Atkinson MP (Col 584, 605, 1089-90). 

    For the rebuttal to those points see Danny Kruger MP (Col 327-328).

    On the various views of witnesses only Prof Hoyano (Q 289, Col 227-228) thought they were analogous whereas Dr Cox (Q 91, Col 74), Prof Owen (Q 299, Col 236), Dr Price (Q 361, Col 276-277) thought they were not.
    ↩︎
  9. https://www.rcpsych.ac.uk/news-and-features/latest-news/detail/2024/11/29/rcpsych-comments-on-vote-for-assisted-dying-bill-in-england-and-wales ↩︎
  10. First doctor: clause 9(3)(c), second doctor: clause 10(5) and 10(7), Panel: clause 15(7)(a). ↩︎
  11. Tom Gordon MP (“I just wondered whether the right hon. Member [Kit Malthouse] shares my concerns that the amendment would end up in the territory of legislators and parliamentarians almost trying to act as thought police, when we should be respecting the autonomy of people in the decisions they make.”, Col 448; Kit Malthouse agreed). ↩︎
  12. Kim Leadbeater Col 466 ↩︎
  13. Kit Malthouse MP Col 451
    ↩︎
  14.  Danny Kruger MP: “but I would rather that there were a system, even if it were gamed, than to have no safeguards whatever—which, I am afraid to say, is the case with this Bill. The only coercion that the doctor is looking for is coercion from other people; we do not think that that barrier is strong enough, but it is about coercion from outside. But internal coercion—people saying, “I want to do this to save my family care costs, and not just the sight of me in agony”—would be perfectly acceptable under the Bill.”
    ↩︎
  15. Such a solution would not be perfect as there is no guarantee that the Panel would exercise their discretion in appropriate cases, but it is better than nothing. ↩︎
  16. The Panel must approve if the criteria are met “​​unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,” ↩︎
Print page
Share on X