Some thoughts on the "Assisted Dying" Bill

Labour MP Kim Leadbeater

I am not entirely sure how I would have voted on the Terminally Ill Adults (End of Life) Bill on Friday if I had been an MP.

For many years I have expressed views supporting a change in the law. Bodily autonomy is a fundamentally liberal principle. The right to die with dignity is something I have long championed. 

And yet, I am not satisfied that this Bill represents the right way forward. I am not sure that I could have supported it, even at its second reading, because it is so deeply flawed. If I was put in the position MPs were on Friday I may well have reluctantly voted for - but only to allow for further discussion, scrutiny and improvement. It's also possible that I may have abstained, because I agree with the fundamental principle but feel the Bill simply isn't good enough.

The bill passed its latest hurdle by a margin of 330-275, but there is a long way to go before it becomes law. As Labour MP Andy Slaughter said in the aftermath of the vote, the Bill must now be gone through "line by line" and MPs need to "sit down and make it a better bill". 

What this Bill proposes to do is establish a statutory service to the end the lives of people who meet specific eligibility criteria and request it. We cannot afford to be squeamish about this. I note that campaigners for the Bill are reluctant to use the word "suicide", perhaps because of the historical stigma attached, but to my mind this is a mistake. Indeed, an intellectual argument in support of the Bill is that an Act of Parliament already exists that gives individuals the right to take their own lives - this Bill would extend that to people who are so ill in the final stages of their lives that they cannot do this themselves. The statutory service I refer to would effectively be a statutory suicide service, as it will only be available for those who have made a decision to end their lives. We should not be afraid to use unpleasant, but honest, terminology when we're dealing with matters of life and death. People are being empowered to end their own lives, albeit with assistance.

If some of us are uncomfortable with the "s" word then it simply confirms how much more work there is to do on stripping away the stigma around what is the most common cause of death among men aged 25-50. But I digress. For me the Suicide Act 1961 is highly relevant when it comes to safeguards, as we shall see in a moment.

The reason that I am unconvinced about Kim Leadbeater's bill is because I do not see it as containing anything like the necessary level of safeguards against coercive control. As Tim Farron points out, coercion is "often hidden and unnoticed by outsiders". By its nature, it can feel "normal" to its victims. Mr Farron said: "I am deeply concerned that people will be deviously coerced into ending their lives without realising that their personal sovereignty has been manipulated. Once they are dead, it will be too late for the penny to drop."

Where I disagree with Mr Farron is that he feels there can be no level of safeguarding to adequately protect vulnerable people from coercion. I take the view that the Bill could potentially be improved, but in its current state is woefully deficient. Why?

Well, let's start with the Suicide Act. Section 2A deals with assistance and coercion. It stipulates: "If D arranges for a person (“D2”) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it" It further states: "A reference in this Act to a person (“P”) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide." The Suicide Act sets out an offence of "complicity in suicide" and, as such, requires all deaths by suicide to be reported to, and investigated by, the Coroner's Office.

Kim Leadbeater's Bill would allow for assisted suicide in specific circumstances, which appears entirely reasonable. Unfortunately, the statutory legal requirement for a Coroner's investigation is actively prohibited in Clause 29 of the Terminally Ill Adults (End of Life) Bill. This states: "A person is not to be regarded as having died in circumstances to which section 1(2)(a) or (b) of the Coroners and Justice Act 2009 (duty to investigate certain deaths) applies only because the person died as a consequence of the provision of assistance to that person in accordance with this Act" To my mind, this seriously undermines the claim to have "world-beating safeguards". The views of two doctors and the approval of a High Court judge, useful as they are, do not represent a substitute for the robust safeguard of the coroner's jurisdiction. Indeed, if any evidence of coercion were to be uncovered after the assisted death no legal action could be taken against the alleged offender; no charges could in fact be brought.  

The Bill doesn't even provide scope for investigating possible coercion if evidence of such is provided before the assisted death occurs but after the High Court has given its approval. I am no lawyer and so there may be alternative legislation that could apply in such circumstances, but it reads to me as if the High Court decision is final and cannot be challenged even if a compelling reason to do so becomes apparent. 

Ms Leadbeater seems so confident in her "world-beating safeguards" that she sees no need for the oversight of the Coroner's Office. I am stunned by this. Without the coroner having investigative powers after an assisted death, I could not possibly support the proposed Bill. It is absolutely vital that there are mechanisms to investigate potential criminal activity after the High Court has given the green light to an assisted death. Under Section 76 Serious Crime Act 2015 the offence of controlling or  coercive behaviour in an intimate or family relationship is an offence, and there must be powers of investigation and prosecution if any suggestion of such behaviour is made. Expressly prohibiting the coroner's involvement therefore seems based on ill-founded confidence that the Bill's safeguards are foolproof. Safeguards around terminally ill people should be as good as, and arguably better than, those within the Suicide Act.

Tim Farron doesn't quite go far enough when he says "once they are dead, it will be too late for the penny to drop." Once the patient has died, it would be too late to take any actions against potential criminal behaviour even if the penny does drop. We should all be worried by that. 

Moving on from the sensible protections around the Suicide Act which don't apply here, let us consider the supposedly watertight safeguards described within the Bill: the requirement for the applicant to have a terminal illness with the expectation of having less than six months left to live, the requirement for capacity, the need for two doctors to agree and the approval of the High Court. Do these really live up to the claims being made for them?

The first of these I accept as a reasonable criterion: limiting eligibility in this way seems the correct thing to do. The Bill proposes to make arrangements in relation to terminally ill people only and I have no argument on this particular point.

On the point of safeguards, Christine Jardine MP - who is a supporter of the Bill - has spoken in support of the requirement for two doctors and told Victoria Derbyshire that "[doctors] are trained to deal with people and to read if they're being open with them... If you are with someone who is facing the end of life and wants to have the choice to end their life there is a sincerity about what they say. That is not something you can go through if you are being coerced. The medics, the professionals, will be trained in how to do this."

The problem with this logic is that doctors are not trained in recognising, or dealing with, coercive control. The focus on the medical profession is a significant weakness of the Bill. Ms Jardine also speaks as if there is an expectation for the assessing doctors - or, at the very least, the coordinating doctor - to know the patient intimately. However, not only is there nothing within Clause 7 of the Bill to require this, Clause 8 requires the second doctor to be independent and therefore having no prior knowledge of the patient. This is hardly reassuring from the perspective of detecting and avoiding coercion.

I have over 25 years of experience working in NHS mental health services within both England and Scotland. Their respective Mental Health Acts are quite different, but for the purposes of this I will refer to practices under the Act in relation to England and Wales. The requirement for two doctors to make decisions under the Mental Health Act has not proved entirely successful from the perspective of safeguarding patient wellbeing, and the creation of the role of Approved Mental Health Professional (AMHP) in 2007 - an AMHP  can be asocial worker, occupational therapist, psychiatric nurse, or clinical psychologist - finally accepted the overdue need for assessment to be co-ordinated by someone other than a doctor. This change to the Mental Health Act also recognised the need for multi-disciplinary approaches to safeguarding. 

I am not equating mental health with end-of-life illness. But in both scenarios we are dealing with vulnerable people who have the potential to be coerced. Our Mental Health services regularly deal with issues around coercion. These include coercion from family members, caregivers, friends and other people known by the patient and may relate to finances, treatment, restraint or medication. This isn't an exhaustive list by any means. Tactics may include threats, intimidation, isolation, and control over various aspects of everyday life. I think it's fair to say that coercion - and attempted coercion - is reasonably common despite the safeguards stemming from Section 76 of the Serious Crime Act, and the idea that two doctors and a High Court judge are best-placed to identify it seems, at best, wildly optimistic.

Frequent safeguarding concerns are raised around the effects of alleged coercive behaviour towards service users, almost always by people they know intimately. I am afraid Christine Jardine's sincerity test just doesn't work. Neither are doctors well-placed, qualified or experienced to either recognise or challenge it. It is generally those professionals who are closest to the patient - nurses, social workers, occupational therapists, etc - who pick up on signs of abuse. 

Why does this Bill identify the medical profession as the ideal gatekeepers? It seems short-sighted to me. The Mental Health Acts in both jurisdictions recognise the need for multidisciplinary approaches to safeguarding patient rights, so why does Ms Leadbeater's Bill single out doctors? At best, the Bill has failed to grasp the nature of doctor-patient relationships and overlooked the fact that other professionals are more experienced as far as dealing with coercive behaviours is concerned. 

The lack of a requirement for input from either social work, community nurses or psychologists is another significant weakness. It shouldn't be difficult to outline a statutory role, similar to the AMHP, in relation to assessments under the Bill. As it stands, I don't feel the requirement for two doctors works because it fundamentally misunderstands what doctors do - and don't do. Recognising abusive relationships isn't part of their training and it isn't something we should expect them to do. There is nothing within Clauses 7 and 8 of the Bill, which outline the responsibilities of the assessing doctors, that would be beyond the competence of non-medical professionals working with the terminally-ill person.

On that note I come to the requirement for the terminally ill person to have capacity. Clause 3 of the Bill states: "In this Act, references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005." The Mental Capacity Act allows for assessments of capacity by any health professional, so why limit it purely to the medical profession in this instance?

I can only imagine what consultation has been undertaken within the medical profession in regards these proposals. My guess is that it is not what it should have been.

As for the High Court - backdrop matters. The court system is already creaking under pressure. I'm not opposed to it as a final step on the condition that there would be additional safeguards identified, but two years spent working within the justice system hasn't convinced me that this is the supreme safeguard claimed. The High Court would realistically be rubber-stamping a decision unless the judge sees a reason not to; for example, if a relative was to express concern about the controlling behaviour of another relative. Unless such new information was forthcoming during the hearing, it is difficult to see that the court would reject an application and it could not categorically confirm that no coercion had taken place. It can only work on the basis of evidence presented to it. While the criteria of the Bill requires "the person [who] made the first declaration [not to have] been coerced or pressured by any other person into making that declaration or application" there is no clear  process for assessing this. The fact that doctors and a judge may believe - in good faith - that such coercion has not occurred is no guarantee that is has not. 

Many have argued that what is needed is not a discussion around assisted dying but better palliative care. I certainly believe palliative care has to be improved, although I don't see it as an "either or". That said, as I noted above, backdrop matters and I note that the sponsor of the Bill appears to overestimate the quality of palliative care in the UK. Ms Leadbetter told Labour List: "I hope MPs will agree with me that we can offer the safest choice to those who want it at the end of their lives, while at the same time working to make our already excellent palliative care provision even better..." (my emphasis).

That is a huge assumption to make and an entirely mistaken one. Palliative care in the UK is not "excellent" - far from it. It is woefully inadequate, as my own family found out last year. I am happy to have discussions around assisted dying, but they must start with a broad acknowledgement that palliative care provision is poor. It doesn't need "improving" as much as it needs entirely rethinking - especially in how it is funded. Ms Leadbeater's assertion is little more than wishful thinking, but it matters because she fails to observe the painful reality that people may choose to end their lives prematurely simply because they fear living out their last days without good palliative care. I do believe in providing choice, but it is only a genuine choice if services are accessible and of a good standard.

In the last few weeks MPs have been talking about palliative care a lot. This is curious, because in recent years the silence around palliative care has been deafening, and no government has done anything meaningful to improve palliative care provision. The National Palliative and End of Life Care Partnership's document, Ambitions for Palliative and End of Life Care, should have been the springboard for constructive conversations about this. Many of these calls for better palliative care that have been made in recent days, much as I agree with them, are coming from people who have had opportunities to act in the past and not taken them. 

Criticisms of inaction aside, I do share the view that ideally we would have "fixed" palliative care - or at lest published a coherent, cohesive and ambitious plan - before discussing assisted dying. Unfortunately, with the Bill now moving to the next stage, there is not much that can be done about that. However, what this draft Bill has done is underline the need for overdue and urgent action to ensure that the UK has genuinely "excellent" palliative care provision in the future. We simply cannot afford to pass this Bill unless we are willing to belatedly create a fit-for-purpose palliative care system. 

Ms Leadbetter may believe that this Bill offers "the strictest safeguards anywhere in the world". I don't want to make comparisons with other countries' legislation, but I will say that the provisions within this Bill can - and should - be strengthened further. I hope that, as the Bill goes through the next stages, it may be sufficiently improved that I could bring myself to support it. Whatever I think about the underlying principles and the well-meaning aims of Ms Leadbetter and her co-signatories, unless the over-dependence on the medical profession and the prohibition of coroner involvement are revisited I would not wish for this Bill to become law. 

I welcome conversations around end of life, but the focus on "assisted dying" is unfortunate. We should be talking about this in the context of broader provision and providing choices for people at the end of their lives. I have no idea what will happen with this Bill - or with Liam McArthur's similar Bill going through Holyrood - but this debate should not distract from the need to build the kind of end-of life care system out country deserves.