Can a change be expected?
Will the UK Law Change?
“70% chance of a change by the late Autumn of 2025”
SUMMARY
Kim Leadbeater MP came top in this Autumn’s ballot for Private Member’s Bills. She has chosen Assisted Dying as the subject for her Bill. The Government has agreed to give the Bill as much Parliamentary time as it will need. The first big debate upon it will be held in a few weeks’ time. Lord Falconer’s Bill will probably be dropped.
The new Bill itself is likely to follow the model as supported by Dignity in Dying. That is to say, assisted dying will be made available to mentally competent adults who are terminally ill and who have less than six months to live. Further, their cases will have to be supported by two doctors and a High Court Judge. If passed in its present form, it will therefore be helpful only to a limited number of people. Patients with with MND or Parkinsons, for example, will be excluded. The number of British people travelling to Switzerland each year to end their lives will fall by 30% but no more. If passed the Bill will become law in late 2025.
Although public opinion is now heavily in favour of the Bill (approximately 75%), this is not yet reflected amongst MPs. The outcome of this Autumn’s debate in the House of Commons appears, at present, to be on a knife edge. The opponents are, if anything, slightly better organised..
The last debate by MPs was in 2015 when a Bill to introduce Assisted Dying was defeated by 327 votes to 118. Public opinion has changed greatly since then and this will have been mirrored to some extent amongst MPs. Parliamentary opposition remains very strong, however.
There is a 70% chance of a new law being in force by the late Autumn of 2025. We shall know during the course of the forthcoming debate whether or not it will provide help for sufferers from MND, Parkinson’s or dementia and whether the almost impractical obstacles of “two doctors and a judge” have been limited in any way.
THE SITUATION NOW
Assisted Dying is now legal throughout Belgium, Canada, Germany, Holland, New Zealand, Spain, Switzerland and almost all of Australia. It is also available in several States of America. It is in the process of legalisation in France, Ireland, Portugal and Scotland.
In England and Wales, we have recently (February 29th 2024) received the much-awaited report from the Health and Social Care Select Committee. Unsurprisingly, this has not taken sides on the issue itself, reporting only that it wants to “inform debate” about it. So this is already being interpreted as a bit of a cop-out. However, the supporters of change seem to be more happy with the report than do the opponents. The BBC is highlighting the section that says there is no evidence of a fall in healthcare provision in countries where assisted dying has already been legalised. Opponents had been hopeful that, due to the membership of the Committee, its report would be more favourable to their cause.
The last time the House of Commons voted on Assisted Dying was in September 2015 when the second reading of Robert Marris’s Bill was defeated by 327 votes to 118. Of the MPs voting, a majority both of Conservative and of Labour MPs voted against. The opponents represented 87% of the Conservatives and 56% of the Labour Members.
THIS IS NOT A “MANIFESTO” ISSUE
MPs of all parties like to maintain the long tradition that “conscience” issues should be subject to a free vote and should not be made into issues of party-political rivalry. Such issues have included The Suicide Act 1961, capital punishment (1965), the de-criminalisation of homosexuality (1967), The Abortion Act 1967, corporal punishment in schools (1987) and gay marriage (2013). The Party Whips have no role to play in how their MPs vote upon such questions.
Because this is not a party-political issue, its success will depend upon an individual MP choosing to introduce it personally in the form of a Bill before Parliament. In order to succeed, the Bill will (almost certainly) need to be introduced by an MP from the governing Party, will need to start in the House of Commons and will need the tacit assent of Downing Street. This latter point is especially important – without the consent of the Prime Minister, the Bill will not be allowed sufficient Parliamentary time to get it through.
WHAT IS A “PRIVATE MEMBER’S BILL”.
At the moment, the only realistic way in which the law on Assisted Dying in England and Wales can be changed is by something called a “Private Member’s Bill”. This means it is not part of the Government’s own legislation.
In the 2021/22 Parliamentary Session there were eleven Bills passed in this way. They included the British Sign Language Act, the Down Syndrome Act and the Animals (Penalty Notices) Act. Each one had been introduced by an individual MP and had passed through both Houses of Parliament before receiving the Royal Assent.
Any change to the Assisted Dying laws would need to come from an MP who had been successful in the annual ballot for such Bills. Most MPs who are not members of the Government put their names in for the ballot and, each year, Parliament allows about seven days for debates upon them – debated in the order of their success. The House of Lords works on a similar basis but any change to the Assisted Dying legislation is unlikely to succeed if started there.
It will therefore be necessary for one of the MPs whose name has come near the top of the ballot to choose Assisted Dying as his or her subject for reform. This last happened (see above) in 2015. It would help greatly if the MP concerned was a member of the governing Party. Such Bills normally start with a full day’s debate on the Bill’s “Second Reading”. Such a debate will be on a Friday, will start at 9.30 am and must conclude by 2.30 pm. Supporters of the Bill must put it to a vote before 2.30 pm and the vote must go in their favour.
If the Government really wants to stop it, then they will do so by the simple expedient of denying the Bill the Parliamentary time it needs to make further progress. Therefore the Government of the day, must (even if they’re not too keen on it) agree that such time is made available. In the past, this has been the main stumbling block. In response to the recent petition (February 2024) the Government has now said it will “make time for debate in the next Parliament”, which is good news but falls short of a full provision of time for the necessary Private Member’s Bill. It seems likely that a fuller provision will be included in the forthcoming Labour Party manifesto.
If public opinion in the UK really is between 70% and 85% in favour of such a change (which all polls are currently saying is the case) and if that view is reflected by a majority of MPs then it would be politically difficult for any occupant of Downing Street to exercise some sort of a veto.
WHAT WOULD THE NEW LAW SAY ?
This would depend greatly upon what the MP introducing it had chosen to put in the draft Bill. It would also depend upon amendments made as the Bill is passing through both Chambers.
There are four open questions at the moment :
- What safeguards can be included to prevent vulnerable people being persuaded to end their lives against their own real wishes or interests ?
- Will the new law help people with MND, Parkinsons, Alzheimers and other neurological illnesses ?
- Will the patient need to conduct the end-of-life act themselves or will someone else be able to do it for them ?
- Will it be available on the NHS ?
SAFEGUARDS – THE “DIE WITHIN SIX MONTHS” RULE
Of the 337 MPs who voted to defeat the 2015 Bill, most were heavily influenced by the so-called “coercion” argument. They were worried that if elderly people were given the right to choose when their own lives should come to an end, some would come under pressure to request an assisted death before they really wanted it. Relatives with their eyes on inheritance might persuade Granny to do it now rather than later. This sounds, indeed, like a powerful point.
In an effort to give a safeguard against such outcomes, the leading campaign organisation, Dignity in Dying, asked the Bill’s sponsor to introduce a “six month rule”. Assisted Dying would only be available as a choice if two doctors had certified that the patients would be dead within six months anyway. Why seek the early death of a grandparent if he or she will die within six months ?
In the event, the inclusion of this clause seems to have made little difference to the voting outcome. It is likely, however, that even more MPs would have voted against the Bill if this anti-coercion clause had been dropped.
Nonetheless, there are powerful arguments against the six-month safeguard.
It is extremely difficult to get two doctors to certify that a patient is likely to die within six months. Even patients with an illness like cancer which has reached the stage where it is going to prove fatal, can frequently live much longer than the professionals expect. Doctors are aware of that and are very reluctant to put their names to any document that says something different – unless, of course, death is now so near that the pain and suffering is already well-advanced.
In Canada and Spain, where Assisted Dying is a legal and much-appreciated provision, the six month “safeguard” does not appear at all. MPs in the UK are already much better informed than they were in 2015 and the “safeguard” does not seem to be as powerful an argument as it might have been at the time of the Marris Bill. Nonetheless, Dignity in Dying continue to campaign strongly for it.
PARKINSONS, MND, ALZHEIMERS AND OTHER NEUROLOGICAL ILLNESS
These illnesses can destroy your quality of life but do not usually end it. They are diseases you die “with” rather than “of”. The inclusion of a six-month safeguard would therefore render any new legislation irrelevant to such sufferers.
This effect is most noticeable in the difference between assisted deaths (1998 to 2021) in Oregon and those in Switzerland over the same period. In Oregon, where assisted dying is legal but subject to the six-month rule, 73% of patients were suffering from cancer. Only 11% were suffering from a neurological illness. Of the UK visitors to Switzerland over the same period, only 23% of patients were suffering from cancer but 53% from Parkinsons, MND, Dementia or some other neurological disease. The Swiss law does not impose a six-month safeguard.
For this reason, whilst Dignity in Dying continues to campaign for the six-month rule, the other campaigning organisation, My Death My Decision, actively campaigns against it.
In reality this issue will be decided on the floor of the House of Commons itself. If the new Private Member’s Bill includes the six-month clause then an amendment will be moved to delete it. If it does not include such a clause then an amendment will be moved to include it. At the moment, it is anyone’s guess as to which way such a vote will go.
WILL YOU NEED TO END YOUR OWN LIFE OR WILL SOMEONE ELSE BE ABLE TO DO IT FOR YOU ?
In Switzerland, someone can provide you with a drink that will kill you. Alternatively someone can insert a cannula into your arm. But in either case, you must be able to do the actual deed yourself – either drinking the drink or opening the valve on the cannula. Dignity in Dying is pressing for the same sort of arrangement if Voluntary Dying is introduced in England and Wales.
In Canada, once your consent is competent and certain, the professionals can do it for you. The Canadian model is the more popular for supporters of My Death My Decision.
WILL IT BE AVAILABLE ON THE NHS ?
Strangely, the question of “who pays” has rarely been raised in this whole debate. If you spend £11,500 on an Assisted Dying visit for yourself (accompanied by a friend) to Switzerland, then you should expect the medical and professional costs to represent about 60% of that. That’s nearly £7,000. If done in the UK, those costs would possibly be slightly lower but not by much. It is therefore a hugely significant factor.
In Canada, Assisted Dying is covered by Medicare Canada. In Oregon you need to pay for it yourself, though some of the health insurance companies do provide cover as part of their general policy. In Scotland, where the changes have made much more progress than in England and Wales, the assumption is that the costs will be covered by the NHS.
The Private Member’s Bill in England and Wales will make no mention of the cost. For technical reasons it cannot do so; if it did it would become a “money” Bill and would therefore lose its eligibility for Private Member treatment. However, if it does pass, there will have to be a rapid announcement as to where the money is supposed to come from.
There will probably be voices against taxpayers’ money being used for such purposes. Most forms of tattoo removal are not available on the NHS, for example. In practice, many people also find that they must now choose to pay for dental treatment or for knee surgery – facing delays of months or years as the only alternative. Against that, it will be argued that a patient choosing Assisted Dying will, more often than not, actually be saving the NHS the costs of onward care that it would otherwise have incurred. Therefore, the probability must be that NHS provision will be made. The position may become comparable with that of pregnancy termination facilities at the moment.
THE CAMPAIGNING ORGANISATIONS
The biggest and longest-established of the campaigners is Dignity in Dying (DiD). For many years it has been working towards a change in the Law to permit Assisted Dying. It has been the lead sponsor behind all the recent Parliamentary Bills.
Based in Oxford Street, London, it has 20 members of staff (up from 17 in 2021) and its annual income last year was £1,768,000. 88% of its income comes from subscriptions and donations, with the remaining 12% from legacies and bequests. Its salary bill in 2021/22 was £836,000. The Chief Executive is Sarah Wootton. It has an “active membership” of 20,600 and has branches throughout the country.
Dignity in Dying is very specific about what it is campaigning for. It is seeking a right to Assisted Dying that is :
- Limited to terminally ill and mentally competent adults
- Requires the person to end their own life and does not permit another person to do it for them
- Has a waiting period to give people time to reflect on their decision
- Requires assessment by doctors and a High Court judge
- Allows the dying person to die at home
Notably, there is nothing in the Dignity in Dying rules that dictates it must insist on the six-month “safeguard” but, nonetheless, that is the way in which they are currently interpreting their “terminally ill” definition.
It is also questionable whether their proposal to get each application signed off by a High Court judge is realistic. Such is the current pressure throughout our Judiciary that the waiting time for an assessment by a High Court judge is likely to be much greater than six months anyway.
Also campaigning in support of a change is My Death My Decision (MDMD). This is smaller in scale but comparable in impact. Its membership is less than Dignity in Dying and it has fewer branches throughout the country. It is run entirely by volunteers, although it receives (and pays for) some help from Humanists UK. As at March 2023 the cash balance of MDMD was just under £200,000 and its target income for 2023/24 is around £150,000.
Unlike Dignity in Dying, MDMD does not support the six month safeguard. This difference is crucial. It means that MDMD supports the availability of Assisted Dying for sufferers of Motor Neurone Disease, Parkinsons, Lewy Bodies and other neurological conditions as well as the early stages of Dementia. It favours the Canadian model and does not believe that a reform on the lines of the Oregon model would be sufficient.
Inevitably this difference of purpose has led to a degree of rivalry between the two organisations. In fact, in 2019 Dignity in Dying used their Parliamentary strength to stop an attempted Bill specifically to de-criminalise relatives accompanying patients visiting any of the Swiss end-of-life centres. What unites the two, however, is a much wider purpose than their relatively narrow differences and it would be sad if such differences were to consume too much campaigning energy.
A third organisation campaigning for change is Friends at the End (FATE). This is an exclusively Scottish organisation and is, so far, the most successful of all three. A Bill by Liam Macarthur MSP will be introduced to the Scottish Parliament “at the end of this year” and is expected to pass by the end of 2024.
It is widely supported by the Scottish people as a whole and by their representatives in the Parliament. The Macarthur Bill does not contain the six month safeguard. It does contain a “conscience” clause enabling doctors and nurses to opt out of any procedure for which the intended purpose is death. As in Switzerland, the drug will need to be self-administered.
Sadly, but inevitably, the forthcoming Scottish facilities will only be available to people who have been resident in Scotland for at least a year. That is also likely to be the case in the Isle of Man and in the Channel Islands. Interestingly, though, the forthcoming change in Ireland should also make assisted suicide legally available to citizens of Northern Ireland.
Finally, campaigning against any change in the Law is Care Not Killing (CNK).
Most opposition to a change comes, in fact, from the Churches – particularly the Roman Catholics. Not all religious organisations are opposed – the Quakers are broadly supportive, as are several leading members of the Church of England – but they seem to form the backbone of the opposition. Their argument is that your life belongs to God and you are therefore committing a sin if you seek to end it before He would naturally have taken it away.
It is Care Not Killing that represents the biggest non-religious campaign group against any change. They support more funding for palliative care and are well-supported from within the palliative care professions. Their arguments are based upon the “coercion” point and upon the “slippery slope” view, which they express as :
“Once any so-called right-to-die is established we will see activists applying pressure to expand the categories of people who qualify for it”.
CNK is quite small. Formally it is “CNK Alliance Ltd” and does not publish its turnover. It is based in Southwark, London, has two employees and had £82,000 in its balance sheet when its accounts were last filed in September 2022.
There is also a smaller organisation called Not Dead Yet UK (NDYUK) which has been formed by Baroness Jane Campbell to represent disabled people who are keen to resist any form of change.
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