The issue of assisted dying has long been debated, with both sides vehemently contesting the rights of terminally ill individuals that wish to shorten their deaths – an argument that is both intriguing and delicate in equal measure, and one that has been the subject of extensive legal consideration for many years.
However, it seems this long-running debate has finally reached its crescendo as Labour MP, Kim Leadbetter, recently announced a new Bill designed to legalise assisted dying under strict conditions,
Officially called the ‘Terminally Ill Adults (End of Life) Bill’, Parliament voted on whether it should become law last week, which was successful. This does not mean that the Bill will definitely pass into law, but will move to the next stage in the process of potentially becoming law. Given the contentiousness of the issue, the Bill contains some of the ‘strictest protections and safeguards of any legislation anywhere in the world’ to give it the best chance of success.
To better understand the scope of the Bill, and to help readers understand the conditions that underpin it, this article will take a detailed look at the announcement and explore what impact its passing could have on related issues, like Wills and estate planning.
What does the end of life Bill say?
According to MP Leadbetter’s official announcement, ‘the Bill would allow eligible adults to shorten their own deaths’ under a strict and thorough process. Within the legislation, only those over the age of 18 and a resident of England & Wales will be able to make a choice about their end of life, providing they have the mental capacity to do so.
Perhaps the most critical element of the Bill is that the person in question must be terminally ill and expected to die within six months – they must also express a ‘clear, settled and informed’ wish free from coercion or pressure at every stage of the process. To ensure eligibility, two independent doctors must confirm the terminally ill party meets the necessary criteria, consulting a healthcare specialist for advice if needed.
During the process, the individual must make two separate declarations of their wishes, which must be witnessed and signed, although they are free to reverse the decision at any time should they change their mind. Once completed, the application will then go before a High Court judge who must hear from at least one of the doctors and can request to hear from the applicant if it’s deemed necessary.
The Bill then states that there will be two ‘periods for reflection’: at least seven days must elapse once the two doctors have made their assessments and a further 14 days must elapse after the judge has made a ruling, unless the individual’s death is expected imminently. If an application is successful, then a doctor could prepare the substance, but the terminally ill party would take it – a process known as physician-assisted suicide, as opposed to voluntary euthanasia which would not be permitted, whereby a health professional administers the drugs to a patient.
Given the rigorous nature of the protections, in which the roles of doctors and specialists are clearly defined and the High Court has been given increased power to scrutinise applications, it appears MP Leadbetter has considered the performance of previous proposals and erred on the side of caution when drafting this latest Bill.
As such, the Bill also proposes a sentence of up to 14 years in prison if an individual is to, by dishonesty, coercion or pressure, induce another person to make a declaration or not cancel a declaration. Similarly, the same punishment will apply to anyone attempting to induce another person to self-administer an approved substance.
Concerns from the opposition
As expected, the announcement has reignited a long-running debate around the topic of assisted dying, with both supporters and opposition appearing in force to voice their opinions on the matter, some of which have been long argued for many years.
This comes after the prime minister, Sir Keir Starmer, did not put pressure on Labour MPs over their votes on whether to legalise assisted dying, demonstrating an understanding that opinions are divided, and as such, he granted a free vote to respect this, meaning MPs were free from party influence to make their own decision.
Whilst the arguments for and against the legalisation of assisted dying have been debated at length, there have been a number of concerns relating specifically to the Bill and its contents. Some critics have pointed to the requirement for a six-month prognosis, arguing that the law fails to take into consideration the wishes of those that are suffering unbearably through a chronic condition, although not terminally ill.
Meanwhile, others remain sceptical about the Bill’s safeguards, questioning their ability to reliably detect if someone is being coerced. If an individual is being pressured or nudged into early death, then it can be difficult to identify even for victims who may feel they have become a burden and would rather pass money to family members then spend it on care.
Similarly, High Court judgments show family judges sometimes fail to investigate coercive control even where it’s alleged, which it may not always be in some assisted dying situations – it is also difficult to prove such behaviour in criminal courts too. Given that one in six older people experience abuse, according to The World Health Organisation, the exploitation and coercion of individuals is a valid concern and one that many feel holds too much risk for the Bill to be passed.
Finally, there is the issue of NHS resources, which are already limited, and could be strained further if the Bill is passed. With this in mind, many commentators have argued that better palliative care could make death easier for those suffering, rather than the legalisation of assisted dying.
Wills, Advanced Decisions and estate planning
Although the Bill makes no direct reference to Wills and estate planning, those wishing to utilise assisted dying must ensure their affairs are in order beforehand – this includes making a Will that outlines how their estate should be administered upon their death.
During an already stressful period, the prospect of drafting a Will may feel like a lot to process, however its creation can give the individual and their family peace of mind knowing that their wishes will be honoured in the way they intended after they have passed.
Without a Will, loved ones will have to arrange all their affairs and may face legal complications in the process, as it brings into effect the rules of intestacy, which aside from involving a more complex and expensive administration procedure, provide that:
- A spouse or civil partner may only be entitled to part of the estate
- Children or grandchildren will inherit assets at age 18, which some individuals may feel is too young
- Only blood relatives and spouse or civil partner can benefit. In-laws, friends and unmarried partner will NOT inherit the estate
Essentially, not having a Will could forfeit a person’s ability to have their property and affairs dealt with properly. Meanwhile, having a Will can also deliver a range of important benefits too, including the reduction of administration costs, a more efficient transfer of assets to named beneficiaries, the removal of stress and financial hardship for family members and the minimalisation of any liability to Inheritance Tax (IHT).
Alternatively, an ‘Advanced Decision to Refuse Treatment’ (often shortened to Advanced Decision) offers individuals a legal way to specify medical treatments they do not wish to receive in the future, should they become unable to make decisions themselves. Better known as a ‘Living Will’, this is a legally binding document in England & Wales that details preferences about life-support treatments or resuscitation efforts under certain conditions.
For some, this could offer a more suitable alternative to assisted dying, and to be valid, the Advanced Decision must:
- Be made by someone aged 18 or over, with mental capacity at the time of drafting;
- Clearly specify the treatments to be refused and the circumstances in which the refusal applies; and
- Be signed and witnessed, especially if it involves the refusal of life-sustaining treatment.
While an Advanced Decision offers clarity and control over medical care, it is limited in scope. It only addresses the refusal of treatment, not the consent to it, and does not allow for broader decision-making over a person’s welfare or finances. Often a Lasting Power of Attorney (LPA) for Health & Welfare is the more flexible option.
Contact an experience legal team for support…
As the Bill continues its path through the government process to become law, there will continue to be significant interest from both sides, as supporters view this as a humane law to protect the rights of those suffering whilst the opposition continue to raise concerns about potential incidents of coercion and illegal behaviour.
Given the number of safeguards and protections contained within the Bill, this is arguably the best chance a law of this kind has of being passed, so for anyone it may impact, there are a lot of legal considerations to come should it be approved.
Of course, you needn’t travel the path alone – if you require legal support at any stage of the process, then it’s important to reach out for support so the necessary steps can be taken, relieving pressure from yourself and those and around you.
This includes any assistance with Wills or estate planning that you might require – contact our team of specialists and start getting your affairs in order should the decision affect your current situation.
