Joint Committee On Human Rights Twelfth Report

3 A ssisted Dying for the Terminally Ill Bill

Private Members' Bills

Date introduced to the House of Lords

Current Bill Number

Previous Reports

8 January 2004

House of Lords 17

7th Report of Session 2002-03

3.1 The Assisted Dying for the Terminally Ill Bill is a Private Member's Bill, introduced to the House of Lords by Lord Joffe. We recognise that euthanasia or assisted dying are repugnant ideas to many people, including some members of this committee, who hold them to be morally indefensible actions in most circumstances, regardless of whether the consent of the person who may be subject to them has been properly obtained. However, we are concerned here only with compliance with human rights, not with any broader moral or ethical judgements about the rights or wrongs of this Bill.

3.2 Lord Joffe introduced a somewhat similar Bill under the title Patient (Assisted Dying) Bill [HL] during the 2002-03 session. We reported on that Bill.[54] We concluded that legislation to allow people to help other people to die at their request would not be intrinsically incompatible with the right to life under ECHR Article 2. The compatibility of such legislation with the right to life—

… would depend on the extent to which allowing such a measure to be operated would be consistent with the State's positive obligations under Article 2 to take active steps to protect life. We consider that the State has a discretion to allow such a measure in order to respect some patients' rights under ECHR Article 8, if satisfied that the rights of other, vulnerable, patients would be adequately protected.[55]

The Committee went on to conclude that the safeguards set out in the Bill were adequate to protect the rights of vulnerable patients.[56]

3.3 We now consider whether the current Bill satisfies those criteria.

The human rights implications of the Bill

3.4 The Assisted Dying for Terminally Ill Patients Bill [HL], like its predecessor the Patient (Assisted Dying) Bill [HL], would make it lawful for a physician to assist a person (A) to die, either by ending As life or by providing A with the means of ending As own life, if A is (i) a qualifying patient and (ii) has made a declaration which remains in force under the Bill.[57] In addition, there would be a statutory provision which substantially replicates, although it is not as wide as, the current common law rule that a person suffering from a terminal illness is entitled to request and receive such medication as may be necessary to keep him free as far as possible from pain and distress.[58] At common law, this is justified by reference to a combination of the doctrine of 'double effect' and the patient's right to autonomy (the administration of drugs with the purpose of relieving pain and distress is not criminal, even if it hastens death, if it is in the patient's best interests and/or with the patient's consent).[59]

3.5 As we noted in our earlier report,[60] this would effect a major change in the criminal law of England and Wales and Scotland.[61] In each jurisdiction, intentionally doing anything to hasten a persons death constitutes the crime of murder contrary to common law, and assisting someone else to hasten his or her own death constitutes the crime of assisting suicide under section 2 of the Suicide Act 1961.

3.6 The law on human rights relating to such legislation has not changed since our earlier report. We therefore remain of the view that the Bill is not intrinsically incompatible with ECHR Article 2, and that its compatibility depends on the extent to which it contains safeguards for the rights of vulnerable patients who do not wish to have their lives terminated with the assistance of a third party.

3.7 The question which then arises is whether the safeguards in the Bill are sufficient to protect vulnerable, non-requesting patients against the risk of having their right to life under ECHR Article 2 violated. The safeguards which were contained in the earlier Bill, and which satisfied us when we considered that Bill, have been further strengthened in the current Bill. The safeguards (with main provisions additional to those contained in the earlier Bill in italics) are:

—  the 'qualifying patient' must have—

reached the age of majority (currently 18);

been resident in the UK for at least twelve months before making the declaration; and

satisfied the conditions set out below;[62]

—  the qualifying patient must have made a declaration in a form set out in the Schedule to the Bill, before two individuals, one of whom must be a solicitor who holds a current practising certificate;[63]

—  the solicitor may witness the declaration only if:

the solicitor is personally known to the patient or has proved his or her identity as a solicitor;

it appears to the solicitor that the patient is of sound mind and has made the declaration voluntarily; and

—  the solicitor is satisfied that the patient understands the effect of the declaration;[64]

—  the other witness (who must not be the attending or consulting physician, psychiatrist or other member of the care team, or a relative or partner of the patient) may witness the declaration only if the patient is personally known to the witness or has proved his or her identity to the witness, and it appears to the witness that the patient is of sound mind and has made the declaration voluntarily;[65]

—  neither witness may be a person who owns, operates or is employed at a health care establishment where the person is a patient or resident,[66] and no one may witness a declaration if he or she has grounds for believing that he or she will benefit, financially or otherwise, from the patient's death;[67]

—  the patient and witnesses must sign and witness the declaration at the same time and in the presence of the others;[68]

—  before A makes the declaration, the attending physician must

have been informed by A that A wishes to be assisted to die, and, if the patient persists in the request to be assisted to die, have satisfied himself that the request is made voluntarily and that the patient has made an informed decision;[69]

have examined A and A's medical records and found no reason to believe that A is incompetent;[70]

have determined that A has a terminal (not merely an irremediable) illness;[71]

have found A to be suffering unbearably as a result of that illness;[72]

have informed A of the diagnosis, the prognosis, the process of being assisted to die, and the available alternatives, including palliative care, hospice care, and the control of pain;[73] and

have referred the patient to a consulting physician;[74]

—  before A makes the declaration, the consulting physician must

have been informed by A that A wishes to be assisted to die, and, if the patient persists with the request to be assisted to die, have satisfied himself that the request is made voluntarily and that the patient has made an informed decision;[75]

have examined A and A's medical records and satisfied himself that the patient is competent;[76]

have confirmed the diagnosis and prognosis made by the attending physician;[77]

have concluded that A is suffering unbearably as a result of that illness;[78] and

have informed A of the diagnosis, the prognosis, the process of being assisted to die, and the available alternatives, including palliative care, hospice care, and the control of pain;[79]and

have advised the patient that, before such assistance, the patient will be required to complete a declaration which the patient can revoke;[80]

—  there must be a waiting period of at least 14 days between the date on which the patient first informed the attending physician that the patient wished to be assisted to die and the date on which the patient is assisted to die;[81]

—  a declaration would remain in force for only six months;[82]

—  during that time the patient would be able to revoke the declaration, orally or otherwise, without regard to his or her physical or mental state, and, if it is revoked, the attending physician would be required to ensure that the revocation is noted on the patient's file and that the declaration is removed from the file and destroyed;[83]

—  if either physician is of the opinion that the patient may not be competent, the physician must refer the patient to a psychiatrist for a psychiatric opinion, and no assistance may be given to end the patient's life unless the psychiatrist has determined that the patient is not suffering from any psychiatric or psychological disorder causing impaired judgment, and that the patient is competent;[84]

—  no physician, psychiatrist or member of a medical care team may take any part in assisting a patient's death or in giving an opinion in respect of the patient if he or she has grounds for believing that he or she will benefit, financially or otherwise, from the patient's death;[85]

—  the attending physician must recommend to the patient that the patient notifies his or her next of kin of his or her request for assistance to die;[86]

—  before taking any step to assist A to die, the attending physician must have—

informed A of his or her right to revoke the declaration at any time;

verified immediately before assisting the patient to die that the declaration is in force and has not been revoked by the patient; and

asked A immediately before assisting him or her to die whether he or she wishes to revoke the declaration;[87]

wilful falsification of a declaration or wilfully witnessing a statement known to be false would be criminal offences, together with various other contraventions of the requirements of the Bill;[88]

—  there are provisions about documentation and record keeping, and the establishment of a commission to monitor the operation of the legislation and the documentation.[89]

3.8 There are other provisions to protect the rights of third parties. The right of medical staff to be free of any duty to assist someone to die if they conscientiously object to doing so would be preserved by clause 7. We do, however, have some concerns about clause 7 which we discuss in more detail below. By virtue of clause 9(1) to (3), where medical personnel act in accordance with a declaration which is in force and was made in accordance with the procedures laid down by the Bill they would not be guilty of a criminal or professional disciplinary offence. Lastly, the fact that a patient is assisted to die in accordance with the Bill would not invalidate any policy of insurance, as long as the policy has been in force for at least 12 months at the date of the patient's death.[90]

3.9 We consider that these safeguards are considerably stronger than those which were provided in the Patient (Assisted Dying) Bill [HL] in the 2002-03 session.

3.10 In the light of this, we conclude that the safeguards in the current Bill would be adequate to protect the interests and rights of vulnerable patients, ensuring that nobody could lawfully be subjected to assisted dying without his or her fully informed consent. In our view, this would respect the right to personal autonomy and self-determination of mentally competent patients under ECHR Article 8.1, and would not be incompatible with the positive obligations of the State to protect life under ECHR Article 2. While recognising that the Bill relates to exceptionally sensitive matters of life and death and affects people's right to life, we do not consider that it gives rise to a significant risk of incompatibility with those Convention rights.

Conscientious Objection

3.11 There is, however, one minor respect in which the Bill does give rise to a risk of violation of a Convention right.

3.12 Clause 7(1) of the Bill properly gives effect to the obligation on the UK under Article 9(1) ECHR to respect the individual's right to freedom of thought, conscience and religion. It achieves this by providing that no person shall be under any duty to participate in any diagnosis, treatment or other action authorised by the Bill to which that person has a conscientious objection.

3.13 There is a tension, however, between this protection for freedom of conscience in clause 7(1) and the provision made in clauses 7(2) and (3), which impose a duty on physicians who invoke their right to conscientiously object, to "take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection".

3.14 We consider that imposing such a duty on a physician who invokes the right to conscientiously object is an interference with that physician's right to freedom of conscience under the first sentence of Article 9(1), because it requires the physician to participate in a process to which he or she has a conscientious objection. That right is absolute: interferences with it are not capable of justification under Article 9(2).

3.15 We consider that this problem with the Bill could be remedied, for example by recasting it in terms of a right vested in the patient to have access to a physician who does not have a conscientious objection, or an obligation on the relevant public authority to make such a physician available. What must be avoided, in our view, is the imposition of any duty on an individual physician with a conscientious objection, requiring him or her to facilitate the actions contemplated by the Act to which they have such an objection.

3.16 In the absence of such a provision, however, we draw to the attention of each House the fact that clauses 7(2) and (3) give rise in our view to a significant risk of a violation of Article 9(1) ECHR.

54   Joint Committee on Human Rights, Seventh Report of 2002-03, Scrutiny of Bills: Further Progress Report HL Paper 74, HC 547, paras. 44-61. Back

55   Ibid., para. 54 Back

56   Ibid., para. 61 Back

57   Cl. 1(1) Back

58   Cl. 15 Back

59   Cl. 15 Back

60   Seventh Report of 2002-03, op cit., para. 45. Back

61   The Bill would not extend to Northern Ireland: cl. 17(2). Back

62   Cl. 1(2), definition of 'qualifying patient'. Back

63   Cl. 4(1), (2) Back

64   Cl. 4(3) Back

65   Cl. 4(4) Back

66   Cl. 4(7)  Back

67   Cl. 10(4) Back

68   Cl. 4(6) Back

69   Cl. 2(2)(a) and (f) Back

70   Cl. 2(2)(b) Back

71   Cl. 2(2)(c) Back

72   Cl. 2(2)(d) Back

73   Cl. 2(2)(e) Back

74   Cl. 2(2)(g) Back

75   Cl. 2(3)(a) and (f) Back

76   Cl. 2(3)(b) Back

77   Cl. 2(3)(c) Back

78   Cl. 2(3)(d) Back

79   Cl. 2(3)(e) Back

80   Cl. 2(3)(g) Back

81   Cll. 1(2), definition of 'waiting period', and 4(8). Back

82   Cl. 4(8) Back

83   Cl. 6 Back

84   Cl. 8 Back

85   Cl. 10(4) Back

86   Cl. 9 Back

87   Cl. 5 Back

88   Cl. 11 Back

89   Cll. 13 and 14 Back

90   Cl. 12 Back

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