Safeguarding assisted dying—court or committee?

Assisted dying for terminally ill people is set to soon become lawful in the Isle of Man.1 It is on the legal horizon in England and Wales too, as the Terminally Ill Adults (End of Life) Bill is currently proceeding through parliament.2 Introducing its second reading in November 2024, the bill’s proposer, Kim Leadbeater, emphasised its unique “layers of safeguarding,” specifically “a thorough and robust process involving two doctors and a High Court judge.”3

Having heard evidence at committee stage, Leadbeater now proposes dropping the layer of scrutiny by a High Court judge and having an Assisted Dying Review Panel instead,4 like the model already adopted in Spain.5 The panel would include a senior legal professional, such as a current or former judge, along with a psychiatrist and social worker. It would be overseen by a voluntary assisted dying commissioner, who would be a serving or retired judge. The panel proposal has some advantages, but its composition and function will require careful consideration.

The prospect of “death panels” might recall some of the negative press that was directed against Obamacare in the United States,6 or even the UK’s (subsequently withdrawn) Liverpool Care Pathway.7 Unlike the Leadbeater bill, the Liverpool Care Pathway was aimed at delivering good quality palliative and end-of-life care. This is an area in which the government acknowledges more investment is still needed.8 But, with its focus on the provision of assistance in dying, Leadbeater’s proposal is very different—and her recommendation to include a panel in that process has its merits.

Positioning the High Court as the final safeguard, as originally proposed, certainly raised questions. It was not obvious why the High Court should acquire this role, when the Court of Protection has jurisdiction over safeguarding adults. The Court of Protection’s current remit encompasses adults who lack mental capacity, who would not be eligible for assisted dying under the bill. But the name of the court alone signals that the focus should be on protection—safeguarding the rights of not only those eligible to seek an assisted death under the proposed regime, but also people who should be protected from any such decision. Judges themselves have also expressed concerns that the High Court has neither the capacity nor the appetite for this role, nor necessarily the skills.9

Rather than depending on the final decision of a single judge, multidisciplinary decision making is the norm in healthcare. As Sarah Cox, president of the Association for Palliative Medicine, put it to the Commons committee: “We know that shared decisions are much better quality, much more robust, and much safer.”10 Leadbeater’s revised proposal would still involve a co-ordinating doctor and confirmation of eligibility from another, but their assessments would now be complemented by psychosocial expertise, from a psychiatrist and a social worker.

Senior judges would also remain involved, which would hopefully help to police the boundaries of what is permissible. The inclusion of legal expertise further helps to affirm that assisted dying is not exclusively or entirely a medical phenomenon—it is also a legal one. This could offer some comfort to those who have reservations about the “medicalisation” of assisted dying.11

A panel might, then, offer the best of both medical and legal worlds. But assisted dying does not only present medical or legal questions. Ethical questions—and challenges—will inevitably arise. Currently, clinical ethics support services, usually in the form of multidisciplinary committees, advise clinicians on ethically charged matters arising in clinical care—the UK Clinical Ethics Network (https://ukcen.org/), for example. Questions are already being asked about the interaction of these services with existing legal processes.12 There is a need to consider what involvement, if any, they should have in assisted dying decisions, and what their relationship should be to Leadbeater’s proposed panel. Should that panel not also include ethical expertise?11

Thorough selection processes will be needed, whatever professional expertise ultimately populates the panel. Considerations of inclusivity and diversity will be important, as will the interests of panellists, including their personal perspectives on assisted dying. A panel of proponents of assisted dying might be seen to lack the level of careful critical scrutiny that this role will require.

The function of the proposed panel also requires attention. It would be performing a legal function so there should be clear expectations in terms of due process. If the panel will be essentially inquisitorial, we should consider how it is to discharge its role of ensuring that eligibility criteria have been met. Here, it is important to think about whether lawyers could be appointed, who could be required or entitled to appear as witnesses before the panel, and who should have a right of appeal and on what basis.13 It is not only judges’ capacity that is constrained—the panellists and all those informing the panel’s deliberations, will also need sufficient funding and other support to enable them to meet their weighty obligations.

There are doubtless other questions to be asked—and answered. The removal of the High Court layer might even sink the whole proposal: some MPs are reportedly now reconsidering their support for the bill.14 The panel proposal, nevertheless, is worthy of consideration. But who should be involved and how it should operate will demand further attention. Ultimately, if parliament is to take this major step, then it must ensure that there is robust legal, medical, and ethical review and oversight of assisted dying.