Alex RKReading some of the recent media coverage of the issue of assisted dying / assisted suicide, people could be forgiven for thinking that resolving the debate is a simple matter. In the context of a private MSP bill being introduced into the Scottish Parliament this week (March 25 2024), it is doubly important to be clear that – whatever one’s views – implementing any decision to legalise assisted dying / assisted suicide is not going to be simple.
That this is so can be seen from proposals put before the States Assembly in Jersey on 22 March 2024 to enable a decision to be taken whether to progress legislation providing (as they describe it) for assisted dying.
The proposals put before the States Assembly do not set out legislation, but, running to some 245 pages, they set out in very great detail much of what is required for States Assembly to be able to decide whether to take the proposal for legislation forwards. Any such legislation would be very significantly longer than the 14 clause bill before the Tynwald in the Isle of Man, or the 13 clause bill that was put most recently before the House of Lords in Westminster. As the proposals note at paragraph 582, “[g]iven the detail and complexity of these proposals, it is anticipated that the law drafting process will take 12-18 months. It is anticipated that debate on the draft law will take place before the end of 2025, but this may be subject to change.”
The proposals also include details of matters that, to date, have been the subject of little detailed ‘operational’ consideration in the British context. Some of these might be said to be limited to the specific proposals in Jersey, which (as discussed here) go further than any proposals advanced in England & Wales or Scotland). But the majority of the matters are of relevance to any model. The proposals cover such matters as:
- The components of the decision-making capacity required, the proposals specifically proceeding on the basis of a presumption of capacity, a requirement to support the person to make a decision, and an approach to fluctuating capacity which provides that:
[a] person with fluctuating capacity may be assessed for capacity on more than one occasion. If the person can demonstrate a voluntary, clear, settled and informed wish for assisted dying and that they have decision-making capacity to make the request for assisted dying one any one occasion, the assessing doctor is able to determine that at the point of assessment they did have decision-making capacity (paragraph 301)[3]
- A discussion of the distinction between physical and mental disorders (the discussion in relation to the inclusion of dementia in the physical disorder zone at paragraph 28 may be of interest given the recent Alzheimer’s Society advertising campaign highlighting how dementia causes people – in the Society’s word to ‘die again and again and again)
- A discussion of precisely how to identify ‘unbearable suffering;’
- What a tribunal might look like (required for purposes of the second, unbearable suffering route), and what an appeal route from such a tribunal might look like;
- The actual process from start to finish, including addressing the circumstances where complications set in; [4]
- Organ donation;
- Regulatory obligations on healthcare practitioners;
- How to integrate assistance with dying within the Jersey healthcare system (the proposals rejecting a ‘civic’ model such as that in Switzerland)
- The scope of the ability of individuals / bodies to decline to provide assistance on the basis of objection (going more widely than just conscientious objection);
- The fact that simply making assisted dying / suicide legal is not actually the end of the story, the proposals noting at paragraph 136 that:
It is possible that the Jersey Assisted Dying Service may be unable to recruit or contract the necessary staff (although it is important to recognise that this eventuality has not occurred in any other jurisdiction that permits assisted dying). In the event this were to happen, whilst assisted dying would be permitted in law, there would be no service and hence people could not have assisted deaths in Jersey.
Therefore, in placing a duty on the Minister to provide the Jersey Assisted Dying Service, the law must also provide that the Minister can only do so if the service can be appropriately and safely staffed.
- Costs;[5]
- The numbers of those who might seek assistance;
- How insurance companies will respond;
- Implementation requirements.
Many might find useful the summary of the risks identified to date, and the potential response, controls or mitigation that is to be found in the table at paragraph 579. Again, whilst some of these may be relevant to the approach being advanced in Jersey, very many are equally relevant to the terminal illness / person carrying out the final act model which has formed the focus of most attention in England & Wales, and Scotland.
The proposals also helpfully include scenarios which concretise matters. Some may find particularly useful to tease out how they feel both about assisted dying / assisted suicide more broadly and about the particular model being advanced in Jersey Scenario 3 (Sean, a 59 year old with a moderate learning disability, and who has recently been diagnosed with vascular dementia) and Scenario 10 (Sadie, 31, living with anorexia since 15, and diagnosed with end-stage heart failure as a result of her anorexia).
The recent Health and Social Care Committee report of the Westminster Parliament provided invaluable evidence for those wishing to inform themselves in relation to the assisted dying / assisted suicide debate. The Jersey proposals are very important not just for those on Jersey, but for those in England & Wales (and, indeed, Scotland) who want to understand what is actually involved in any move towards assisted dying.
[I make no apology, I should note, for the series of posts on this issue on my website recently; I am hoping that they help inform what are some of the most momentous sets of decisions that legislatures in the British Isles are being, or are likely to be asked to take]
[1] The precise constitutional relationship is complex, as is that between Jersey and the Westminster Parliament.
[2] The most recent being Baroness Meacher’s bill in 2021.
[3] For more on capacity, see here.
[4] As the report notes at paragraph 475, “[i]n Western Australia, for example, 2.7% of assisted deaths in 2021-22 reported complications. All complications related to practitioner-assisted oral ingestion and involved regurgitation/vomiting, coughing or an extended length of time for the substance to take effect.”
[5] The proposals note (at paragraph 562) that: “[e]vidence from other jurisdictions suggests that assisted dying could result in a cost neutral position (or cost savings) in overall health and care expenditure in the long-term. However, such an intent does not accord with the core principles of these assisted dying proposals and hence there has been no attempt to quantify any potential cost reductions in other areas of health and care spend in Jersey.”
