Assisted dying – Canada comes to St Helier?

The Tynwald – the Isle of Man legislature – may well be the first legislature associated with the United Kingdom[1] to vote for assisted dying / assisted suicide.  The bill currently before it provides for assistance with dying up to and including the carrying out by the physician of the final act. It is limited to those who are terminally ill.

Proposals put before the States Assembly in Jersey on 22 March 2024 set out a framework for legislation which would go significantly further, including:

(1) for the medical practitioner actually to carry out the final act (if this is the wish of the person);

(2) for a parallel route alongside terminal illness giving rise either now or which is expected to give rise to ‘unbearable suffering that cannot be alleviated in a manner the person deems tolerable,’ for those who have an ‘incurable physical medical condition that is giving rise to unbearable suffering that cannot be alleviated in a manner the person deems to be tolerable;’ and

(3) for a limited form of advance request for assistance in respect of the first route, by way of a ‘waiver of final confirmation of request,’ providing for the administration of the medication even where the person has lost capacity in the interim, albeit not in the face of apparent resistance / refusal.

Whether one is for or against assisted dying / assisted suicide (and for an explainer both as to the language and the debate more generally, see here), it is important that people in England & Wales understand that the proposals before the States Assembly go significantly further than any legislation put before the Westminster Parliament to date.[2]  Similarly, they go further than the proposals being put forward in Scotland. They are based upon a model which, in essence, draws upon the approach in Canada, rather than the approach in Oregon.  And, importantly, it is not the model which has featured in the (extensive) media coverage of the issue recently, which is framed around terminal illness and upon the person themselves carrying out the final act.

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 English and Welsh context.  Some of these might be said to be limited to the specific proposals in Jersey, but others are of relevance to any model. The proposals cover such matters as:

  1. 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]

  1. A discussion of precisely how to identify ‘unbearable suffering;’
  2. 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;
  3. The actual process from start to finish, including addressing the circumstances where complications set in; [4]
  4. Organ donation;
  5. Regulatory obligations on healthcare practitioners;
  6. How to integrate assistance with dying within the Jersey healthcare system (the proposals rejecting a ‘civic’ model such as that in Switzerland)
  7. 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);
  8. 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.

  1. Costs;[5]
  2. The numbers of those who might seek assistance;
  3. How insurance companies will respond;
  4. 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 Canadian-style 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 and Wales.

The proposals also helpfully include scenarios which concretise matters.  Some may find particularly useful to tease out how they feel 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.

[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.”

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