The Assisted Dying (Jersey) Law has been adopted by the States of Jersey. Because of the complex relationship between Jersey and the United Kingdom, it awaits “the sanction of His Most Excellent Majesty in Council” in London before becoming law; my money is on it having a considerably shorter and easier journey to achieving that than the equivalent process in respect of the legislation in the Isle of Man, which has clearly run into considerable challenges vis-à-vis the Ministry of Justice in Westminster.
I have, ever since the Terminally Ill Adults (End of Life) Bill was introduced in Westminster, pointed out the inherent problems with using the Private Members’ Bill process to pass legislation with such profound implications (including for the wider web of the law). I have, equally, pointed to the process in Jersey where the legislative process has been a Governmental responsibility (for details of the process leading to this point, see here).
The die is now firmly cast as regards the Westminster Bill (and, indeed, the Scottish Bill) in terms of process. However, I might nonetheless suggest that there is much that might be learnt from the specifics of the Jersey Law[1] for both immediate purposes in the remainder of the Parliamentary process in London and – in the event that the Bill does not clear the House of Lords before the end of the Parliamentary session – in relation to any further legislation that might be introduced.
Immediate learning
In this section, I focus on aspects of the Jersey Law which could, in principle, be lifted and transposed more or less directly into the TIA Bill even at this late stage without fundamentally altering the policy of the latter.
Capacity / advocacy
There has been an intense focus on capacity in both the House of Commons and the House of Lords during the passage of the TIA Bill so far. It is of no little importance, I might suggest, that the Jersey law – in the context where Jersey has the equivalent of the Mental Capacity Act 2005 (the Capacity and Self-Determination Law (Jersey) Law 2016) – does not simply import that law in the same way as is the TIA proposes simply importing the MCA 2005. Rather, in Article 3, the Jersey Law creates a version of a capacity test which preserves its core essentials – namely that the person be able to understand, retain, use and weigh relevant information – but tailors it to the task in hand. In particular:
- It modifies the presumption so that it ceases to apply where there is evidence that the person do not have the relevant capacity, whether based on (a) meetings with, or assessments or examinations of, the individual; or (b) relevant opinions of others obtained under the Law.
- It further makes clear that the ‘support principle’ is not ‘at large,’ but rather applies to communication support that might be required.
- It makes clear the different evidential standards that are applied at different stages.
Parliamentarians here might wish to reflect upon the fact that legislation drafted ab initio by Governmental lawyers takes a rather different stance than does the TIA Bill.[2]
The same also applies in relation to advocacy, the role for which (and communication support) is clearly and tightly defined in Article 23.
The preliminary discussion / informing others
There has been much debate in Westminster about whether or not it is right for others to be informed about a person’s request for assistance. The Jersey Law in Article 3 has what might be thought to be the considerable merit of requiring a clear discussion between the doctor and the person at the point of first request, thus:
(3) Before acting under this Article, the doctor must tell the individual –
(a) that they may consent under Article 14 to their information being shared; and
(b) the advantages, and any disadvantages, of giving that consent.
Similarly, in the context of the information that must be provided to an individual before it can be said that their decision is ‘informed,’ Article 29(3) provides that the individual must be told that they:
should talk to their family members or friends about their request for assisted dying, unless the assessing doctor believes that it is not reasonable to do so after discussing the individual’s circumstances with them.
This might therefore be thought to be striking a calibrated balance between the fact that the decision is a personal one and that, in reality, no decision is ever made entirely in isolation or without consequence for others.
Relevant information and contingency planning
Parliamentarians in London may well wish to look to Articles 8 and 29 of the Jersey Law for a model for: (1) identifying the relevant information that needs to be relayed to the person; and (2) ensuring there is proper contingency planning (including as to what happens if the drugs[3] do not achieve their intended effect – enabling Article 10(4) to have a clarity about this which is currently lacking in the TIA.
I note that it would not be possible simply to lift Article 8 and place it in the TIA because it is predicated on a fundamentally different model which allows for: (1) administration by the administering practitioner; and (2) the potential for a person to waive final consent, to cater for a potential loss of capacity. However, the broad approach is one that I would commend to the attention of Parliamentarians here.
It is also of relevance to note that, in Article 27, the Jersey expressly requires the doctor to ask why the person is seeking assisted dying; the TIA Bill does not at present do so, a matter which, as has been pointed out, does amongst other things make it challenging to apply the conventional approach to assessing capacity.
Challenges by third parties
There has been much debate in the context of the TIA Bill about the ability of third parties (most obviously, but not exclusively, family members) to challenge decisions made that a person is eligible. The TIA at present does not allow for this; the only statutory route of challenge is to a decision (in London, by the Panel) that the person is ineligible, by the person themselves. For anyone else, the only route of challenge is judicial review – an option which Lord Falconer has recognised[4] is “difficult for normal people, particularly in [the] circumstances” of the TIA Bill. The Jersey Law provides for a specific, constrained, route of challenge to the Royal Court in Article 42 for those with a “special interest” in the person’s care and treatment, including “connected person,” i.e. a person who has a personal relationship with an individual (such as a family member, friend, neighbour or colleague). Parliamentarians here might well consider that an equivalent route might be equally appropriate.
Rights not to participate
Parliamentarians here may feel that the structure and detail of the rights to refuse to participate and protections are considerably more worked up – and nuanced – in Part 3 of the Jersey Law than the equivalent in TIA.
Offences
In light of the extensive debates as to what, exactly “pressure” means in the context of offences under the TIA Bill, it may be of note to Parliamentarians here that the equivalent offences in Jersey do not use the term, but rather talk of coercion and “malicious inducement” (see Article 45). It might be thought that, even if still not always straightforward concepts, they are considerably easier to understand than the equivalent wording in clause 34 of the TIA Bill.
Wider learning
As noted above, it would not possible to transpose all of the Jersey Law at this stage in the life of the TIA Bill to gain, at this late hour, the benefits of the policy development and drafting work done there, because the Jersey Law is predicated on a different set of choices, such that:
- It has different eligibility criteria, including the ‘suffering’ element that is often said rhetorically to form part of the TIA Bill’s criteria, but which does not, in fact, appear in the Bill. An incidental, but important, consequence of the choice made in Jersey is that it means that it can give a statutory answer to the problems set out here as regards whether it is possible to bring oneself within scope by refusing treatment.[5]
- It also allows for the final act to be carried out by the approved practitioner. In England & Wales, the insistence that the final act is carried out by the person themselves leads to a position that some find challenging whereby a person physically incapable of doing so is excluded, despite satisfying all of the other criteria. It also leads to what many might feel are somewhat difficult intellectual gymnastics to get around this by seeking to make wafer thin the dividing line between setting up the mechanism to deliver the approved substance and the final act being carried out by the person themselves (but at the same time then preventing the medical practitioner from intervening to ‘complete’ the act if the approved substances do not appear to be working as the person had intended).
- It allows for a ‘waiver of final consent,’ which represents – some might think – a recognition that excluding someone from assistance because they lack capacity at the final point again represents differential treatment which is difficult to justify, as well as the challenges that are going to arise as and when concerns arise at the last minute as to whether the person’s capacity is fluctuating.[6]
- In terms of process, it provides for multi-disciplinary assessment (through the combined operation of Articles 5, 7, and 31); it does not provide for pre-mortem review by a Panel (or, as proposed at an earlier stage, by a High Court judge). As many have pointed out, however, only a very small minority of jurisdictions where assistance is legal have such a tier of review, and there must be serious question marks about whether – as currently constituted in the TIA Bill – the Panel is actually serving a proper purpose, neither carrying out multi-disciplinary assessment in any conventional sense, nor discharging the inquisitorial functions of a court such as the Court of Protection.
The fundamental differences between the TIA and the Jersey Law also means that my understanding (I stand to be corrected by a constitutional expert) is that, in the event that the TIA Bill falls with the end of this Parliamentary session, it would not be possible for the Jersey Bill to be put before Parliament as a Private Member’s Bill and then, if it passes the Commons, for the Parliament Act framework to be used to require the House of Lords to pass it. That process, if indeed it is apt for a Private Member’s Bill, can only be used in respect of a materially identical Bill passed twice by the Commons. It would therefore not serve an off-the-shelf solution for those who are committed to legislating at pace in London but who recognise that the TIA Bill at present contains serious problems.
However, the Jersey law reflects the outworkings of a conventional approach to legislating, through policy development and instruction of Parliamentary drafters (together with, in Jersey’s case, a significant degree of external stress-testing). In consequence, it is legislation, developed very close to these shores, which is on its face much more obviously good law than the TIA (or the Isle of Man law), with eligibility criteria which go some considerable way to being defensible against the inevitable discrimination challenges which will be brought, and a framework for delivery which seeks neither to prioritise inclusion nor exclusion and which represent a worked out relationship with the healthcare system.
I do have concerns about the Jersey Law, in particular as to its relationship with suicide prevention duties (i.e. the state’s positive obligations under Article 2 ECHR, especially as discharged through – in Jersey – the Mental Health Law 2018). No doubt there are other matters that could also be improved; there would also obviously need to be modifications to reflect the specifics of the statutory and policy framework in England & Wales. However, if the TIA Bill does fail, I strongly suggest that in any future move towards the momentous and irreversible decision to legalise the provision of assistance to die, consideration should be given to using as a starting point the work done in Jersey (and very strongly hope that the legislative process could be taken forward by the Government, rather than as a Private Member’s Bill).
[1] I am assuming for these purposes that it obtains Royal Assent without any modifications being sought or adopted.
[2] The CLADD group, of which I am a part, drafted its own version of a clause doing the same as the Jersey Law, moved by Baroness Finlay. The Jersey approach represents another way of reaching the same goal.
[3] The Jersey model is limited to the provision / administration of drugs, rather than the much wider concept of ‘approved substance’ in the TIA.
[4] Hansard, HL, Vol 853, Col 904.
[5] Note, it is not possible to transpose the Jersey solution to be found in Article 2(2)(c) to the TIA Bill context because the solution depends expressly on the person’s conception of suffering if they have further treatment; not having suffering as a criterion within the TIA Bill makes it impossible to take account of it as the Bill as drafted.
[6] It will undoubtedly lead to challenges to identify the person’s will (to use CRPD language) remains unchanged, albeit challenges that we have started to grapple with in the context of advance decisions to refuse treatment.
