Having (several) day jobs, I simply don’t have time to try to ask questions of all the amendments that are being put forward for consideration at the Public Bill Committee, but given the substantive changes proposed in the amendments advanced by Kim Leadbeater in relation to clause 12 (High Court approval), I set out here a set of questions about them to seek to assist in ensuring that whatever law is passed is good law.
You can downloaded an annotated version of the relevant clauses / Schedule here, but are also set out here also for those who find it easier to read the questions in sequence.
Note that I do not in the questions make any observations about the practicalities of identifying sufficient numbers of Panel members, as others are best placed to raise such matters.
New clause: Voluntary Assisted Dying Commissioner
Subsection(3) (qualification for post of Commissioner)
- The provisions of legislation applying to judicial posts (including the Crime and Courts Act 2013) appear not to apply to the selection and appointment process of the Commissioner.
- This being so, are any of the functions that the Commissioner discharges under the Bill judicial functions as conventionally understood?
New clause: Referral by Commissioner of case to multidisciplinary panel
Subsection (1) (receipt of application)
- Will a payment of a fee be required? If so, what provision is there in relation to those who cannot afford to make such payment?
New clause: Determination by panel of eligibility for assistance
The nature of the panel
- Is the panel discharging a judicial or administrative function?
- The appointment process for members of the panel is different (for instance) to the appointment process of members of First Tier-Tribunals – as to which (in relation to legal members), see paragraph 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007, as amended by paragraph 42(2) of Schedule 13 to the Crime and Courts Act 2013.
Subsection (2) (functions of the panel)
The discharge by the panel of its functions
- It appears that the panel is required to discharge an inquisitorial function – i.e. itself to be satisfied of the relevant requirements, not just that the assessments have been completed. Can the panel call upon assistance from a neutral person (the equivalent of an advocate to the court) to assist it?
- Note that if the panel is not discharging the functions of a court or a tribunal, it is unclear upon what basis the Official Solicitor would be able to act as such a neutral person if the panel wished it to.
Panel’s decision-making remit
- What is the panel required to do where it considers that the criteria at 2(a)-(h) are met, but that the person is seeking assistance in dying because of service provision failures by either health or social care services?
Subsection (3) (panel procedure)
- If the panel is not discharging a judicial function, does it have the power to compel witnesses to attend and / or to hear from them on oath?
Subsection (4) (panel procedure)
- Why is there a difference between (a) and (b) as regards discretion to hear from the person concerned, but a mandatory requirement to hear from one (or both of the doctors)?
- Does the Bill need to specify the circumstances under which the panel can, itself, to be satisfied of the patient’s capacity, settled will, and freedom of choice without hearing from them? Note in this regard that, at present, the Bill does not provide for multi-disciplinary assessment at the beginning of the process. By way of analogy, there are limited circumstances under which a Mental Health Tribunal proceeds without hearing from the patient, but detention under the Mental Health Act 1983 has already required multi-disciplinary assessment before admission can take place, which the courts have confirmed has to include “personal examination” by the relevant disciplines (see Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin)).
- Will legal aid be available for the person to be represented?
- If not, what considerations arise as regards equitable access to and representation before the panel?
- Should the panel be required to notify any person who attends the hearing of its decision?
New clause: Reconsideration of panel decisions refusing certificate of eligibility
Subsection (2) (application to the Commissioner)
- Why is there only a one-way route of challenge? What should happen where a person or body is concerned that the panel has erred in granting the certificate?
Subsection (3) (Commissioner consideration of application)
- What function is the Commissioner discharging here? An administrative or a judicial one?
- Note that this has implications if there is a concern that the Commissioner themselves has erred: if a purely administrative function, then the route of challenge would be way of judicial review. If a judicial function, the expectation would be that this would be an appeal to a higher tier within the court system.
New schedule: Assisted Dying Review Panels
Paragraph 2 (Persons eligible to be panel members)
- The question above is repeated as to the basis upon which this legal member is being appointed. Are they discharging a judicial function, or an administrative one?
- Are Honorary King’s Counsel eligible for appointment (noting that such a title may well be conferred on a person who has never played a part – in any kind – in court proceedings, but who has made another form of contribution to the development of the law).
Paragraph 6 (Panel sittings to be in public subject to chair’s discretion to sit in private at the request of the person in question)
- Does this also require that:
(1) notice of the hearing be given to those properly interested in the person’s welfare (with a view to ensuring that the panel is able to discharge its inquisitorial function).
(2) arrangements be made to list the hearing so that members of the public are able actually to attend? - What requirements arise in relation to reporting / other publication of information about the person? If the panels do not fall within the court system (and hence common law and statutory provisions relating to contempt of court would not apply), what powers would they have to secure non-publication of sensitive information about the person?
Paragraph 9 (reasons)
- Who are these reasons to be provided to? This is of some significance in terms both of (1) potential challenges to the correctness of a decision to grant a certificate; and (2) monitoring of panels.
Paragraph 10 (money for panel members)
- Is the intention that payment is to be mandatory? If not, what considerations arise in respect of ensuring that members of the panel are drawn from a wide socio-economic background?
Disclaimer
For the avoidance of any doubt, any views I have set out on this page, or on pages linked to it which express views on the Bill, are mine alone, and do not represent the views of organisations I am affiliated with or working with an ongoing basis.
