I have set my (excellent) Law at the End of Life students on the Medical Law / Medical Ethics and Law MA programme at King’s College London the following question:
“Do the eligibility criteria for assistance in dying contained in the Terminally Ill Adults (End of Life) Bill give rise to discrimination contrary to Articles 8 and 14 ECHR? Give reasons for your answer.“
I am going to be genuinely interested to read their answers.
As I said in my written evidence to the Public Bill Committee at House of Commons stage:
[…] the Committee will no doubt also be considering carefully the potential for challenges to be brought by those who do not meet the criteria (for instance because they have a degenerative condition which means that have lost the relevant capacity by the time that assistance is to be provided, or those who are not capable of carrying out the final act themselves). In this regard:
a. The courts to date have been very clear that the question of whether the provision of assistance should be made legal is a matter for Parliament. That is a very different question to the question of whether, if the provision of assistance has been made legal to some, it is discriminatory (and contrary to Articles 8 and 14 ECHR) to stop others receiving it. In the context of social care, by way of analogy, the European Court of Human Rights has made clear that States are under no obligation to put in place mechanisms for the provision of social security benefits, but that any mechanism which is put in place must be operated in a non-discriminatory fashion (see Stec v United Kingdom [2006] ECHR 1162 at paragraph 53).
b. Whilst the operation of the Human Rights Act 1998 means that the courts could not require that Parliament amend any Bill passed, the track record to date of Parliament complying with declarations of incompatibility made by either the domestic courts or the European Court of Human Rights shows that Parliament almost invariably does amend the law in response (the most recent statistics being provided by the Government in November 2024).
c. The Bill Committee will no doubt wish to consider very carefully the basis upon which the non-availability of assistance to those falling outside the criteria could be justified in what will inevitably be challenges before the courts to those criteria.
Unfortunately, to date, and as far as I am aware (but please do correct me) there has been no statement from the Bill’s sponsors in either the House of Commons or the House of Lords giving such a justification. Given the strong intimations that the Bill will be brought back to the Commons if the remaining stages in the Lords are not completed, I do hope that in the remaining time that the Bill has before the end of this session such a statement can be given to give the courts a basis upon which to hold the line if the current eligibility criteria represent the line that the sponsors wish to draw (something that I am entirely willing to take on trust – a commodity which is in depressingly short supply at present).
Separately, the debates on Friday 27 March highlighting the potential that the meaning of ‘treatment’ within the laws governing NHS would need to be changed to accommodate the Bill raised again, and starkly, the question of the wider impacts of the Bill. The Government’s impact assessment is that between 1,042 and 4,559 people per year will die receiving assistance under the Bill 10 years after it comes into force. Opinions may vary as to the accuracy of that estimate (and whether it is a ‘good’ or a ‘bad’ thing that the Bill would enable them to receive such assistance), but out of a population of 61.8 million it is a very small number indeed. As the body representing (for these purposes) all of those in England & Wales, it might be thought important that Parliament take stock of:
(1) The extent to which, to secure what is understood to be a benefit for that group, the law relating to other areas – impacting many more people – should be distorted. I have in mind, for instance, the law relating to mental capacity and suicide prevention, as well as the fundamental meaning of medical treatment; and
(2) Whether there would be ways of achieving those goals in ways which cause less distortion to the wider law, looking, for instance, to Switzerland for a model which (in effect) provides for assistance as a legitimate response to the societal importance we place on choice, but does not seek to house it within healthcare.
