On Friday 22 October, Baroness Meacher's Assisted Dying Bill progressed to the Committee Stage after being debated in the House of Lords. If enacted, it will undoubtedly be a seminal moment in healthcare law. It would permit medical professionals to lawfully prescribe end of life medication to terminally-ill adult patients of mental capacity who are reasonably expected to die within six months (and voluntarily making such a request), essentially legalising physician-assisted suicide. Although the majority of speakers were in favour of the bill, Hansard reveals how many members hold great concern for the safeguarding of vulnerable individuals and for the impact the bill may have on the public's trust in doctors. It is therefore entirely understandable why this issue is prompting such widespread debate.
On Friday, Baroness Meacher disclosed that the Royal College of Surgeons, the only Medical Royal College not to have moved from opposition to neutrality, are now reviewing their position on assisted dying. The bill as currently drafted stipulates that healthcare professionals are not under any duty to engage in such activities authorised by the bill if they have a conscientious objection. The bill also identifies two main roles for health professionals when considering an activity authorised by the bill, specifically "assessing capacity" and "assisting dying". This article explores the regulatory implications which may arise in both areas.
Assessing capacity
Under the bill, in order to assess capacity, both the attending doctor and an independent doctor (defined as a practitioner who is not a relative, partner or colleague in the same practice or clinical team, of the attending doctor) will be required to countersign a declaration stating the patient has the "capacity to make the decision to end their own life and they have a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress" (S.3(1)(b) Assisted Dying Bill). Both doctors will need to separately examine the patient and review their medical records before reaching their decision whether to sign the declaration. However, S.1(2) confirms that every case will be referred to the High Court which will have the final say on whether the ill person has the capacity to make the decision.
Given the sensitive nature of an assisted dying assessment, there is the very real possibility of unrest within the family if not all have a similar viewpoint as the patient seeking assistance to end their life. With no defined appeal process, there is the distinct possibility of legal challenge and/or concerns or complaints arising from the assessment itself and how it was conducted by one or both of the healthcare professionals involved.
Various sources commenting on the bill have also provided advice to practitioners engaged in assisted dying assessments prior to signing the declaration, with the aim to reduce the prospect of a fitness to practise investigation by the General Medical Council ("GMC") if a complaint is subsequently received from distraught family members. This includes ensuring there has been a discussion with the patient surrounding potential care options (palliative, hospice etc.) and to ensure there has been access to counselling and for these steps to be properly recorded in the medical records. Some commentary has even raised concerns that doctors will need to be alert to the somewhat sobering possibility that family members may have encouraged patients to consider assisted dying, persuading them that they had become a burden. The Archbishop of Canterbury echoed other members in highlighting the potential for financial abuse here, bleakly considering how "not all families are happy and not everyone is kind and compassionate". This would suggest that healthcare professionals may need to consider communicating with family members before reaching a decision but that in itself brings its own complications if consent for that discussion is not forthcoming from the patient. It could therefore be a case that the doctors involved in these types of assessments are exposed to the risk of complaints no matter what they do, particularly as the outcome of any assessment is inevitably based upon practitioners' independent clinical judgement. The burden this process would place on already overstretched doctors and GPs caused Lord Gold to oppose the bill on Friday, with him questioning how GPs could possibly devote sufficient time to these mental capacity assessments when they are currently struggling to schedule ten minute appointments for patients.
With the courts reviewing and needing to approve every signed declaration, it is possible that the practitioners' decision exercising their independent clinical judgement could be overturned. If such a situation were to occur and the courts conclude that the patient did not, in fact, have capacity, it is not inconceivable for the doctor's fitness to practise to be called into question, particularly given the gravity of such an assessment. It is entirely plausible for concerns to be raised that the practitioners involved compromised the patient's safety and fundamentally undermined public confidence in the profession. Depending on the circumstances of the case, a healthcare professional may also be found guilty of a criminal offence under S.10(2) of the bill, if they "recklessly or knowingly provide a false or misleading medical opinion".
Assisted Dying
It is important to differentiate the bill's intention of permitting "physician-assisted dying" and the different and more controversial topic of euthanasia. Section 4(4) of the bill outlines the physical act of assisted dying and what would be considered permissible:
"(4) In respect of a medicine which has been prescribed for a person under subsection (1), an assisting health professional may -
(a) prepare that medicine for self-administration by that person;
(b) prepare a medical device which will enable that person to self-administer the medicine; and
(c) assist that person to ingest or otherwise self-administer the medicine;
but the decision to self-administer the medicine and the final act of doing so must be taken by the person for whom the medicine has been prescribed".
We take it from this that healthcare professionals may lawfully help to prepare the medicines or an administering device (such as an intravenous infusion pump) with the intention of the relevant patient ending their own life but must not directly engage in the act of administration. Section 4(6) of the bill stipulates that the healthcare professional must remain with the patient until they have self-administered the medicine and died or decided not to self-administer the medicine.
The decision to self-administer the medicine and the final act of doing so must be taken by the patient. It would therefore be unlawful for a healthcare professional to assist with the administration of medicine and they would likely face criminal prosecution in addition to any regulatory investigation if they did.
Critics of the bill have highlighted the difficult position this places health professionals in if a patient were to have a negative reaction to the drug or became unable to administer the full dose. Should there be medical intervention in such circumstances and where does this sit in respect of compatibility with a professional's duty to act promptly when a patient's dignity or comfort is compromised? The prospect of a clinician finding themselves in a conflicted position is very real indeed.
Other considerations
It is unclear how other organisations, such as the GMC, might view complaints of doctors failing to advise patients on assisted suicide as a treatment option, given that there is no obligation to take action under the bill if they object to it. Whether this would amount to a legitimate treatment option requiring discussion as per Montgomery1 is uncertain but it seems inevitable that it would be left to the GMC to advise practitioners and publish guidance on how best to navigate this almost impossible position that could, by its mere mention, could cause significant alarm and distress to patients and their families.
If the bill is enacted, the Suicide Act 1961 will be amended so that any health professional who provides assistance in accordance with the bill will not be guilty of an offence. If the health professional's behaviour falls outside of the bill at any point they would risk facing criminal proceedings. There would be no duty under the Coroners and Justice Act 2009 to investigate deaths which are a consequence of the Act.
Conclusion
In summary, it is unclear how the regulators would regulate assisted suicide and whether it would be viable to adopt a neutral stance in the context of likely calls for professional guidance when navigating this very difficult area. Without such guidance, healthcare professionals will no doubt be very concerned about the likelihood of both criminal and regulatory action, where their actions are likely to generate significant and emotive criticism whichever side of the line they fall.
Footnote
1 Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430.
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