Reports suggest that some MPs are wavering on assisted dying, following Kim Leadbeater’s announcement that her assisted dying bill would no longer require a high court judge to approve each application. An anonymous MP warned that “if changes like this are happening, I don’t think it will pass. I gave it a second reading as I thought it would be strengthened and it sounds like it is going in the wrong direction.” They are mistaken: the change makes the bill better and more effective.
When MPs voted to advance Kim Leadbeater’s assisted dying bill to committee, it included procedural guidelines. An applicant’s doctor would have to show their patient is eligible, and a second doctor would need to confirm their assessment. Both are expected to diagnose the patient’s medical condition and ensure their application is not the result of social coercion. A high court judge would then expected to perform two tasks: double check the doctors’ steps to ensure there is no coercion, and speak to at least one of the doctors to confirm due process has been followed.
This step was always a fig leaf, and an awkward one at that. It was never clear why a high court judge was necessary to confirm that clear procedure was followed, given that this task sounds more suited to an auditor. Nor would judges be particularly useful in rooting out coercion, as the bill only required them to speak to assessing doctors who would have already decided it was not a concern.
Leadbeater’s changes would replace judges with panels of experts, including a legal chair, psychiatrist, and social worker, who would review each application and ensure due process is followed. A judge would lead the organisation, but would not be required on every panel.
This would place judges in a position more suited to their experience. While judges are experts in the legal definition of coercion, they are not trained to evaluate someone’s mental wellbeing or psychological capacity, nor whether their social conditions are a motivating factor in their application. Neither are they accustomed to the role of an investigator, as Danny Kruger (an opponent of the bill) pointed out in parliament. Now, tribunals will bring together various experts who, between them, go beyond legalistic analysis to discuss how an applicant may feel psychological and social pressures, rejecting them if they are a deciding factor in the case.
This amendment would bring the proposed legislation in line with other countries that safeguard assisted dying through clear, practical, and robust defenses outside the judicial system. In the Netherlands, expert consultants are available within 24 hours to help doctors decide on complex cases. We recommended similar policies before the bill was introduced last year.
In Spain, which partially inspired Leadbeater’s changes, regional committees staffed by healthcare workers, lawyers, psychologists, and social workers provide final approval on assisted dying applications. They verify whether applicants are eligible, resolve claims which have been rejected, review and investigate conflicts of interest, and act as an advisory body on issues relating to the law. Judges only get involved if an applicant appeals the committee’s ruling. This places authority primarily with those who have experience understanding and responding to the complex ways coercion can manifest.
As explained by Derecho a Morir Dignamente, an assisted dying advocacy group in Spain, “We (DMD) were initially opposed to prior control by a commission…After three years of implementation of the law, our opinion has evolved. Judges do not have the necessary training to judge a situation as humanly complex as that of a person in intense suffering who wishes to die. They are not even trained to determine a person’s capacity to make decisions about their health or life, as a doctor is.”
Those concerned about lax standards should take confidence from the outcomes of the Spanish approach. Spain approves just 50% of assisted dying applications, compared to Canada which approves 78%. In total, assisted deaths in Spain represent just 0.06% of total deaths.
The move would also align with the resources available to the court at this time. There are currently 108 high court judges in England and Wales, whose time is constantly under pressure, and by definition, all applicants to the court would be managing a progressive illness or disease expected to cause their death within six months. Backlogs in the High Court already stretch beyond that window. It currently takes nine months to get a ruling from a high court judge on average care and supervision cases, and while other cases like divorce may receive quicker answers, it is because they are considered less consequential. This means that at best, the court’s time would be taken up by tick-box exercises. At worst, it could lead to unnecessary hold-ups. The courts would effectively be asked to make an impossible choice: rule on a case they haven’t adequately investigated or force the applicant to wait until due process can be carried out. For those facing an illness that progresses faster than the court backlog, such a wait would amount to a rejection.
Kruger has criticised Leadbeater for making such a big change after second reading of the bill, implying it will no longer receive a majority of support from MPs. He has a point, but not the one he thinks he is making. The real error was to introduce such an impractical step, and to continually claim the safeguard was necessary to make her bill “the most robust piece of legislation in the world”. Instead of trying to one up other existing systems, she would have been better to learn from them.
This latest shift shows the committee stage is accomplishing just what it was designed to do: adapt parliamentary legislation to align with real world expertise. Throughout the process, there have been MPs complaining the lack of time to debate and scrutinise the bill. To the contrary, this week’s events show that the proposal is evolving, and in a positive direction. It is on course to be a better piece of legislation when MPs get the chance to vote on it again.
