Solicitor Rubin Italia explores assisted dying legislation in the Law Society Gazette

Solicitor Rubin Italia discussed proposed reforms to assisted dying legislation and the importance of introducing appropriate safeguards.

Rubin’s article was published in the Law Society Gazette, 19 April 2024, and can be found here.

If he becomes our next prime minister, Sir Keir Starmer has pledged that parliament will vote on changing the laws that prohibit assisted dying. His personal position has been consistent: in 2015, he backed a bill to legalise assisted dying for terminally ill, mentally competent adults, by providing them with medically supervised assistance to end their own life. But despite cross-party support, the bill was defeated.

The issue has resurfaced thanks to Dame Esther Rantzen who announced last December that as a result of her stage four lung cancer she had joined the Dignitas clinic in Switzerland, which offers physician-assisted suicide. The veteran BBC broadcaster has also been campaigning for change in the law on behalf of terminally ill people with a life expectancy of six months or less, to have the right to choose when they die. In a phone call to Rantzen, the Labour leader confirmed that he too was “personally in favour of changing the law” around assisted dying.

A highly emotive and complex issue that invariably provokes strong feelings and polarises opinion, assisted dying has myriad social, moral, ethical and religious dimensions. English law is, however, unambiguous: it prevents people from asking for medical help to die. Euthanasia is illegal and deemed to be manslaughter or murder.  Furthermore, the Suicide Act 1961 also makes it illegal to encourage or assist another person’s suicide.

Those who advocate a change in the law argue that alleviating the pain and suffering of those in the final stages of a terminal illness must be the primary consideration. Central to their argument in support of assisted dying is respecting patient autonomy: that a patient’s wishes at the end of their life are paramount.

So, what challenges might arise if the law were to change and fully accommodate those wishes?

Any change in the law should, of course, aim to provide appropriate safeguards relating to protocols and procedures in order to prevent any wrongdoing or error. But given the impaired judgment that can accompany many terminal illnesses, it may prove very difficult – legally and medically – to ensure that each patient’s decision is entirely voluntary, and that no coercion or family pressure has been applied.

A law that permits assisted dying could fundamentally alter societal attitudes towards the elderly and seriously ill, perhaps amplifying a message that it is an option which they ought to consider.

For doctors and nurses, the administering of lethal drugs to such patients fundamentally differs from withdrawing life-sustaining treatment. Their role is to support patients to live as comfortably as possible until they die, not to cause their death intentionally.

Terminally ill patients can voice concerns to their doctors, safe in the knowledge that they will not be involved in facilitating their death. If those same doctors were subsequently to administer lethal drugs to them, the doctor-patient relationship would be inherently compromised. Some elderly or disabled patients who see themselves as a burden and believe that their lives have little value may well fear that the palliative care efforts of health professionals might diminish.

Among doctors, opinions are divided. According to the most recent BMA (British Medical Association) survey, 50% of surveyed members supported a change in the law relating to assisted dying, while 39% were opposed and 11% undecided.

Many questions remain unanswered, such as who could assist if such a law were passed – a doctor, or another approved individual? If it were a doctor, what further training might be necessary? How would abuse of the legislation be prevented, particularly where individuals have large estates to bequeath?

Other jurisdictions, which already allow assisted dying, may provide some answers.

Following a 2015 Canadian Supreme Court ruling, doctors in Canada are permitted to prescribe drugs for self-administration to those who ask to die and have “a grievous and irremediable medical condition”. In six Australian States, doctors can prescribe drugs to adults for self-administration and, where an individual is physically incapacitated, to administer those drugs. Medically assisted dying is also legal in 11 of the 50 US states. In Washington DC, legislation was passed this year allowing lethal drugs to be mailed to patients instead of being collected in person.

Across Europe, it is not only Swiss laws that permit assisted dying. Dutch law allows doctors to prescribe drugs for self-administration and to administer where the individual concerned is experiencing “unbearable suffering” and making an informed choice. Similarly, Belgian law allows patients to qualify for medically-assisted dying if they have an incurable illness and experience “constant and intolerable suffering”.

As German lawmakers continue to debate the issue, French President Emmanuel Macron has backed a bill to allow medically assisted death for adults suffering from incurable illnesses who are expected to die in the “short or middle-term” and suffering “intractable” pain.

A slew of UK polls show support for assisted dying ranging from 65% to 75%. Although the nation’s moral compass may have shifted, significant hurdles need to be overcome before it can be legalised here.

If enabling legislation were passed in the UK, it is imperative that the strongest possible safeguards are introduced to ensure that irreversible decisions are never made on impulse and that the terminally ill have every opportunity to consider all their options.

Whatever current polls might suggest in terms of support for assisted dying, any change to the law must be carefully considered and rigorously reviewed to protect individuals who are at their most vulnerable.