Amid significant public and legislative debate, in November members of the UK’s Parliament (MPs) voted to move the country’s Terminally Ill Adults (End of Life) Bill forward.

The assisted dying bill, introduced by Kim Leadbeater MP, has reached the committee stage, where a group of 23 legislators will review the legislation before it’s sent to the House of Lords and then back to the Commons for determination. If passed, it’ll apply to England and Wales only, with the Scottish Parliament set to scrutinise a separate proposal early this year.

As a sign of how seriously the issues considered by the bill are being treated, two government ministers – health minister Stephen Kinnock and justice minister Sarah Sackman – are sitting on the committee, where typically only one would be included. It is, Leadbeater says, a reflection of ‘the level of engagement and commitment that such an important piece of legislation demands’. 

Charlotte Tillett, Membership Officer of the IBA Healthcare and Life Sciences Law Committee, says the assisted dying bill is facing such high levels of scrutiny due to it being ‘fraught with ethical and moral difficulties’. 

In a blog published prior to the UK legislation being debated in Parliament, Fiona Scolding KC and David Lock KC of Landmark Chambers wrote that the Canadian example could be instructive given that Canada is ‘a common law jurisdiction [that] uses some of the same principles and legal constructs as the UK’. 

‘The Canadian law has also been developed following similar debates and discussions as are currently being considered by the UK Parliament and society’, they wrote. ‘In particular, the removal of the “end of life” condition in 2021 came about after hearing extensive expert and other evidence by a Canadian parliamentary committee and a consultation involving over 300,000 people who had been involved in assisted dying since its introduction.’

Scolding and Lock suggested that looking at the responses and analysis by the Canadian parliament as to how the law was working in practice might also provide valuable lessons for both those advocating or opposing the bill.

Tillett, who’s also a partner at Stevens & Bolton in England, says any legislation would probably ultimately be tested in the courts to seek clarity on what is and isn’t included in its scope. Alison Choy Flannigan, previously Website Officer on the IBA Healthcare and Life Sciences Law Committee, says this has happened in Australia, whose legal system is inherited from the UK. Despite most Australian states and territories permitting voluntary assisted dying, a 2023 court ruling underscored that in some instances Commonwealth, not state, legislation will take precedence.  

‘Under the Australian Constitution, where there is a conflict between Commonwealth and state legislation, the Commonwealth legislation prevails’, Flannigan says. ‘Under the Commonwealth Criminal Code it is an offence to use a carriage service, such as a phone or video call, to counsel or incite suicide. In Nicholas Carr v Attorney-General for the Commonwealth it was held that […] medical practitioners cannot use telehealth to counsel voluntary assisted dying.’

Until the UK bill gets through the committee stage, where numerous amendments are expected to be made, it’s unclear what, exactly, MPs will ultimately be asked to vote on. There’s also no guarantee that the bill will pass when the final version comes before Parliament.

Yet while much of the focus has been on ensuring the legislation is restrictive enough to prevent abuse, Tillett says that in reality the bill’s requirements may prove too onerous to meet the need it’s seeking to address. That, she says, means that assisted dying could ultimately become an access to justice question. 

‘What is being proposed for the UK is really quite robust and restrictive relative to regimes in other jurisdictions where this is in place or being contemplated’, says Tillett. She notes that there are many requirements to be met in order for an individual to be eligible. However, ‘there is a concern that it would be limited to people who can afford to do it. Who will pay for the doctors’ time?’ she asks. 

Tillett says the UK’s National Health Service will probably not be able to pay for doctors to write the assessment and then appear in court. ‘People will have to make a High Court application, which, when lawyers are instructed, is an expensive thing’, she says.

On the question of who pays for court proceedings, Leadbeater has said that she doesn’t anticipate that an applicant would have to pay a fee. However, ‘these are the details that would have to be sorted out if the bill passes,’ she has said, adding that ‘it’s the job of Parliament to decide they want to change the law and then look at those issues. You don’t put in a piece of legislation, “it’s going to cost a certain amount of money”’.

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