Report of the House of Keys Committee on the Assisted Dying Bill.

Introduction.

The report of the House of Keys Committee on the Assisted Dying Bill has been published, before its consideration in the Keys. The Committee takes the principles of the Bill as set, but then considers whether the clauses might be changed in order to better embody those principles.

This blog has covered the progress of the Assisted Dying Bill through Tynwald a number of times.

In December 2023, I summarised the key provisions of the Bill, noting the provision against forfeiture and the reach of the current criminal offences; the prohibition on medical professionals initiating discussion of assisted dying; the role of Tynwald; and the strong medicalisation, rather than legislation of the process putting doctors at the centre of the regime. These are all returned to in the evidence considered by the Committee. In the same blog, I suggested three issues that needed to be considered in relation to the Isle of Man as a small democracy – death tourism and death residency; the capacity of the Manx health care system, particularly in the context of what may be a high rate of conscientious objection; and the UK regulation of professionals operating in the Manx jurisdiction.   

In this blog, I am joined by Brookes colleague Dr Achas Burin, whose research interests include medical law. Together, we are commenting on four particularly significant aspects of the Committee Report: the residency requirement; assisted dying as healthcare; conscientious objection; and the place of terminal illness in the proposed regime.

Residency requirement.

One of the concerns over access to assisted dying in the Isle of Man when it was not available in large neighbours was “death tourism”, or perhaps more accurately “suicide travel” – that is, would-be users of this form of healthcare travelling to the Isle of Man purely in order to become eligible to access it.

Why, given the Isle of Man welcomes other forms of tourism, is death tourism a problem? We think there are four, interconnected, reasons why this has been an unusually  significant concern in Manx debates. Firstly, travel to the Isle of Man is unusually easy for residents of jurisdictions covered by the Common Travel Area Agreement. The combined population of the rest of the Common Travel Area is substantially more than 70 million people, as opposed to the Manx population of substantially under 100,000. A Manx service could easily become one whose principal users were non-Manx residents. Secondly, because the Bill is not a government Bill – indeed is one which the Chief Minister is opposed to, for instance voting against it receiving a Second Reading in October 2023 – the details of how assisted dying would be resourced are not clear. Would it be provided by the state, or as private health care, or a mix? How would it be accommodated by reciprocal health care arrangements, particularly that with the UK? Even if assisted dying was not covered by Manx public revenues, would non-assisted dying treatment of terminally ill people become a significant burden on the limited capacity of Manx health care? Thirdly, the Isle of Man could develop an international brand as a “death island”. This is perhaps a bigger concern in a small democracy than in a larger one. Switzerland is known for its assisted dying regime, but it is known for many other things besides. The Isle of Man brand may be more fragile. Finally, opponents of assisted dying per se may be particularly disturbed to see the Isle of Man acting as an exporter of assisted dying services.  Someone who is opposed to assisted dying because they are concerned that vulnerable people could be pressured into it, for instance, may see assisted dying as something the Isle of Man should not be involved in.

If the mischief is people coming to the Isle of Man in order to access the assisted dying regime, then this is a demanding thing to determine for a particular terminally ill individual. This is particularly so under the Manx model, where the decisions as to eligibility to access the regime are made by doctors, rather than by say judicial figures. The Isle of Man Medical Society suggested that this was “definitely not a doctor’s role”, although status is already being determined for non-emergency treatment. The Bill does not mention intention in becoming resident, but instead requires that the patient be ordinarily resident for one year before they apply to access assisted dying. Doctors would still need to determine when the patient had become ordinarily resident in the Isle of Man, but once this was done, the rest of assessing the patient against the residency requirement is straightforward.

As Peter suggested earlier, the term “ordinarily resident” would not be an innovation of this Bill. It is the language used in the Abortion Reform Act 2019, which limits abortion services to patients who are ordinarily resident, except in case of emergency. It has been subject to interpretation by the Manx courts, and Peter argued earlier that it would not exclude those moving to the Isle of Man intending to live on the Isle of Man until death, even those whose move is motivated by wishing to access assisted dying. For doctors, the clock is likely to begin ticking when the patient takes up “abode in [the Isle of Man] which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being”. The Committee has, however, suggested that a further definition of “ordinarily resident” could be added, perhaps in the secondary legislation following the Bill (para.29). 

“Ordinarily resident” may be a way of avoiding death tourism, but this in itself does not prevent individuals becoming resident in the Isle of Man in order to access assisted dying – what Kate Lord-Brennan MHK described as “death residency”. This is addressed by the requirement of a period of residency before the assisted dying regime can be accessed.

The original Bill had a residency period of one year, but the Committee has recommended that this should be increased to five years. The Committee referred to reservations around the one-year period, and noted that a five-year period would be in line with other residency requirements, “such as the Isle of Man residential condition regarding Social Security” (para.28). Five years was proposed by a number of those giving evidence to the Committee (for instance Rob Callister MHK, pp.57-59; Andrew Smith MHK, pp.81-85), and the Speaker questioned whether the residency period should be aligned with the five year requirement for Social Care (pp.105-108). Unfortunately, however, the Committee is not explicit on why one year is insufficient, but five years would be sufficient.

How does a five-year residency requirement compare with other jurisdictions? In Australia, all six states have passed assisted dying laws, and all have state (rather than national) residency requirements – twelve months for Victoria, Western Australia, South Australia, New South Wales, and Queensland; and twelve “continuous months” for Tasmania. In an excellent open-access article published in 2022, Del Villar and Simpson review residence requirements in the particular context of the cross-state guarantees of the Australian Constitution. They discuss the courts’ approach to residence requirements for assisted dying – although the regimes are new, cases on this issue have already begun to appear. They also review assisted dying regimes outside Australia, concluding that residence requirements are virtually unknown in Europe; while residence requirements are the norm in North America. In neither group, however, is there a requirement for a minimum period of residence. The nearest is Spain, where although Spanish nationals and legal residents have no minimum period of residence, non-nationals who are not legally resident in Spain need to have a certificate of registration in Spanish territory greater than twelve months.

The difficulty with a period of residency as a surrogate for intention when becoming resident is that shorter periods may be planned around by those moving purely to access Manx assisted dying; while longer periods could exclude access to Manx assisted dying for individuals who move to the Isle of Man with no thought of accessing assisted dying, but later become terminally ill. If this occurs say three years after their move, then, although access to assisted dying did not influence their decision to become ordinarily resident, they would be excluded from an assisted dying regime requiring five years residence. One of the Australian regimes, that of Queensland, has an exemption to the requirement to be “ordinarily resident in Queensland for at least 12 months immediately before the person makes the first request” (Voluntary Assisted Dying Act 2021, 11(1)(f)). Under section 12, a person may apply to the chief executive for an exemption, and it must be granted if “the person has a substantial connection to Queensland” and “there are compassionate grounds for granting the exemption”.

Assisted Dying as Healthcare.

The Bill adopts a framing through which assisted dying is “medicalised.” Some of the ways in which it does this have been outlined in a previous blog post. This post will not repeat those points but rather analyse how respondents perceived the Bill’s framing. The contrasting viewpoints are well illustrated by comparing two quotations:

“At the outset, a question we would raise is why the Bill has medicalised the ultimate mechanism for determining whether the conditions are met, for registered medical practitioners to provide assistance to a patient to end their own life.” (p.200)

versus

“I feel strongly the autonomy of the individual, appropriately attended, advised by health professionals, witnessed etc., should be adequate. It is a health not a legal matter.” (p.63)

First off, let us contextualise these complaints. This is not the first time that concerns about “medicalisation” have been raised in the context of decriminalising controversial medical procedures. Similar concerns were raised about abortion in the context of the English Abortion Act 1967, which also started life as a Private Members Bill.

Like the Assisted Dying Bill, the English abortion legislation proceeded by establishing that no criminal offence is committed when abortions are provided after two doctors conclude that the patient falls within eligibility criteria laid down by the Act. (The Manx Abortion Reform Act 2019 requires just one, not two, doctors.) This approach has been criticised as placing too much decision-making power in the hands of doctors, and failing adequately to protect mother and/or foetus. On the other hand, the English approach has been praised for privatising a highly sensitive personal decision that should not be subject to public scrutiny in an adversarial forum, such as a court or legislative debating chamber, on an issue that is societally very divisive. The English approach “de-politicises” the issue compared to other jurisdictions like the United States of America – at least until new ground has been broken and the practice has become accepted within society.

If we reject “medicalisation”, we must ask a follow-up question of who should ultimately make decisions, if not doctors acting in concert with patients. Rob Callister MHK put forward a draft amendment whereby assisted dying would be subject to first obtaining the consent of the High Court (p.59; see also the submissions of the Medical Defence Union and contrast the views of Daphne Caine MHK, both quoted immediately above). The Committee rejected this as impractical bearing in mind the effect it would have on the workings of the court and the distress to patients who are already terminally ill. The Committee envisaged that disagreements as to eligibility should not come before a court unless there was concern that a criminal offence were being committed. It said that: “Where a family member does not concur with the decision of the individual […] the Committee considers that this a matter of personal autonomy, and it would be inappropriate for one person to be able to control the decision of another.” (p.24)

It would not be better to “judicialise” rather than “medicalise” assisted dying, given attendant risks of adversarialism and the burden on patients and courts. Furthermore, much like “medicalisation”, “judicialisation” tends to be a transitional measure – i.e. adopted until new practices become accepted and entrenched in society. To support this point, consider the analogous experience of families in England who wished to discontinue the life support treatment provided to their loved one. Unlike assisted dying, withdrawal of treatment is not unlawful provided that the patient wants it or a best interests assessment supports it (for those who lack capacity), and proper procedures and professional guidance are followed. Withdrawal of treatment can include removing artificial ventilation and/or clinically assisted nutrition and hydration and/or medication such as antibiotics. 

Initially, it was common practice to apply to court before discontinuing treatment. In the case of Bland [1993] AC 789, which authorised the cessation of treatment to a patient in a persistent vegetative state, the House of Lords ruling suggested that it was good practice to apply to court beforehand. However, the requirement was expressed to be transitional. It was:

“​​directed to the protection of patients, the protection of doctors, the reassurance of patients’ families and the reassurance of the public. […] It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case…” (pp.859, 873)

However, in the present day, the UK Supreme Court has confirmed that that body of experience has built up. It is lawful without a court order to withdraw life-prolonging treatment from patients despite their lacking capacity either where they have made an advance decision or where this is in their best interests (e.g. they are unlikely to regain consciousness). The patient themselves may have specified this in an advance decision (known colloquially as a ‘living will’), at a prior point in time before they lost capacity, which bears similarity to a declaration under the Assisted Dying Bill. Alternatively, a physician may have made a determination in their best interests. The Supreme Court has clarified that there is no need for doctors to obtain a court order before withdrawing treatment, unless there is some uncertainty or disagreement among family members or between family members and doctors (see the case of An NHS Trust v Y; Re Y [2018] UKSC 46). Thus, as things stand, it is no longer routine in England & Wales to apply to court before withdrawing treatment – and it never has been the practice where there exists a valid advance decision. Given this, it is perhaps anomalous that recent Westminster debates on assisted dying (which closely resemble the Manx Bill) proposed judicial oversight.

What about the Committee’s objection about the distress that the court process might engender? Empirical research carried out by Kitzinger and Kitzinger, now available open access, captures families’ experiences of using the court process for approving withdrawal of treatment. They recommended that court approval should no longer be required, after interviewing families who had been through the process. Whilst some people experienced the input of the court as a helpful sharing of “the ‘momentous’ life-and-death decision” (ibid, p.10), there were also negative emotions associated with the court’s involvement. Among these were anger and exhaustion “at the amount of time and effort” that goes into preparing for litigation, delays in the court process, and anxiety at the adversarial nature of the court process (ibid, p.11). Given this, there is merit in the Committee’s rejection of “judicialisation” on the grounds of impact on patients and the courts. Further, it might well be argued that assisted dying declarations are more like ‘living wills’ where, even under present practice, judicial oversight is normally absent.

This research also casts doubt on the wisdom of prohibiting doctors from initiating discussion of assisted dying. All the research participants had had to instigate the discussion themselves, with one mother complaining that it took several months for her letter to even be acknowledged (ibid, p.13). It is noteworthy that the Royal College of Nursing, the BMA and the IOMMS objected to the prohibition in their submissions (see pp. 111, 20, 52). The Committee recommended that cl.9 be redrafted, and that the DHSC should provide guidance and training to all healthcare professionals so that they are able to discuss the entire range of palliative care options with a patient including the provision of assisted dying (p.54). This brings assisted dying into line with other types of medical treatments. If assisted dying is to be “medicalised”, it is at least worth doing so consistently.

Conscientious objection.

One issue that arises across different areas of law is whether, and how, to accommodate objections by individuals who would otherwise be required to act in a particular way. The relevant clause here was cl.8 of the Bill: “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection”. Peter covered the proposed conscientious objection clause in an earlier blog post. To begin by recapping points made in the earlier blog post, but revisited in evidence before the Committee:

This clause is not limited to medical professionals, or to direct delivery of healthcare. The Committee noted a submission by the Royal College of Nursing that the Bill should give nursing staff a right to object to exercising functions associated with assisted dying (para.48). The RCN was, however comfortable that the current clause “would give nursing staff the right to object to taking part in any activities related to assisted dying” (Appendix 13). It is notably wider in terms of who can claim conscientious objection than other conscientious objection clauses such as that in the Abortion Act.

The clause does not create a duty to refer the patient elsewhere. In Manx abortion law, a conscientiously objecting medical professional is required to “without delay inform the woman who requests abortion services that she has a right to see another relevant professional or pharmacist (as the case requires); and … ensure she has sufficient information to enable her to exercise [this] right” (Abortion Reform Act 2019 s.8(5)). In her evidence, Jane Poole-Wilson MHK, writing in support of BMA evidence which stressed the need of patients to be able to access information about assisted dying regardless of their doctor’s views,  recommended “that all health professionals, irrespective of personal belief/willingness to participate should inform patients who approach them about assisted dying, where they can access information” (Appendix 10). The Committee noted this, but neither adopted it nor rejected it. It seems likely to be returned to in the full debate.

The clause protects those in employment from being dismissed, by redefining their duties as an employee to exclude activities covered by their conscientious objection. It does not, however, protect objecting individuals during the recruitment process. As Peter discussed earlier, it is open to an employer to select a candidate who does not anticipate using this clause over a candidate who does. The Medical and Dental Defence Union Scotland (MDDUS) was “pleased to note that the bill includes the opportunity for individuals to exercise conscientious objection. We would be further reassured if there were additional provisions to ensure that the exercise of the right cannot be considered in employment, recruitment, or disciplinary contexts” (Appendix 24). The extension to recruitment would be a significant change, and this part of the MDDUS submission was not referred to by the Committee. Extending the clause to recruitment could produce a system wide problem – if there were insufficient non-objecting doctors to deliver this aspect of healthcare, a health care employer could not respond to this by seeking to appoint a doctor who would work in this area. A post whose duties, because of existing conscientious objections, was specifically to deliver assisted dying could not exclude from appointment a doctor who was unwilling to be involved in assisted dying.

The Committee, and those giving evidence to it, raised two new, related, points in relation to conscientious objection, the first of which reflects the special challenges of assisted dying in a small democracy.

Firstly, there were suggestions that the protection of cl.8 should not be limited to “conscientious” objection, but include within the protection of the clause those objecting on other grounds. Jane Poole-Wilson MHK supported a point raised by the BMA, and recommended “allowing for those health professionals who do not oppose assisted dying on conscientious grounds, but nonetheless would not wish to participate, to be able to opt out”. The BMA had recommended a specialist service in part because it would “help to reassure those doctors who did not want to participate that there would be no pressure on them to do so”.  The Medical Defence Union argued for objections, rather than conscientious objections to be protected: “we can readily envisage a scenario where a doctor faces one instance where they are confident to proceed under the terms of ‘the Act’ to assist a terminally ill patient to end their own life (and duly does so), and another instance where that same doctor – despite on the face of it all criteria being met – has a remaining concern as to their potential exposure to criminal or other liabilities … In such a scenario, we would be concerned that doctors may not be able to rely on the conscientious objection clause”. The Committee did not discuss these arguments, and uses the language of “conscientious objection” throughout, but this may in part be because of their recommendation for an additional “opt-in” provision. Depending on how the conscientious objection clause interacted with an additional opt-in provision, those objecting on non-conscientious grounds might be protected.

Allowing a person to object to involvement in delivering this form of healthcare on any ground, rather than because of “conscientious objection” would be a departure from the closest Manx model, the conscientious objection clause in abortion law. That clause applies only to “conscientious objection”, but specifies how this is to be determined: “In any legal proceedings, a statement in writing and on oath or affirmation by a person that he or she has a conscientious objection …  is conclusive evidence of that objection” (Abortion Reform Act 2019 s.8(3)). If a doctor is prepared to affirm or swear that they have a conscientious objection, then they have a conscientious objection. Evidence from elsewhere shows the breadth of factors that may lead a doctor to conclude that they have a conscientious objection to involvement in assisted dying. In their study of conscientious objection to voluntary assisted dying (VAD) in Victoria, which unfortunately is not currently open access, Haning, Keogh and Gillam, found that the conscientious objections of their participants “were based on some combination of: the impact they anticipated VAD would have on them personally; the impact VAD would have on the patient; the impact of VAD on the medical profession and society’s view of life and death more generally; and the nature of the legislation. All participants identified multiple reasons for their CO.”

Why the suggestion that doctors should be able to raise objections that they do not themselves see as conscientious objections?

One of the key features of small democracies, which needs to be taken account of in constitutional and legal design, is intimacy. The Women in Manx Politics project explored this in relation to elected representatives, and it was particularly striking how MHKs were “always on”. Intimacy in a small democracy means that office-holders interact in a myriad of other ways with fellow citizens – your MHK may be a parent of a child at the same school, someone else who is excited to shop in Tesco, someone who drinks in the same pub. Office-holders in a small democracy are often aware that they will be interacting with the same people, in different ways, indefinitely. One possibility is that a non-conscientious opt-out would be used to manage intimacy between a doctor and other members of their community. There is a theme – rejected by the Committee on the grounds of individual autonomy – in evidence to the Committee that relatives have an interest in assisted dying, rather than just the person accessing this form of healthcare. It is easy to imagine a scenario where a Manx doctor provides assisted dying over the (legally irrelevant) objections of a friend or family member of the patient, and then needs to manage that relationship in informal interactions for decades to come.

Returning to the study by Haining et al, they note: “Some participants felt that participating in VAD would be detrimental to their reputation and had reservations about being labelled the “death doctor” in the community, which they believed would ultimately compromise the therapeutic relationship … Such concerns were particularly problematic for regional doctors who practice in the same community they live in. “I’m a rural and regional [health professional]. I walk down the street … I live in the town that I work in and I’ve had people stop me down the street and say, “you’re not going to do that death thing are you?””.

Secondly, as part of its discussion of the conscientious objection clause, the Committee recommended “in addition to conscientious objection ‘opt-outs’, there should also be an ‘opt-in’ provision, and the Committee would be supportive of any amendment around this” (Conclusion 8). The Committee itself did not go into more detail, but it did refer to evidence which explored the idea in more detail.

Mr Hooper MHK proposed an amendment to the Clause that would require a subset of those able to rely upon the clause – essentially, those in health care professions – to notify the Department of Health and Social Care “of their intention to do so”. What the Department would then do with this information is not specified, but one might anticipate an internal, or perhaps even public, register of those who have indicated an intention to participate in the assisted dying regime. This would not replace the conscientious objection clause, and so might create a category of healthcare professional who did not “intend to exercise the functions under this Act”, but who also did not conscientiously object to doing so.  The Isle of Man Medical Society strongly supported an opt-in which would make involvement in assisted dying a free choice for doctors:  “There are a whole variety of valid reasons why doctors would not want to be involved in assisted dying/euthanasia under any  circumstances and this in no way should impact on their ability to practice medicine on the IOM. Opting in to assisted dying/euthanasia should be associated with rigorous training and assessment of competence to carry out the tasks required. There should also be monitoring of individual doctor’s involvement by the body set up to monitor this Act”.

The idea of an “opt-in” is a complex one to introduce in discussion of clauses. It is closely entwined with the practicalities of delivering assisted dying which are addressed by stakeholders such as the BMA but, because this is scrutiny of a private member’s Bill rather than consultation on government plans, was beyond the remit of the Committee. The interaction with a conscientious objection clause, or a reformed free objection clause, could usefully be addressed in the Bill if it is adopted.

“Terminal illness” as the criterion for eligibility and fear of legal challenge.

The Committee supported amending the life expectancy criterion in cl.5, extending the period from six to twelve months within which death is reasonably expected (pp.12-13). This extension was proposed by Daphne Caine MHK and Lawrie Hooper MHK, the Minister of Health and Social Care. These Members also suggested further additional requirements that the terminal illness had to meet, namely that the terminal illness was causing “unbearable suffering” or had led to “an advanced state of decline in physical capability”.

These additional qualifications on the definition of terminal illness were not taken up. Although the Committee did not specify its reasons, many of the submissions it received voiced fears of what they termed “a slippery slope” or a later judge-made extension to eligibility. Perhaps a cut-and-dried rule was therefore preferred by the Committee, one which left the patient to seek assisted death for their own reasons (whether that be suffering, physical decline, or something else) and left inscrutable the views of the legislators themselves on what sorts of lives are worth living. If so, there is much to commend the Committee’s approach.

The extension of the period from six to twelve months appears to be responding to worries that predictions of life expectancy are difficult to make with certainty. The Isle of Man Medical Society (IOMMS) stated that only ten percent (10%) of its surveyed members felt confident making such a prognosis even at six months projected life expectancy (p.48). Although extending this period might initially appear to make predictions even more difficult, the extension also allows for a margin of error to protect those making such judgements – the Committee noting that more patients are living longer with terminal illnesses (pp.11-12). The word “reasonably” in cl.5(1)(b), which states that death must be “reasonably expected” within the stipulated time period, also may have the effect of protecting those who make prognoses in good faith. Whilst some submitting evidence wished this phrase to be replaced with “on the balance of probabilities” (Medical Defence Union, p.200), retention of “reasonably expected” protects any reasonable judgement with a sound basis. The Committee noted in Conclusion 5 that medical practitioners routinely make life expectancy predictions for other purposes, and that appropriate training should be provided to those who elect to provide assisted dying (p.13).

The Committee thus retained a bright-line rule that eligibility is determined by terminal illness and life expectancy alone. However, it is worth dwelling on the expressed fears that a court may widen eligibility. These concerns were raised by the Speaker of the House of Keys (p.107), John Wannenburgh MHK (p.173), Jason Moorhouse MHK (p.89), and the IOMMS (p.47). It is notable that the fear was shared among those who supported the policy of the Bill, as well as those who opposed it.

In UK courts, as would be the case in Manx courts, the legal vehicle for challenge is most likely to be via the Human Rights Act (1998 in the case of the UK, and 2001 in the case of the Isle of Man). To date, neither the UK Supreme Court nor the European Court of Human Rights in Strasbourg has been particularly receptive when petitioners have challenged primary legislation.

In 2014, the UK Supreme Court rejected a challenge to UK law brought by three men “each of whom was suffering such a distressing and undignified life that he had long wished to end it, but could not do so himself because of his acute physical incapacity” (and one of whom died in the course of proceedings) [2]. The Court noted that the human rights to life and to respect for one’s private life (including one’s autonomous choices about how to live central aspects of life) are protected by the European Convention on Human Rights, Articles 2 and 8. However, neither of these rights was capable of sustaining a challenge to the criminal laws of murder, manslaughter or assisting suicide – none of these offences in Great Britain and Northern Ireland have an exception for medically assisted dying, although Scotland may introduce such an exemption.

The Supreme Court stated that it had the jurisdiction (even under a system of parliamentary supremacy) to consider the challenge [76-77, 100], and indeed it had a great deal of sympathy for the plight of the applicants. However, the majority opinion stressed that the Court would not exercise its jurisdiction without giving Parliament the opportunity to amend the law first of its own accord [113]. Among the reasons for this were that assisted dying is “a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts.” [116] This case, known as Nicklinson (after the deceased applicant), then progressed to the European Court of Human Rights but fared no better there. The European Court has also rejected other cases brought against the UK, such as Pretty v UK.

The European Court of Human Rights, for its part, is aware that the laws of different member states who are signatories to the European Convention reflect a diversity of positions on emotive subjects such as assisted dying. As a result, the court gives each state leeway to maintain its own favoured laws (a doctrine known as ‘the margin of appreciation’). In a case brought against Switzerland, by an applicant Mr Haas, the European Court observed that “the vast majority of member states seem to attach more weight to the protection of the individual’s life than to his or her right to terminate it”, and therefore “the states enjoy a considerable margin of appreciation in this area” [55]. In that case, Mr Haas was unable to obtain prescription medicine to end his own life, which had been blighted by bipolar disorder but not by any terminal illness. The European Court denied that there had been any infringement of his human rights, partly because there is already “relatively easy access to assisted suicide” in Switzerland [57]. This case should give comfort to those in the Isle of Man who fear an extension of the eligibility criteria in a jurisdiction that allows some, but not others, to access such medication.

To wrap up, whilst the judiciary is independent and the outcome of litigation carries an element of unpredictability, the constitutional arrangements governing the Isle of Man are very different to those jurisdictions, such as Canada, that were mentioned in submissions to the Committee (p.47). In Canada, the Supreme Court triggered the passing of legislation that permitted medically assisted dying. (This legislation, following another ruling of a state court, was extended to those who are not terminally ill.) Canada is a federal jurisdiction, with a codified constitution that permits its courts to declare primary legislation invalid. The Human Rights Act, by contrast, does not permit courts to declare primary legislation invalid.

A declaration of incompatibility under section 4 of the Human Rights Act 2001 is unlike a Canadian declaration of invalidity because it does not affect the validity or ongoing operation of the law. The law remains unaltered and can still be applied by officials – for example, prosecutions under that law can still go ahead. (A declaration of incompatibility, as discussed in Alder v Lloyds Bank before the Staff of Government, is a politically charged signal that Tynwald is unlikely to ignore. It is only in extremely unusual cases where the UK Parliament has chosen not to amend the law following a declaration of incompatibility – but that is always a course open to that parliament. The petitioner still has recourse to the European Court, as occurred with the prisoners’ voting saga in the UK.) What a court is empowered to do under the Human Rights Act, section 3, is to interpret legislation so as to make it compatible with human rights. The resulting interpretation may strain natural language if that is what is needed to render the legislation compatible. The Bill’s bright line rule about terminal illness (which makes no reference to any additional criteria, nor underlying rationale like suffering or incapacity) is much less amenable to such interpretation and so is more likely to require a section 4 declaration if a court finds that it breaches human rights.