The Assisted Dying Bill, the current version of which is here, passed its Second Reading in the House of Keys on 31 October. Following a debate on the 7 November, it was referred to a five person Committee which will report back to the Keys in February 2024, before debate on the clauses of the Bill by the Keys. What does the Bill currently look like?
The provisions of the Bill: Criminal Law.
Under the Bill, a person may request and lawfully be provided with assistance in dying if they are terminally ill; have capacity; have a “clear and settled intention” to end their own life; have made a section 6 declaration (discussed below; for readability I am not not referring to it as a clause 6 declaration) to that effect; are over 18; and have “been ordinarily resident in the Island for not less than one year” (cl.4). Terminal illness is defined as “an inevitably progressive condition which cannot be reversed by treatment”, which is “reasonably expected” to cause death in six months (cl.5(1)). Unbearable suffering is not currently either a qualification for assisted dying, nor a requirement.
The main effect of the Bill would be to exempt those who provide assistance in accordance with the Bill from criminal liability, including specifically abetting suicide (cl.10). As well as being exempt from criminal punishment, the Bill will amend the criminal code to protect such a person from “forfeiture”: It will be interesting to see during the progress of the Bill what the latter is intended to cover – one possibility is that it is meant to protect the inheritance rights of a friend or relative who has assisted the person in discussions around dying. While excluding some activity from the reach of current criminal law, it would at the same time create new criminal offences: forgery of a declaration made under section 6 by a person purporting to seek assistance in dying (cl.14(1)); carrying up to life imprisonment if with the intention to cause the death of another under cl.14(3)); wilfully concealing or destroying a declaration made under section 6 (cl.14(2)); and knowing or recklessly providing a medical or other professional opinion in respect of a person seeking to make a section 6 declaration “which is false or misleading in a material particular” (cl.14(2)).
The obvious mischief addressed by the new offences is the misuse of the assisting dying structures to cause a death which would not qualify for assisted dying – for instance causing the assisted dying of a person who had not made a valid declaration. As this would not be “in accordance” with the Act, such a person would not in any case qualify for the protection from homicide liability under cl.10 – so a person who forged a section 6 declaration and succeeded in causing the death of their victim could be prosecuted for murder under the Criminal Code. Potentially interesting is the position of a medical profession who innocently acts in accordance with a forged section 6 declaration – are they acting in accordance with the Act, so as to be protected from criminal liability? It is also worth noting that the special offences, unlike the existing homicide offences, apply to those seeking to impede the exercise of a person’s rights under the Act by concealing or destroying a declaration, or by intentionally or recklessly providing misleading medical advice. A medical professional who advises a patient that their life expectancy is greater than six months, and so precludes them making use of the assisted dying provisions, and does so reckless as to it being false, commits an offence liable to up to five years imprisonment.
The provisions of the Bill: Assisted dying as healthcare.
The Bill also, however, frames assisted dying as healthcare, with specific powers given to the Department of Health and Social Care (cl.12) and a duty on the Department to monitor and report on the operation of the resulting Act annually (cl.13). It is envisaged that the Bill will result in an increase in public expenditure (see Explanatory Memorandum 16), although as a Private Bill work has not yet begun on how the Bill would be implemented (response to question by Mr Moorhouse, HK 31 October 2023), . Medical practitioners are involved at a number of points:
(1) There is an absolute bar on healthcare professionals initiating consideration of this form of health care when acting as a health care professional (so not, for instance, a doctor discussing their options with a relative who is not under their care). Clause 9 prohibits such a health care professional initiating any discussion which is in substance about assisted dying, or making any suggestion that the person seek assistance to end their life under the assisted dying legislation (cl.9(1)). but does not prohibit them from engaging in a discussion initiated by the person (cl.9(2)). Initiating such a discussion is not an offence, but may constitute professional misconduct (cl.9(4)). Health Care professional carries the definition under the Health Care Professionals Act 2014, and so encompasses registered medical practitioners, chiropractors, osteopaths, registered nurses or midwives, or “a relevant professional who is a registered professional” (section 3). The latter is linked to UK secondary legislation, and while excluding social workers in England, by my reading is capable (if registered) of including “arts therapists; biomedical scientists; chiropodists and podiatrists; clinical scientists; dietitians; hearing aid dispensers; occupational therapists; operating department practitioners; orthoptists; paramedics; physiotherapists; practitioner psychologists; prosthetists and orthotists; radiographers; and … speech and language therapists”. The range of individuals prohibited from initiating discussions about assisted dying is more capacious than at first appears.
(2) The section 6 declaration must be countersigned by the medical practitioner from whom assistance has been requested (“the attending doctor”) and another, independent, medical practitioner (“the independent doctor”) (cl.6(1)(b)). They must both be satisfied, after independently examining the person and their medical records, that the person is terminally ill, has capacity to make the decision to end their own life, and “has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress” (cl.6(6)). They may bring in a registered psychiatrist to provide advice on capacity, although it remains their independent medical decision to countersign or not (cl.6(7-9)). There is no provision for them to bring in a professional to advise on coercion or duress, and it will be interesting to see how medical professionals are supported in identifying coercion or duress. Mr Allinson, in proposing the Bill, sees identifying coercion as something for doctors to do, supported, “through better awareness, training and education” (Mr Allinson, HK 31 October 2023); while Mr Wannenburgh demanded “a great deal of work to mitigate coercion” (HK 31 October 2023), and it was a significant concern of others (for instance Mrs Corlett, 31 October 2023). The current Bill would allow doctors to bring in an expert professional to advise them on capacity, a central aspect of medical practice, but not coercion, one where their professional expertise is less clear. The countersigning doctors must be satisfied that the person has been fully informed of palliative, hospice and other care (cl.6(10)). There is, deliberately, no involvement of judicial officers in this process, and no appeal process: it is a matter for the patient and their doctors.
(3) The attending doctor may prescribe medicine to enable the person to end their own life, such medicine not being delivered until at least 14 days after the section 6 declaration; or 7 days if death is reasonably expected within one month (cl.7(1), (4)). The patient may revoke their section 6 declaration at any time, and so this constitutes a cooling off period (cl.6(12)). The person may then self-administer the medicine, including by making use of a machine which they have received assistance in setting up, or request a medical professional to administer the medicine to them (cl.7(5)-(7)). Whether self-administered, or administered at request, “the assisting health professional must remain with the person until the person has died”, but not necessarily in the same room (cl.7(8), (9)). The assisting health professional may be the attending doctor, but can also be another registered medical practitioner, registered nurse, or registered pharmacist who has been authorised by the attending doctor (cl.7(2)(b), cl.7(13)).
Assisted dying in a small democracy.
Many jurisdictions are wrestling, or have wrestled with, assisted dying, including other small democracies such as Jersey. I would like to bring out three issues of particular importance to the Isle of Man as a small democracy
Firstly, the prospect of making “the Isle of Man a center for death tourism”, as one respondent to the public consultation that preceded this Bill put it (I have retained the original spelling). By this is meant people seeking assisted dying coming from one of the adjoining, much larger, jurisdictions to take advantage of the Manx assisted dying regime. There is some attempt to limit this. A patient must have been ordinarily resident for not less than a year before making their declaration; and at that time they must be reasonably expected to die within six months of the declaration. “Ordinarily resident” is adopted from the Manx abortion legislation, which limits abortion services to women who are ordinarily resident, except for in case of emergency (Abortion Reform Act 2019 s.4), and is used in other legislation, most notably that around work permits. In Department of Tourism and Leisure v Maule [2007] Staff of Government the Staff of Government interpreted the term in that context. The judgment stresses that there is no single, overarching, definition of the term applicable for all legislation (para. 29-32). It may well be that a starting point will be a section of the judgement of Lord Scarman in Shah v Benet LBC, cited with muted approval in Maule:
” Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
…
And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the propositus [the applicant] intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”
Although not cited by the Staff of Government, Lord Scarman suggested another requirement: “The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.”.
A definitive definition of “ordinarily resident” will depend upon a Manx court interpreting legislation flowing from the Bill, but if we take Shah as a starting point, moving to the Isle of Man with the intention in due course of taking advantage of the assisted dying scheme may well constitute becoming “ordinarily resident”. As the UK’s All -Party Parliamentary Group for Terminal Illness explain in its critique of a six month limit for terminal illness in relation to benefit entitlement, “In 1990, many terminally ill people were unlikely to survive for six months after receiving a terminal diagnosis – today, advances in treatment and diagnosis mean that many more people are living with terminal illness for longer”. There is no restriction on a person otherwise entitled to become a resident in the Isle of Man becoming resident knowing that “they have a progressive disease that can be reasonably expected to cause their death“, with the intention in due course, and after one year, of making use of the assisted dying regime when within six months of death (a concern raised by, inter alia, Mr Ashford, HK 31 October 2023). If the Bill becomes law, it will be interesting to see if residents who have become resident after a terminal diagnosis form a significant proportion of those using the scheme – what Ms Lord-Brennan referred to as “death residency” (HK 31 October 2023).
Secondly, capacity to deliver assisted dying as health care. As noted above, health care professions, most especially doctors but also registered nurses and pharmacists, can have essential roles in providing assisted dying. Under clause 8: “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” (cl.8). The wording is interesting – “in anything authorised by this Act” rather than the equivalent in the Manx Abortion Act which refers to participation in “any treatment or counselling authorised by the Act” (Abortion Reform Act 2019 s.8(1)). A very early survey carried out by the Medical Society indicates – very roughly – that 20% of Manx doctors woulde be prepared to support their patients through an assisted dying request (Mr Allinson, HK 31 October 2023).
The Manx wording would seem to go beyond prescription and administration of lethal drugs and cover, for instance, acting as a witness to a section 6 declaration. My reading is that this would mean that an administrator working in a residential home, for instance, could refuse an order to act as a witness by their manager; even if they routinely act as a witness for resident’s wills and other legal documents. The UK abortion clause on the other hand, which like the Manx Abortion Act emphasises participation in treatment, has been interpreted narrowly by the UK Supreme Court to exclude administrative, managerial, and ancillary tasks associated with the provision of an abortion service.
One specific issue may be worth addressing in the text of the Bill. 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)). A draft assisted dying Bill in the UK in 2004 similarly dealt with referrals by conscientious objectors expressly, with a duty to take appropriate steps to refer a patient “without delay to an attending physician who does not have such a conscientious objection”. Mr Hooper takes an alternative approach to the same issue, which gives more weight to conscientious objection, proposing an opt-in register of those who do not have a conscientious objection, which “would make it clear to the public who they can discuss assisted dying with”. Addressing the position of a patient seeking lawful assisted dying who contacts a medical profession unwilling to support this is worth doing, especially given the high proportion of Manx doctors who may have conscientious objections.
More fundamentally, in a small democracy a recurring challenge is low levels of absolute capacity, regardless of the capacity per capita. Some other jurisdictions have found a real tension between individual conscientious objection to some forms of health care, and retaining capacity for patients seeking these forms of health care – this has been particularly extensively studied in relation to abortion in Italy, where an average of 70% of gynaecologists exercise their right to conscientiously object to providing abortion (for an open access introduction, see here), and may have underpinned a question about the impact of the Bill’s progress on recruitment and retention (Mr Moorhouse, HK 31 Otober 2023) . If at some point a very significant number of Manx doctors exercised their rights under clause 8, so as to constitute a barrier to the timely operation of the assisted dying scheme, could recruitment to future posts distinguish between candidates who did not anticipate using clause 8 and those who did?
The Bill does not address this directly, but there is nothing in this Bill – as there is nothing in the examples I have given already – which protects a person applying for employment. Like the protection of whistleblowers, there is protection for an employee, but not for a person seeking to become an employee. The strongest argument for such protection is likely to be discrimination on the grounds of religion or belief, but a health service that needed to appoint a doctor willing to be involved in assisted dying is likely to be able to argue under the Equality Act that it is an occupational requirement for that particular post that the doctor not have philosophical or religious objections that would lead them to take up the conscientious objection protection. To put it another way, a blanket rejection of applicants for medical posts who would exercise their legal rights under clause 8 on philosophical or religious grounds would be likely to fall foul of the Equality Act; but such a rejection for a post intended to address a shortfall in provision of assisted dying services would not.
Finally, as with many but not all professions practised in the Isle of Man, medical professionals operate within a legal context set in the Isle of Man, but a professional context based primarily in the UK. Mr Thomas raised the tensions between the two in a substantial contribution to the debate (HK 31 October 2023). This, together with the death residency point discussed earlier, led a number of MHKs to suggest that the Isle of Man should coordinate innovation in this area with larger jurisdictions in the Atlantic Archipeligo.
The role of Tynwald.
One concern raised during debate was that the Bill leaves a significant set of issues to secondary legislation, rather than incorporated into the provision of the Bill itself (Mr Callister, HK 31 October 2023). Mr Ashford argued for issues to be dealt with in the primary legislation in order to ensure scrutiny of the detail, and in particular changes to that detail, at the same level as the Bill itself (HK 31 October 2023).
There are a number of mechanisms by which Tynwald is to be kept engaged with the operation of this legislation. Although the DHSC has the power to change defined terms, this is subject to the affirmative procedure of Tynwald (cl.3(2)). The DHSC may by regulations specify the medicines to be used to assist dying, and how they are to be prescribed and transported, subject to approval by Tynwald (cl.7(10-12)). The regulations specifying the qualifications of the independent doctor countersigning a section 6 declaration may be specified by the Department, subject to approval by Tynwald (cl.6(13)). Codes of Practice issued under cl.12 would not need to be approved by Tynwald, however, but only be laid before Tynwald. These Codes could cover “the assessment of whether a person has a clear and settled intention to end their own life”, including assessing capacity, taking account of psychological disorders, and “information made available on treatment and end of life care options available to them and of the consequences of deciding to end their own life”; but also “such other matters relating to the operation of this Act as the Department considers appropriate” (cl.12(1)). Before issuing such Codes the Department is required to consult such persons as it considers appropriate (cl.12(2)). Given the relatively close monitoring of most of the assisted dying scheme by Tynwald, it may be worth considering revising the clause 12 procedure to give Tynwald a more active role in considering Codes of Practice.
As noted above, the Department is required to “monitor the operation of the Act, including compliance with its provisions and any regulations or code of practice made under it”, publish an annual report on the operation of the Act, and submit a copy of the report to Tynwald (cl.13). One way to increase Tynwald’s control of the assisting dying scheme would be to specify some elements which this report is required to address. From the discussion above, for instance, it may be worth requiring a report on the length of residency for those who have made use of assisted dying; the number of Section 6 declarations rejected on the grounds of capacity and, separately, coercion; the proportion of medical professionals who have exercised, or made it clear they would exercise, their right to conscientious objection; and the capacity of the Manx health care system to implement the scheme in a timely fashion.
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