The Assisted Dying Bill: The Potential Regulatory Implications For Health Professionals

• Published date: 26 November 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Food and Drugs Law, Biotechnology & Nanotechnology
• Law Firm: BLM
• Author: Mr Lee Biddle and Bethany Cartledge

On Friday 22 October, Baroness Meacher's Assisted Dying Bill progressed to the Committee Stage after being debated in the House of Lords. If enacted, it will undoubtedly be a seminal moment in healthcare law. It would permit medical professionals to lawfully prescribe end of life medication to terminally-ill adult patients of mental capacity who are reasonably expected to die within six months (and voluntarily making such a request), essentially legalising physician-assisted suicide. Although the majority of speakers were in favour of the bill, Hansard reveals how many members hold great concern for the safeguarding of vulnerable individuals and for the impact the bill may have on the public's trust in doctors. It is therefore entirely understandable why this issue is prompting such widespread debate.

On Friday, Baroness Meacher disclosed that the Royal College of Surgeons, the only Medical Royal College not to have moved from opposition to neutrality, are now reviewing their position on assisted dying. The bill as currently drafted stipulates that healthcare professionals are not under any duty to engage in such activities authorised by the bill if they have a conscientious objection. The bill also identifies two main roles for health professionals when considering an activity authorised by the bill, specifically "assessing capacity" and "assisting dying". This article explores the regulatory implications which may arise in both areas.

Assessing capacity

Under the bill, in order to assess capacity, both the attending doctor and an independent doctor (defined as a practitioner who is not a relative, partner or colleague in the same practice or clinical team, of the attending doctor) will be required to countersign a declaration stating the patient has the "capacity to make the decision to end their own life and they have a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress" (S.3(1)(b) Assisted Dying Bill). Both doctors will need to separately examine the patient and review their medical records before reaching their decision whether to sign the declaration. However, S.1(2) confirms that every case will be referred to the High Court which will have the final say on whether the ill person has the capacity to make the decision.

Given the sensitive nature of an assisted dying assessment, there is the very real possibility of unrest within the family if not all have a...