The Assisted Dying Bill

What is the Bill?

1. The proper title of the Assisted Dying Bill is the Terminally Ill Adults (End of Life) Bill. The Bill is a private members’ Bill, originated in the House of Commons by Kim Leadbeater, Labour MP for Spen Valley. 
2. The Bill’s long title states the legislative aim as being to “allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life; and for connected purposes.”
3. The Bill only applies in England and Wales. There is a separate Bill progressing through the Scottish Parliament, the Assisted Dying for Terminally Ill Adults (Scotland) Bill. A Bill applying to the Isle of Man has also just been agreed in the Manx parliament, making it the first UK legislature to send a Bill of this nature for Royal Assent.

Where are we in the legislative process?

4. The Bill is currently proceeding through the House of Commons.
5. The Bill was first presented by Kim Leadbeater on 16 October 2024 (first reading), having been drawn highest in the private members’ Bill ballot for the 2024-25 session.
6. The Bill had its second reading on 29 October 2024, when MPs were given a free vote on whether to give the Bill a second reading and allow it to proceed to the next stage. The Bill was passed by a wider than expected margin of 330 to 275. 
7. The Bill has recently completed the Committee stage, where a group of 23 MPs from across the House of Commons, has been hearing and receiving evidence, as well as going through the Bill line by line, scrutinising each clause and proposing amendments. The committee heard from 50 witnesses giving oral evidence and considered 444 written evidence submissions. At last count, there had been over 170 amendments made. The Bill has now moved to Report stage and will return to the House of Commons on 16 May 2025. If the Bill then passes a third reading, it will then progress to the House of Lords.

The legislative scheme: eligibility criteria

8. In order to be eligible for assisted dying, the Bill requires a number of criteria to be satisfied. Broadly, these are that the person requesting the assistance must:
   • be terminally ill;
   • have the necessary capacity to make the decision;
   • be aged 18 or over;
   • be ordinarily resident in England and Wales and to have been ordinarily resident for at least 12 months;
   • be registered as a patient with a GP practice in England or Wales;   
   • have a clear, settled and informed wish to end their own life; and
   • have made the decision that they wish to end their own life voluntarily, free from coercion or undue pressure.

Terminal illness

9. Currently the Bill defines terminal illness as ‘an inevitably progressive illness or disease which cannot be reversed by treatment’, and the person requesting assistance must reasonably be expected to die in consequence of that illness or disease within 6 months.
10. The Bill currently makes clear that a person is not to be considered terminally ill by reason solely of them having a disability or mental disorder (or both). 

Capacity

11. Capacity is to be determined in accordance with the Mental Capacity Act 2005 (ss.2 &3). A person is unable to make a decision for themselves if they are unable to:
    • understand the ‘relevant information’ to the decision;
    • retain that ‘relevant information’;
    • use and weigh that ‘relevant information’ as part of the decision making process; or
    • communicate their decision.

The inability to understand, retain, use and weigh or communicate must be due to an impairment or disturbance in the functioning of the person’s mind or brain. Currently, it is not clear what the ‘relevant information’ will be that a person will need to understand, retain and use and weigh in order to be able to have capacity to make a decision about assisted dying.

The legislative scheme: safeguards and protections 

12. In terms of safeguards, the Bill envisages a scheme the main features of which are set out below, followed by discussion of the various stages.  

↪	Preliminary discussion with registered medical practitioner
↪	First declaration
↪	Coordinating doctor's first assessment and report
↪	Independent doctor's second assessment and report
↪	VAD Commissioner and referral to Assisted Dying Review Panel
↪	Certificate of eligibility
↪	Second declaration
↪	Provision of assistance

 

Preliminary discussion 

13. Where an individual indicates to a doctor that they wish to seek assistance to end their own life in accordance with Bill, the doctor may (but is not required to) conduct a preliminary discussion about the requirements that need to be met for such assistance to be provided. The Bill currently makes clear that there is no duty on a doctor to raise the subject of the provision of assistance in dying.
14. If a discussion is had, the doctor must ensure that adjustments are made for language and literacy  barriers, including the provision of interpreters, and must then discuss with the patient:
    • their diagnosis and prognosis;
    • any treatment available and the likely effect of it; and
    • all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer the patient to a registered medical practitioner who specialises in such care for the purposes of further discussion.
15. The preliminary discussion must be recorded in the patient’s medical records as soon as practicable.
16. Where the doctor is unwilling or unable (for conscientious reasons) to conduct the preliminary discussion, they are not required to refer the patient to another medical practitioner, but they must signpost the patient to where they can obtain information and have the preliminary discussion.  

First declaration

17. Having had the preliminary discussion with a medical practitioner in the terms set out above, a person who wishes to be provided with assistance to end their own life must make a declaration to that effect. This so-called ‘first declaration’ will be set down in a specified form as prescribed by regulations made by the Secretary of State. The declaration must contain certain information such as the requesting person’s name, address, NHS number and GP contact details, as well as specific declarations confirming that the requesting person:
    • satisfies the initial eligibility criteria (i.e. they are over 18, are ordinarily resident in England and Wales and have been so for at least 12 months and are registered with a GP practice in England or Wales);
    • has had the necessary preliminary discussion with a registered medical practitioner;
    • is content to be assessed by medical practitioners for the purposes of the Bill (i.e. the coordinating and independent doctors);
    • is making the first declaration voluntarily and free from coercion or pressure from another person; and
    • understands that they may cancel the first declaration at any time.   
18. The person making the first declaration must provide two forms of proof of identity and the declaration must then be signed and witnessed by the coordinating doctor and another person, both of whom must see the declaration actually being signed. The coordinating doctor may witness the first declaration only if they:
    • personally have conducted the necessary preliminary discussion or are satisfied that another registered medical practitioner has conducted such a discussion; and
    • have made or seen a written record of the preliminary discussion. 

Coordinating doctor’s first assessment and report

19. As soon as reasonably practicable after a first declaration is made, the coordinating doctor must carry out a ‘first assessment’ to check whether the person making the declaration satisfies the eligibility criteria and then prepare a report about the assessment. Regulations made by the Secretary of State will provide detail as to the content and form of the first report, but the report must contain a statement that the coordinating doctor either is or is not satisfied that the eligibility criteria are met, provide an explanation for that conclusion and confirm that:
    • the record of the preliminary discussion is included in the patient’s records;
    • the making of the first declaration has been recorded in the patient’s records; and
    • the first declaration has not been cancelled.       
20. The report of the first assessment must be signed and dated. A copy of the report must be given to both the patient and, if the coordinating doctor is not a practitioner within the patient’s GP practice, a registered medical practitioner with the patient’s practice. The coordinating doctor then refers the assessed patient to another registered medical practitioner, the ‘independent doctor’. 

Independent doctor’s second assessment and report 

21. Where a referral is made to the independent doctor, the independent doctor must carry out the second assessment as soon as reasonably practicable after the expiry of a ‘first period of reflection’, which is defined as the period of 7 days beginning on the date the coordinating doctor made his or her report. The independent doctor must carry out the second assessment independently of the coordinating doctor. The purpose of the second assessment is again to check eligibility and that the first declaration has been made voluntarily, free from coercion or pressure from any other person.  As with first assessment, the independent doctor must prepare a report of their assessment, which also confirms those matters that have to be confirmed in the report of the coordinating doctor. Again, the second report must be signed and dated by the independent doctor and copies must be shared with the person who was assessed, the coordinating doctor and, if neither the independent doctor nor the coordinating doctor is a practitioner with the person’s GP practice, a registered medical practitioner within that practice.
22. The Bill sets our further detailed provisions regarding those matters which must form part of both the coordinating doctor’s and the independent doctor’s assessments, including the steps to be taken where there is doubt about whether the person being assessed is terminally ill or has capacity.  

Referral to the Commissioner and Assisted Dying Review Panel

23. The reports of the coordinating and independent doctors are then referred (it is currently not clear by whom but presumably it will be either the person requesting assistance or the coordinating doctor), along with the first declaration, to a Voluntary Assisted Dying Commissioner. The Commissioner is to be appointed by the Prime Minister and must be, or have been, a judge of the Supreme Court, Court of Appeal or High Court.  The Commissioner’s principal functions are to:
    • receive documents made in accordance with the scheme under the Bill, i.e. the first declaration and the reports of the coordinating and independent doctors;
    • make appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see below);
    • determine applications for reconsideration of panel decisions (an appeal function); and
    • monitor the operation of the legislation and  report annually on it.
24. As soon as reasonably practicable after receiving a first declaration and the reports of the coordinating and independent doctors, the Commissioner must refer the case to an Assisted Dying Review Panel. This is the so-called ‘Spanish style’ panel, comprised of a senior lawyer or High Court Judge, a consultant psychiatrist and a social worker. These multi-disciplinary panels replace the role of the single High Court Judge, who in the original draft of the Bill provided the third layer of protection. As well as concerns that had been raised about the capacity of the High Court to cope with the additional workload, the panel approach is said by supporters of the Bill to strengthen protections by broadening the experience of those having to make decisions that a person should be allowed to receive assistance in dying, with psychiatrists being better qualified to consider issues of capacity, and social workers having greater experience of situations involving coercion and undue influence. This is not an unfamiliar model, with similarly constituted panels undertaking reviews for patients detained under the Mental Health Act in the First Tier Tribunal. 
25. The role of the panel is to determine that all of the requirements are met for the validity of the first declaration, the first and second assessments and reports, and that all eligibility criteria under the Bill are satisfied. The panel must hear from the coordinating doctor or the independent doctor (or both) and, save in exceptional circumstances, the person requesting assistance. The panel may also hear from proxies and other persons with relevant knowledge or experience. It appears that the panel will be able to hear live oral evidence, as well as pre-recorded audio or video material. 
26. Provided that the panel is satisfied that all validity and eligibility criteria have been satisfied, it must issue a ‘certificate of eligibility’, which is given the requesting person, the coordinating doctor and the Commissioner. Where the panel is not so satisfied, it must refuse to issue a certificate of eligibility. Refusals of certificates can be appealed to the Commissioner on grounds of an error of law, irrationality or procedural unfairness. If the Commissioner is satisfied that any of these grounds apply, they must as soon as practicable refer the case to a different Assisted Dying Review Panel for a fresh determination. 

Second declaration 

27. Where a certificate of eligibility has been granted by the panel, there is then a further period of reflection of 14 days (which, unlike the first period of reflection, may be curtailed to 48 hours if the coordinating doctor believes death is likely to occur within 1 month). The person then makes a further declaration, the ‘second declaration’, confirming that they still wish to receive assistance to end their own life. The second declaration must contain certain information similar to that required in the first declaration, as well as certain further declarations. The second declaration must again be signed and witnessed by the coordinating doctor and one other person who is not the coordinating doctor or the independent doctor. The coordinating doctor must make a further statement that the eligibility criteria under the Bill are satisfied. 

Provision of assistance 

28. Provided that the requirements of the scheme under the Bill are satisfied, the Bill permits the provision of assistance in the form of an approved substance with which the person may end their own life.
29. The approved substance must be provided directly and in person by the coordinating doctor.
30. At the time the approved substance is provided, the coordinating doctor must explain to the person that they do not have to go ahead and that they may still cancel their declaration. The coordinating doctor must also remain satisfied that the person:
    • has capacity to make the decision to end their own life;
    • has a clear, settled and informed wish to end their own life; and
    • is requesting provision of assistance voluntarily and has not been coerced or pressured by another person(s) into doing so.
31. The coordinating doctor may then:
    • prepare the substance for self-administration;
    • prepare a medical device which will enable self-administration; or
    • assist the person to ingest or otherwise self-administer the substance.
32. But the decision to self-administer the approved substance and the ‘final act’ of doing so must be taken by the person to whom the substance has been provided. The Bill does not currently define what constitutes a ‘final act’ and there will doubtless be further questions and debate surrounding this. However, the Bill is clear that it does not authorise the coordinating doctor to administer an approved substance to another person with the intention of causing that person’s death. The coordinating doctor must remain with the person after the approved substance has been provided either until death or the coordinating doctor determines that the procedure has failed. For these purposes the coordinating doctor does not need to be in the same room, presumably to provide privacy and dignity to the person’s final moments.
33. If the person decides not to take the approved substance, it must be removed by the coordinating doctor. 

Exemption from liability

34. A person is not guilty of a criminal offence by virtue of:
    • providing assistance to a person to end their own life in accordance with the Bill, or performing any other function in accordance with the Bill; or
    • assisting a person seeking to end their own life in accordance with the Bill, in connection with the doing of anything under the Bill.   
35. In all other cases where assistance is provided outside the provisions of the Bill, s.2 of the Suicide Act 1961 will continue to operate, albeit there will be a defence to a charge under s.2 of the 1961 Act where the assisting person:
    • reasonably believed they were acting in accordance with the Bill; and 
    • took all reasonable precautions and exercised all due diligence to avoid the commission of the s.2 offence.
36. In terms of potential civil liability, the doing of any of the following does not, of itself, give rise to any civil liability:
    • providing assistance to a person to end their own life in accordance with the Bill;
    • performing any other function under the Bill in accordance with the Bill; or
    • assisting a person seeking to end their own life in accordance with the Bill, in connection with the doing of anything under the Bill
37. However, the civil liability defence will not apply:
    • in relation to an act done dishonestly, or in some other way done otherwise than in good faith; or
    • to any liability in tort arising from a breach of a duty of care owed to a person.
38. The Bill does not limit the circumstances in which a court can otherwise find that a person who has assisted another person to end their own life, or to attempt to do so, is not subject to civil liability.

New criminal offences

39. The Bill contains a number of new criminal offences which apply as follows:

Dishonesty, coercion or pressure

A person commits an offence if, by dishonesty, coercion or pressure, they induce another person to:

• make a first or second declaration under the Bill, or not to cancel a first or second declaration;
• self-administer an approved substance provided in accordance with the Bill.  

Falsification or destruction of documents

It is an offence to:

• make or knowingly use a false instrument which purports to be a first or second declaration or a certificate of eligibility;
• intentionally or recklessly conceal or destroy a first or second declaration made by another person;
• knowingly or recklessly provide a medical or professional opinion which is false or misleading in a material particular; 
• ignore or otherwise conceal knowledge of a cancellation of a first or second declaration.

Falsification of documentation with intent to facilitate provision of assistance

A person commits an offence if, with the intention of facilitating the provision of assistance in dying, they: 

• make or knowingly use a false instrument which purports to be a first or second declaration or a certificate of eligibility;
• provide a medical or professional opinion which is false or misleading in a material particular; 
• fail to comply with duties to appropriately notify of a cancellation of a first or second declaration.

Discussion

40. The Bill touches on monumentally difficult questions and is arguably one of the most important pieces of UK legislation this century. During its parliamentary journey to date, we have seen passionate debates and genuinely held views on all sides, not just about the principle of assisted dying, but also the contingent effects and practical impact on individuals, the health and care professions and society at large. Those debates will undoubtedly continue up to and beyond Royal Assent (if the Bill gets that far).
41. We can see that there are many details still to be determined, such as:
    • what amounts to a ‘reasonable expectation’ that the person is going to die within 6 months from the terminal illness or disease?
    • what lengths will professionals (both the coordinating and independent doctors, and the members of the panel) need to go to, in order to be assured that the person is making a clear, settled and informed decision, and is free from coercion and duress?
    • what is the ‘relevant information’ that a person will need to understand, retain and use and weigh in order to have capacity to make a decision for assisted dying?
    • what happens if the coordinating doctor is on leave, absent or sick?
    • what will constitute the ‘final act’ that the assisted person must be capable of under the sections that deal with the actual provision of assistance?
    • how many Assisted Dying Review Panels will there be nationally?
    • will there need to be detailed procedural rules governing the conduct of the panels?
42. More narrowly, it is clear that further thought and work must be given to how a new law will impact on civil litigation. With these (and many more) issues still needing to be ironed out, it is perhaps unsurprising that the legislative timetable has now been elongated with a suggestion that any new law may not be passed until 2029.
43. Bevan Brittan will continue to monitor the progress of the Bill.