Terminally Ill Adults (End of Life) Bill

David Foster

Posted: 21 November 2024

The following is written by David Foster, an LCF member and former trustee, and a partner at Moore Barlow LLP specialising in dispute resolution. David is also a Board member of Care Not Killing.

"Thou shall not kill" Exodus 20: 13 (KJV)

As Christians we have surrendered our lives to the love of God and others. As we live in a secular society that increasingly wishes to distance itself from its Christian heritage, there are some moments which bring the drift into sharp focus.

The publication of the Terminally Ill Adults (End of Life) Bill is one such moment.

As Christians we promote the culture of a positive lifestyle – intimate fellowship with God and each other, support of our families and an honest facing up to the fact that sometimes life is difficult and suffering happens, but we keep on loving and trusting nevertheless.

The notion of assisting someone to end their life conflicts with deeply held Christian beliefs about the gift of life and our accountability to God the Giver. As Christian lawyers, the new Bill presents further ethical and practical issues. This Word in Action is intended as a word in season to encourage you to engage with the new Bill, encourage others to do so, and persuade those MPs, either who we know or who represent us, to vote against the Bill.

I hope that the following points assist in helping you to raise issues with law makers.

The new Bill is dangerous both because it erodes the absolute value society puts on life, but also because it sets out unreal expectations as to proposed safeguards. The Bill falls into the trap that frequently bedevils social legislation: it promises rigorous control and accountability, but when one looks closer the rigour is lacking and one can simply see a pathway to the ticking of boxes but very little scrutiny of what is happening on the ground.

Take the issue of the judicial function. We are of course, as lawyers, particularly comfortable with Judges taking a leadership role as they are de facto key players in our profession. One element of the Bill is the statement that a doctor's assessment should make sure that the patient has not been coerced or pressured by any other person into making the declaration required by the Bill. Courts in Conway and R (Nicklinson) v Ministry of Justice 2014 have pointed out the problem of how a Judge is ever able to investigate whether a patient has been influenced by covert social pressures such as a family's need for money in an inheritance situation. The Bill seems to anticipate an approval system by the High Court, rather than a more rigorous safeguard.

For the processes that are anticipated to have the confidence of the public, there would need to be far greater scrutiny than what may simply become a paper process. How would the proposed inquisitorial role of the High Court Judge work in practice? There is scant detail around the detailed process that would be used and there are some basic omissions, such as whether or not relatives will be given notice of proceedings and how they may be able to intervene and have their say.

Another concern would be whether there would be an evidential investigation carried out by a third party such as the Official Solicitor as in wardship cases.

I am sure that we would all agree that our Judges are clearly competent to be the best people to decide serious issues, but they do need to have the ability to do so, which is procured by the correct processes to enable them to deliberate properly.

Other questions include whether or not the hearing should be in public or in private and whether or not there should be anonymity. The more open the process the better.

The Bill is silent about whether there would be any public funding arrangements.

The Bill is also unclear as to what the Judge must do; an oral hearing would seem sensible as would the use of the Judge's discretion and a proper appeals process – it is quite extraordinary that clause 12(11) of the Bill states that no appeal lies from the decision of a High Court Judge to make a declaration for assisted dying. That cannot be right. All Judges make mistakes and the Court of Appeal often hears successful appeals.

It is good that medical professionals have the benefit of a conscience clause under the Bill, but so should anyone, not least our Judges.

As litigators will be aware, pressure on the court system is severe. Kim Leadbeater MP who is introducing the Bill, suggests that as many as 3% of the adult population might use an assisted dying process. This could mean as many as 17,000 applications to be heard each year. The courts currently have nothing like the resource to properly engage with the process being put forward. Sir James Munby (retired President of the Family Division of the High Court of England & Wales) has calculated that it would require a total of 34,000 hours of judicial involvement, whereas currently there are 19 Judges in the Family Division, sitting a total of 19,000 hours a year! This is on the basis that each application takes an average of 2 hours. Where anything is contested it would take a lot longer than that.

I hope that assisted dying does not become law. If it does, then it is important that Judges are not used to whitewash the process and that any procedure is open and transparent. It is also crucial to have appropriate investigation to ensure that abuses and subtle external pressures are discovered.

Fundamentally, many of us will have seen situations where those enduring difficult circumstances have reached a more positive frame of mind when they have experienced love and proper palliative care. A far more positive proposition would be to put proper resource into comprehensive palliative care services.

As Christians we owe it to those stricken by pain and fear to point to a better way, the way of life in the midst of suffering and impending death. This was the way personified by Jesus, the giver of life.

Please do contact your MP (see below) with your concerns, and pray for a desire among MPs to safeguard life.

David Foster

Further information:

  • Who is my MP? If you're unsure who your MP is, you can find your MP using the UK Parliament's public directory: Find MPs - MPs and Lords - UK Parliament.
  • How do I contact my MP? The UK Parliament's public directory also provides contact details for your MP.
  • What does the draft Bill say? A copy of the draft Bill is attached Terminally Ill Adults (End of Life) Bill.
  • When is the best time to contact my MP? Ideally, before the second reading of the Bill in the House of Commons, which is due to take place on the 29 November 2024.