Assisted Dying Bill: Can I express my wish for an assisted death?

The Terminally Ill Adults (End of Life) Bill, passed by the House of Commons on Friday 20 June by a narrow majority, has understandably been the cause of a lot of controversy and debate – it is a polarising subject, and one on which it has taken 10 years for the UK Parliament to make substantive progress since it was first debated in 2015. 

The Bill still has some way to go before it is made into law – it has yet to be debated by the Lords and work its way through another committee stage.  No doubt the terms of the bill will be further refined during that process, but for now we have an initial indication of what legalised assisted dying in the UK might look like if and when it is eventually enacted. 

There are a lot of misconceptions about what the Bill will cover, and the restrictions it places on applying for an assisted death may prove either reassuring or a cause for concern, depending on your perspective on this debate.

For those concerned about the potential power of ill-intentioned family members to ‘bump off’ their elderly relatives, some reassurance should be taken from the fact that the Bill will only permit assisted dying in cases where the person wishing to end their life is assessed by two doctors as having the necessary mental capacity to make that decision at the time of making the application.  There will therefore be no interaction between lasting powers of attorney (which can give someone the right to make decisions about your medical care for you, when you have lost capacity yourself) and assisted dying – attorneys will not under any circumstances be permitted to make use of this new law on behalf of someone they act for who has lost capacity.  

On the other hand, for those who would like to express a future wish for their closest relatives to arrange a voluntary assisted death on their behalf (if they had lost the mental capacity to do this themselves), this restriction may come as a disappointment.  The short answer to the titular question is no – there will be no mechanism for individuals to express in advance their wish for an assisted death under specific circumstances (either via a power of attorney or medical advance decision).  

Under the current terms of the Bill, to be eligible to apply for an assisted death, an individual must meet the following criteria: 

• Be over 18;
• Have the requisite mental capacity to make a decision to end their own life;
• Be suffering from a terminal illness; and
• Have a remaining life expectancy of 6 months or less. 

We have briefly summarised below the key features of what may now be regarded as three different approaches to managing end of life care (once the Bill has been enacted) – a lasting power of attorney for health and welfare, medical advance decision, and voluntary assisted dying. 

Health and welfare LPA

• Must be established while the donor has mental capacity, and only takes effect when the donor has lost mental capacity;
• Can delegate all decision making regarding medical and care decisions to a specific person or persons, up to and including withdrawal of life-sustaining treatment (if this option is selected in the LPA document), but cannot authorise an application for voluntary assisted dying;
• Effect is to appoint someone (an attorney) to make decisions on behalf of the donor in this circumstance, rather than to stipulate specific wishes.

Advance Medical Decision (also known as an Advance Directive)

• Must be created while the person has mental capacity, and only takes effect when the person has lost mental capacity; 
• Involves stipulating specific circumstances in which the person does or does not consent to specific types of treatment – for example, conditions under which they would not wish to be resuscitated, or would not wish to be connected to a ventilator, or a time period after which they would want invasive life-sustaining treatment to be withdrawn, etc.
• Acts as a communication directly from the person creating the advance decision to their medical team, rather than authorising someone else to make decisions for them. 
• Again, an advance decision can withdraw consent for certain treatment, but cannot be used to express a wish for as assisted death (as the person must have mental capacity at the time of making the application). 

Voluntary assisted dying

• May only be applied for when the person has mental capacity and has a terminal diagnosis with a life expectancy of 6 months or less;
• Cannot be applied for on another person’s behalf (except in extremely limited circumstances – for example, the application may be signed by proxy if the person has lost the ability to sign their name due to a physical impairment, but the person would still need to be assessed as having mental capacity to make the decision to end their life); 
• Involves active steps taken to end the person’s life, rather than withdrawal of care. 

The key point perhaps is that voluntary assisted dying is not something that can be expressed as a wish either to an attorney or in an advance decision, as in either case for these to take effect the donor must have lost capacity, thereby precluding them from applying for a voluntary assisted death.   

Anyone with strong views on end-of-life care would therefore be well advised to put in place alternative planning, i.e. appointment of an attorney and/or creation of an advance decision, to make sure that their wishes can be upheld as far as possible in the event that they lose mental capacity and therefore lose the ability to apply for assisted dying.  This will at least ensure that any other wishes they have can be fulfilled, including regarding the withdrawal of life-sustaining care.  

If you would like to consider putting in place a lasting power of attorney for health and welfare, and/or a medical advance decision, please get in touch with the team, and we would be happy to advise you.