The assisted dying bill is progressing through parliament in the UK, but it will not extend to Northern Ireland or Scotland. In Jersey, an assisted dying law is currently being drafted, and Guernsey is expected to follow suit. Faster progress is being made in the Isle of Man, which is looking likely to become the first country in the British Isles to legalise assisted dying.

In a relatively small number of other countries, assisted dying is already legal but the rules differ from one jurisdiction to the next. A distinction is often made between individuals who are terminally ill and those who are experiencing unbearable suffering. For example, in Australia, New Zealand and 10 states in the USA, assisted dying for individuals with terminal illnesses is legal. In other countries assisted dying is also legal where someone is suffering unbearably, or is terminally ill. These include Austria, Canada, Spain and Switzerland.

It’s important to note the difference between assisted dying and euthanasia. Euthanasia involves a person deliberately ending someone else’s life (either with or without their consent) whereas assisted dying involves a person helping someone else to kill themselves.

What will the law in the British Isles look like?

The Manx legislation, as currently drafted, provides that for a person (P) to qualify for assisted dying they must:

  • Be an adult with mental capacity
  • Have been resident in the Isle of Man for at least five years
  • Have a terminal illness with a life expectancy of no more than 12 months
  • Have a settled intention to end their life

The draft legislation then sets out requirements involving two doctors, witnesses and a psychiatrist if necessary. Importantly, there is a 'cooling off' period of 14 days from when the declaration is made before the lethal substance can be administered.

The proposed legislation in England and Wales, which is currently being debated, is likely to be similar, but is expected to have an additional layer of scrutiny. Kim Leadbeater MBE, a member of the Labour party who introduced the bill, has said it will include the 'strictest safeguards anywhere in the world'. The proposed rules will require P, having a clear, settled and informed wish to end their own life, to:

  • Be an adult with mental capacity (in accordance with the Mental Capacity Act 2005)
  • Have lived in England and Wales and have been registered with a GP for at least 12 months
  • Have a life expectancy of less than six months
  • Sign two separate declarations in which they express their wish to die both of which must be witnessed and
  • Be acting free of coercion or pressure from anyone else.

The coordinating doctor and an independent doctor must both carry out an assessment of P to confirm P is eligible, with at least seven days between assessments. The coordinating doctor will be able to make one referral for a second opinion if the independent doctor refuses to give the requisite declaration.

A panel of medical and legal experts will make the final determination as to whether the assisted death can go ahead. Originally, it had been proposed that a High Court judge would make the final decision, but this change appears to have come about in view of the court system not having capacity for the hearings.

Similarly to the Manx legislation, there will be a 14-day cooling off period before the assisted death can take place with the first declaration by P being made at the start of the process and the second declaration made by P after the 14-day cooling off period. P can also cancel their declarations at any time.

Both the Manx and the English proposals mean that individuals suffering from long-term neurodegenerative illnesses such as Parkinson’s disease will not be able to make use of the assisted dying process until towards the very end of their lives even if they are suffering unbearably before that. The proposals approved in Jersey include different requirements regarding life expectancy depending on the nature of the illness, differentiating between neurodegenerative diseases and other terminal diseases.

How does this compare?

Switzerland is arguably the best known country which has legalised assisted dying. There the law works differently. Rather than having a strict set of rules governing precisely how a person can access assisted dying, the law prohibits 'incitement or assistance to suicide from selfish motives'. This means that an assisted dying act which does not have a selfish motive is legal. However, euthanasia is illegal in Switzerland, which means that the individual wanting to die must undertake the final act themselves.

Although the law in Switzerland may be seen as 'relaxed', the organisations that offer these services, such as Dignitas and Exit, have their own criteria and procedures. They generally require individuals interested in their services to undergo a rigorous verification process, which includes medical and psychological evaluations. This is aimed at ensuring that the decision is made in an informed and autonomous manner, and that the person is suffering from an incurable illness or unbearable suffering.

A person does not have to be a Swiss resident to access assisted dying services in Switzerland. This sets it apart from many other jurisdictions which allow assisted dying. Portugal and Spain have in the last few years legalised assisted dying but only for nationals and residents. The various countries in the British Isles look to follow suit. This will avoid them becoming hot spots for so-called assisted suicide tourism, leaving Switzerland as a key option for those who cannot access services in their home countries.

 

Harriet Betteridge, partner, and Lauren Clarke, senior associate, at Charles Russell Speechlys, on the UK side. With input from Gregoire Uldry, partner, and Alexia Egger Castillo, senior associate, at Charles Russell Speechlys, on the Swiss elements

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