“That’s AfterLife!”

The Terminally Ill Adults (End of Life ) Bill second reading

There’s a bleak eloquence in two anguished protests to Wes Streeting since he took office as Secretary of State for Health following the general election in July 2024. Over the summer a group of transgender teenagers unhappy at his decision to maintain a ban on private prescription of puberty blockers, cut out, coloured and drew messages on small cardboard coffins to leave outside his constituency office, the subtext of these images their risk of death by suicide. A few weeks later, Esther Rantzen, former presenter of the television programme “That’s Life”, now in her mid-80s and with incurable cancer, published a letter of remonstrance to Streeting, protesting his opposition to a change in the law which might enable her to voluntarily end her life with her family around her at home in England. Her words appeared in block capitals on a tabloid front page. “WILL YOU FORCE ME TO FLY TO DIGNITAS TO DIE ALONE? These two unrelated petitions illustrate a tension which underlies the debate on the law of assisted dying. One protest is a plea to change the law to avoid a risk of suicide, the other for the law’s assistance in more readily achieving it.

Professor Louis Appleby, the government’s adviser on suicide prevention, has articulated this tension. A few days ago he wrote on X

It’s striking how little opposition there has ever been to the necessity of suicide prevention. Of protecting people at their lowest point, helping people find something worth living for, however bleak life looks . .. it is a profound human commitment. Proponents of assisted dying point to [its] limited scope: terminal illness. But once the principle behind suicide prevention has been set aside, once any part of the ground has been ceded – not only to allow suicide but to assist it – we have lost something we may not get back.

A couple of days later Kim Leadbeater MP was interviewed on Radio 4’s Today programme. She said

I think the assisted suicide expression itself is quite offensive to some people because this is not people who want to end their lives. It’s people who are dying and we have to think about that and that’s why it’s about assisted dying and the concept we should take away from the heart of the conversation. I find it really upsetting and the idea that, you know, the people I’ve met, they want to live, they want to live but they know they’re going to die and all they want to do is take control of what that would look like and I struggle to see how, you know, we don’t have a duty or responsibility to give them that opportunity.

It isn’t difficult to see why Ms Leadbeater and others are anxious to try and draw a line between those suicides which society supports efforts to prevent and those which meet her preferred expression of “assisted dying”. But can such a line really be firm and solid enough to negate Professor Appleby’s image of “ceding ground” in the tension between preventing and permitting suicide? Words and meaning matter, and public understanding of the law, especially a law as consequential as this, also matters. The long title of her Bill is “to allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life”. Clause 24, which deals with criminal liability for providing this assistance, creates an amendment to the Suicide Act 1961, the law which currently makes assisting suicide a criminal offence. The Leadbeater Bill, if it becomes law, will decriminalise this offence, to the extent that the assistance has been provided in accordance with the terms of the new law. “Assistance” in the terms of the new law even extends to permitting a registered medical practitioner to raise the subject of assisted suicide if and when s/he judges it appropriate to discuss it with a person, and to assisting that person to ingest or self-administer a substance with which the person may end their own life. Even this limited decriminalisation of assisting suicide will profoundly shift the boundary of exculpation for assisting in ending someone’s life. I think no euphemism can disguise the probability that it will also cede ground against suicide prevention in the way described by Professor Appleby. As he said “we have lost something we may not get back”.

I am troubled by another aspect of Kim Leadbeater’s thinking about the legislation she is promoting. On 6 October 2024 she was quoted in an “In Depth” article in the Sunday Times headed “Vote on assisted dying: the pivotal moment that began with a promise” [the promise made by Keir Starmer to Esther Rantzen to hold a debate and vote in Parliament on assisted dying], which described a phone call the previous weekend between Leadbeater and Rantzen.

Rantzen told [Leadbeater] that more than two decades ago she had lost her husband, her mother and her dog Marmite within the same year and strongly believed her pet, who had to be put down, had experienced the best death. “We wouldn’t treat animals like this,” Leadbeater said. “We give our animals a better send-off than we do some human beings when they’re facing the end of life. So Esther’s story was very strong.”

An understandable compassionate desire to relieve suffering inspires this popular analogy, but it is not a sound comparative basis for working out a law of assisted suicide for adult humans. Humans have dominion over animals, even to the point of killing them for food, recreation, or pest control. We do not have the right to kill each other without legal culpability, yet we can and do so kill animals in countless numbers. Not even all veterinary euthanasia of pets takes place in conditions of incurable illness with short life expectancy. Owners sometimes request “convenience euthanasia” of animals whose care is too burdensome or too expensive for them: a practice many vets find upsetting, and a darker aspect of the pet euthanasia analogy that should be more present in the minds of promoters of a law of assisted suicide for humans than it appears to be. Most importantly, animals have neither mental capacity nor free will to make and articulate decisions about living and dying as humans can, or at least not beyond a last disappearance through a cat flap to find some quiet, hidden place to die. Euthanasia is always the owner’s decision, not the pet’s. But sufficient mental capacity and freedom from coercion or pressure are intrinsic to a person making a “clear, settled, and informed wish to end their own life”, as the Leadbeater Bill recognises in terms. A preoccupation with giving humans the same send-off as pets distracts attention from questions of the assessment of mental capacity or ascertaining freedom from coercion. These questions are at the heart of the potential risk of harm in enacting an assisted suicide law. Indeed it’s possible to trace a quite sinister similarity between what some people say about their pets and what some men who have unlawfully killed women in later life have said about them. Someone replying to me on X on the subject of pet euthanasia said Oh they articulate it alright. Our collie dog let us know himself when it was time. Not with words, obviously, but with a particular unmistakable look. Compare the words of Stuart Mungall, who was convicted in 2011 of the manslaughter of his 69 year old wife Joan, who suffered from a degenerative disease and was terminally ill. Stuart claimed that the couple knew instinctively what the other was thinking, and said that he saw an expression in her eyes “like an animal who needs to be put down and cannot say it”. A few months ago, Kevin Pearce pleaded guilty to manslaughter for killing his 89 year old mother. She had dementia and he was her carer. The judge who sentenced him accepted that he believed that “death was the only solution”, another disquieting echo of pet euthanasia. We need to understand human mental capacity and free will, and the frequent fragility or failure of both towards the end of life, not confuse men and women with pets.

The Leadbeater Bill is concerned only with a person’s wish to end their own life voluntarily, not coerced or pressured “by any other person”. This means that a person who is self-persuaded into a wish to end their own life voluntarily will be able to seek lawful assistance in doing so. In an article in The Times published on 29 March 2024 the columnist Matthew Parris described this as the strongest argument against assisted dying: increasing “social and cultural pressure” on the terminally ill to seek to die so as not to be a burden on others or themselves. Parris said not only that he believed that this would happen, but that he would welcome it as a healthy social development. With a certain brutal candour, he set out the most uncompromising case for a utilitarian view of shortening lives: that society cannot afford the large number of people surviving into desperate infirmity or extreme old age. Other influential opinion columnists have written in less sweeping terms of their own willing personal acquiescence in the idea of removing themselves from being a burden to others towards the end of their lives. Parris’s analysis (and theirs) assumes rational, dispassionate decision-making and the only “pressure” that he considers is the pressure of social conformity, encouraged by legislation, and of the cost of care on family or the state. But people do not always act rationally and dispassionately, or with integrity, and we know that they exercise coercion and pressure in other decisions in later life: creating lasting powers of attorney over property and affairs, making significant lifetime gifts, and making wills. Another opinion columnist strongly advocating for an assisted dying law derided the risk of “fantasy gothic villains who want to get their hands on the family silver”. But the audacious plot perpetrated by a doctor, Thomas Kwan, who disguised himself and created an elaborate fake trail of NHS records to attempt to poison his mother’s partner with a lethal injection disguised as a Covid booster, and so secure an inheritance from her, was no fantasy, nor was Virginia McCullough’s fraud, murder and concealment of the bodies of her parents in the home they shared for years, nor are many more commonplace abuses committed for financial gain by family members and carers. It’s inconceivable that people, and quite likely disproportionately women, would not face coercion and pressure in making decisions about assisted dying too, all the more so in a world where a duty to die so as not to be a burden becomes normalised and the legal and practical facility to do so available. For all these reasons, I feel unable to share Parris’s welcome for a world progressing towards near-universalisation of voluntary assisted death.

Since Ms Leadbeater’s Bill was first published on 11 November 2024, less than three weeks before its second reading, there has been a lot of analysis of the “robust safeguards” she claims that it contains. As a practising lawyer dealing with many legal issues that arise in later life, I have a particular interest in clause 12 of the Bill, which is headed “Court approval”, and which has been criticised for its inadequacies by the former President of the Family Division, Sir James Munby, and others. On the eve of the Bill’s Second Reading, a number of MPs who are also lawyers – including the Solicitor General - have written to their constituents explaining their support for the Bill, referring to the “strong oversight provided by a High Court Judge”. This is lip-service to a talisman. Clause 12 envisages the High Court (it does not specify that the decision should be that of a High Court Judge) carrying out a process that is fundamentally more notarial than judicial: checking for compliance with all the preceding requirements of the Bill, without even necessarily hearing from and questioning the person seeking to end their life, or any other person apart from either or both of the doctors who have a role in the process, let alone presiding over anything resembling an adversarial trial with cross-examination of witnesses. In a way, this machinery may be the worst of both worlds: too cumbersome, slow-moving and potentially expensive for cases where there is no shadow of doubt about the validity of a person’s assisted dying declaration, but too superficial to scrutinise those where such a doubt may exist. It certainly bears no comparison to decisions made in the Court of Protection for adults who lack mental capacity, as one MP mistakenly wrote to his constituents. On Radio 4 Today on 27 November Ms Leadbeater said Judges do these sorts of cases in other very delicate matters all the time so they look at things like turning off life support for terminally ill people so this ... will be a new area of work for judges but they are used to making these difficult and complex decisions and being part of this process. The judiciary will make this work. It’s not a rubber stamp”. But the cases Ms Leadbeater was referring to are decisions either about children or about adults who lack mental capacity, not about adults who do have mental capacity to make the decision and to litigate for themselves, as they must, under her Bill. In these existing cases the child or mentally incapacitated adult has independent legal representation, and decisions follow a full hearing of evidence and adversarial legal argument, often taking several days. This does not resemble the basic outline of clause 12 of her Bill at all. The existing High Court process it perhaps most closely resembles is the ordinary grant of probate to a will or letters of administration on intestacy after someone has died. This is essentially an administrative compliance-checking process, although the grant bears the name and seal of the High Court, and the rules enable disputed issues to be heard, but it is very different from the probate granted following an adversarial trial over the validity of a will.

These are the primary reasons why I have reservations about an assisted suicide law in principle, and about aspects of the Bill on which MPs are to vote on Second Reading on 29 November 2024. Esther Rantzen’s daughter spoke in a radio interview yesterday of her intention to attend the debate. She said I’ve not sat in the public gallery before ... and so I wonder whether I will be able to stop [myself] from shouting out. Whatever the outcome of the debate, I hope that this might be the last the public hear from a member of her family seeking to drive and influence it through celebrity. That isn’t how public policy and law should be made, especially not a law which will have consequences for many people who have neither a close family around them nor the means to look to anything other than the state for their care at the end of life. MPs should be listening to their voices instead.

Barbara Rich