The Assisted Dying Bill proposed by Baroness Meacher aims to ‘enable adults who are terminally ill to be provided, at their request, with specified assistance to end their own life.’ Supported in principle by 84% of the British population, it is currently awaiting scrutiny by a committee to examine every line, though the date for this process is yet to be announced. In the meantime, let’s explore the existing legal tools available to alleviate unnecessary and unbearable suffering.
Euthanasia & Assisted Dying: The Current Law
Today, in England and Wales, assisted dying is prohibited by the Suicide Act 1961. Anyone who assists a person to end their life is liable to prosecution and imprisonment for up to 14 years. This criminalises compassionate friends and family and moves thousands of dying people to attempt to take their own lives alone to safeguard their relatives.
In the best-case scenario, a person can only seek assistance abroad in countries where assisted dying is permitted. However, even in such countries, establishing a person’s capacity and recording their decision is crucial for organisations to proceed. It is presumed that a person has the capacity to decline medical treatment unless it is officially determined otherwise. Lord Donaldson restated the established entitlement to refuse treatment in Re T (Adult Refusal of Medical Treatment) [1992] 4 All ER 649 at 664.
“every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death.”
What is the Mental Capacity Test?
The capacity test is set out in the Mental Capacity Act 2005. It is very similar to the test applied by the common law. All parts of the test must be satisfied to prove capacity. The person must not feel coerced or under pressure from relatives or caregivers. Without a capacity assessment, caregivers could face criminal investigation for assisting in a person’s death.
What is an advance decision?
Once their capacity has been established the person can sign what is known as an ‘advanced decision’ (also called an ‘advance decision to refuse treatment’ or a ‘living will’). They will decide now to refuse specific treatment at a point in the future. An advance decision is legally binding and takes precedence over any decision made in your best interest by other people. This applies as long as it complies with the Mental Capacity Act, is valid, and applies to the situation at hand.
The advance decision can be made either in writing or by oral statement stipulating the refusal to consent to medical treatment. The patient must name all the treatments they intend to refuse in advance. In addition, it is vital to make it clear if you want to refuse treatment in some situations but not others.
Moreover, if the advance decision refuses life-sustaining treatment, it must be written and signed as a deed, which requires witnessing. It’s crucial to ensure it doesn’t endorse euthanasia but can guide a person’s desires, useful for attorneys as evidence. The advance decision will only come into play when the person is unable to make treatment decisions.
What is an advance statement?
An advance statement is not the same as an advance decision. It is a document in which a person specifically sets out wishes, feelings, and beliefs. Healthcare professionals can then utilise this in a best interests determination. An advance statement outlines treatment preferences, unlike an advance decision, which can only refuse specific medical treatment or circumstances. It can be included in a lasting power of attorney or created separately. Although not legally binding, healthcare professionals are not obligated to adhere to the document’s contents. However, they must take what the person has written into account when making decisions on their behalf.
If you’re thinking about writing an advance statement or decision, you don’t have to do it alone. If you are looking for some legal counsel or guidance, get in touch with us to speak with one of our expert lawyers.