By 
Megan Howlett-Farmer
Jake Willett, June 29, 2024
A leading legal opinion has raised serious human rights concerns over the UK’s proposed Assisted Dying Bill, warning it could fall foul of the European Convention on Human Rights by failing to adequately safeguard the rights of people with disabilities.
In a joint opinion published last week, esteemed lawyers Tom Cross KC and Ruth Kennedy argue that the Terminally Ill Adults (End of Life) Bill is incompatible with Article 14 of the European Convention of Human Rights (ECHR), which provides that all freedoms provided for in the instrument be enjoyed without discrimination. Their assessment is grounded on the basis that those with conditions such as autism, bipolar disorder, and depression are at heightened risk of expressing a “clear and settled wish to die”, a requirement set out in the proposed legislation.
The opinion states “these individuals are in a significantly different situation from persons who do not have such disabilities” and that they are consequently “more likely to express the wish to die required to be eligible to be assisted to die. Accordingly, they are… required to be treated differently under Article 14 unless there is justification not to do so. However, the legislation fails to provide an adequate safeguard to address that greater vulnerability.”
The Bill, currently at the Report Stage in the House of Commons, purports to “allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life; and for connected purposes.” The instrument proposes strict safeguards, with those desiring assistance with ending their life having to meet capacity criteria set out by the Mental Capacity Act 2005, in the aim of ensuring that the individual can understand, retain, weigh up relevant information, and communicate their choice. Notably, the proposed bill requires that two medical professionals, one coordinating doctor and one independent doctor, carry out two separate assessments. During this process, the practitioners are obligated to assess whether the person is terminally ill, has capacity to end their own life, and have made the informed declaration voluntarily and in the absence of coercion. However, critics argue that this is insufficient to protect those who may be more vulnerable to suicidal ideation due to their disability. The legal opinion underscores that mental capacity, a cornerstone of safe assisted dying policy, must be understood in nuanced ways, particularly when intersecting with mental health conditions and cognitive impairments.
The Equality and Human Rights Commission has echoed the need for robust safeguards, pointing to a potential clash with Article 2 of the ECHR. This provision protects the right to life, bestowing upon the state not only a positive obligation to protect life, but a negative obligation not to intentionally deprive people of life. A critical issue is that under the proposed bill, assisted dying procedures would be carried out by NHS clinicians who, as state actors, engage the full weight of the ECHR provisions. Noting that there often lacks clear distinctions between terminal illness and disability, the Commission raised concern concerning Clause 30 of the bill, which states that the Secretary of State may issue codes of conduct relating to the interaction between capacity, learning disabilities and mental health complications but are not formally obligated to do so.
Despite these concerns, the Bill passed its second reading in the House of Commons with a majority of 55, as MPs voted 330 to 275 in favour of progressing the legislation. However, that support may be more fragile than it appears. Up to 140 MPs are reportedly reconsidering their stance, with some saying they supported the second reading merely to allow further debate. Others are unsettled by a key amendment that shifted final decision-making authority on an application to die from a judge to an expert panel, a change introduced by Kim Leadbeater, the MP behind the Bill.
Leadbeater’s allies have defended the amendment and the bill’s overall legal validity, asserting that government lawyers have reviewed its compliance with the Convention thoroughly. A source close to the MP told The Independent: “They’re wrong… Lawyers have examined the bill in minute detail and would have flagged any possible ECHR issues.”
Even so, critics caution that while the European Court of Human Rights has never required states to recognise the right to die, it has made clear that where such laws exist, they must include “appropriate and sufficient safeguards” to prevent abuse, particularly when the state plays a direct role, such as via the NHS. As debate over the Bill intensifies, the question for lawmakers is not only whether terminally ill individuals should have the right to die, but how that right can be balanced with the legal and ethical duty to protect the most vulnerable individuals from irreversible harm.
Sources and Further Readings:
Tom Cross KC and Ruth Kennedy’s Legal Opinion on Assisted Dying Bill Published
Parliamentary Briefing: Terminally Ill Adults (End of Life) Bill
Guest Post: Assisted Suicide on the NHS Would Breach the ECHR
Top KC Claims Assisted Dying Bill Is Not Compatible with Human Rights Convention
ECHR: No Right to Assisted Suicide
Assisted Dying: What Are the “Slippery Slope” Fears in England and Wales?
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