By Sean R. Riley
After decades of unsuccessful attempts by advocates, in November 2024, the United Kingdom House of Commons passed a second reading of a bill permitting medical assistance-in-dying (MAiD). The bill still faces a long legislative road before royal assent, but MAiD may very well be a reality for English and Welsh terminally ill patients within a few years. The proposed safeguards and eligibility criteria mirror those in more conservative jurisdictions that permit the practice, such as Australia, New Zealand, and the US, wherein the patient must have a terminal illness and lethal medications must be self-administered (unless otherwise exempt).
The law, if passed, would keep with the changing tides of oversight I detailed in a 2022 JME article. Newer jurisdictions legalizing MAiD have been breaking from the old model of oversight that relies on the medical community alone to provide approval before the procedure, and conducts case assessment retrospectively, as practiced in the Netherlands, Belgium, Canada and several United States. Instead, more emphasis is placed on case approval prior to MAiD administration by bringing a variety of new actors and agencies into the mix: in Spain, the mandatory prospective approval comes from a government-formed regional committee; in New Zealand, from a registrar within the health department; in Colombia, from a physician-convened scientific committee of peers; and in Australia, from state-run voluntary assisted dying boards (although which specific criteria need approval varies).
The UK bill would introduce a new type of actor into the prospective case assessment: the judiciary. After the attending physician receives approval from a second independent physician (as is standard course of action in most oversight systems, save Switzerland), patients in the UK “may apply to the High Court for a declaration that the requirements of this Act have been met in relation to the first declaration.” Judicial involvement in case assessment introduces unique ethical and practical considerations into the debate.
Case assessment involves a trade-off between patient access and patient safety. Requiring more actors to provide prospective approval means it is less likely that unqualified cases will slip through the cracks or that mistakes will be made. Yet little evidence exists to suggest that retrospective oversight is, in fact, unsafe. We do, however, have evidence that both physicians and patients face unnecessary administrative and emotional burdens throughout the MAiD process. More importantly, we know patients, often suffering from terminal conditions, want to access MAiD, but are often blocked by onerous safeguards.
Requiring High Court approval for each case will not only exaggerate the burdens and barriers faced by physicians, patients, and families in already difficult circumstances, but will further strain the judiciary’s limited time and resources. While much depends on the procedural details in the final version of the law, even the most laissez faire approach of judicial oversight (“rubberstamping”) could require labor hours far in excess of those available at current staffing. The current bill says nothing of how evidence will be presented or who shall present it, but it does specify that the patient themselves is responsible for application. This breaks from the mold of other legal MAiD regimes, wherein attending clinicians shepherd the approval process, often leaning on their network or experience that patients lack. Judges are given wide discretion to summon the physicians, the patients, and/or their families to court for questioning—not exactly the best use of a terminal patient’s remaining time. While patients are allowed to appeal if a judge rejects their first request, a second trial would steal even more patient time.
These costs to patient autonomy, physician burden, and judicial resources can be justified if the gains in patient safety are sufficient, but there is little reason to believe that judicial case approval would add any additional protection. The High Court is no stranger to end-of-life cases, especially in cases of medical futility disputes between hospitals and surrogate decision-makers (such as in the famous cases of Charlie Gard and Alfie Evans), yet MAiD approval is qualitatively and categorically distinct: judicial oversight simply requires affirming decisions taken by competent adults are compliant with safeguards, rather than the traditional role of a High Court judge in conflict mediation between multiple parties.
What unique qualities does a judge bring to safeguard certification that the attending and consulting physician lack or that a committee of physicians, ethicists, lawyers, bureaucrats and/or public health professionals couldn’t supplement? Judges often already rely on medical and ethical expert counsel in deliberations on medical cases, yet rarely do MAiD oversight committees elsewhere involve judges in their proceedings. The potential benefits of judicial involvement appear marginal: 1. Difficult cases that may require legal resolution will already be in the appropriate place; 2. The public may find the law more legitimate if courts are involved; and 3. Adding judges to oversight can sway some swing legislators to support the bill, which would otherwise fail.
Courts have been instrumental in the legalization and liberalization of MAiD, particularly in Canada and Colombia, but no system has yet to involve courts in the particulars of case assessment or approval. The UK bill, if enacted, would continue the trend of MAiD systems that favor police patrol oversight with proactive and direct monitoring of individual cases over fire alarm oversight, which instead reacts only when problem cases arise. I invite these jurisdictions to evaluate the access barriers and burdens these systems impose on patients, and consider implementing mitigation efforts or imposing mandatory legislative review of these clauses periodically. These barriers embedded in the law may ultimately undercut one of its central purposes: to expand patient autonomy over their end-of-life choices and reduce suffering. Or, perhaps, the UK may yet provide a formula to be introduced to other MAiD-skeptical countries and will allow the expansion of end-of-life choices to more.
Author: Sean R. Riley, MA MSc
Affiliations: Division of General Internal Medicine, Department of Internal Medicine, The Ohio State University College of Medicine, Columbus, OH; and the Division of Health Services Management and Policy, The Ohio State University College of Public Health, Columbus, OH
Competing interests: None
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