This is a guest post by Sir James Munby, and it follows on from earlier posts about the proposed Assisted Dying reforms here, here and here.
In Assisted Dying: What Role for the Judge? More Thoughts, published on the Transparency Project website on 6 December 2024, the final one of three papers (the earlier being Assisted Dying: What Role for the Judge? published on the Transparency Project website on 30 October 2024 and Assisted Dying: What Role for the Judge? Some Further Thoughts published on the Transparency Project website on 14 November 2024) I considered the proposal in clause 12 of the Terminally Ill Adults (End of Life) Bill presented by Kim Leadbeater MP in the House of Commons on 16 October 2024 that there should be judicial involvement in the process.
I now return to the issue and consider the question again in the light of the amendments to clause 12 proposed by Ms Leadbeater on 13 February 2025. Put shortly, what Ms Leadbeater now proposes is the deletion of clause 12 in its entirety and the substitution for the judge of a tribunal, an Assisted Dying Review Panel, supervised by the Voluntary Assisted Dying Commissioner.
As I have previously made clear, I say nothing at all about the essential merits or demerits of what is proposed in the Bill. That I leave to others. I confine myself solely to the proposal that there should be tribunal involvement in the process. I express no views as to the desirability or otherwise of the proposal that there should be tribunal involvement in the process. That is a matter of policy for determination by Parliament. My concern is to explore the details and implications if (as now proposed) the Bill is to contain provisions for such involvement. My present focus is therefore on the Assisted Dying Review Panel, not the Voluntary Assisted Dying Commissioner.
What is now proposed is set out in NC [new clause] 16 (Determination by panel of eligibility for assistance) and NS [new schedule] 2 (Assisted dying review panels).
Membership of the panels is provided for in NS2 paragraph 2:
“(1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.”
NS2 paragraph 4(2) provides that the arrangements made by the Commissioner for determining the membership of a panel:
“must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.”
NS2 paragraph 5 provides that:
“(1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”
In relation to the membership of the panels, two things are to be noted:
- Each panel is to consist of a legal member (who acts as its chair), a psychiatrist member, and a social worker member.
- Although the legal member may be a High Court judge, the class of those qualified to act as a legal member is expanded to include judges of the Supreme Court and Court of Appeal (in the real world this is unlikely to be significant), certain retired judges – a “person [who] has held high judicial office” –, King’s Counsel and section 9(1) judges.
To what extent, these changes will alleviate the administrative problems inherent in the previous proposals for the involvement of the High Court is difficult to say: on the one hand, each case will now require three decision-makers, while clause 12 required only one; on the other hand the legal pool is significantly expanded, in particular by the inclusion of KCs and section 9(1) judges (it is less easy to predict how many retired judges may be available and willing to act: for example, will the usual maximum age of 75 apply?)
I set out these provisions without further comment. I express no views as to the desirability or otherwise of the proposals in relation to the membership of the panels. That again is a matter of policy for determination by Parliament. My present focus is on the proposals in relation to the functions and procedures of the panels.
First, however, I need to note important amendments in relation to the key documents to be put before the panel. Under the Bill as originally drafted, Schedules 2 and 3 set out the forms of statement given by the coordinating doctor and the independent doctor which would be put before the High Court. For present purposes they were in the same form, so I need refer only to Schedule 2. Subsequent amendments (Amendments 194-196) involve the deletion of Schedules 2 and 3 and their replacement by the amended provisions of clauses 7 and 8. Again, these are, for present purposes, in the same terms, so I need refer only to clause 7 (as amended). For ease of comparison I set them out in tabular form:
TABLE 1 : COMPARISON BETWEEN SCHEDULE 2 and CLAUSE 7 (as amended)
| Extract from Schedule 2 | Extract from clause 7 (as amended) |
| (1) I am satisfied that— (a) [name of person] (“the patient”) has signed a first declaration which has been witnessed in accordance with the Terminally Ill Adults (End of Life) Act 2024 (“the 2024 Act”); (b) the fact that the first declaration has been made and the date when it was signed have been recorded in the patient’s medical records; (c) the patient has not cancelled the first declaration. (2) I have discussed with the patient— (a) the nature and effect of the first declaration made by them under the 2024 Act, and (b) the nature and effect of the making by them of a second declaration under the 2024 Act. (3) I have taken the steps required by sections 7 and 9 of the 2024 Act (First doctor’s assessment: coordinating doctor). (4) I am of the opinion that the patient is terminally ill (within the meaning of section 2 of the 2024 Act). The advanced and progressive illness, disease or medical condition(s) involved is/are [specify]. (5) I am satisfied that the patient has capacity to request the provision of assistance to end their own life in accordance with the 2024 Act. (6) I am satisfied that the patient— (a) was aged 18 or over when the first declaration was made; (b) is ordinarily resident in England and Wales and has been so for at least 5 months ending with the date of the first declaration; and (c) is registered as a patient with a general medical practice in England or Wales. (7) To the best of my knowledge, the patient— (a) has a clear, settled and informed wish to end their own life, and (b) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it. | (1) The coordinating doctor must, as soon as reasonably practicable after a first declaration is made by a person, carry out the first assessment. (2) “The first assessment” is an assessment to ascertain whether, in the opinion of the coordinating doctor, the person— (a) is terminally ill, (b) has capacity to make the decision to end their own life, (c) was aged 18 or over at the time the first declaration was made, (d) is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration, (e) is registered as a patient with a general medical practice in England or Wales, (f) has a clear, settled and informed wish to end their own life, and (g) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it. (3) After carrying out the first assessment, the coordinating doctor must— (a) make a report about the assessment (which must meet the requirements of regulations under subsection (4)), …, and (c) if satisfied as to all of the matters mentioned in subsection (2)(a) to (g), refer the assessed person to another registered medical practitioner who meets the requirements of section 8(6) and is able and willing to carry out the second assessment (“the independent doctor”). (4) The Secretary of State must by regulations make provision about the content and form of the report. (5) The regulations must provide that the report must— (a) contain a statement indicating whether the coordinating doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (g); (b) in a case where the coordinating doctor is not so satisfied, contain an explanation of why they are not so satisfied; (c) be signed and dated by the coordinating doctor.” |
I draw attention to three features of what is now proposed:
- The language of the report is simplified insofar as it refers only to the doctor’s “opinion” and to the doctor being “satisfied.” There is no longer any reference to the doctor speaking to “the best of my knowledge.”
- The report, insofar as its contents are prescribed by amended clause 7, contains less information than the previous certificate. Can one assume that these omissions are to be remedied by the regulations? But if so, why not elaborate what is said in amended clause 7(5). I note, for example, that Amendment 326, proposed by Kit Malthouse, specifies that the report (in his amendment it is referred to as “the statement”) “must include … a report including details of their consideration of the patient’s condition and personal circumstances.” These matters are too important to be left to regulations. They should be set out on the face of the Bill.
- Whereas amended clause 7(5)(b) requires the regulations to require the report to set out the doctor’s “explanation” if the doctor is not satisfied of all the matters referred to in amended clause 7(2)(a)-(g), amended clause 7(5)(a) omits that requirement if the doctor is satisfied. Why? Surely it is at least as important to have the doctor’s “explanation” in the one case as in the other; indeed, surely more so given the consequence – the potential death of the patient.
The functions of the judge were set out in clauses 12(2) and (3) of the Bill. The functions of the panel are set out in NC16(3) and (5). Practice and procedure before the judge were set out in clauses 12(4)-(6) of the Bill. Practice and procedure before the panel are set out in NC16(3)-(4) and in NS2 6, 8 and 9. For ease of comparison I set them out in tabular form:
TABLE 2 : COMPARISON BETWEEN CLAUSE 12 AND NC16 (Determination by panel of eligibility for assistance) and NS2 (Assisted dying review panels)
| Clause 12 | NC16 |
| (2) On an application under this section, the High Court— (a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and (b) in any other case, must refuse to make the declaration. | (5) The panel— (a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”); (b) must refuse to do so in any other case. |
| (3) The matters referred to in subsection (2)(a) are that— (a) the requirements of sections 5 to 9 have been met in relation to the person who made the application, (b) the person is terminally ill, (c) the person has capacity to make the decision to end their own life, (d) the person was aged 18 or over at the time the first declaration was made, (e) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration, (f) the person is registered as a patient with a general medical practice in England or Wales, (g) the person has a clear, settled and informed wish to end their own life, and (h) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application. | (2) The panel’s function is to determine whether it is satisfied of all of the following matters— (a) that the requirements of sections 5 to 9 have been met in relation to— (i) the first declaration, (ii) the first assessment and the report under section 7 on that assessment, and (iii) the second assessment and the report under section 8 on that assessment; (b) that the person is terminally ill; (c) that the person has capacity to make the decision to end their own life; (d) that the person was aged 18 or over at the time the first declaration was made; (e) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration; (f) that the person is registered as a patient with a general medical practice in England or Wales; (g) that the person has a clear, settled and informed wish to end their own life; (h) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration. |
| (4) Subject to the following provisions of this section and to any provision made by Rules of Court, the High Court may follow such procedure as it deems appropriate for each application under this section. | (3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case. [See NS2 8 below] |
| (5) The High Court— (a) may hear from and question, in person, the person who made the application for the declaration; (b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both); (c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the court. | (4) The panel— (a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both); (b) may hear from and may question the person to whom the referral relates or (in a case to which section 15 applies) their proxy (or both); … In paragraphs (a) and (b) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link |
| (6) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the High Court may also— (a) hear from and question any other person; (b) ask a person to report to the court on such matters relating to the person who has applied for the declaration as it considers appropriate. | (4) The panel— … (c) may hear from and may question any other person; (d) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate. |
| NS2 | |
| 8(1) The Commissioner may give guidance about the practice and procedure of panels. (2) Panels must have regard to any such guidance in the exercise of their functions. | |
| 6(1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)). (2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private. | |
| 9 Panels must give reasons, in writing, for their decisions. |
As can be seen from the Table, the function of the panel as defined in NC16(2) is, with only one slight amendment, precisely the same as the function of the High Court as defined in clauses 12(2) and (3). It is to determine whether it is “satisfied” of certain matters, in particular:
“(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
…
(g) that the person has a clear, settled and informed wish to end their own life;
(h) that the person made the first declaration [the words “and the application under this section” and the words “or application” in clause 12(h) are omitted] voluntarily and was not coerced or pressured by any other person into making that declaration.”
As can also be seen from the Table, the process mandated for the panel in NC16(4) and NS2 6(1) and 9 differs from that mandated for the High Court in clauses 12(5) and (6) in six respects:
- Very importantly, the additional words at the end of NC16(4) clarify an unfortunate ambiguity in clause 12(5)(b) and make it clear that the panel has to conduct a hearing in every case and cannot deal with a case ‘on the papers’.
- The reference to subsection (3)(g) and (h) which appeared in clause 12(6) is omitted in NC16(4).
- NC16(4)(b) includes a reference to the proxy which was missing in clause 12(5)(a).
- NC16(4)(d) includes the words “appearing to it to have relevant knowledge or experience” which were missing in clause 12(6)(b).
- NS2 6, dealing with whether the panel should sit in public or in private, is new. This was a topic on which clause 12 was silent.
- NS2 9 provides that the panel must give reasons in writing. This also was a topic on which clause 12 was silent.
These changes are to be welcomed, so far as they go. It is important to recognise, however, that they do not, in my opinion, go anything like far enough. Moreover, the new provisions in NS2 6 and 9 themselves raise further questions.
In my previous paper I put the point very starkly:
“the process provided for in clauses 12(4), 12(5) and 12(6) is simply not apt to enable the judge to perform his function as mandated by clauses 12(2) and 12(3).”
Despite the various improvements I have noted, this remains my assessment in relation to what is now proposed. The process provided for in NC16(3) and (4) is simply not apt to enable the panel to perform its function as mandated by NC16(2).
I can explain why largely by reference to points already made in my previous paper:
1 The Bill makes clear that the application is to be made by the patient but is otherwise completely silent as to who (if anyone) should be joined as parties or notified of the proceedings. This is an astonishing omission for a number of vitally important reasons. Quite apart from all the other reasons why it might be thought desirable to make such provision in the Bill, the participation of others is necessary:
- if the process is to have that degree of rigour which is essential if it is to be capable of identifying and preventing possible abuses, and in particular be adequate to detect what may be very subtle external pressures, and
- if it is to command public confidence.
2 Moreover, the Bill is entirely silent as to how the panel is to deal with the kind of issue exemplified by the Canadian case of AY v NB 2024 BCSC 2004, where the patient’s partner intervened and obtained an interim injunction because of concerns about what was happening. What if the patient’s partner and relatives, excluded from participation in the panel process, discover, only after the panel has granted a certificate under NC16(5)(a), facts of the kind which in AY v NB prompted an eleventh-hour intervention by the Canadian judge? What are they to do? They cannot appeal. Can they somehow apply to the panel but which is now probably functus officio? Or can they apply to the Family Division and pray in aid the inherent jurisdiction? Or do they apply to the Administrative Court by way of judicial review? Who knows, and the Bill does not tell us.
3 The amended clauses 7 and 8 set out the forms of report given by the coordinating doctor and the independent doctor which will be before the panel. The point is a simple one but vital. How is the panel to be “satisfied” in relation to each of the relevant matters, as demanded by NC16(2), especially the crucial matters referred to in NC16(2)(b), (c), (g) and (h), merely because the doctors have stated their “opinion” or said that they are “satisfied” on these matters?
4 As a separate point, how is the panel to be satisfied in relation to the voluntary nature of the “application”, in contrast to the “declaration”, since that is a topic on which the doctors’ statements are necessarily silent?
5 The panel is given an extraordinary degree of discretion in relation to the process it is to adopt. The only mandatory part of the process (the only place where the word “must” appears) is in NC16(4)(a), providing that “The panel … must hear from, and may question, the coordinating doctor or the independent doctor …” That apart, NC16(4) provides only that the panel “may” do various things. NC16(4)(c) – “The panel … “may hear from and may question any other person” – is quite properly expressed as a discretionary power, but why are the others not all made mandatory requirements? In particular, the absence of any requirement that the panel “must” hear from and question both doctors (and not just one) is very troubling and the absence of any requirement that the panel “must” hear from and question the patient is a quite extraordinary lacuna. Moreover, how is the panel to assess whether the application before it is voluntary if it does not hear from the patient?
6 Beyond what is set out in NC16(4), the Bill is silent as to the process and procedures to be adopted. For example, is the panel to hear evidence on oath? Indeed, will the panel have power to administer an oath? Of greater significance:
- It says very little about the procedures to be adopted for testing and, if need be, challenging the evidence.
- it says nothing about who should exercise that function; nor about the nature of any independent evidential investigation and nothing about who is to undertake this and who is to pay for it.
- It says nothing about what, if any, public funding arrangements there will be for the applicant, the two doctors, and any other parties or expert or lay witnesses.
7 As I have said repeatedly in my previous papers, there must be a rigorous procedure in every case for testing and if need be challenging the evidence, including an independent evidential investigation, perhaps by the Official Solicitor, of the kind discussed in Conway. There are two reasons why this is essential in every case:
8 Without this, it will not be proper for a judge to be involved in the process as a member of the panel. For otherwise, the judge, and, indeed the panel, is little more than a rubber stamp providing a veneer of judicial approbation – and that is fundamentally unacceptable. I appreciate that there is a question (which I need not explore) as to whether the legal member of the panel is fulfilling a judicial function. For present purposes it matters not. A legal member of a panel who is a judge or former judge will inevitably be thought of as a judge and in this context it is the appearance to the general public that matters.
9 Even more fundamentally, without a rigorous procedure of this kind the panel will not be able properly to exercise its functions as mandated by NC16(2).
10 The point, ultimately, is very simple: How confident can we be that the procedures set out in NC16 and elsewhere in the Bill will be adequate to enable the panel to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures? My answer is very simple. Only those who believe implicitly in the omniscience and infallibility of judges and of tribunals such as the panel – and I do not – can possibly have any confidence in the efficacy of what is proposed.
I appreciate that some may point to the multidisciplinary membership of the panel and to an assumption that the function and process of the panel may (it is said) be inquisitorial rather than adversarial. Plainly, it might be thought, it is an advantage that the panel has a multidisciplinary membership, and it is often said that three heads are better than one. Yet it would be a mistake to think that either of these features of what is now proposed are sufficient to overcome the very real problems I have identified. They are not. What remains crucial is the substance, not mere appearances. If the panel is to perform its function effectively and do more than just ‘check the paperwork’ – if it is to be the real safeguard intended by its proponents – then its processes must be much more thorough than is currently proposed.
There are two further points. I have previously pointed out that the Bill as originally drafted had nothing whatever to say about two vital matters:
- If there was to be a hearing, was this to be in public or in private? Were there to be reporting restrictions? Were the identities of any of the participants, in particular the patient, the witness and the countersigning doctors, to be anonymised?
- Should the judge be required to give a judgment in every case and be required to publish the judgment?
As I said in my previous papers, I was and I remain strongly of the view that the integrity of the process and the maintenance of public confidence demand that there be a hearing in public in every case, and with an absolute minimum of reporting restrictions; that there should be no anonymisation of any of the participants (except, perhaps, for the patient during his or her lifetime); and that the judge (now, the panel) must be required to give and publish a judgment in every case. I said there can be no room here for secrecy or concealment. If there was to be a judicial process, it must be open and transparent.
To an extent these issues have been addressed in NS2 6 and NS2 9 but, it has to be said, most inadequately:
- Why is the decision under NS2 6(2) to be taken by the chair of the panel and not by the panel collectively? It might be thought that both a psychiatrist and a social worker would have relevant expertise and insights when evaluating the potential impact on the patient of the hearing being in public.
- What criteria are to be applied in coming to a decision under NS2 6(2)?
- Will the media and legal bloggers be able to make representations before a decision is made under NS2 6(2) and, if so, what will be the relevant procedure? If not, why not?
- Are the “reasons” given in accordance with NS2 9 to be published and, if so, subject to what if any redactions? If not, why not?
These are matters that need to be made clear on the face of the Bill. They are too important to be left to the discretion of the panel or to any “guidance” given by the Commissioner under NS2 8(1).
I pause to take stock. All in all, in relation to the involvement of the panel in the process, the Bill still falls lamentably short of providing adequate safeguards.
Let us consider how an application to the panel could be dealt with by the panel in a manner entirely compatible with the requirements of NC16(4). The panel could:
- Decide the matter without hearing from the patient and with no input of any sort from the patient’s partner or relatives.
- Deal with the case in private – in secret – and without having to publish its reasons.
- Adopt a procedure which, beyond whatever little the panel is required to do in accordance with NC16(4)(a), involves neither testing nor challenging the evidence nor any independent evidential investigation.
In short, an application could be dealt with:
- In accordance with a wholly inadequate procedure, and.
- Without the public knowing anything about it.
These difficulties are compounded by the extraordinary provision in proposed new clause NC17 providing that an application for reconsideration by the Commissioner under NC17(2) is possible only if the panel has refused to grant a certificate of eligibility: NC17(1)(a). What if the panel in granting a certificate has misunderstood its function under NC16(2)? What if the panel has adopted a procedure which, although compatible with the letter of NC16(4), would not pass muster with the Commissioner? Indeed, and even more alarmingly, what if the panel has arrived at a decision which the Commissioner, if given the opportunity, would require to be reconsidered? There can be no reference to the Commissioner – and the patient dies.
I have read Alex Ruck Keene’s Terminally Ill Adults (End of Life) Bill: Questions on the amendments to the High Court approval requirement, posted on 20 February 2025. While not associating myself with what he has said – he touches on several matters which are outside the ambit of this paper – it seems to me that he raises a number of questions which require the most careful consideration.
Sir James Munby
21 February 2025
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