On 29 November 2024, the House of Commons voted by a majority of 330 to 275 in favour of legalised assisted dying in England and Wales. The historic vote followed the second reading in the House of Commons of the Terminally Ill Adults (End of Life) Bill - Parliamentary Bills - UK Parliament, (‘the Bill’) a private member’s bill introduced by Labour MP Kim Leadbeater that proposes to legalise assisted suicide for terminally ill adults in England and Wales.
This dramatic political development reflected a pivotal shift in public opinion on this highly contentious societal issue that has polarised debate for decades. Having passed its second reading in the House of Commons, the Bill is currently at the Committee Stage and there remains a long way to go before it eventually becomes law. However, if it does, the new law will have profound legal and ethical implications for health and care providers committed to ‘first doing no harm’ and is likely to create significant challenges for their indemnity insurers.
Current legal position
Under the current law, still in force for the time being at least, it remains illegal in the UK to encourage or assist someone else to commit suicide or to ‘intentionally help another person to end their own life’, as the Suicide Act 1961 would have it. Although relatively rarely prosecuted, this is still a serious criminal offence that is punishable on conviction by imprisonment of up to 14 years. Euthanasia, which is the act of deliberately ending someone's life to relieve suffering, is also unlawful, although here there are various well-established exceptions. An adult is legally entitled to refuse treatment if they are deemed to have capacity, even when it’s not in their best interests. It can also be lawful for healthcare professionals to discontinue treatment in limited circumstances such as where a terminally ill person is unable to make decisions for themselves.
The shifting sands of public opinion
There have been previous unsuccessful attempts to legalise assisted dying. Notably, in 2015, the Assisted Dying (No 2) Bill introduced by Labour MP Rob Marris was defeated at its second reading by a vote of 330 to 118. In 2021, Baroness Meacher presented another bill in the House of Lords, which, despite initial discussions, did not progress. Recently, however, there has been a steady increase in public support for a re-evaluation of assisted dying laws. High-profile cases, such as those of Diane Pretty (who suffered from MND) and Tony Nicklinson, (who had locked-in syndrome) intensified public and legal scrutiny. Most recently, the case for legalisation has been championed by campaigning journalist Dame Esther Rantzen, who publicly expressed her intention to seek assisted dying services from Dignitas in Switzerland following her diagnosis of stage IV terminal lung cancer in January 2023.
This shift in public opinion is by no means confined to the UK. Assisted dying is already legal—in different forms and with varying levels of accessibility—in Austria, Belgium, Canada, Colombia, Germany, Italy, Luxembourg, the Netherlands, New Zealand, Portugal, Spain, Switzerland and parts of Australia and the United States. In 2022, the European Court of Human Rights affirmed in the case of Mortier v. Belgium.pdf that the Belgian law on euthanasia was not incompatible per se with a state’s positive obligation to protect life under Article 2 of the ECHR.
Key elements of the Bill
The key elements of the Bill are as follows:
1. Eligibility
- The individual must be a resident of England or Wales and have been registered with a GP for at least a year.
- They must possess the mental capacity to make an informed decision without coercion.
- They must have been diagnosed with a terminal illness with a prognosis indicating a life expectancy of six months or less.
- They must make two independent declarations of their wish to die, both of which must be witnessed and signed.
2. Medical Oversight
- There must be approval from two independent doctors to confirm the patient’s eligibility and ensure the decision is informed, voluntary and free from coercion. The assessments must be spaced at least a week apart.
- Additional specialist consultation is mandated if there are doubts about mental capacity or diagnosis.
3. Judicial Oversight
- The Bill originally stipulated that a High Court judge's approval was required to confirm all legal requirements are met, followed by a subsequent two-week reflection period before final authority was granted. However, the Bill is currently undergoing further scrutiny by MPs and it appears likely that the final version of the bill will replace the proposed High Court judge with an expert panel comprising a legal chair, a psychiatrist and a social worker.
4. Safeguards
- The Bill creates new offences to protect against coercion and abuses of the system.
- All stages of the process are to be regulated and documented.
Regulatory impact
If the law does change, it’s uncertain how healthcare regulators, such as the General Medical Council, would assess complaints against doctors regarding their decision to advise—or not advise—patients on assisted dying as part of informed consent. Under current GMC guidance (When a patient seeks advice or information about assistance to die - professional standards - GMC) doctors are advised that where patients raise the issue of assisting them to end their own life, or ask for information that might encourage or assist them in doing so, respect for a patient's autonomy cannot justify illegal action. Whilst medical professionals should be prepared to listen and discuss the reasons for the patient’s request, they should limit any advice or information in response to an explanation that it is a criminal offence for anyone to encourage or assist a person to commit or attempt suicide. This advice will obviously need to be updated in the event of a change in the law. Given the sensitivity surrounding this topic and the potential for criminal, civil, and regulatory repercussions for medical professionals who get it wrong, it is likely that this will be fertile ground for high profile litigation and a degree of judicial intervention would appear to be unavoidable.
Potential medico-legal risks
Several medico-legal risks associated with the introduction of assisted dying legislation require careful consideration, particularly with regards to the need to ensure properly informed consent. Perhaps the most obvious concern here surrounds the risk of undue pressure or coercion. Vulnerable individuals, particularly the elderly or those with disabilities, may feel subtle pressure to pursue assisted dying to avoid being perceived as a burden, making the safeguarding of genuine autonomy a fundamental priority. Assessing a patient’s psychological state adds another layer of complexity, as conditions such as depression can impair judgment, necessitating thorough psychiatric evaluations to ensure that consent is fully informed and independent. The potential impact on the doctor-patient relationship also cannot be overlooked, with fears that introducing assisted dying into the list of reasonable alternative treatment options could erode trust and fundamentally alter the dynamics of open communication.
There are also risks around diagnosis due to inherent uncertainties of medical prognoses, as patients given a six-month life expectancy may live significantly longer (as is happening in the case of Esther Rantzen), raising ethical dilemmas about the risk of premature decisions based on inaccurate predictions. The mirror scenario could also apply – whereby a patient is deprived of the option of an assisted death due to an overly optimistic prognosis.
Additionally, the potential for emotional distress claims from family members of patients undergoing assisted dying raises the need for updated definitions within indemnity policies (and may lead to the law on nervous shock being revisited).
Critics also warn of a ‘slippery slope,’ suggesting that what begins as a provision for terminally ill patients could, over time, expand to include non-terminal conditions or psychological suffering, extending far beyond its original intent. Legal and ethical accountability is likely to remain a pressing concern, as healthcare professionals engaging in assisted dying must navigate intricate legal frameworks, where any deviation—intentional or otherwise—could result in legal consequences, professional censure, and intense ethical scrutiny.
Implications for indemnity insurance
If enacted, the Bill could have far-reaching implications for indemnity insurance policy wordings, particularly in relation to medical malpractice, professional liability, and life insurance policies. To mitigate these uncertainties and avoid potential disputes, insurers will need to reassess their policy terms to ensure clarity and compliance with the new legal framework, addressing key areas of risk and liability.
Medical malpractice policies will need to explicitly define coverage for assisted dying procedures, with particular attention to common exclusions for deliberate unlawful acts. For example, how would a med mal policy treat a claim alleging a failure by the insured healthcare professional to meet legal safeguards—such as obtaining informed consent - that is claimed to have rendered the assisted death ‘unlawful’? Would this be construed as a negligent ‘wrongful act’ (and be covered) or would it be a deliberate unlawful act (and be excluded). Will other breaches of procedural compliance, such as errors in judicial approval or misdiagnosis of life expectancy, lead to coverage exclusions?
Life and health insurance policies will also require careful revision, particularly regarding the distinction between suicide and assisted dying, as many life insurance contracts exclude suicide within the first 12 months from inception. Insurers must clarify whether a legally sanctioned assisted death falls within policy exclusions, as well as address potential liability for medical practitioners if disputes arise from beneficiaries alleging coercion or misdiagnosis. Underwriting considerations may also change, with insurers requiring additional disclosures from policyholders regarding terminal illness and their intent to pursue assisted dying, which could influence premium calculations.
Employer and public liability insurance will face similar challenges, particularly in covering healthcare institutions against claims from staff who refuse to participate in assisted dying on ethical or religious grounds, as well as third-party liability where institutions face allegations of undue influence over patients’ decisions.
Conclusion
As the Assisted Dying Bill progresses through Parliament, it continues to raise profound legal, ethical, and regulatory questions that will require careful navigation by policymakers, healthcare professionals, and insurers alike. While the bill reflects a significant shift in public opinion and aligns England and Wales with a growing number of jurisdictions that have legalised assisted dying, its implementation will require robust safeguards to protect vulnerable individuals and maintain public trust in the medical profession. The introduction of clear professional guidelines, judicial oversight, and a comprehensive overhaul of insurance provisions will be crucial in addressing the complex medico-legal risks and liability concerns that arise.
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