David Montgomery: If it passes, Kim Leadbetter’s assisted dying Bill will be difficult to implement

David Montgomery is a former Parliamentary Candidate for East Renfrewshire and former Association Chairman and President of Reigate Constituency.  He is also a medical doctor with almost 25 years’ experience considering end of life care.

So, the parliamentary debate begins.

Voltaire once said that the art of medicine consists of amusing the patient while nature cures the disease.  Kim Leadbetter MP appears to believe that when cure is impossible, the art of politics is to distract with bureaucracy while nature takes its course.

I wrote recently in these pages about Kim Leadbetter’s assisted dying bill, speculating on the final content of the bill to make some general points about the issues at play.  I didn’t take a stand one way or another on whether assisted dying was something I’d back, but I did highlight what I thought would need to be in the Bill to make this worth doing.  I also expressed my strong view that the issues were complex and that in reality a private members bill was not a good vehicle to debate the issues.

The Bill was published and the second reading is today. And I’m afraid I was right.

That it took over three weeks for Ms Leadbetter to publish the Bill tells us something.  I argued that someone who really understood the issues and was bringing a private members bill so soon in a new Parliament should have been able to publish it quickly.  They should know what they are trying to achieve.

But issues of safeguarding and eligibility both reared their heads in discussions after the first reading and it certainly appears that Ms Leadbetter wasn’t prepared for these (indeed, she has reportedly admitted to colleagues that since tabling the Bill she has ‘learned a lot’).  Consequently, she has been wrestling with the compromises needed to ensure the Bill passes.  Her thinking appears to have been that it’s better to get something on the statute books that can be fixed later rather than fail to get the Bill through at all.

There are a few things that worry me.

Kim has also boasted of the Bill containing ‘the strictest safeguards of any legislation anywhere’, but eligibility is only those at the very end of life.

What does that mean in practice?  Well, that in our current preposterously stretched health and social care and legal systems people who wish to avail themselves of the provisions of this legislation will need to find a doctor willing to act as the coordinating doctor.  This in a healthcare system where between a quarter and a half of doctors are opposed to any change in the law (public-and-professional-opinion-on-physician-assisted-dying-report-v2.pdf) and where it is far from clear what proportion would be willing to actively participate in assisted dying, even if neutral or supportive of a change in the legal framework.

The coordinating doctor, when one is found, will then need to certify eligibility after an assessment of physical health, life expectancy, mental health and absence of coercion from relatives.  A second doctor will then need to be found, an appointment to see that doctor made and the process repeated to corroborate the opinions of the first.

At any time independent mental health opinion can be sought.  If the first and second doctor disagree a third must be consulted.  Upon completion of all this, the application will then need to go before a court.  If approved, the person applying must then make a second declaration of their desire to end their life.  Then, after all this, the patient must wait a further 14 days to ensure they haven’t changed their mind!

This could all take quite a long time, and if there are disagreements at any stage in could become really messy.

At the risk of being deeply cynically facetious, I should point out the provision in section 11 of this Bill that allows for circumstances where the coordinating doctor him or herself dies during this process.  It appears even Ms Leadbetter realised this could take a long time and has made some provisions for that!!

Oh, and it’s only applicable to residents of England and Wales!

Incidentally, and this has been much ignored in the discussions, Scotland has its own private members bill currently going through the Scottish Parliament.  Similarly bureaucratic, nonetheless it has no upper limit of life expectancy and so much wider eligibility.  People in England will be able to move to Scotland and seek support after 12 months.  But if they are terminally ill, they will have complex care needs.  It isn’t at all clear the Scottish NHS would be willing or able to pay for the care of such patients in the months they spend living in Scotland, waiting to become eligible.

Assuming one or both bills pass, there will be calls for alignment at some stage.  This could become a total mess.  And it looks like a failure of political leadership.

Personally, I think this level of bureaucracy is unnecessary and impractical in the last weeks of life.  If someone is truly weeks away from death and with intractable suffering, I really don’t think they need the permission of two doctors and a judge and then a cooling off period of two weeks to be allowed to end their own life.  If I’d written the Bill, I would open the eligibility criteria much wider, put restrictions on life expecancy and set proportionate safeguarding.  Those with longer life expectancy are likely to be more at risk of coercion but also have more time to go through a longer process.

In my last article, I didn’t reach a conclusion.  Having heard the arguments and talked with a lot of people, and as I’m sure you’ve picked up from the tone of this article, I’m increasingly sure we do need some provision in the UK.  And I think most people I speak to agree.

But I still think this is a very problematic Bill, and the parallel Bill in Scotland is a huge complication.

If this Bill passes  I implore MPs and Lords to think very carefully about some of my comments as it passes through the committee stages.  As currently written, this will cause huge problems in implementation and will be challenged in the courts for wider inclusion.  And I really don’t think on this issue that we can afford divergence of provision throughout the UK; alignment with Scotland now will avoid problems later.

My feeling, though, is that it won’t pass.  And from the discussions I have had that’s in large part going to be because people don’t like the Bill (as I don’t), not that they don’t agree in principle with a change in the law.

So whatever happens today I hope this is the start of the debate, not the end of it.

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