Assisted dying: Ex-judge says coercion ‘extraordinarily difficult to detect’

Coercion is “extraordinarily difficult to detect”, a former Supreme Court judge said as he gave evidence to MPs scrutinising the assisted dying Bill.

Lord Sumption said he is in favour of the principle behind the Terminally Ill Adults (End of Life) Bill but warned of the limitations when it comes to safeguards to protect people from coercion.

Labour MP Kim Leadbeater has previously described her private members’ bill as containing the strictest protections anywhere in the world.

It could see terminally ill adults in England and Wales with less than six months to live legally allowed to end their lives, subject to approval by two doctors and a High Court judge.

Under the proposed Bill it would be illegal for someone to pressure, coerce or use dishonesty to get someone to make a declaration that they wish to end their life or to induce someone to self-administer an approved substance.

The committee heard from Dr Lewis Graham, a law fellow at Cambridge University, who said the Bill as it stands contains “more safeguards than some of the other legislation in European countries, and the legislation in those countries has been held to be compatible with the right to life, with other rights under the European Convention”.

He added: “So from a pure human rights perspective, which is all I feel qualified to comment upon, I think you’re in very safe grounds.”

Lord Sumption, who sat in the Supreme Court for six years until 2018, agreed, but added: “I think we must all be conscious of the fact that coercion, even when it is overtly applied, is extraordinarily difficult to detect.”

He said: “We have to live with the limitations of what human beings can do. So that in the end, I have come down in favour of the principle behind this Bill, but I regard it as an extremely difficult balance to draw, notably for that reason.”

While agreeing with the principle of assisted dying, Lord Sumption has previously described Ms Leadbeater’s Bill as “seriously defective”, “over-engineered, bureaucratic, and coldly inhumane”.

He told MPs he disagreed with the inclusion of the need for High Court approval of a person’s application for an assisted death.

Ms Leadbeater has described hers as the only Bill in the world with “three layers of scrutiny” in the form of sign-off by two doctors as well as the High Court judge.

Giving evidence on Wednesday, he described the High Court approval aspect as “unnecessary and in some respects undesirable”, suggesting it is “not entirely clear what the the judge is supposed to do”.

He said: “Is he there in order to ensure that the two doctors have done their job and that the ducks are all there in a row, or is he there to form his own view on all of those matters, completely independently of those who have already given their certificates?”

He added that he believed what has been presented as an extra layer of scrutiny in fact “confers a protection which is largely illusory”.

Fazilet Hadi, head of policy at Disability Rights UK, said the Bill – which they are opposed to – must be looked at in the context of disparities in wealth, social care, palliative care and general healthcare which already exist.

She told MPs: “When we’re looking at inequalities, I think we do need to note that this Bill is going to be plunged into a society that has deep, entrenched health inequalities that don’t play out well for people who are poorer.”

She said she could not suggest any way in which the Bill cold be strengthened because “the society it will land in is the thing that needs to change, not the Bill”.

She added: “At the moment, there’s very little likelihood of that society becoming more equal, having better public services, having less health inequality in the next few years.”

Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission (EHRC), told MPs that while the organisation is neutral on assisted dying, she believed there are “important and serious considerations” regarding various rights and how they might be affected by the Bill.

These include the right to freedom from inhuman and degrading treatment, and freedom of religion under the European Convention on Human Rights.

She indicated there are outstanding issues around the definition of terminally ill, capacity, coercion and whether judges might have exemptions from the process on conscientious grounds.

Responding to Baroness Falkner’s call for an impact assessment of the Bill, health minister Stephen Kinnock confirmed – as stated last week in Parliament – that one will be published before the legislation reaches report stage in April.