Assisted dying, vulnerability, and the potential value of prospective legal authorization

Abstract

Concern for vulnerable people is a crucial issue when considering the legalization of assisted dying (AD), but the meaning and normative significance of vulnerability in this context is under-explored. We examine vulnerability and the protective obligation through the lens of vulnerability theory to improve understanding of vulnerability in the context of AD. By appealing to a more nuanced account of vulnerability, we argue that the current ban on AD in England and Wales is a blunt tool that lacks compassion and fails to recognize the importance of personal autonomy, as well as the relationship between vulnerability and autonomy. Recently, some emerging lawful models of AD purport to better protect the vulnerable via prospective legal authorization. This is also a feature of recent English Assisted Dying bills, with proposals for judicial or quasi-judicial authorization, and so we consider the potential value of prospective legal authorization. Although this approach risks being burdensome for applicants, we suggest that it could, in principle, not only safeguard vulnerable individuals, but also enhance end-of-life autonomy thereby offering support for a restrictive approach to lawful AD.

I. INTRODUCTION

One of the key arguments within the assisted dying (AD) debate is that there is no safe (enough) system of lawful AD capable of protecting vulnerable individuals. The organization Care Not Killing usefully articulates this concern; ‘The right to die can so easily become the duty to die’. It follows that because vulnerable individuals deserve to be safeguarded, any relaxation in the law to allow AD would be dangerous.¹ On the other side of the debate, those in favour of overturning the ban argue that this important concern could be addressed by careful regulation: ‘it would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives’.² Although these arguments seem powerful, there has been limited examination of vulnerability in the AD context.

Repeated attempts to legalize AD in the English parliament have thus far floundered, although the most recent attempt (The Terminally Ill Adults (End of Life) Bill 2024–25) may succeed.³ Evidence from parliamentary debates suggests that concerns about the impact of lawful AD on vulnerable people have been a key reason for maintaining the prohibition. Meanwhile, many jurisdictions have legalized AD or are moving towards legalizing AD.⁴ During 2023 and 2024, events in England intensified the debate; media engagement with celebrities who have become AD campaigners increased public awareness,⁵ while developments in Jersey and the Isle of Man, together with greater political support for AD,⁶ suggest that legal change might be on the horizon. In Autumn 2024, another opportunity for legal change emerged with a private members’ Bill in the House of Commons—The Terminally Ill Adults (End of Life) Bill—introduced by Kim Leadbeater, MP. On 29 November 2024, the Bill passed its second reading (330 Ayes/275 Noes)⁷ to continue its legislative journey. Whether or not the Bill survives subsequent parliamentary stages to progress to, and through, the House of Lords onto the Statute book, it is timely and important to examine the arguments regarding vulnerability with greater rigour.

This article assesses vulnerability to AD more closely via a theory of vulnerability developed by Mackenzie, Rogers, and Dodds (as well as theories of autonomy that ground this approach to vulnerability).⁸ We explain in Section II why their work offers a nuanced and complex picture of vulnerability. We suggest that such an account is particularly pertinent to AD because it recognizes the conceptual and often practical entwinement of vulnerability and autonomy, whereas standard approaches to vulnerability at law and ‘universalising’ conceptions of vulnerability commonly treat vulnerability and personal autonomy as conceptually opposed. Using Mackenzie, Rogers, and Dodds’s account, we can better understand not only the context-specific risks associated with vulnerability to lawful AD but also how some of these risks can be engendered by the ban on lawful AD in England.

In Section III, we briefly examine the prohibition within English law and how far it can be seen as succeeding in the objective of safeguarding the lives of those who are vulnerable. We suggest that while lawful AD might open the door to creating or exacerbating situational vulnerability (ie by facilitating the conditions for coercion, manipulation, or other malign external influences that undermine the autonomy of a request for AD), it is also capable of ameliorating vulnerability when that vulnerability is, as is currently the case in England, associated with the denial of autonomy in relation to certain end-of-life options, specifically AD. In the closing portion of this section, we consider the most recent English attempts to legalize a form of AD; namely, medically assisted suicide.

Section IV turns to a more in-depth examination of vulnerability at law and the ways in which this conception specifically relates to the law’s understanding of autonomy. We argue that applications of the law’s conception of vulnerability can not only compound the threats to the autonomy of those deemed to be vulnerable and make them even more susceptible to malevolent influence,⁹ but also justify paternalistic forms of intervention that violate autonomy,¹⁰ and have the paradoxical effect of rendering an already vulnerable individual even more vulnerable.¹¹

Taking seriously this more nuanced theory of vulnerability and the risks to vulnerable individuals, section five provides an assessment of existing legal mechanisms that could be employed to safeguard vulnerable individuals under a potential lawful AD regime. We explain the limitations of those mechanisms before, in Section VI, considering the value of prospective legal authorization for AD, as required in the most recent AD bills.¹² This proposal offers a comparable approach to how the inherent jurisdiction of the High Court is currently exercised to protect the welfare and interests of vulnerable individuals who might have capacity but whose autonomy is deemed to be at risk as result of, for instance, constraint, coercion, undue influence, or other malign external pressure. We conclude that requiring prospective legal authorization for AD should, in principle, ensure a higher level of protection for vulnerable individuals than is seen in other jurisdictions where no similar prospective authorization is required. However, minimizing the bureaucratic burden that such a process could entail is essential. Our aim is to articulate the basis for a normative framework that could assist healthcare practitioners, and any tribunal/panel tasked with authorizing AD, with capturing the autonomy of vulnerable persons, and thereby determining whether requests for AD under a lawful regime are, in fact, autonomous, while remaining responsive to established duties of protection.

II. WHO ARE THE VULNERABLE?

In this section, we first outline three key approaches to vulnerability, explaining why the definition and theory developed by Mackenzie, Rogers, and Dodds offers the most nuanced and therefore enlightening assessment of vulnerability in AD contexts.¹³

A. Vulnerability to ‘at risk’ groups

Traditional approaches to vulnerability identify ‘at risk’ groups, such as the elderly or people with a disability, which enables the protection of those groups.¹⁴ For example, we might believe that people who lack capacity are vulnerable to some extent, and, consequently, should not be permitted to access AD because their reasoning might not be sound and/or they might not be unable to understand the implications of the decision. Other ‘at risk’ groups might include, for example, elderly persons and those suffering from an incurable illness or significant disability. There may also be more subtle forms of circumstantial, malign external influence that impact upon certain populations such that they are deemed to be ‘at risk’.¹⁵ These typical examples of ‘at risk’ groups are taken to be either situationally vulnerable, to the extent that the risks to the independence of their decisions and decision-making are associated with their particular circumstances and contexts, or, in the case of disability, inherently vulnerable, to the extent that risks are associated with them having an incurable somatic or psychological condition.

Evidence from jurisdictions offering legal AD presents a confusing picture that is open to interpretation. Some evidence seems to dispel concerns that poverty, ethnicity, gender, or any factor traditionally linked to vulnerability, except perhaps for age, renders people vulnerable to lawful AD.¹⁶ Concerning age, older people are far more likely than younger people to develop a terminal illness or very serious condition causing unbearable suffering, which makes them more likely to become eligible for lawful AD. Colburn’s recent work has usefully examined the evidence relating to the rights of people with disabilities within jurisdictions allowing AD,¹⁷ stating that there is no evidence that lawful AD has a disproportionate impact on people with disabilities. Other work, however, argues that there may be a risk to people with disabilities, particularly in more permissive jurisdictions such as the Netherlands.¹⁸ Systems established in countries with a permissive open-ended approach, which does not restrict eligibility to terminally ill adults, have been criticized for failing to protect the vulnerable in several ways; by potentially facilitating ‘slippery slopes’ after expanding the original eligibility requirements¹⁹; or because there is not always a sufficiently rigorous approach to safeguards.²⁰ For example, concerns have been expressed over a significant rise in the number of people having Medical Assistance in Dying (MAiD) in Canada.²¹ Also, a small number of cases reveal that people living with a disability are asking for MAiD because of poverty and/or poor care, rather than because they genuinely want to die, prompting reports that Canada is failing its most vulnerable citizens.²² This suggests that the risk to those who are vulnerable due to disability (with no terminal illness) is more likely to arise in jurisdictions allowing access to AD on the basis of unbearable suffering, so a system allowing access only to terminally ill adults should ameliorate that risk. We should also note, however, that others have argued that populations regarded as vulnerable due to disability or other non-terminal conditions should not necessarily be denied access to AD and that end-of-life options should be assessed more holistically.²³ The conflicting views about the evidence of harm to vulnerable groups, and arguments over who ought to be permitted access to AD, illustrate the challenges of objectively assessing vulnerability to lawful AD purely on the basis of certain demographic characteristics usually associated with ‘at risk’ individuals and groups. As we discuss in greater detail below in this section and in Section 5, we acknowledge that certain individuals (ie those who lack capacity or those whose decision-making is subject to undue external influence) are necessarily vulnerable to lawful AD and thereby duties of protection are warranted to safeguard them. However, as we explain in terms of the treatment of vulnerability in common law, limiting an account of vulnerability to inherently and situationally ‘at-risk’ groups engenders a climate where the law conceives vulnerability and autonomy as incompatible concepts. On that basis, all vulnerable individuals would be deemed to be at risk of lawful AD and thereby would need to be safeguarded from it. As we argue below, using Mackenzie, Rogers, and Dodds’ account of vulnerability, we reject the notion that autonomy and vulnerability are necessarily incompatible concepts and, by implication, we reject the notion that all vulnerable individuals are necessarily at risk to lawful AD. Such an approach to vulnerability ignores the fact that certain vulnerable individuals can make autonomous decisions despite being judged to be inherently and/or situationally vulnerable.

B. Universal Vulnerability

In contrast to identifying ‘at risk’ groups, Fineman has proposed a universal approach to vulnerability; that all humans, no matter how privileged or resilient to illness, will be dependent at some point in their lives, including in childhood and old age and at times of serious illness.²⁴ This universal theory seeks to expose the ‘fallacy’ that certain groups are especially vulnerable, thus decentralizing the ‘myth’ of the free, independent, and autonomous liberal legal subject and the primacy of autonomy in liberal legal theory. This approach has garnered support due to a sense that a binary approach to vulnerability fails both those deemed vulnerable and those deemed to be not vulnerable. As Clough explains, ‘the dominant political and legal subject presents an impoverished view of humanity, presented as being a competent, capable, self-sufficient and self-actualising agent who “seeks liberty or autonomy as a primary value”’.²⁵ But while legal conceptions of vulnerability, by identifying ‘at risk’ groups based on inherent or situational factors, encourage paternalistic policies for those groups and insufficient consideration for the non-vulnerable, the universal theory posits that paternalistic laws are necessary in order for the State to fulfil social welfare obligations. Thus, an absolute prohibition on AD might be seen to fulfil the State obligation inferred by the universal conception of vulnerability; a position that is often asserted by opponents of AD. For example, Finlay and George have argued that complex factors might be associated with vulnerability to AD and that these factors do not only apply to certain demographic groups:²⁶

Vulnerability to PAS cannot be categorised simply by reference to race, gender or other socio-economic status and that the impetus to seek PAS derives from factors, including emotional state, reactions to loss, personality type and situation and possibly to PAS contagion, all factors that apply across the social spectrum.²⁷

The problem with this expansive approach to vulnerability is that one’s ‘emotional state’ and ‘situation’ will inevitably be part of the impetus to seek AD; an emotionally content person in a healthy, happy situation would not seek AD. Therefore, if one preferred to die rather than live on, it would, in principle, be impossible not to be vulnerable. This characterization prioritizes the sanctity of life,²⁸ and, as a universal theory of vulnerability, downplays the value of autonomy.²⁹

Furthermore, according to Mackenzie, by seeking to generalize vulnerability, the universal approach does not include specific forms of vulnerability that make an individual especially vulnerable.³⁰ According to Honneth and Anderson, what unites all individuals deemed to be ‘at risk’ no matter whether the source of their vulnerability is inherent or situational is that they are all particularly susceptible to threats to their autonomy. On that basis, ‘liberal societies should be especially concerned to address vulnerabilities of individuals regarding the development and maintenance of their autonomy’.³¹ The universal conception of vulnerability is unable to capture or confront the particular challenges ‘at risk’ individuals and groups face in terms of successfully exercising their autonomy, and it has thereby been interpreted as potentially vacuous and practically unhelpful, obscuring the context-specific needs of vulnerable individuals.³²

C. Vulnerability according to Mackenzie, Rogers, and Dodds

In response to the problems with the universal conception, Mackenzie, Rogers, and Dodds have constructed a taxonomy that extends the traditional ‘risk-based’ approach to vulnerability to encompass pathogenic as well as inherent and situational vulnerability. As mentioned previously, and as shall be explained in greater detail in Section V, the problem with traditional risk-based approaches is that they justify the employment of safeguarding measures at the expense of a vulnerable person’s autonomy. As discussed above, this is also the case with the universal conception.³³ In contrast, Mackenzie, Rogers, and Dodds argue that the enactment of duties of protection, which entail the violation or denial of a vulnerable person’s autonomy, can, in turn, be taken as a pathogenic source of vulnerability.³⁴ The point is that even if safeguarding measures are employed with the aim of ameliorating the inherent or situational vulnerability of ‘at risk’ individuals, such measures can be pathogenic to the extent that they have the paradoxical effect of compounding their situational vulnerability (ie by exacerbating the threats they may already face to their autonomy by curtailing, undermining, or violating their autonomy). If, as suggested by Anderson and Honneth, individuals deemed to be ‘at risk’ are susceptible to threats to their autonomy,³⁵ then protection-based interventions or policies that entail the undermining or denial of that autonomy would, in principle, exacerbate that vulnerability rather than improve it.

As we have seen, and as shall be explored further in Section III, the question of autonomy is crucially important within the AD debate. As such, Mackenzie, Rogers, and Dodds’ tripartite account of vulnerability provides us with the tools to deliver an ethically richer, more normatively pertinent, and complex assessment of vulnerability in AD contexts. As shall be detailed in Section IV, such an assessment not only recognizes ‘at risk’ individuals’ vulnerability to certain external factors that might influence them to seek AD for reasons that are not their own, but also acknowledges the (pathogenic) vulnerability to threats to personal autonomy engendered by prohibition and protection.

In light of Mackenzie, Rogers, and Dodds’ tripartite account, and when accounting for the various vulnerabilities that can often be at play in relation to current English law concerning AD as well as in AD decision-making contexts, we consider an individual to be vulnerable to AD when they lack capacity because of some mental disorder (ie inherent vulnerability),³⁶  and/or when they are at risk of being coerced or otherwise unduly influenced (ie situational vulnerability), and when they are at risk of having their autonomy increasingly curtailed, denied, or violated because of protection-oriented, paternalistic AD policies (ie pathogenic vulnerability).³⁷ It is important to acknowledge that this characterization of vulnerability to AD does diverge from conceptions of vulnerability that are often articulated in political contexts.

As well as characterizing vulnerability to AD in terms of being inherently vulnerable due to being mentally incapacitated by some disorder, or being situationally vulnerable because they are at risk of coercion or undue external influence, there is also tendency to associate vulnerability to AD with an individual being a burden on others or suffering from, for example, loss or loneliness as a result of personal circumstances. The problem here is that such an approach conflates vulnerability to AD with reasons that could, in our view, rationally underlie one’s autonomous choice to pursue AD. A person who is situationally vulnerable and/or physically disabled or suffering from a somatic condition might experience an autonomous desire to access AD in a way that is not coerced, shaped by malevolent forces, or undermined by their particular physical disability or condition, and so paternalistic constraints may represent an infringement that is not desirable or acceptable for that individual. In other words, and being mindful of our criticism of the universal approach to vulnerability, rather than assuming that all vulnerable individuals are necessarily vulnerable to AD, we suggest that only those who lack capacity or whose decision-making is subject to undue external influence should be considered necessarily vulnerable to the dangers of lawful AD.³⁸ As we explain in Section V, these individuals are necessarily vulnerable to AD precisely because their ability to exercise their autonomy on the question of access to AD is compromised. In the case of inherently vulnerable individuals who lack capacity, their lack of capacity means that, according to most theories of autonomy, they would fail to meet the conditions for the capacity for autonomy. In the case of situationally vulnerable individuals whose decision-making on the question of AD is subject to undue external influence, they would be unable to genuinely exercise their autonomy on the question. Individuals that fall under at least one of these two categories would, as a matter of principle, not be at risk of being pathogenically vulnerable to any prohibition on AD or any safeguarding mechanisms put in place to protect them from lawful AD. To be pathogenically vulnerable to protection-oriented, paternalistic AD policies, one must be genuinely able to exercise one’s autonomy on the question of accessing lawful AD. Vulnerable individuals subject to undue external influence or lacking capacity would be unable to satisfy this condition, and, therefore, as we discuss in greater detail in Section V, the enactment of duties of protection in respect of these individuals is justified.

As we discuss in greater detail in Section VI, the autonomy of an individual’s choice to pursue AD is not necessarily undermined by them experiencing themselves as a burden on others or experiencing isolation or loneliness, provided that the individual concerned is not mentally incapacitated and their choice is rationally coherent with these motivating factors and their wider set of values, rather than, say, arising from coercion or manipulation. For that reason, it is important, as our characterization of vulnerability above illustrates, and as we argue below, to frame vulnerability to AD in terms of the risks posed to autonomous decision-making. Although English law does frame vulnerability in such a way, we demonstrate in section four that it ultimately misconstrues the conceptual relationship between vulnerability and autonomy, an issue that Mackenzie, Rogers, and Dodds’ account of vulnerability seeks to address.

III. ENGLISH AND WELSH LAW: THE BAN AND THE ASSISTED DYING BILLS

Assisted dying might involve physician assisted suicide (PAS), where the patient takes their own life with assistance, or it might also include voluntary euthanasia, where the patient is given a lethal injection by a clinician. PAS alone is lawful in various US States, such as Oregon, and in other jurisdictions, such as Switzerland. Both PAS and euthanasia are lawful in other places, such as Canada and the Netherlands. In the UK, both forms of AD are prohibited. For the purposes of this article, we focus on English law, which prohibits euthanasia as homicide,³⁹ and PAS as an offence of assisting or encouraging a suicide under the Suicide Act 1961. Following our analysis of current law in this section, we briefly consider the most recent attempts in the English parliament to legalize a form of AD.

A. Current law

The offence of assisting a suicide is unusual for two reasons. First, it criminalizes assisting or encouraging an act (ie attempting suicide) that is no longer a crime. Secondly, there is an enhanced level of prosecutorial discretion under section 2(4) of the Suicide Act, which states that ‘no proceedings shall be instituted … except by or with the consent of the Director of Public Prosecution’. This aspect of the law alludes to the potential for excusable assistance, which was clearly articulated within the policy created following Debbie Purdy’s successful legal challenge.⁴⁰ While there is always a need to assess the public interest to be sure that any criminal prosecution serves that interest, section 2(4) demonstrates the sensitivity of the decision in this context. The Crown Prosecution Service (CPS) policy created a list of factors tending in favour of prosecution and factors tending against prosecution.⁴¹ The ethos of the policy tells us that a person who assists in (rather than encourages) the suicide of a mentally competent adult, who is acting voluntarily and has articulated a clear wish to die by suicide, is very unlikely to be prosecuted provided that their decision to assist, and their conduct in assisting, that suicide appear to have been motivated only by compassion.

Assessing the law in action gives further weight to the ethos of excusable assistance. Data shows that between April 2009 and the end of March 2024, of the 187 cases referred to the CPS, 127 were not progressed, and 36 cases were withdrawn by the police.⁴² Several cases are ongoing. Over the period in question, there have been only four successful prosecutions.⁴³ In terms of the potential for capturing offenders, it has been reported that several hundred British citizens have received assistance to travel abroad for an assisted suicide in Switzerland.⁴⁴

We see, therefore, that although assisted suicide is unlawful, the ban does not prevent cases nor does it, except in rare instances, lead to prosecution and resulting criminal liability. This approach has been described by Baroness Finlay as having a ‘stern face but a kind heart’.⁴⁵ Importantly, this approach has recently been extended to homicide in the context of ‘mercy killing’.⁴⁶ While it is too soon to assess the impact of this development, it is a significant shift; people who previously would have been prosecuted for murder may avoid prosecution if compassion had motivated them to kill a person who wished to die but was unable to achieve their own death.

While we agree that the prosecution policy is appropriately ‘kind’ in taking account of compassionate assistance in suicide (and now also mercy-killing), the ‘stern face’ of the prohibition means that individuals seeking AD are essentially abandoned. Because the law is aimed primarily at deterring AD, the opportunity to engage with people seeking AD abroad before they travel is lost. The only involvement required by the person’s doctor in the case of an assisted suicide in Switzerland is to release the patient’s medical records so that the person’s medical history can be reviewed by the Swiss right to die organization. Since a patient has a statutory right to access their medical record,⁴⁷ the doctor must comply, and there is no opportunity to compel the patient to discuss their death wish with their doctor, or any other medical professional in the UK, or to prevent an adult with capacity from travelling abroad.⁴⁸ This means that patients who might have fluctuating capacity or who might have experienced coercion or subtle pressure from relatives are unlikely to be supported, and potentially safeguarded, by any healthcare or social care professional in the UK. With only a retrospective criminal investigation once it is too late to dissuade an individual from dying in that way, the prohibition prevents any meaningful opportunity to protect vulnerable individuals.

Thus, if the prohibition is primarily aimed at preventing vulnerable people from having an assisted death, we have good reason to question its efficacy. In Nicklinson,⁴⁹ Lord Neuberger articulated a concern that in preventing people from accessing AD within the jurisdiction, it is likely that some people will travel abroad for PAS sooner than they would ideally wish, if, for example, they have a condition that will make it increasingly difficult to travel. This concern was also highlighted in the House of Commons report.⁵⁰ The HC report also described the potentially ‘hellish’ trauma experienced by the next of kin as a result of being investigated by the police for assisting a suicide.⁵¹ This issue is tangential to the issue of vulnerability, but the fear that one’s relatives may be prosecuted is an additional burden that will presumably have an impact on the person seeking AD. For example, they might try to minimize the involvement of relatives by travelling sooner and/or by managing the arrangements alone, perhaps even dying alone, when they would benefit from the support of loved ones.

Also in Nicklinson,⁵² Lord Kerr considered the rational connection between the blanket ban and the objective of protecting vulnerable people, observing that the current approach seeks to protect only one type of potentially vulnerable person, namely, one who is unable to attempt/die by suicide without assistance. As demonstrated by the high-profile suicide of Max Mosley, who shot himself because of deteriorating health due to terminal cancer,⁵³ those who are physically capable and in possession of the means and determination to die by suicide are not protected. Thus, in addition to the risk that some individuals might ‘go early’ to access AD in Switzerland, others who have been denied lawful AD may resort to violent or uncertain methods of suicide, involving trauma and the risk of serious non-fatal injury.

B. The proposed assisted dying law

Recent attempts to introduce lawful AD within England and Wales sought to legalize PAS for terminally ill, mentally competent adults who were expected to die within six months.⁵⁴ The most recent English bills included a requirement to obtain the consent of the High Court (Family Division) before assistance to end one’s own life is authorized. The latest bill introduced in the House of Commons by Kim Leadbeater MP in Autumn 2024 replicated this approach in the first draft but has subsequently been amended to require authorization by a multi-disciplinary panel or tribunal.⁵⁵ This amendment has been criticized by opponents for watering down safeguards.⁵⁶ However, if this approach followed other models established by HM Courts and Tribunal Service, it could serve as a lower tier specialist tribunal with the function of a lower court, with possible appeal to the High Court. Such specialist tribunals, such as the Employment Tribunal Service,⁵⁷ are well established, serving not only to ease pressure on the civil courts but also to provide specialist legal expertise on the relevant issue. It is of course possible that if the Bill progresses, further amendment might reinstate the role for the High Court or otherwise change the approach to legal authorization, but for our purposes we assume there will be prospective legal authorization by a specialist panel or tribunal.

The approach within the Leadbeater bill also requires that the terminal illness ‘cannot be reversed by treatment’, which seems intended to remove the possibility that treatment refusal would bring treatable conditions within the ambit of lawful AD.⁵⁸ Based on experiences in other jurisdictions where only the terminally ill expected to die soon are eligible, such as Oregon, this model seems to provide a firmer position that is less likely to expand to allow a more inclusive group to access AD when compared to models that do not limit eligibility to those who are terminally ill.⁵⁹ Also in Oregon, presumably because their approach limits the eligible group to those already dying, the number of AD deaths has not rapidly grown, as it has in more permissive jurisdictions with broader eligibility criteria, such as Canada.⁶⁰ Both factors suggest that a restrictive approach is less likely to either expand or open the floodgates to high numbers of AD deaths. However, this will depend upon the quality of other the safeguards, especially the nature of the assessment of the person wishing to die, which we consider in greater depth below.

Previous English bills presented in the House of Lords ran out of time, or, in the case of the latest Falconer Bill, was withdrawn because of the introduction of Kim Leadbeater’s Bill in the House of Commons (HC). In 2015, the Marris Bill was defeated in the HC, but as we mentioned in the introduction, the Leadbeater Bill progressed (at the time of writing) to Committee stage. As with previous English Bills, the Leadbeater Bill restricts access to AD to terminally ill, mentally competent adults, who are expected to die from their illness within six months. Notably, prime minister, Sir Keir Starmer, allowed a free vote on the Leadbeater Bill, and has expressed his support for lawful AD, so for the first time, political winds might encourage legal change on AD. Starmer’s support was first evident in 2015 in his contribution to the debate of the Marris Bill,⁶¹ in which, citing Lord Neuberger in Nicklinson, he reiterated the advantages of prospective assessment of those wishing to die over retrospective criminal investigation.⁶²

The debate of the Marris bill in the House of Commons demonstrated that concern for vulnerable people was an important reason why the bill was defeated. Contributions to that debate typically appealed to two aspects of vulnerability: (i) feeling oneself to be a burden to others and (ii) falling victim to abuse and coercion. For instance, Barbara Keeley MP stated that ‘if this bill is passed it will put greater pressure on vulnerable people, the elderly and the sick, who will increasingly see themselves as a burden to society’.⁶³ Other reasons for rejecting the Bill were raised and are closely related to the concerns regarding vulnerable people,⁶⁴ including the fear of the negative impact on the medical profession, the risk of descending down a slippery slope into wrongful killing, and the sanctity of life.⁶⁵ Similar fears were voiced in the second reading of the Leadbeater Bill by those opposing the Bill. For example, Diane Abbott, MP; ‘I represent very many vulnerable people in marginalised communities. I cannot vote for a Bill when I have doubts about whether they will be protected.’⁶⁶ In the next section, we explore vulnerability in relation to AD in more depth.

IV. VULNERABILITY, AUTONOMY, AND ASSISTED DYING

In Section 2, we explained why Mackenzie, Rogers, and Dodds’ theory of vulnerability is more valuable than other approaches when developing a more nuanced understanding of vulnerability to AD. In this section, we dive deeper into this theory in order to understand the challenges to lawful AD in relation to conceptions of vulnerability at law and the law’s understanding of autonomy.

While protecting the vulnerable is important, as Dunn and colleagues point out, there is a fine line between protecting and disempowering those identified as vulnerable.⁶⁷ As we shall demonstrate, the fundamental issue is that characterizations of vulnerability at law assume an oppositional relationship between a person’s vulnerability and their autonomy, necessitating, in practice, appropriate safeguarding measures for those who are legally judged to be vulnerable. However, if, as one of us has recently argued,⁶⁸ the concepts of vulnerability and autonomy are conceived as necessarily intertwined, rather than as opposed, normative frameworks can be devised that allow for some vulnerable adults to make legitimate claims to autonomy within a carefully regulated AD system.

Where a person’s inherent vulnerability is concerned, risks to the autonomy of their decision-making can be identified on the basis of their mental impairment or other cognitive disability.⁶⁹ Of course, persons who are inherently vulnerable in these ways will oftentimes also be situationally vulnerable in the sense that they are legally judged to be at risk of being constrained, coerced, influenced unduly, otherwise incapacitated, or disabled from giving or expressing a real and genuine consent.⁷⁰ Indeed, the High Court has exercised its inherent jurisdiction even when it has judged that a person’s psychological impairment does not, in and of itself, bring them within the ambit of the inherent jurisdiction (ie because the court has judged that person to be situationally vulnerable).⁷¹

As we have already observed, opponents of AD appeal to the increased risk of coercion or undue influence on the basis of which a person is judged to be vulnerable. Furthermore, the identification and protection of individuals whose autonomy is judged to be particularly ‘at risk’ also characterizes conceptions of, and responses to, vulnerability at common law (see section 5).⁷² Thus, we see that at least some of the arguments against AD are supported, at law, by assumptions concerning vulnerability and, in particular, the assumption that a person’s vulnerability precludes them from being able to genuinely exercise their autonomy.⁷³ As Dunn and colleagues observe, a finding that a person has the capacity for autonomous decision-making ‘will be considered an inconvenient truth when that person is also judged to be at risk of being constrained, coerced, or unduly influenced’.⁷⁴

Through their theory of vulnerability, Mackenzie, Rogers, and Dodds question the assumptions that underpin common law responses to vulnerability and thereby at least some of the arguments espoused by opponents of AD. Most importantly, they observe that the law and social policy treat autonomy and vulnerability as oppositional concepts, as a contrast between ‘the liberal (autonomous) subject’ and ‘the vulnerable subject’.⁷⁵ In other words, the class ‘vulnerable persons’ is taken to be incompatible with the class ‘autonomous persons’. However, the idealized conception of the liberal (autonomous) person fails to attend appropriately to the ways in which an individual’s ability to exercise their autonomy in legal decision-making situations is dependent on legal recognition.⁷⁶ Simply put, although a vulnerable adult with capacity may recognize that they are able to make decisions rationally grounded by their own motivating attitudes, the denial of that authority, on the basis that they are deemed to be vulnerable, will violate their status of, and claims to, autonomy.⁷⁷

For Mackenzie, Rogers, and Dodds, rather than supporting the conclusion that vulnerability and autonomy are incompatible concepts, the fact that a vulnerable individual’s autonomy is itself susceptible to denials of legal recognition shows how, in practice, an individual’s autonomy is fundamentally entwined with their vulnerability.⁷⁸ It is for that reason that Mackenzie, Rogers, and Dodds claim that policies and interventions aimed at denying vulnerable persons from making claims to autonomy in order to safeguard them from coercion or other forms of undue influence can be a source of pathogenic vulnerability.⁷⁹ Specifically, by imposing a protective framework that denies a vulnerable adult their decision-making authority to autonomously request AD, the ‘protection imperative’ can have the contradictory effect of compounding a vulnerable individual’s already vulnerable authority to exercise their autonomy in matters that concern them.⁸⁰

It follows that understanding the full scope of vulnerability in AD contexts involves, on the one hand, considering the situational and pathogenic risks that vulnerable persons may face if AD was to become a lawful option, and, on the other hand, recognizing the pathogenic vulnerability that may be engendered by blanket bans on AD. This makes the question of lawful access to AD more complex than both opponents and advocates of AD usually take it to be. On the one hand, lawful AD might contribute to conditions that would make vulnerable persons even more vulnerable. For instance, vulnerable patients may find themselves being coerced into requesting AD or they may find their vulnerability compounded through negative experiences of abuse, oppression, stigmatization, poor palliative care, or other forms of interpersonal, social, and political mistreatment through which their claims to autonomy are undermined, curtailed, or violated.

Yet maintaining a blanket ban prevents only one type of danger: the danger of death via lawful AD. This is because those who may be vulnerable to lawful PAS are not necessarily saved in a broader sense by the ban. They are prevented from accessing lawful AD within the jurisdiction, but they remain vulnerable to other risks, namely, the inability to access the lawful and local assisted death they autonomously desire while becoming more vulnerable as they continue to experience unbearable suffering and forms of interpersonal, social, and political mistreatment. Some individuals may achieve their goal of accessing AD by travelling to Switzerland, where they might die sooner than they ideally wish, and, if they receive support from relatives, they may die with the fear that their relatives will be investigated by the police. While the numbers actively seeking AD in Switzerland may be limited because it is expensive,⁸¹ this practical limitation does not safeguard against coercion that might not be detected by either the Swiss doctor or the volunteers supporting the person to ingest fatal drugs. Others may die by suicide with or without assistance,⁸² or seek to die early by refusing treatment and/or food and fluid, as Tony Nicklinson did. Most, however, will live until a natural death and, until that time, they may experience unbearable suffering while being denied the ability to exercise their autonomy in the pursuit of a lawful, local assisted death at the time they desire.

The remaining sections will assess possible safeguards and the potential roles of the court and clinicians in assessing AD requests, with a view to proposing a restrictive model of lawful AD, one that aims to safeguard vulnerable individuals while providing them with a legal mechanism to pursue an assisted death grounded in their autonomy.

V. MENTAL CAPACITY, SAFEGUARDS, AND JUDICIAL APPRAISAL OF VULNERABILITY

One safeguard required by the English bills,⁸³ and within almost all jurisdictions where AD is permitted, is that only those with capacity are permitted to access AD.⁸⁴ The Mental Capacity Act 2005 (MCA) provides that there is an assumption of capacity.⁸⁵ The assumption of capacity effectively places the burden of disproving capacity on the person assessing capacity, but, as Ruck Keene has suggested, assessing capacity for the purposes of AD potentially shifts the burden of proving capacity to the person seeking to die.⁸⁶ Given that the level of capacity needed should reflect the gravity of the proposed intervention, a restrictive model underpinned by the MCA 2005 could safeguard some of the vulnerable on the basis that those with certain cognitive impairments will not be able to satisfy the conditions necessary to legitimately request AD.

While the degree of understanding ought to reflect the seriousness of the decision, some of the research coming from jurisdictions where AD is legal suggests that simply assessing capacity is not always sufficient to ensure that the wish to die is not motivated by internal or external autonomy-undermining factors, such as depression, addiction, anxiety, coercion, or social factors linked to poor care.⁸⁷ Moreover, merely assessing capacity cannot, as a matter of principle, ensure that the request is an autonomous one. Although the conditions for mental capacity are often taken to be necessary conditions for the capacity for autonomy, they do not sufficiently guarantee a person’s ability to successfully exercise their autonomy.⁸⁸ In order to determine whether a capacitous individual is making a genuinely autonomous decision concerning AD, much will depend on the ability of the doctor and the patient to understand whether the latter’s decision is rationally connected to their own underlying and motivating attitudes.⁸⁹ This is crucial to reduce the risk of inappropriate AD. It seems, therefore, that a capacity assessment is necessary but not always sufficient to safeguard the vulnerable by ensuring that only genuinely autonomous requests are accepted.⁹⁰

Depending on the circumstances and the results of the autonomy assessment, it may be justifiable to refer people making AD requests for counselling or psychological therapy, with the possibility of providing treatments for depression, anxiety, a lack of self-worth, etc. before the request for AD is considered. This leads us to consider the additional assessment needed to ensure that lawful AD requests are genuinely autonomous. A person may have mental capacity but still be judged at law to be vulnerable if they are at risk of being coerced, influenced unduly, or otherwise disabled from giving or expressing a real and genuine consent because of the presence of malign external factors. For example, in Re SA,⁹¹ a young deaf woman was deemed to be vulnerable to family coercion compelling her to agree to an arranged marriage, justifying the court’s protective jurisdiction. The restrictive approach to lawful AD, outlined in the latest English Bills, creates a similarly protective role by requiring prospective authorization by a court or tribunal, which will be granted only if the criteria for a valid declaration by the person wishing to access AD are satisfied.⁹²

One of the criteria within the Bill requires the counter-signing of the declaration by two registered medical practitioners acting independently of each other.⁹³ In order to counter-sign the declaration, the registered medical practitioners must each be satisfied that not only the person making the declaration has mental capacity and is terminally ill, but also that the decision to end their life is voluntary and not the result of coercion or pressure. The role envisaged for the tribunal panel in this context is supervisory. Where the question of the autonomy of the AD request is concerned, the most important assessments are performed by the two doctors rather than by the tribunal. In one sense this is consistent with existing practices because, in any case involving a medical intervention, the court relies on expert medical evidence to reach a decision. What is perhaps less typical is that, provided the necessary conditions are met, there is no contested issue. In other words, the court or tribunal’s role is to scrutinize the declaration to be certain that the applicant, who is effectively deemed vulnerable regardless of their circumstances, has met the safeguarding requirements. Thus, it is envisaged that the AD tribunal would verify the robustness of the medical, welfare, and social assessments establishing that the individual is acting autonomously and has not been subjected to coercion, duress, or any other undue influence. Accordingly, the AD tribunal would be exercising its protective jurisdiction to prevent inappropriate AD and would, therefore, be pursuing a ‘protection imperative’ generally comparable to the one the High Court currently pursues in exercising its inherent jurisdiction in cases involving vulnerable individuals with capacity.⁹⁴

In terms of capacitous adults who are judged to be situationally vulnerable, the High Court’s current aim in exercising its inherent jurisdiction is to facilitate the process of ‘unencumbered decision-making’,⁹⁵ the purpose of which is to ‘allow the individual to be able to regain their autonomy of decision-making’.⁹⁶ The aim of the court is not (necessarily) to safeguard health and wellbeing, but rather to safeguard the autonomy of vulnerable, yet generally capacitous, adults. Where autonomy is concerned, there are two issues tied to this standard response to vulnerability at common law.

Firstly, as we have seen, Re SA established the conception of situational vulnerability in terms of the risks of being constrained, coerced, influenced unduly, otherwise ‘incapacitated’, or ‘disabled from giving or expressing a real and genuine consent’.⁹⁷ While many cases involve matters such as contact, marriage, or living arrangements, the inherent jurisdiction has also been exercised on the question of medical treatment. For example, in A Local Authority v Mr and Mrs A,⁹⁸ a woman with a learning disability was deemed to lack capacity due to the coercive influence of her husband, who was preventing her from independently deciding whether to access contraception. On the basis that legally valid consent requires that it be given voluntarily, the common law conception of vulnerability in these terms demands that those legally identified as vulnerable receive third-party support (ie through a process of ‘unencumbered decision-making’) to fulfil the capacity conditions necessary for informed consent.⁹⁹ Therefore:

the High Court’s exercise of its inherent jurisdiction is predicated on the distinction between the liberal subject, who is legally recognised as able to give genuine consent (without additional support), and the situationally vulnerable subject, who is recognised as unable to give genuine consent without additional support, and thereby is denied the opportunity to exercise their liberty at law.¹⁰⁰

We discussed in Section IV that the problem with this approach to vulnerability at common law is that it is based on an assumption that autonomy and vulnerability are oppositional concepts, such that a person’s vulnerability is regarded as negating their status as an autonomous individual. As we will demonstrate below, if there is a concern for ensuring that vulnerable individuals are, where appropriate, protected in AD contexts yet still able to exercise their autonomy with regards to seeking a lawful assisted death, then this approach to vulnerability at law requires revision in light of Mackenzie, Rogers, and Dodds conception of the relationship between autonomy and vulnerability on which their theory of vulnerability is predicated.

In terms of the second issue with the High Court’s current approach to ‘unencumbered decision-making’, the exercise of an individual’s autonomy is not just about whether voluntary consent is being granted or withheld, but whether that decision is fundamentally derived from the effective use of that individual’s mental capacity.¹⁰¹ In short, whether an individual’s exercise of their autonomy qualifies as ‘effective’ will depend on ‘the soundness of her reasoning, given her own values’.¹⁰² Although there are philosophical disagreements about what exactly constitutes ‘sound reasoning’ such that it can deliver an autonomous decision, an agent’s values, desires, and reasons ‘can be more or less autonomous depending on whether the processes or volitional structures by which they come to be developed are truly her own’.¹⁰³ The point is that although an individual may be perceived as having made an informed decision, there is no guarantee that the decision will be autonomous because, without assessment, there are no assurances that she has, as a matter of fact, effectively (ie rationally) deliberated on her own motivating values, desires, and interests. Thus, although informed consent facilitates individual autonomy, the typical conditions for informed consent cannot (necessarily) be equated with the conditions for the exercise of autonomy.¹⁰⁴ Given the conceptual and practical issues with the High Court’s current approach to ‘unencumbered decision-making’, and given requirement for judicial (or tribunal) assessment of requests for AD that is a feature of the most recent AD bills, the possibility of employing a revised approach to the inherent jurisdiction as means to safeguard vulnerable individuals within a restrictive, legal AD culture is clear.

As we have observed, through their theory of vulnerability, Mackenzie, Rogers, and Dodds argue that autonomy and vulnerability are conceptually entwined. What accounts for the conceptual entwinement is the fact that autonomy is necessarily dependent on relational practices of recognition. As Mackenzie argues, this entails that there is a duty on those to whom claims to autonomy are addressed to promote and respect the autonomy of vulnerable persons where possible.¹⁰⁵

Under a restrictive lawful AD regime, to succeed in putting forward a legitimate request for AD, a vulnerable person must be recognized as someone with the authority to make autonomy judgments about matters that concern them. This is what Mackenzie has referred to as the ‘self-authorisation’ dimension of autonomy, which ‘involves regarding oneself [and being recognised by others] as having the normative authority to be self-determining and self-governing’.¹⁰⁶ Accordingly, one must view oneself as a ‘legitimate source of reasons for acting’,¹⁰⁷ that is, one must recognize that the values on which one deliberates are one’s own rather than the products of malign external influences. Furthermore, the ‘self-authorisation’ approach to autonomy grounds the extension of liberty at law to a capacitous vulnerable person despite their vulnerability, and, therefore, as highlighted by legal definitions of vulnerability and the exercises of the High Court’s inherent jurisdiction, deemed unable to give to genuine consent (without third-party support).

Such an approach to the autonomy of capacitous vulnerable persons under a restrictive and lawful AD regime seeks to protect them from inappropriately accessing AD, while aiming to promote their autonomy where possible. It does this by positing conditions for a normative framework on which healthcare practitioners, in a dialogue with vulnerable patients, can determine whether the latter fulfil the conditions necessary for self- authorization. For instance, if a vulnerable patient is unable to recognize themselves as legitimate source of reasons for an AD request, if they are unable to critically distance themselves from any motivating attitudes that have been influenced by third party coercion, duress, or abuse, or if they are unable to acknowledge that their AD request coheres with their own values and desires, then there is a reasonable basis for prioritizing duties of protection.¹⁰⁸ An approach that attempts to assess the legitimacy of vulnerable patient’s normative authority may require greater levels of healthcare and/or court or tribunal support, for instance, through counselling and legal interventions that specifically target the external cause of an individual’s situational vulnerability.¹⁰⁹ Indeed, in order to overcome any barriers stopping a vulnerable person from self-authorizing in accordance with their own values, promotion of a vulnerable person’s autonomy in AD circumstances is fully compatible with supported decision-making, as called for under Article 12 of the UN’s Convention on the Rights of Persons with Disabilities, as well as court interventions that place reasonable case-specific restrictions on abusive or coercive partners or family members.¹¹⁰

VI. PROSPECTIVE LEGAL AUTHORIZATION FOR ASSISTED DYING

Having argued that the inherent jurisdiction of the High Court could be an informative and comparatively useful model when developing an approach for quasi-judicial assessment of applications for PAS, it is important to examine the distinctions between the inherent jurisdiction and the proposal for prospective legal authorization of AD requests. We also note that the exercise of the inherent jurisdiction has been criticized for paternalistically over-protecting and, conversely, under-protecting at times, as well as failing to address the source of the abuse, coercion, or oppression, and so might be viewed as a problematic comparison.¹¹¹ These criticisms are informative, however, since the current law does not allow for lawful AD—thus no autonomy can be exercised—our aim here is to consider whether prospective legal authorization might, in principle, constitute an appropriate safeguard while enabling autonomous terminally-ill individuals to exercise their autonomy under a restrictive lawful model.

A. Additional considerations regarding the court or tribunal’s role

Whereas coercive and malevolent behaviour may often be relatively obvious in inherent jurisdiction cases such as those discussed above,¹¹² the same may be less obvious in applications for AD if the people exerting pressure are aware of that they might be suspected. Nevertheless, the impact of coercion or duress upon a person seeking AD may be discernible in a variety of ways. Both doctors assessing a request will review the patient’s medical history, current diagnosis, treatments, care arrangements, and, to fully engage with the person’s motivations, they should also discuss the person’s close personal relationships. This assessment might reveal any malevolent influence of a third party that is preventing a person from self-authorizing. If, however, any such malign external influence is not obviously apparent, the abuse or coercion is likely to cause hesitation or emotional distress on the part of the individual seeking AD, which would cast doubt on the presence of an autonomous desire to seek AD. The safeguarding role of the tribunal should, in principle, incentivize clinicians to be particularly attentive to any doubts that have emerged and/or any malign influences that are inappropriately influencing the patient.

The second main example of vulnerability often invoked in political discussions about AD concerns individuals who are not abused or coerced but who, nevertheless, believe themselves to be a burden. This type of situation is less comparable to cases dealt with under the inherent jurisdiction, and raises complicated questions about how far it is possible to untangle and assess the motivations that compel people to seek AD. With no malevolent third-party influence, doctors and the tribunal may find it difficult to grapple with the attitudes that motivate such an AD request and the inherent or situational vulnerability that might be present in such a scenario. Nevertheless, it is important to determine whether it is necessarily essential and ethically defensible to seek to prevent AD in cases that are motivated, either partially or significantly, by the belief that one is a burden.

Sheila McLean has argued that an individual’s love for their children, and not wanting their lives to be taken over by caring duties or, indeed, having their inheritance gobbled up by caring expenses, might be seen as a valid reason to seek AD: ‘being a burden—rather than merely perceiving oneself to be a burden—is arguably a morally acceptable and perfectly reasonable factor to take into account when planning for the future’.¹¹³ McLean’s view posits that an autonomous adult whose motivating attitudes and beliefs provide them with what they take to be a compelling reason to seek AD should not be treated as a vulnerable subject in need of protection. While some may believe that ‘perceiving oneself to be a burden’ is not a sufficiently compelling or ethically acceptable reason for seeking AD, we would question whether there is any justification for safeguarding terminally ill adults who are acting autonomously. Provided that the individual requesting AD is motivated by values and desires that are not the result of undue and/or malign external influence, and, as discussed in Section V, the person is self-authorizing, it might be perfectly rational for that individual, who is expected to die soon come what may, to request AD to the extent that such a request coheres with her own motivating attitudes. In that sense, such a request would, indeed, be an autonomous choice, meaning that attempts to prevent that choice would be to increase that individual’s pathogenic vulnerability as they approached the end of their natural life.

C. Views on prospective legal authorization for AD

Opinions are divided on whether judicial or quasi-judicial consent via a panel/tribunal would be an appropriate safeguard. Considering the proposed role for the High Court, that has been a feature of recent English bills, Baroness Finlay has argued that this would be little more than a ‘rubber stamp’,¹¹⁴ which would do little more than provide a spurious form of comfort to the parties involved. For different reasons, Lord Falconer’s Assisted Dying Commission also rejected the idea of judicial consent on the basis that it is neither necessary (because health care professionals are better placed) nor desirable.¹¹⁵ Since then, however, the acceptance of a prospective role for the court, and the inclusion of this provision in recent bills, seems to have emerged as a consequence of Nicklinson.¹¹⁶ Lewis and Black have examined the potential role for the court, arguing that it would fail ‘to meet the regulatory aims of respecting autonomy, protecting the vulnerable and responding compassionately to unbearable suffering in the typical case where the person seeking assistance has cancer and is close to the end of life’.¹¹⁷ One reason for this, is that the data shows that the typical patient requesting AD is commonly dying of cancer and is likely to die soon; for example, in the Netherlands, 72 per cent of such patients have cancer and are expected to die within four weeks.¹¹⁸ Lewis and Black argue that for patients approaching death, the need to apply for judicial consent would be a bureaucratic burden, which they are too weak and frail to attempt. Consequently, they might apply to the court before they are truly ready, while they still have the strength to do so. This is certainly a possibility, but a declaration submitted early does not necessarily mean that the individual making the declaration must die earlier than they would wish. Once they have their request authorized, they can wait until they feel ready to arrange the ingestion of the fatal drugs. It is also important to note that in the Netherlands, the well-established permissive regime means that patients may request AD at any stage in their illness due to unbearable suffering. Thus, a significant minority of patients in the Netherlands are not close to natural death because they are not terminally ill.¹¹⁹ Drawing comparisons is useful but not necessarily analogous when considered hypothetically within a potentially more restrictive regime. In support of Lewis and Black’s concern, however, there is evidence to suggest that over-estimation of life-expectancy is more likely than under-estimation,¹²⁰ which means that the additional requirement to obtain legal authorization could make it difficult for some terminally ill people with a short life-expectancy to apply before their natural death. This concern is important and should be addressed in the design of the process so that the bureaucratic burden placed upon the applicant is minimized. Any risk in relation to applying early could also be ameliorated by ensuring that acquiring legal authorization does not mean either that the patient is encouraged to act upon that consent before they are ready or that they cannot, subsequently, change their mind without facing additional bureaucratic burdens.

Assessing evidence from lawful jurisdictions,¹²¹ Lewis and Black also argue that judicial consent is not routinely necessary because the legal criteria is well-respected and, based on the findings of retrospective review bodies, those having AD are assisted on the basis of valid requests. Jurisdictions such as Oregon and the Netherlands, with many years’ experience of lawful AD, only require prospective medical approval, but some jurisdictions that have recently legalized AD have adopted prospective legal authorization requirements. Both Spain and New Zealand have included prospective authorization out with the usual medical model. In Spain, a Review or Evaluation Committee verifies the requirements prior to the procedure; specifically, two members of the multidisciplinary Commission—a doctor and a lawyer—must verify that the process has been followed correctly.¹²² In New Zealand, a registrar within the Ministry of Health must confirm that the requirements have been satisfied before the procedure takes place.¹²³ As more evidence emerges, these experiences, especially the Spanish system, may inform the debates.

It is also important to consider the practical implications of requiring legal authorization by a court or tribunal.¹²⁴ The creation of a specialist tribunal would avoid the burden on the existing court, but it would obviously create a fresh burden and significant costs in establishing a new tribunal service. More positively, however, establishing a tribunal would create the opportunity to involve multi-disciplinary experts with specialist training, who would be more cognisant of the issues arising in applications for AD than a single High Court Judge, and, therefore, better able to do more than merely ‘rubber stamp’ applications. The role for such a tribunal in the UK has been proposed by Carr.¹²⁵ She suggested that a tribunal could ascertain that no coercion had occurred, that the person has been offered palliative care options, and also, by having a member with a specialism in the relevant illness, could assess whether the person has an imminently terminal condition. Carr argued that legalizing assisted dying with tribunal authorization would balance patient autonomy with the need to protect those who might be vulnerable. Similarly, famous author and campaigner for lawful AD, Terry Pratchett (deceased), argued that a lawful regime should include a tribunal to, ‘ … ensure they are of sound and informed mind, firm in their purpose, suffering from a life-threatening and incurable disease, and not under the influence of a third party’.¹²⁶

Relatedly, our final point concerns the importance of training and developing expertise in assessing those seeking AD in order to appreciate the nuances of vulnerability in this context. Any individuals assessing applications for AD, whether they are doctors, judges, members of a tribunal service or other relevant professionals, should receive training to develop their understanding of the issues that affect people seeking to access AD. Having a tribunal service comprised of professionals who already possess expertise relating to end-of-life experiences and choices from a legal, medical, and social perspective would deliver a high level of specialist knowledge. If we hope to establish a sufficiently safe yet compassionate approach to lawful AD, it is essential to effectively assess those seeking AD, to ensure that they are able to exercise autonomy in order to self-authorize in accordance with their own values.

VII. CONCLUSION

Our analysis of the effects and implications of the prohibition in the UK suggests that while the legalization of AD in other jurisdictions has led to some concern that vulnerable people may be subject to certain risks, banning AD does not necessarily succeed in saving vulnerable individuals. Some will seek to die early independently or with family assistance, while others will experience great suffering, exacerbated by the loss of autonomy at the end-of-life. The risks taken by those seeking to access AD unlawfully, or indeed seeking to die by suicide, and the experiences of those accepting the prohibition in circumstances that exacerbate pathogenic vulnerability are currently either ignored or accepted by those who see the ban as necessary to safeguard the vulnerable. We have argued that a restrictive regime, such as that proposed in the recent English Bills, is likely to avoid the concerns about failing to safeguard vulnerable people provided that the approach that is devised effectively engages with the nuances of vulnerability; crucially, whether a person’s vulnerability prevents them from exercising autonomy or not. By requiring judicial or quasi-judicial legal authorization, we suggest the risk of inadequate assessment of vulnerable people who might not be truly exercising their autonomy, either because of a capacity issue or because they have been subjected to coercion, oppression, or other undue influence by a third party, could be minimized.

By examining the current approach regarding the exercise of the High Court’s inherent jurisdiction, it is apparent that there are some important similarities between the exercise of the inherent jurisdiction and the potential for a court or tribunal/specialist panel, as is proposed in the Leadbeater Bill, to ensure that people requesting AD are not adversely influenced by external forces and that they are autonomously choosing a course of action that genuinely aligns with their own wishes and feelings. Situational, inherent or pathogenic vulnerability may affect individuals seeking AD, but that does not necessarily prevent them from reaching an autonomous decision to seek AD. The important point is that people would have a choice; their autonomy and preferences would be acknowledged and potentially respected, and although they may be vulnerable in some aspects of their life, they would be empowered to determine their own end-of-life experience. In contrast, prohibition potentially exacerbates pathogenic vulnerability for the sake of an overly paternalistic and often ineffective protection agenda.

Funding

There was no external (to University of Manchester) funding.