Can assisted dying bill provide coercion safeguards? – Debate

We spoke to the Labour peer and former Justice Secretary Charlie Falconer, who introduced his own assisted dying bill in the House of Lords a decade ago, and Observer columnist, Sonia Sodha, who also served as a special advisor to Ed Miliband while he was Leader of the Opposition. She is opposed to the bill.
Charlie Falconer: That is why two doctors and a high court judge have got to be satisfied that this is a case where it is the free will of the person. Kim Leadbeater’s bill is only available to people who’ve been on a GP’s practice books for 12 months. It’s conceivable that somebody might fool one doctor, but fooling two doctors and a high court judge seems to us to be incredibly unlikely.
Alex Thomson: Sonia Sodha, what do you say to that?
Sonia Sodha: It’s not about fooling. Actually, people in coercively controlling relationships sometimes aren’t even aware of it themselves. It can be very hard for psychiatrists to detect coercive control, for example. The idea that two doctors are going to spot somebody’s in an abusive relationship, I’m afraid I think that that’s for the birds.
Alex Thomson: These are higher standards, aren’t they, than we have in many countries who’ve had these laws in place for decades?
Sonia Sodha: But we’re talking about what’s right for the UK and what we think will detect coercion in the UK. Two doctors signing off is not going to do that. I’ve written about domestic abuse and coercive control. Even when these issues go to the family court and you’ve got family court judges, some of them very experienced, running investigations, doing fact findings into whether there is coercive control and abuse, when there’s an allegation of it. Even then they get it wrong.
Alex Thomson: Two doctors, two hard-pressed GPs, and they are hard pressed, ain’t going to cut it. That’s what Sonia said.
Charlie Falconer: And a high court judge. Let’s look at other countries. There’s been some countries that have had this sort of rule, this sort of assisted dying option, for those who are terminally ill for over 25 years. There is absolutely no evidence there that there has been a problem of either abuse or coercive control. You would expect there to be at least one case or two cases, but there isn’t.
Sonia Sodha: You can only say that if there’s been proper investigations in these countries to see if abuse is an issue. I’m not aware of any investigation that’s looked at that. So, yeah, sure, people aren’t asking the question. So we can say people haven’t found evidence of this, but that’s not really good enough when you’re talking about how a safeguard might work here in the UK.
Alex Thomson: Charlie Falconer, come in on that point. We haven’t found it because we haven’t really been asking.
Charlie Falconer: When the law, for example, was introduced in Oregon, there were a lot of doctors that said this is a very bad thing to do. There was a lot of people concerned about abuse. So the fears that Sonia is referring to were fears that had been expressed before the law was introduced in Oregon, and the same in Victoria in Australia. So people were looking out for this and it didn’t happen.
Alex Thomson: I want to move on to another key point here. This law is designed to affect people who are felt to have six months left, sadly, to live. Charlie Falconer, that seems to be a bit of an arbitrary point of time, doesn’t it? That’s open to all sorts of medical disputes.
Charlie Falconer: I don’t think it’s arbitrary. I think it’s there in order to make it clear that this law is only available for those who are terminally ill in the sense that they’re going to die within a reasonably short period of time. This bill is not for people who say they are unbearably suffering without terminal illness. It’s only about shortening the process of death.
Alex Thomson: Sonia Sodha, I suspect you’re not fully comfortable with that six month timeframe?
Sonia Sodha: I think the issue is it’s very hard to draw a tight definition around this, and the law will be ambiguous. If you look at Oregon, where again it’s limited to people with terminal conditions, what you’ve seen is that doctors, as a matter of policy, have just started defining some conditions as terminal. So extremely controversially, you’ve got some doctors in Oregon who have qualified anorexia as a terminal condition and offered assisted dying to people with anorexia. And other survivors of anorexia find this horrifying because they say doctors give up on anorexics too easily. Six months is also incredibly subjective. When you speak to palliative care doctors, they say that it’s a guesstimate when you’re talking beyond days as a matter of life expectancy. Finally, what I would say is that there are some very experienced lawyers who don’t think that in law this sort of distinction will hold up. That the law, as Charlie recommends, as is in this bill, is passed, it will be subject to discrimination-based challenges in the courts under the European Convention of Human Rights.
Alex Thomson: Very briefly, Charlie Falconer, if I come back to this, if you would, on that point about European discrimination cases being taken.
Charlie Falconer: That is, I can happily say, completely wrong. The European Court of Human Rights and all of the high courts in England have said the question of assisted dying is absolutely for the legislature. We will respect what the legislature does. It is completely wrong to suggest that there is any realistic prospect of a challenge succeeding.
Alex Thomson: Sonia, ten seconds on that.
Sonia Sodha: It’s wrong. You’ve got experienced KCs who disagree with Charlie. What the courts have said is whether to legalise assisted suicide at all is a matter for parliament. Once it is legalised, it will be subject to discrimination-based challenge.