The Terminally Ill Adults (End of Life) Bill is a significant milestone, but it still needs to pass several stages before becoming law.
The next stage involves a line-by-line review at committee by a small group of MPs. After this, a report will permit MPs to suggest amendments, with the Commons speaker determining which amendments are discussed and voted on. MPs will then conduct a final vote at the third reading, where they may alter their position on the bill.
The House of Lords reviews the bill, including its first reading, debate, and initial vote. Afterwards, they examine the bill further, make amendments, and vote again. The third reading finalises the bill to close any loopholes. There too, the same divisions and disagreements are likely to exist and be expressed among peers. If the Lords amend the draft law, it goes to the House of Commons for approval. Any changes by the Commons send it back to the Lords for further approval. This process is called ‘parliamentary ping pong’ but rarely lasts multiple rounds.
Upon both houses agreeing the text, it will be sent to the King for royal assent and at this stage it will become law. As Kim Leadbetter notes, this could take up to two years with no guarantee that the bill will ever be passed, because 'it is more important to get this right than to do it quickly'.
Advisory responsibilities of solicitors
A Health and Welfare Power of Attorney allows individuals to appoint attorneys to make decisions about their welfare, including refusing life-sustaining treatment.
This can be accompanied by a living will or advance directive that specifies end-of-life wishes, such as refusing life-sustaining treatment if diagnosed with a terminal condition like cancer.
The Assisted Dying Bill differs as it permits individuals to hasten the end of their life, not just refuse treatment. This requires distinct advice and procedures outlined in the bill.
As the bill has not been finalised, it is currently unclear what specific advice solicitors will offer. However, the final version will likely require guidance on:
- What choice the client will have based on the provisions of the bill;
- The process, the procedure, and whether a client can be supported through the High Court;
- The distinction from a Lasting Power of Attorney for Health and Welfare, which can only be used if a donor has lost mental capacity. The bill requires the individual to make the decision themselves and to have the mental capacity to do so. It also goes further than an advance directive because it involves ending life rather than refusing consent to life-sustaining treatment.
Law firms should have measures in their policies to detect undue influence on vulnerable clients. These measures often involve seeing clients alone multiple times to ensure they are not being pressured.
If there is suspicion of undue influence, it is common practice to report the matter to social services, the firm’s risk team, and possibly the Solicitors Regulation Authority, while balancing the need for confidentiality and safeguarding.
Issues of mental capacity and undue influence
Firms' policies for vulnerable clients should also address provisions for clients who have lost mental capacity and how instructions should be received. Policies should specify that instructions must be refused and instead obtained through a court-appointed guardian, attorney, or deputy.
There is an ongoing concern regarding clients considering ending their life prematurely to save money, which firms must be vigilant about. The Law Society has issued several practice notes to address issues related to vulnerability and undue influence, especially in cases where individuals are transferring property ownership. For instance, it is not uncommon for elderly grandparents to wish to transfer their property, and the Law Society offers specific guidance on how such situations should be appropriately managed.
Vulnerable client policies should include considerations around:
- Whether the client is clearly concerned about preserving wealth and economising on saving care fees;
- How solicitors can prove they are acting in their client’s best interests;
- The point at which solicitors must ask for a mental capacity assessment if they have reasonable grounds to believe that their client is making a decision primarily to save money for their family.
It is important to remember that, under the Mental Capacity Act 2005, a client is permitted to make an unwise decision if they have the capacity to do so. While solicitors are obliged to advise their client on what the best trajectory would be, ultimately the responsibility and freedom to proceed with a particular course of action rests on the client.
Ensuring that sufficient safeguards are in place, and closely observing developments in the law, is what solicitors must uphold. Fundamentally though, respect for individual autonomy lies at the heart of this bill, and the legal profession must abide by it.
Conclusion
MP’s voting in favour means such a law has moved a step closer to being passed - but it is only one step along a path likely to last many months. Even then, the legislation could take two years to come into force.
Louise Lewis is partner and national head of trusts, estates and tax at national law firm Freeths
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