One of Britain’s most eminent retired judges and former head of the High Court’s family division has slammed the assisted suicide Bill describing it as “defective” and saying it is not the “proper function” of a judge to rule on whether someone is eligible for assisted suicide.
Kim Leadbeater MP’s Terminally Ill Adults (End of Life) Bill, published earlier this week and subject to a vote on 29 November, requires High Court approval to prove that the requirements of the Bill have been met. However, in a stunning intervention in the debate, Sir James Munby has said it is “not what judges do and not what judges are for”.
In a blow to Leadbeater, Munby accused her of promoting a “profoundly unsatisfactory scheme” open to abuse.
“All in all, in relation to the involvement of the judges in the process, the Leadbeater Bill falls lamentably short of providing adequate safeguards”, he said.
Munby argued that the drafters of the Bill had “chosen to promote a profoundly unsatisfactory scheme for judicial involvement: a scheme which does not provide for an open and transparent process but, on the contrary, permits a secret process which can give us no confidence that it will enable the court to identify and prevent possible abuses”.
“Where else in our judicial system does one find a judge, sitting judicially as a judge, whose function is not to decide some disputed issue or … to resolve some controversy but only to certify, as it were, that some decision taken by a private individual complies with the law? That, it might be said, is not what judges do and not what judges are for”, the retired judge added.
Judges are not infallible
Munby went on to say that the Bill would fail to ensure evidence is properly tested in all cases and lacked the necessary transparency.
He was particularly concerned the Bill appears to permit judges to decide if a patient meets the criteria for an assisted suicide “without hearing from the patient and with no input of any sort from the patient’s partner or relatives”.
“In short, an application could be dealt with: In accordance with a wholly inadequate procedure, and without the public knowing anything about it – not even the name of the judge”.
“The fact is that judges are kept up to the mark by two things: having to comply with proper procedure and being exposed to the public gaze” he added.
Munby said his concerns were made worse by the fact that the Bill does not allow appeals in cases where assisted suicide has been approved, which he said was an “extraordinary” omission. This, he said, could leave a patient’s loved ones unable to challenge a decision for assisted suicide once made.
Munby also had serious concerns arising from the fact that judges make mistakes, a fact that the Bill does not appear to take into account. “Even High Court judges are fallible and sometimes make mistakes. Why after all, do we have a Court of Appeal and why are there successful appeals against High Court judges?”
“What if the judge has adopted a procedure which would not pass muster with the Court of Appeal or, indeed, and even more alarmingly, has arrived at a decision which the Court of Appeal, if given the opportunity, would reverse?”
“There can be no appeal – and the patient dies”.
Implementing assisted suicide would “come at the expense of other choices”
The Health Secretary has been outspoken in his opposition to the Bill set to be voted on two weeks today. Earlier this week he ordered a review of the costs of implementing assisted suicide if Kim Leadbeater’s assisted suicide Bill is passed later this month, warning of a “chilling” scenario in which patients are pressured into ending their lives, and saying assisted suicide would “come at the expense of other choices”.
“I would hate for people to opt for assisted dying because they think they’re saving someone somewhere money, whether that’s relatives or the NHS. And I think that’s one of the issues that MPs are wrestling with as they decide how to cast their vote”, he said.
Speaking to reporters at the NHS Providers conference in Liverpool, when asked about Leadbeater’s Bill he said “Now that we’ve seen the bill published, I’ve asked my department to look at the costs that would be associated with providing a new service to enable assisted dying to go forward”.
“That work is now under way, so I can’t give you a precise figure today. You do touch on… the potential for cost savings if people choose to opt for assisted dying rather than stay in the care of providers or the NHS. I think that is a chilling slippery slope argument”.
Delivering assisted suicide would “come at the expense of other competing pressures and priorities”, he added.
Earlier on Wednesday, Streeting told Times Radio that “Those choices [to implement assisted suicide] would come at the expense of other choices”.
“To govern is to choose. If parliament chooses to go ahead with assisted dying, it is making a choice that this is an area to prioritise for investment. And we’d have to work through those implications”.
Spokesperson for Right To Life UK, Catherine Robinson, said “As the former head of the High Court’s family division, Munby is in a better position than almost anyone to know that this Bill is unworkable. MPs must reject this Bill and direct their efforts towards assisting people at the end of their lives to live, not to die”.
