Navigating assisted dying in clinical practice: regulatory issues for doctors

The proposed Assisted Dying for Terminally Ill Adults Bill, which seeks to permit assisted dying under specific conditions, could have significant implications for medical practitioners.

As Parliament plans to deliberate on this legislation on 29th November, it is essential for medical professionals to understand their existing legal obligations regarding end-of-life requests and the potential changes to their professional responsibilities if the Bill is enacted. This article explores the key regulatory considerations for practising doctors in light of the proposed reforms.

Current framework

The current legal position on assisted dying in England and Wales is clear pursuant to Section 2(1) of the Suicide Act 1961. Doctors found guilty assisting of the death of a patient, relative or any other individual could face imprisonment for up to 14 years; as such, they must navigate this landscape with caution, as their role places them at the centre of discussions on end-of-life care. While direct actions such as prescribing lethal medications are clearly prohibited, there is uncertainty regarding indirect actions.

The British Medical Association (BMA) has provided guidance on the indirect actions that doctors should avoid to remain compliant with the law, including:

• Advising patients on what constitutes a fatal dose
• Advising patients on anti-emetics for a planned overdose
• Suggesting the option of assisted dying abroad
• Writing medical reports specifically to facilitate assisted dying abroad
• Providing literature to patients on aspects of assisted dying
• Disseminating information via the media that may encourage assisted dying
• Putting patients in contact with individuals or organisations that promote assisted dying

Doctors must be aware that even if they are not found guilty under criminal law for involvement in assisted dying, their fitness to practise may still be investigated by the General Medical Council (GMC).  

Fitness to practise and assisted dying

When considering allegations of encouraging, facilitating or assisting a person to end their own life, the GMC’s decision to investigate hinges on its duty to:

• Protect the health, safety and well-being of the public
• Promote and maintain public confidence in the medical profession
• Promote and maintain proper professional standards

In relation to allegations of assisted dying, several factors will be paramount:

• Whether the allegation is an isolated action or part of a wider pattern of behaviour. Isolated actions may still undermine public confidence in the profession.
• Whether the doctor was acting in a personal or professional capacity. Actions in a professional capacity are more likely to raise concerns about patient safety and trust in the profession.
• Whether the doctor intended to encourage or assist the patient in ending their life, or whether the outcome was unintended. Decision-makers should consider whether the assistance was persistent and instrumental, or minor and incidental. 
• Whether the doctor acted honestly and maintained accurate records. Dishonesty is a serious matter, but accurate records may demonstrate whether a doctor knew or should have known about the patient's intentions.

Managing patient requests for assisted dying

If a patient raises the topic of assisted dying, doctors must handle the conversation carefully. Some key tips are:

• Listen to the patient’s concerns without judgment, as would be done in respect of any other aspect of their healthcare;
• Do not seek to impart your own opinion on the patient;
• Explore the underlying reasons for the request, which are often related to the patient’s mental health, pain management and/or loss of dignity;  
• Consider appropriate referrals for the patient, for example to mental health services or specialist palliative care;
• Firmly but sensitively ensure you make clear to the patient that you cannot offer any assistance that may be interpreted as encouraging assisted dying;
• Carefully record your conversation with the patient in their medical records.

Proper documentation is essential in these cases. Doctors should record the discussions, assessments, and any family involvement to ensure continuity of care and protect themselves from regulatory scrutiny.

If a patient raises the issue, doctors should provide objective advice on lawful end-of-life care options. 

Under current law, doctors can assist patients with advance decisions, pain management (even if it may indirectly shorten life under the principle of double effect), and the withdrawal of futile treatments.

The proposed Bill

The proposed Bill represents a significant potential change in how doctors engage with assisted dying. The Bill proposes legalising assisted dying for terminally ill adults with less than six months to live, subject to strict safeguards and assessments of capacity.

Proposed obligations for doctors

The proposed legislation establishes, inter alia, the following obligations:

1. Declaration process

• A declaration requires countersignatures from two qualified medical practitioners
• One must be the attending doctor receiving the request
• The second must be independent, with no practice or team association with the attending doctor
• Doctors must be independent from the patient (no familial, personal, or financial interests)

2. Procedural requirements

• Both doctors must verify the patient’s clear and settled intention, freedom from undue influence or coercion and mental capacity
• They must establish responsibility for medicine prescription and oversight of the patient’s administration
• It is mandatory they are present until medicine self-administration or a patient’s decision to withdraw

The Bill also accommodates for the Secretary of State to make regulations specific to the prescribed medicines specifications, prescription protocols, assessment procedures for capacity and mental health and information provision about treatment alternatives.    

Offences will be committed if medical opinions are made recklessly, dishonestly, or by coercion. 

The implications of the proposed changes for doctors could be significant, including matters such as upskilling in this area, potential drain on resources and blurring of boundaries.

If the law were to change to permit assisted dying, it would be crucial to establish robust regulations to ensure high standards, quality assurance, and public confidence in the service.

Participating in the debate

The UK Chief Medical Officers and NHS England National Medical Director published advice on 16 October 2024 regarding doctors who may want to debate assisted dying when it is being debated in society at large with the introduction of the assisted dying bill.     

It is recommended that the following is avoided:

• identifying individuals you have cared for unless with their consent
• directly engaging patients in debate
• implying that the doctor or group speaks for the medical profession rather than expressing their personal views

 

If you have any queries or concerns about your regulatory obligations related to the issues discussed in this blog, the Regulatory Team at Kingsley Napley specialises in advising doctors on their regulatory requirements and defending those under investigation by the General Medical Council.

You can also read more about how we can help here.