As the assisted-dying debate looks set to return to Westminster, the BMA has been assessing its effects and influence on the debate so far in different jurisdictions.

The organisation is neutral on attempts to change the law on assisted dying – but determined to ensure the necessary protections are in place to protect doctors and patients on either side of the debate, should assisted dying become legal.

In the past two years, the BMA has made significant progress in ensuring many of the key asks agreed on by the four BMA councils are reflected in bills progressing through different parliaments (see table, bottom).

The BMA medical ethics committee and ethics and public affairs teams have been heavily involved in lobbying and discussing with parliamentarians across all these jurisdictions.

‘We have deliberately engaged with legislators to be seen as the voice of the medical profession,’ says MEC chair Andrew Green. ‘Maintaining a strictly neutral stance, by which I mean neither supporting or opposing a change in the law, has kept us in the room and able to argue for the important protections that our members need.’

In Westminster, Labour MP for Rochester and Strood Lauren Edwards is using a private member’s bill to bring Kim Leadbeater’s bill back to Parliament. Ms Leadbeater’s Bill passed the Commons last year but ran out of time in the Lords, after more than 1,000 amendments were tabled. In Scotland, MSP Liam McArthur’s bill was rejected at its final stage.

Meanwhile, in Jersey, the Assisted Dying (Jersey) Law has now received Royal Assent, while the Isle of Man’s Tynwald approved amendments to its bill in June, which means it can be resubmitted for Royal Assent.

A BMA priority in discussions in all jurisdictions has been the ‘opt-in’ clause – whereby only doctors who positively choose to provide the service should be able to do so. The BMA has achieved this in all jurisdictions where legislation has been debated.

A related ask is that doctors should have ‘no duty to participate’ in activities directly related to assisted dying (such as assessing capacity, or determining life expectancy, to assess eligibility) for any reason, not just for reasons of conscience.

This ‘no duty to participate’ is an important safeguard, as Veronica English, the BMA’s head of medical ethics and human rights, explains.

‘Within our member survey [on assisted dying in 2020], there was a big group of members who supported assisted dying and so didn’t have a conscientious objection to it but they didn’t want personally to participate, for a range of different views and reasons,’ she says, ‘so it was really important they were protected as well. Without a legally recognised “moral or religious” objection, they would not have this statutory protection.’

Only the Isle of Man Bill has not adopted this model but the BMA will continue to push for such views to be accommodated, where possible, in guidance and/or codes of practice at the implementation stage.

In Scotland, Mr McArthur’s original bill presumed doctors were willing to participate unless they ‘opted out’ owing to a conscientious objection.

Achieving an ‘opt-in’ model in the bill instead, lobbying alongside other professional bodies, was a major win, says Nóra Murray-Cavanagh, deputy chair of BMA Scottish council. She led on BMA Scotland’s engagement with the debate, along with senior communications and public affairs manager Erin Robertson and Veronica English.

As in other jurisdictions, BMA Scotland was involved at all stages of the debate, giving evidence to the committee scrutinising the bill, providing MSPs with briefings and lobbying them to bring forward amendments.

More nuanced points, such as ‘no duty to raise’ the subject of assisted dying with patients and ‘no prohibition’ on raising it, were equally hard-won. ‘It’s only as a direct result of thoughtful conversations, with examples, that politicians really understood why those two things were both important, and it took time,’ says Dr Murray-Cavanagh.

Stage 3 of McArthur’s Bill became enmired in a constitutional debate. The Scottish Government argued that issues such as ‘no duty, no detriment’ were matters of professional regulation of the medical profession/employment rights issues and therefore fell outside Holyrood’s legislative competence, and corresponding sections of the bill were removed. Thanks to BMA lobbying, amendments were added that would prevent the law being implemented in Scotland until protections were established through Westminster regulations.

Whatever happens next, it’s important to celebrate what has been achieved so far, says Erin Robertson. ‘As deep and dark as this subject matter is, there was something very light about the way we all worked together across departments, and across different jurisdictions, and with our members,’ she says.

Paying tribute to Erin, Veronica and the ethics team, Dr Murray-Cavanagh believes that engaging in the debate has strengthened the BMA’s voice and its standing.

‘To the question: “What is the job of the BMA?” one of the most powerful things it can do is look at these cross-cutting issues,’ says Dr Murray-Cavanagh. ‘This is important, solid work done quietly in the background, bringing real change as a direct result of BMA engagement.

‘We can be respectful and push for change. We can be compassionate and have strongly held beliefs. We can do hard things.’

There is still a great deal of work to do.

The now-likely scenario, where assisted dying may become legal in some parts of the UK but not others, poses significant risks for doctors working across different jurisdictions.

If, for example, a doctor in England is providing cancer treatment to a patient who lives on the Isle of Man and who is eligible for (or might wish to choose) assisted dying, the doctor is still bound by the terms of the Suicide Act 1961.

So, if that doctor did, or said, anything (while in England) that might be perceived as ‘encouraging or assisting’ their patients to have an assisted death in the Isle of Man, they would be committing a criminal offence, punishable by up to 14 years in jail.

Even if the Director of Public Prosecution and the GMC gave assurances that such doctors would not face legal or regulatory action, ‘doctors should not be expected to commit a criminal offence in order to support their patients’, says a BMA briefing for the Lords in January.

In that briefing, the BMA urged peers to support an amendment to the Crime & Policing Bill, which would provide the necessary cross-jurisdiction protection for doctors.

In the event, the Westminster government did not support the amendment, saying that it was premature (given that, at that time, neither the Jersey nor the Isle of Man Bill had received Royal Assent) but agreed to consider it in the future.

Looking ahead, the BMA will continue to push for any outstanding asks and to ensure the protections already achieved are upheld, in either subsequent bills or at implementation.

In Westminster, having the ‘opt-in’ explicit on the face of any new bill – so that the principle could not be interpreted differently in implementation – is a priority. Lord Falconer tabled an amendment to the Leadbeater bill to that effect in the Lords, at the BMA’s request, but although his amendment was debated and received a lot of support, the vote on it was not reached. (Ms Leadbeater had earlier said she had included an ‘opt-in’ at the request of the BMA.)

Among the outstanding issues, which relate more to how legislation is implemented, is the BMA proposal that assisted dying should be a ‘separate service’. It says, ‘[assisted dying] should not be part of the standard role of doctors or integrated into existing care pathways – rather, it should be arranged and managed by a separate service or, at least, with a degree of separation’.

BMA has not taken a view on whether this separate service should be within the NHS or not but it has suggested how a partially separate service might look (if Jersey’s fully separate model was not followed).

BMA proposals include having a network of assisted dying practitioners to share experiences and to provide mutual support and advice and setting up the service along the same lines as the Medical Examiner Service in England and Wales, or the Forensic Medical Examiners in Scotland, whereby dedicated time and funding is allocated for the training and work involved.

Likewise, the BMA will continue to press for an information service to which doctors could direct patients who may be eligible for assisted dying.

In Jersey and the Isle of Man, government officials have welcomed the BMA’s offer to work with them around issues of implementation once Royal Assent is given, including on regulations and codes of practice.

One example of an issue requiring a great deal of further discussion at implementation is the question of what qualifications and training doctors would need so they could provide assisted dying. At the BMA annual representative meeting last month, the consensus was that resident doctors should not take part in any formal process to assess a patient’s eligibility for assisted dying. (Other motions were consistent with the MEC’s priorities.)

‘In areas where the law changes, we will still have work to do,’ says MEC chair Dr Green. ‘Details of training for those doctors who want to participate need to be finalised, as will governance arrangements and the details as to how the service will be delivered.

‘Throughout this process, my priorities will be to ensure that only doctors who positively choose to undertake this activity are involved, but if they do, they work in a service that fulfils the needs of the terminally ill people they serve, as well as their own needs, both practical and psychological.’

Veronica English says the BMA is committed to identify and champion members’ needs and concerns as bills are debated and as legislation is implemented.

‘We will continue to speak to everyone,’ she says. ‘We want to take everyone with us.

‘Whether the bills come back now or in a few years’ time, the changes that we wanted have been accepted in those bills so there’s at least a good chance that any future iterations will continue to have those protections in place. Our role will be to ensure that those protections remain.’

Pink checked cells = BMA asks included as a result of BMA interventions

White checked cells = BMA asks included already or without direct BMA intervention

Unticked cells = BMA asks not yet achieved or related to implementation

* A multidisciplinary panel review is to be part of the approval process in England & Wales, lessening the importance of post-death reviews