KC: ‘Leadbeater Bill a gift to lawyers’

Legalising assisted suicide will keep lawyers “in business for years”, an experienced barrister has warned.

Alex Ruck Keene KC, an expert on the Mental Capacity Act and visiting professor at King’s College London, said he was “immensely troubled” by the huge legal ramifications raised by proposals to remove end-of-life protections for vulnerable people.

Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill is due to be debated at the end of this month, and would allow those deemed to be terminally ill and with less than six months to live to receive help to kill themselves.

Conway case

Speaking before the full details of the Bill were published, Keene said his reservations about a change in the law first arose through his involvement fighting in the Conway case.

In 2018, the Supreme Court refused to hear the appeal of Noel Conway, a man who suffered from motor neurone disease and wanted to be allowed medical help to kill himself.

The barrister told The House Magazine that “the thing which increasingly troubled me, and has increasingly troubled me since, is it’s not about an individual”.

the law can’t operate for individuals. The law has to operate for everybody

The problem, he explained, is because “you have individual stories which are very, very powerful, and we’ve got lots of other individual stories out there in the public domain at the moment. But the law can’t operate for individuals. The law has to operate for everybody.”

Mental capacity

At the same time as supporting Conway’s legal case, Keene was also legal advisor to the Mental Health Act review. This led, he explained, to an “increasing cognitive dissonance” – seeking to protect people in mental distress from taking their own lives, while fighting to allow Conway to commit suicide with medical assistance.

As a result, the legal expert now considers those who believe it is relatively straightforward to determine whether a person ‘has capacity to make the decision to end their own life’ to be “hopelessly naïve”.

When applied to assisted suicide, he argued the Mental Capacity Act is inadequate, elaborating: “A doctor investigating goes, ‘I’ve got lurking doubts, but I can’t get to the bottom of it’. The presumption of capacity would mean you’ve got to assume this person’s got capacity.”

‘Massive consequences’

Keene outlined a further problem with the Act in relation to assisted suicide: “There’s a very, very strong principle of support, which is, ‘I can’t find you to lack capacity to take a decision unless I’ve taken all practicable steps to support you’. That’s because the Mental Capacity Act has got a framework in place which says if you can’t take the decision, I’m going to take it for you.

“But there’s no suggestion in any of the assisted dying models which have ever been put forward in England and Wales that we’re going to have doctors choosing to take people’s lives on a best interest basis.

“It might be quite challenging to think a doctor is working with, say, someone with learning disability. Should that doctor be supporting that person with learning disability to make the decision to seek assistance with dying?

“I am not going to argue one way or another. What I am going to say is, that is the sort of detail which people might go, ‘In an assisted dying bill which refers to capacity, see the Mental Capacity Act – that’s just a detail.’ But it’s a detail that has massive consequences.”

Humanists UK

Finally, Keene highlighted the very real danger of ‘gradualism’ if Leadbeater’s Bill gets MPs backing it on 29 November.

He noted how easy it is “to imagine a body like Humanists UK saying it is discriminatory that it is only available to this group” and not to others.

“That’s the point at which the lawyers will be kept in business for years, because even if they fail before the courts of the United Kingdom, they then can take the case to the European Court of Human Rights.”

He added: “I am immensely troubled, I have to say this. I think parliamentarians are being radically unsupported by the way in which the process is operating.”