High court signoff in England and Wales assisted dying bill to be scrapped | Assisted dying

MPs are to scrap the requirement for a high court judge to decide on assisted dying cases amid growing concerns over the legislation, with an expert panel to scrutinise decisions instead.

Kim Leadbeater, the Labour MP sponsoring the bill, says the change will add significantly more scrutiny from experts better placed to spot those under family pressure to end their lives – and there will be judicial oversight of the panels.

The removal of mandatory high court involvement in every assisted dying case is likely to cause concern among MPs who had been reassured the safeguards were uniquely robust. The signoff from a high court judge, as well as two doctors, was the centrepiece of the original legislation.

Leadbeater argues the new system will still offer the strongest protections compared with any other country that has legalised assisted dying, and in an amendment she will submit on Tuesday, she will set out how that signoff will be replaced by an expert panel of three, including a senior lawyer such as a king’s counsel or retired judge.

Leadbeater, who had previously vowed she would not remove the “judicial element” from the bill, will propose a judge-led commission to oversee the panels and a right to have a panel’s decision reviewed by the high court. She has called the change “judge plus”.

The Guardian reported last week that MPs scrutinising the bill believe a considerable number of MPs are wavering on what they will do in the final vote – which will take place on 25 April.

Senior officials in the Ministry of Justice (MoJ) were understood to have had significant concerns about the signoff from a high court judge in the original bill, given lengthy backlogs in the family courts. Two senior judges who gave evidence to MPs on the bill committee have derided the high court element as unnecessary and unworkable.

Writing for the Guardian, Leadbeater said she was responding to a wide range of evidence heard by the committee about coercive control, hinting those protections had not been strong enough.

“I’m now proposing to make my bill even more robust, without making it so difficult to navigate that it would be too much of a burden for people in the last months of their lives to undertake,” she wrote.

“The evidence we have heard from other jurisdictions that have already introduced tightly drawn laws like mine is that fears about vulnerable people being put under pressure to asking for an assisted death have rarely, if ever, been borne out in practice.

“Family and loved ones are far more likely to try to persuade a person not to do so. But I have promised to do everything I can to ensure my bill has the strongest safeguards [of] anywhere in the world, and this change will meet that promise by making it even more robust than it was already.”

Only one other country has a comparable level of scrutiny to the one proposed by Leadbeater – Spain, where requests for an assisted death must be approved by an evaluation commission. In Australia, several states also require a procedural check before an assisted death can be approved.

In the US state of Oregon, often held up as a model for the UK, signoff is by two doctors and two witnesses – and referral can be made for psychological evaluation.

The bill committee – which includes MPs from all parties plus two ministers – will begin line-by-line scrutiny of the bill this week. More than 300 amendments have already been submitted by dozens of MPs for the committee to consider – including several by Leadbeater.

Leadbeater’s new system would mean a referral would be made by two doctors after a request from a terminally ill patient. Then the request would be considered by a panel, chaired by a retired high court judge or king’s counsel, with a psychiatrist and a social worker.

The panel would be required to interrogate whether a person’s decision to end their life was a result of pressure or coercion – and whether the person had the required mental capacity to make the decision.

The panel could hear from the applicant or from the doctors making the referral or anyone else relevant, the amendment will say.

The two ministers on the bill committee – the care minister Stephen Kinnock and the courts minister Sarah Sackman – are neutral on the bill but officials in their departments will offer guidance on workability.

MoJ officials are understood to be drafting the amendment to the bill, which will be published this week.

A source close to Leadbeater said the change to the judicial element of the bill had been her own policy decision and denied it had been a government demand. They said the MoJ had been prepared to keep the high court judge as part of the package if Leadbeater had decided not to make the change.

But several committee members told the Guardian last week they believed the government was uncomfortable with that aspect of the original bill.

Sackman and Kinnock wrote to MPs on the committee last week, advising them that a number of amendments had been drafted and would be going down in Leadbeater’s name, which they said were “based on discussions with ministers on the bill’s deliverability and the overall coherence of the statute book”.

It added: “The government remains neutral on the principle of the bill, but it is our job to ensure that any bill that passes through parliament is workable and implementable if it gains royal assent.”

Leadbeater has also tabled other amendments based on concerns from MPs, which would mean doctors in England and Wales would not be permitted to raise assisted dying with patients without first explaining palliative care and other support options.

The change comes amid an escalation in tensions over the bill among Labour MPs. Last week, four Labour MPs sent a mass email to colleagues rebuking Leadbeater for giving what they claimed was a one-sided view of expert evidence.

In the email, the MPs said the committee’s evidence was “weighted towards voices that were known to be supportive of the bill” and criticised the lack of expert witnesses on several subjects, including coercive control.