Assisted dying will tear families apart – and private firms will profit

We’d be naive to think our legal and medical systems are fit to protect the vulnerable

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As a solicitor of nearly 30 years standing, I’ve had countless conversations with clients preparing for the end of life.
I also deal with post-death disputes about the validity of wills and cases where vulnerable people have been subject to financial abuse. One constant is that human relationships are always complicated and often messy.
This experience fills me with foreboding about Kim Leadbeater’s Private Members Bill to legalise so-called assisted dying.
The two main reasons for will challenges are allegations of “lack of capacity” or “undue influence”.
Lack of capacity is where it is said the deceased did not have the mental ability to make a will, often because of a dementia-type illness or because they were at the very end of life and capacity was ebbing away.
Undue influence hinges on an allegation that the deceased was coerced into doing something they did not wish to do by a third party (usually a family member) who would benefit financially from the will.
These cases happen all the time. And in my experience, they are increasing in volume. This is because there is more wealth around for families to fight about (driven, for instance, by house price inflation) and more complicated family structures (multiple marriages and stepfamilies).
It is naive to think these same factors will not drive unscrupulous persons to use an assisted dying law for their own financial gain. Proving or disproving a person’s capacity can be a slippery fish to grapple with.
I am sure we will see vulnerable members of society coerced into an early death. But unlike a contentious probate case where a dodgy will can be overturned, a dead person cannot be resurrected.
Campaigners for assisting dying highlight safeguards they say will protect the vulnerable, as set out in the proposed legislation, including two independent doctors being called upon to confirm the person concerned has reached a decision of their own free will and for a judge sitting in the High Court to approve the death.
This may sound reassuring, but my years in law tell me such a system would likely be soon commercialised and, in any event, might be defeated by the delays inherent in all UK government departments.
The law as it stands says if a solicitor is concerned that a person making a will is vulnerable because of age or illness, the opinion of a doctor should be sought before the will is signed.
If I write to the person’s GP surgery for such an opinion, the response takes weeks to come back and is either “we do not provide that service” or it will cost, usually around £150 at a minimum.
I understand why GPs do not want to sign off on a will. They are busy seeing patients who are ill and/or do not wish to be at risk of being drawn into future litigation. As such, private firms have sprung up to provide capacity assessments which cost around £400.
I am sure that if assisted dying becomes law, an industry of certain doctors and lawyers will spring up who will offer to streamline the process of dying. God forbid they might even develop an app.
It will be a bonanza for those doctors and lawyers. The safeguards campaigners say will protect people, will end up meaning money will change hands between doctors and lawyers before an assisted death can occur.
If the High Court is to be involved, there is a high risk the process is not completed in a timely fashion. The courts cannot cope with its current workload. By definition, assisted dying cases will be urgent, but anyone who has recently dealt with the courts or other government agencies will have come across the obstacle of delay.
Quite simply, the current proposals are unpalatable and will not work. They are not fit for purpose when the decision to be made is about life or death.
I do understand the arguments which campaigners for assisted dying articulate about the fear many have of dying in difficult circumstances. It is rational to fear pain and loss of dignity.
But the law as it stands already offers choice. If we have mental capacity any of us can refuse medical treatment to prolong life, while still insisting on hydration, nourishment and pain relief.
Further, the law already allows a legally binding “advance decision to refuse treatment” form to set out the circumstances you wish medical treatment to be refused on your behalf if you are lacking capacity to ask yourself.
Turkey farmers will always vote for Christmas. I fear this Bill may mean it is Christmas all year round to those who wish to profit from assisting us to our death.
Gary Rycroft is a partner at solicitors Joseph A. Jones & Co. He writes Ask A Lawyer, a weekly column. Email your questions to [email protected].
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