The Assisted Dying Bill enters the Legislative Council on 22 October 2024. As I have noted elsewhere, as the second chamber of Tynwald, the Council has the power to reject, or requirement amendments to, draft legislation which has been passed by the democratically elected Keys. The passage through the Legislative Council is not a formality. What does the Bill entering the Council look like – in particular, how does it differ from the Bill first introduced into the Keys?

Clause 4 continues to provide that a person who is terminally ill may request and lawfully be provided with assistance to end their own life.  There are two significant changes. Firstly, the definition of “clear and settled intention” is restricted within the text of this section. The new cl.4(2)(b) now reads “has a clear and settled intention to end their own life reached voluntarily without coercion or duress and having been informed about the person’s diagnosis and prognosis and the treatments available, including pain control and palliative care”. Secondly, the period during which a person must have been ordinarily resident in the Island has increased from one year to five years. The Department is also not only able to, but is required to, specify the meaning of “ordinarily resident”.

Along with Dr Burin, I had raised concerns over the potential impacts of a one year residence requirement, and suggested looking to Australian law, in particular the law of Queensland. The Queensland assisted dying regime has a residency requirement – twelve months – but the ability to issue a formal exemption “if the person has a substantial connection to Queensland” and “there are compassionate grounds for granting the exemption”. The current regime would exclude a person who had become ordinarily resident in the Isle of Man for reasons unconnected with assisted dying, and then three years later discovers they are terminally ill. It would also exclude those with a substantial connection to the Isle of Man, where there are compassionate grounds for granting an exemption. Consider for instance an adult child who had grown up in the Isle of Man, moved to the Isle of Man, and discovers they have a life limiting condition which is likely to lead to their death in four years. They return to the parental home on the Isle of Man for care a year later, and become ordinarily resident at that point. They will not be able to access the assisted dying regime. The Queensland exemption was well worth considering in relation to a one year residency requirement, but even more so for a five year one.

The definition of terminal illness under clause 5 is changed. Formerly, a person reasonably expected to die within six months could make use of the statutory regime; but in the new Bill this entitlement applies to a person who is expected to die within twelve months.

Clause 6 deals with the requirements of the formal declaration that the person wishes to access assisted dying. Formerly, the declaration could not be witnessed by a relative, or a person directly involved in the declarers care or treatment. The broader definition of relative under the current Bill will increase the range of people who cannot act as witnesses: now including “a person living together with that person as if they were spouses or civil partners” and stepchildren. There is a new reason for excluding a potential witness: “someone who knows they will gain financially in the event of the person’s death (whether directly or indirectly and whether in money or money’s worth)” (clause 6(1)(a)(iii)). The two doctors countersigning the declaration remain required to be satisfied, inter alia, that the person has reached their decision “voluntarily, on an informed basis and without coercion or duress” (clause 6(7)(c)). They remain able to consult a psychiatrist on the capacity of the declaring person, but no provision is made for support on determining lack of coercion. They are now required to satisfy themselves that the declarer “has been fully informed of the palliative, hospice and other care which is available” (clause 6(11)).

Clause 7 deals with the actual provision of assistance in dying. A requirement has been added that before dispensing and delivering an approved substance to end their life, a doctor must re-examine the person and their medical records and confirm that they continue to wish to end their own life (clause 7(3)(b)).  An important change in clause 7 relates to physician administration of the approved substance. Under the original Bill, a doctor could administer the approved substance if requested (see former clause 7(7)). The current Bill “does not authorise an assisting health professional to administer an approved substance to another person with the intention of causing that person’s death” (clause 7(6)). The current version of the Bill, then, legalises assisted dying through preparing the substance for self-administration, or preparing a medical device which will allow the person to self-administer, or “assist[ing] that person to ingest or otherwise self-administer the approved substance” (clause 7(5)); but does not legalise administration by the doctor themself. This moves the legislation out of the area of murder per se, and the alterations to the criminal code in relation to murder have been removed (formerly in clause 10(2)).

The brief conscientious objection clause in clause 8 has been substantially expanded. Clause 8(2) makes it clear that a conscientious objection to involvement in assisted dying does not exclude referral to another health care professional – clause 8(2) is not well drafted, with an ambiguous “may nevertheless refer” which, in the light of clause 8(5) might have been intended to read as “may nevertheless be required to refer”. Clause 8(4) provides for how a conscientious objection is to be proved – a statement in writing and on oath or affirmation is conclusive evidence of their objection – an adoption of the Manx Abortion Reform Act 2019 s.8(3) that we had recommended.

Clause 9 adds a new “intention to participate” status. A medical professional who intends to exercise functions under the Act must notify the Department of their intention to do so, and ensure they have received all appropriate guidance and training before exercising any such functions (clause 9(1)). The Department must create and maintain a register for those who have this status, and the details of the register (including for instance the content and who can access it) are left to regulations by the Department (clause 9(3-4)). A person who has notified the Department and received the appropriate training is protected by a conscience clause (clause 9(5)). A person who has notified the Department, but not completed the training is not, however, protected. Is this an appropriate distinction – that is, should conscience protection depend upon having taken mandated training?

Clause 10 replaces a former ban on health care professionals initiating discussions on professional dying with a requirement for the Department to provide “such guidance and training to health care professionals as it considers appropriate to assist health care professionals in preparing for  discussions about the range of palliative, hospice and other care which may be available to a terminally ill person, including the provision of assistance in accordance with this Act” (clause 10(1)).

Monitoring of the new regime has been substantially relaxed. The former clause required an annual report on the operation of the Act, such reports being required annually. The new clause requires the publication of a single “report on the operation of the Act after the Act has been in operation for 2 years” (clause 14(1)(b)). So monitoring has become for a transitional period, rather than an open-ended process. Against that, there is reference to “any independent monitoring panel” which may suggest a different mechanism for monitoring (clause 14(2)(a)).

Clause 15 deals with criminal offences, and expands the ways in which an offence can be committed under the Act from the original two (see original clause 14(1)(a), 14(1)(b) and 14(2)) by adding the following:

Clause 15(3) criminalise any person who wilfully ignores or otherwise conceals knowledge of a revocation of their declaration by a person who had made a declaration under the assisted dying regime. This is the mirror image of the existing offence of concealing or destroying a declaration (which is retained under clause 15(1)(b)).

Clause 15(4) criminalises any person who coerces or pressures (or attempts to coerce or pressure) a terminally ill person into making a declaration under section 6. This offence can be punished by up to 14 years in prison (clause 15(6)), rather than the usual 5 years in relation to most other offences in this section (clause 15(7) but see clause 15(5)). I have two reservations about this offence as it currently stands.

Firstly, it addresses coercion or pressure only one way – there is no offence under the Bill of coercing or pressuring a person not to make a declaration, or to withdraw a declaration once made.

Secondly, there is no explicit limit on how far this serious offence reaches. In particular, there is no discussion of the mental element of the accused. The Domestic Abuse Act 2020 s.36  creates an offence of controlling or coercive behaviour, which requires that “A knows or ought to have known that the behaviour will have a serious effect on B” (s.36(1)(d)). It also provides a defence for conduct where A believed they were acting in B’s best interests, and “the behaviour was in all the circumstances reasonable” (s.36(4)(b)). It may be that Manx courts would read these sorts of issues into their definition of “coerces or pressures”, to exclude reasonable or unthinking conduct from the term, but this might be worth doing in the legislation itself: the mens rea requirement for an offence with a 14 year maximum penalty would be better on the face of the publicly available Act.