The requirement that the High Court approve every assisted suicide could be removed from Kim Leadbeater’s assisted suicide Bill according to one of the Bill’s co-sponsors.

Labour MP and co-sponsor of Kim Leadbeater’s assisted suicide Bill Jake Richards, said it “may suffice” for the High Court to become involved only if there are concerns that the person seeking assisted suicide has not met the eligibility criteria.

The Bill currently requires High Court approval to ensure all the requirements for assisted suicide have been met. However, if Richards’ suggestions are adopted, the role of the High Court in assisted suicide will not be required in every case but only on those occasions when “statutory criteria had not been met”.

Writing in LabourList, Richards raised questions about the role of judicial oversight in assisted suicide, which was raised a number of times during the debate at Second Reading. In particular, MPs were concerned about the possibility of the High Court’s role becoming a ‘rubber stamping’ exercise.

The Bill’s co-sponsor said “Perhaps the general challenge is to ensure the rules of court and other regulations provide for an exercise which is not mere ‘rubber stamping’ but not so time-consuming as to make the purpose redundant”.

“It may suffice for legislation to provide for third-party applications should they feel the statutory criteria had not been met”.

“Indeed, perhaps this should have been the only means by which courts were involved”.

Dr Gordon Macdonald, head of anti-assisted suicide group Care Not Killing, said Richards’ comments showed “so-called safeguards are being exposed as not worth the paper they are written on”.

Sir Robert Buckland, a former justice secretary, said Richards’ suggestions revealed the “lack of proper preparation” of the Bill, adding that at “best, this is an acknowledgement of the flawed nature of the judicial brake – at worst, it exposes the hollowness of the assurances being made by the Bill’s proponents about the key role that judges were to play in all cases”.

Richards has subsequently claimed that he had put the possible removal of this safeguard forward as “food for thought” amid discussion about the role of the judiciary in assisted suicide legislation.

It is not the “proper function” of a judge to rule on whether someone is eligible for assisted suicide 

The role of the judiciary in the assisted suicide Bill was a subject of intense controversy even before the Bill was debated. Last month, former head of the High Court’s family division, Sir James Munby slammed the assisted suicide Bill describing it as “defective” and saying it is not the “proper function” of a judge to rule on whether someone is eligible for assisted suicide. He accused Leadbeater of promoting a “profoundly unsatisfactory scheme” open to abuse.

“All in all, in relation to the involvement of the judges in the process, the Leadbeater Bill falls lamentably short of providing adequate safeguards”, he said.

Munby argued that the drafters of the Bill had “chosen to promote a profoundly unsatisfactory scheme for judicial involvement: a scheme which does not provide for an open and transparent process but, on the contrary, permits a secret process which can give us no confidence that it will enable the court to identify and prevent possible abuses”.

“Where else in our judicial system does one find a judge, sitting judicially as a judge, whose function is not to decide some disputed issue or … to resolve some controversy but only to certify, as it were, that some decision taken by a private individual complies with the law? That, it might be said, is not what judges do and not what judges are for”, the retired judge added.

Judges are not infallible

Munby went on to say that the Bill would fail to ensure evidence is properly tested in all cases and lacked the necessary transparency.

He was particularly concerned the Bill appears to permit judges to decide if a patient meets the criteria for an assisted suicide “without hearing from the patient and with no input of any sort from the patient’s partner or relatives”.

“In short, an application could be dealt with: In accordance with a wholly inadequate procedure, and without the public knowing anything about it – not even the name of the judge”.

“The fact is that judges are kept up to the mark by two things: having to comply with proper procedure and being exposed to the public gaze” he added.

Munby said his concerns were made worse by the fact that the Bill does not allow appeals in cases where assisted suicide has been approved, which he said was an “extraordinary” omission. This, he said, could leave a patient’s loved ones unable to challenge a decision for assisted suicide once made.

Munby also had serious concerns arising from the fact that judges make mistakes, a fact that the Bill does not appear to take into account. “Even High Court judges are fallible and sometimes make mistakes. Why after all, do we have a Court of Appeal and why are there successful appeals against High Court judges?”

“What if the judge has adopted a procedure which would not pass muster with the Court of Appeal or, indeed, and even more alarmingly, has arrived at a decision which the Court of Appeal, if given the opportunity, would reverse?”

“There can be no appeal – and the patient dies”.

Spokesperson for Right To Life UK, Catherine Robinson, said “The ink on the Bill is barely dry and one of its co-sponsors is suggesting that one of the Bill’s key safeguards could be removed. The role of the High Court in the assisted suicide Bill is touted as one of the key safeguards within the Bill and yet one of the Bill’s sponsors is already indicating it could be removed. This indicates just how flimsy these safeguards really are”.

“Importantly, it also indicates that Richards, a co-sponsor, was not sufficiently familiar with the Bill to spot obvious difficulties around the proposed role of judges and so is now suggesting that the safeguard be dropped in response to challenges about this provision in the Bill. As a co-sponsor of the Bill, this behaviour is inexcusable”.