Assisted dying Bill lacks safeguards and could lead to secret hearings, warns retired High Court judge

There should be no room for secrecy or concealment in assisted dying applications, Sir James Munby warned

Sir James Munby, holds a press conference on the day of his retirement as President of the Family Division, at the Royal Courts of Justice in London. (PA)

The Assisted Dying Bill “falls lamentably short” on safeguards and could lead to secret court hearings, a retired High Court judge has warned.

In a major intervention, Sir James Munby, former president of the family division of the High Court, has criticised the practical implications of the proposed legislation, which is set to be debated by MPs at the end of November.

Under the Bill, terminally ill adults with a prognosis of six months or less could seek assistance to end their life, provided two doctors and a High Court judge confirm their eligibility and voluntary decision.

Labour MP Kim Leadbeater, who proposed the Bill, insists that it will offer the “strictest protections and safeguards of any legislation anywhere in the world.”

However, Sir James raised a number of key unanswered questions about how this would work, concluding “...in relation to the involvement of the judges in the process, the Leadbeater Bill falls lamentably short of providing adequate safeguards”.

He warned that under the current legislation, a judge could decide the matter without hearing from the patient or their loved ones. While the legislation states that a High Court judge “may” hear from the terminally ill person who made the application, it is not mandatory. The judge “must” hear from one of the doctors, but this does not have to be in person.

Sir James Munby, holds a press conference on the day of his retirement as President of the Family Division, at the Royal Courts of Justice in London. (PA)

The Bill does not currently make clear whether there would be a hearing at the High Court, or whether the decision would be made just on the papers and without a hearing, Sir James said. He also warned that it is not clear whether any future hearing would be held in public or private.

He also pointed out an apparant flaw in the Bill, which allows an appeal to the Court of Appeal if the High Court refuses an assisted death, but doesn’t seem to permit an appeal if the decision to proceed is approved.

In a recent case in Canada, a British Columbia judge granted an urgent injunction stopping a woman’s assisted death, the day before it was scheduled to take place, after her partner intervened.

Under the current proposed Bill, he warned family members might not know that the terminally ill person has applied for an assisted death, and they would have no way of appealing a positive decision.

In a post on the Transparency Project, a Family Justice blog, Sir James argued that “the integrity of the process” and public confidence require all hearings to be public, with minimal reporting restrictions.

He stressed the need for a “rigorous procedure” to test and challenge the evidence in every case, stating, “There can be no room here for secrecy or concealment. If there is to be judicial process, it must be open and transparent.”

Ms Leadbeater has said that evidence from around the world suggests between 0.5 per cent and 3 per cent of deaths would be covered by the legislation. In 2023, there were 577,620 adult deaths in England and Wales, Sir James points out.

His comments come as health secretary Wes Streeting has ordered a review into the potential costs of changing the law.

Mr Streeting warned that assisted dying could come at the expense of other NHS services if implemented, saying: “Any new service comes at the expense of other competing pressures and priorities”.

His comments have been criticised by Baroness Harriet Harman who said the argument “should not come down to resources”.

Baroness Margaret Hodge, who is in favour of assisted dying, said: “If you look at the NHS budget, most of it goes on the last six months of life. To argue that this is going to cost extra - I mean I haven’t done the arithmetic on it - sounds to me a bit daft”.

Ms Leadbeater said she found it “disappointing that some members of the Cabinet have spoken out very vocally on the issue, and others have done as instructed and not expressed their views”.