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Court delays could mean patients die before a decision is made, warns shadow justice secretary
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The assisted dying Bill is unworkable because there are not enough judges to approve decisions by terminally ill people, the shadow justice secretary has warned.
In a letter to Shabana Mahmood, the Lord Chancellor and Justice Secretary, Robert Jenrick said there was a “real risk” that people considering assisted dying would die before the decision was taken due to court because of delays caused by a shortage of judges.
He also warned that a terminally ill person’s close relatives could be cut out of the process and denied any right of appeal.
Meanwhile, judges would not have a chance to opt out because of conscientious objections and people could seek to expand the scope of the Bill through appeals to the European Court of Human Rights, he added.
Ms Mahmood, who oversees the courts as Lord Chancellor, has already indicated that she will vote against the assisted dying Bill put forward by Kim Leadbeater, the Labour MP. The Bill will be debated on Nov 29, when MPs will have a free vote. Mr Jenrick is inclined to vote against it but has not made a final decision.
The legislation would allow terminally ill adults expected to die within six months to legally take their own lives, provided they have the support of two independent doctors and have been approved to do so by a High Court judge.
In his letter, Mr Jenrick said the entire premise of the Bill is hinged on judges being able to make “rigorous and well considered decisions” in a timely way.
“Having consulted with members of the judiciary and senior practitioners, there is significant concern that the assisting dying procedure outlined in the Private Member’s Bill is unworkable. There is a real risk that those considering assisted dying will have passed away before a decision is made,” wrote Mr Jenrick.
He cited evidence of the judicial shortages from Sir James Munby, the former president of the family division, about the courts that will probably hear assisted dying cases. Sir James estimated it could take up 34,000 hours of court time, when there are only 19,000 sitting hours a year.
“If correct, this suggests the additional workload would simply be impossible to manage in any reasonable timeframe, leading to people dying before a decision has been made,” said Mr Jenrick.
Mr Jenrick also said he had “significant concerns” that the process would be secretive, which could lead to errors and over-reach. There was no requirement for anyone other than a doctor to attend and no obligation to inform next of kin, he added.
Those seeking approval for assisted dying could do so without their loved ones being consulted, even though they could be best placed to raise concerns about coercion or other impropriety, he said.
“In some circumstances close family members will be best placed to provide evidence and information on the situation of the individual, including to raise concerns about coercion or other impropriety,” he added.
Mr Jenrick said the Bill also lacked an investigative element beyond the court hearing to probe any concerns. Although doctors could opt out, “no such allowance is provided for judges who may have a sincere, conscientious objection to their involvement”, he added.
He also warned there was likely to be a challenge to any legislation under the European Convention on Human Rights on the basis that it discriminated between terminally ill adults and other people with serious disabilities and illnesses. This could mean the scope of those eligible could be expanded.
Mr Jenrick asked Ms Mahmood to reply to the questions before the second reading vote on Nov 29.
“I do not therefore raise these questions as an attempt to create partisan divides where there are none, but instead to ensure that the full implications of this legislation have been considered and MPs are equipped with the best information with which to make their decision,” he said.
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