‘Judge Plus’ or just spin?

When Kim Leadbeater introduced the Terminally Ill Adults (End of Life) Bill, she reassured the concerned that it provided ‘the strictest safeguards anywhere in the world.’ One key safeguard offered was the involvement of a High Court judge in the process of assessment. Following the assessment of two doctors, it would be for the High Court to review matters and then, if satisfied, to offer a declaration that the requirements of the bill had been met, authorising a doctor to provide lethal medication to their patient for them to use to end their life. This was upheld as one of the key ways that those facing pressure or coercion, deserving of state protection, would be protected from being approved for a state-facilitated suicide. Many people found this reassuring. Indeed, many MPs found this reassuring.  Commentators record that as many as 61 MPs said, prior to casting their vote at the second reading, that the High Court safeguard was a key reason to support assisted dying.

What, then, are we to make of the news reports earlier this week that Kim Leadbeater plans to table an amendment to remove this safeguard and replace the High Court with a panel including a lawyer, psychiatrist and social worker?

a weakening by the removal of High Court independence

Kim Leadbeater wishes to frame this change as her ‘proposing to make [her] bill even more robust’. She has briefed the press but has not yet published her amendment, so some degree of confusion continues inside and outside Parliament. The confusion is all the greater as Ms Leadbeater has attempted to characterise the proposal of new Judge-less panels as ‘Judge Plus’ since she says the appointment of the panels will be undertaken by a commission chaired by a judge or former judge.

Is this really a fair characterisation? If the proposal is for a (retired?) judge to be employed by a newly-formed commission to appoint judge-less panels to sit outside the court system, then this isn’t exactly ‘Judge Plus’ and it certainly isn’t ‘High Court Plus’. Instead, we have something dramatically new that altogether lacks the independence and impartiality of the court system. This is not the ‘judge element’ many had found reassuring as the check that ensures safeguards are properly applied before approval is granted to legally assist in a death.

a sideways pass of the workforce-capacity issue

A more sceptical reading of this change might suggest this amendment is less about making the bill ‘even more robust’ and more about the capacity issues raised by the High Court. If UK rates of assisted suicide reach those of Oregon or Victoria, that would mean 5-6,000 cases a year going through this process. If they reach the rates of Belgium, the Netherlands, or Canada, the rates would rise to 20-30,000 per year. Sir James Munby aptly pointed out before the second reading that this would be completely unworkable for the courts and would drown the system entirely.

But can this untenable workload be more easily borne by the current psychiatric workforce? The 2023 Royal College of Psychiatrists workforce census showed that 28.6 per cent of consultant psychiatrist posts were vacant or filled by temporary (locum) appointments. This hardly tells the story of a profession with excess capacity! Which patients will suffer longer waits and worse care if psychiatrists are removed from their roles in delivering care to sit on these new panels?

The capacity amongst social workers seems to be equally questionable, with the British Association of Social Workers (BASW) Annual Survey of Social Workers 2023 citing that 46.9% of those surveyed identified adequacy of staffing levels as one of the biggest challenges in their workplace and 50.2% reported not feeling able to manage their current workload. Is this a profession with more capacity to spare than the High Court?

While this amendment pivots away from drowning the High Court, it may only do so at the cost of removing psychiatrists and social workers from their already under-resourced workplaces and risks abandoning those in dire need of their care. With Lord Darzi reporting last year that over 345,000 people (more than the population of Leicester) were already waiting over a year for their first contact with mental health services, this will undoubtedly make a bad situation worse.

psychiatrists and social workers deployed in the wrong place and asked the wrong questions

Kim Leadbeater says that she has listened to those who have called for more involvement of the multidisciplinary team by bringing in this amendment. Perhaps so, but while listening, she has failed to understand our concerns and to appreciate where and why the multi-professional team are needed.

In Ms Leadbeater’s proposal, the psychiatrist, along with their panel colleagues, will enter at the end of the assessment process to confirm if the Bill has been properly applied. Frankly, what we have here is valuable professional resources being brought in at the wrong time and then being asked entirely the wrong questions.

At the start of the process, there is no mandatory involvement of psychological or social care; rather, the patient expressing a wish to die must merely be informed of ‘any available… psychological support.’ This panel, by only coming in at the end of the process, doesn’t fix this woeful inadequacy. It will not be asked to offer a multi-disciplinary or wholistic bio-psycho-social assessment of the patient. They will not be asked to offer a diagnosis or treatment for any mental health conditions that the patient may be suffering with, even though this treatment could lead to remission of their request for assisted suicide. They will not be asked to assess or provide wrap-around social care to uphold the patient’s dignity. The panel will instead be asked if the bill, which relies on the Mental Capacity Act (MCA) to assess if they have the capacity to request assistance to end their life through suicide, has been properly applied. But, as the Royal College of Psychiatrists said in their evidence to the committee, ‘it is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.’

From what Kim Leadbeater has so far said, what she is proposing amounts to taking psychiatrists (and social workers) away from the care of patients to deploy them to check if an insufficient tool has been properly applied at the end of a process rather than to use their professional skills to offer assessment, hope, and help to the desperate as soon as the desire to end their life begins. To be honest, I find myself asking, does it matter who oversees the process if the process isn’t fit for purpose?