A consensus has recently developed within the UK Parliamentary debate over the legalisation of assisted dying that the consent of a High Court judge should be required as part of a future regulatory regime. This chapter questions the basis of this consensus, arguing that it is neither evidence-based nor required by the decision of the UK Supreme Court in Nicklinson. The chapter begins by briefly sketching the approach of permissive regulatory regimes to the evaluation of assisted dying cases which demonstrates the dearth of direct experience of judicial approval of such cases. Recent calls for prospective judicial approval in two jurisdictions then contemplating legalisation are considered ‒ Canada (which did legalise) and England and Wales (which did not), demonstrating that these calls are tactical and lack substantive argument. The chapter then examines data from permissive regimes to describe persons likely to seek assistance in dying and evaluates the extent to which a prospective judicial approval requirement would meet likely legislative goals, before recommending an alternative approach and drawing broader lessons from this experience for legislative change on assisted dying.

This chapter identifies international trends in end-of-life law reform from analysing ten case studies of reform from the United Kingdom, the United States, Canada, Australia, the Netherlands and Belgium. A key finding is that law reform is more likely to succeed when supported by ‘good process’. This includes effective consultation with key stakeholders and engaging with experts. Social science evidence is also increasingly influential in both legislative and judicial reform, particularly in relation to how assisted dying systems can operate safely in practice. Other factors contributing to reform are the support or advocacy of key individuals or groups, shifts in community sentiment, and changes in political composition of parliaments. The chapter also concludes that law reform is ultimately a political exercise. Compromise is often required for a law to pass. This has implications for designing effective end-of-life law, pointing to the need for critical evaluation of both proposed laws and how existing laws operate in practice. The chapter concludes with reflections about the future of end-of-life law.

General principles: treatment

Consent and battery

In general, medical treatment may only be given lawfully to a patient with that patient's consent. A doctor who acts without a patient's consent risks criminal prosecution for assault or, more likely, being sued for damages in the tort of battery. A signed consent form is only evidence (not conclusive) that a patient has given consent to a treatment. It is the reality of the patient's consent which is the concern of the law (Chatterton v. Gerson [1981]).

Exceptionally, medical treatment may be given without consent where the patient is unable to consent, for example, where the patient is unconscious in an emergency or where the patient is permanently unable to consent through mental disability and the treatment is reasonably necessary in that patient's best medical interests (Re F (A Mental Patient: Sterilisation) [1990]).

A valid consent in law requires three elements:

1. (i) the patient must be competent to consent;

2. (ii) the consent must be based upon adequate information;

3. (iii) the consent must be voluntarily given.

Competence to consent

A patient will be competent to give consent if he or she is capable of understanding what is involved in the medical treatment, including the procedure itself, its consequences and the consequences of non-treatment.

An adult patient (i.e. has attained the age of 18) will usually be presumed to be competent to understand a medical procedure unless there is good reason to doubt it, for example, if he or she is mentally ill, mentally disabled or affected by external factors such as drugs, alcohol, extreme pain, panic or shock.