6 - Should Assisted Dying Require the Consent of a High Court Judge?

Summary

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.