Jersey’s assisted dying law could face a human rights challenge unless politicians act to end what has been branded “unjustified” discrimination against islanders suffering unbearable pain, according to a long-standing States Member.
Deputy Geoff Southern is calling for the draft assisted-dying law to be extended beyond the terminally ill to include people with incurable physical conditions causing “unbearable suffering that cannot be alleviated in a manner the person deems to be tolerable”.
The Assembly has already backed assisted dying in principle for those with a terminal illness, but rejected the so-called “Route 2” – which would have extended eligibility to non-terminal sufferers – by 27 votes to 19 in 2024.
But Deputy Southern warns that maintaining that distinction could leave Jersey exposed under Articles 8 and 14 of the European Convention on Human Rights.
“This debate is not about adopting Assisted Dying. The Assembly has already made that decision,” he said.
“This debate is about the potential for two people who are both experiencing unbearable suffering to be treated differently.”
This debate is about the potential for two people who are both experiencing unbearable suffering to be treated differently
Deputy Geoff Southern
Deputy Southern argued that Article 8 – the right to respect for private and family life – should be applied equally, whether a person is terminally ill or suffering from a non-terminal but incurable condition.
He contended that denying access to assisted dying based solely on whether an illness is terminal could amount to discrimination under Article 14.
“I would argue that there is no substantive justification for the difference in treatment that cannot be sufficiently mitigated by the planned safeguards,” he said.
“Applying for an assisted death is not going to be a simple process. It will not be taken lightly – and indeed, nor should it.
“But the very existence of these stringent safeguards renders the discrimination between terminal and non-terminal individuals unreasonable.”
Deputy Southern dismissed concerns that “unbearable suffering” is too vague to define, pointing to established criteria in other jurisdictions and to wording already contained within Jersey’s own draft law.
“Unbearable suffering is subjective,” he said. “That does not mean that there are no objective tests and restrictions that can be imposed.
“It does not mean that someone with no medical record or diagnosis can walk straight into an assisted death.
“It equally does not mean that a vulnerable person who is suffering would not undergo all necessary reviews and processes to assess state of mind and possibility of coercion.”
Deputy Southern also rejected claims that extending eligibility would target disabled islanders, calling that assertion wrong and warning against undermining their autonomy.
“The removal of the terminal requirement does not target disabled people; it rather treats all islanders equally,” he said.
“If any person lacked capacity to make such a decision, they would not be eligible to apply.”
Fears of a “slippery slope”, he added, ignore the “stringent safeguards” and mandatory checks built into the legislation, including criminal penalties for coercion of up to 14 years.
The draft law returns to the Assembly for debate next week.