Draft Assisted Dying (Jersey) Law 202- (P.65/2025): amendment (P.65/2025 Amd.) – comments

STATES OF JERSEY

DRAFT ASSISTED DYING LAW 202- (P.65/2025): AMENDMENT (P.65/2025 AMD.) – COMMENTS

Presented to the States on 9th February 2026 by the Minister for Health and Social Services

STATES GREFFE

2025  P.65 Amd. Com.

COMMENTS

Background

1. The  draft Assisted  Dying  (Jersey)  law  202-  ("draft  law")  provides  that  an individual whose request for an assisted death has been approved may, at step 6 of the assisted dying process (care planning step), make their final request for assisted dying including waiving the requirement for future capacity if that individual has capacity to do so.
2. Making a final request including waiving the requirement for future capacity at Step 6 (when the person has capacity) allows an assisted death to take place, at Step 7, on the individual's chosen date even if the individual has lost capacity by that date.
3. Deputy   Ward 's  proposed  amendment  seeks  to  remove  that  choice,  thereby requiring the individual to retain capacity up until the administration of the approved drugs at Step 7.
4. The option to make a final request for assisted dying at Step 6 including waiving the requirement for future capacity ("make  a wavier") has a strong ethical justification, as recognised by the Scrutiny Panel expert advisors:

"There is arguably a strong ethical justification for having a waiver of future capacity, on the basis that it avoids encouraging people who anticipate losing mental capacity to rush to receive assisted dying while they retain capacity. Instead, the waiver encourages people to live longer without losing their right to have the approved assisted death that they have chosen to arrange. This also promotes autonomy." 1

5. Furthermore, an individual's choice to make a waiver:
   1. accords with the principle that assisted dying supports a terminally ill person to have more control over the manner and timing of their death, it they wish to do so
   2. has already been agreed by the Assembly (P18/2024).
6. As such, the Minister does not support the proposed amendment.
   7. Clarifying amendment

The Minister has lodged a clarifying amendment to the draft law, which makes it explicit that if a person chooses to make a final request for assisted dying at Step 6 and chooses to waive the requirement to future capacity, they are making a single decision – i.e., at Step 6 they are making their final request for assisted dying including waiving the requirement for future capacity.

1 S-R-1-2026-Interim-Report-–-Review-of-the-Draft-Assisted-Dying-Legislation.pdf, page 45

This is because the decision to make a final request for assisted dying at Step 6 cannot be enacted without waiving the requirement for future capacity and vice versa.

As with the other amendments presented by the Minister, this does not affect any previous decisions; it simply serves to further clarify the law and make explicit matters that were previously implicit.

Purpose of waiver and associated safeguards

8. The waiver was introduced following discussion with assisted dying practitioners in jurisdictions where assisted dying is permitted but there is no provision for a waiver.
9. Those practitioners, who have lived experience, spoke about the ethical and emotional challenges that arise when an eligible individual, who had capacity and a demonstrable enduring wish to have an assisted death, could not have an assisted death on their agreed chosen date because of a rapid decline in their capacity  in  the  proceeding  days  (with  that  decline  arising  from  disease progression or the associated pain control). Those practitioners reflected on the direct impact on the individual, on the distress caused to family and friends and to themselves as professionals who were unable to enact the known wishes of a dying person.
10. The waiver seeks to provide safe resolution to a highly complex dilemma by allowing a person to choose to consent, at the care planning stage (Step 6), to the administration of the approved drugs on their chosen date (if they no longer have capacity on that date) subject to the following safeguards:

1. the individual must have been assessed as eligible for assisted dying by two independent assessment doctors and have approval for an assisted death [Steps 1 – 5]
2. throughout the assessment process the individual must have capacity and have demonstrated that their request for an assisted death is voluntary, settled, clearly expressed and informed.
3. at the Care planning phase (Step 6) the Administering Practitioner must inform the individual about the implications of making their final request at  Step  6  including  making  a  waiver,  and  must be  satisfied  that the individual has the capacity to make that waiver, and that their wish is voluntary
4. on the agreed date, the Administering practitioner will attend the individual at the agreed location (Step 7):

• if the individual still has capacity, the waiver will not come into effect (i.e. the individual must make a final voluntary request for assisted dying before the approved drugs are administered)

• if individual does not have capacity, the waiver will come into effect BUT the Administering practitioner may only proceed if:

- the  individual  shows  no  signs  of  refusal  or  resistance  to  the administration of the drugs

- there is no other practical reason for not carrying out the assisted death, for example the individual is vomiting or has asked for a delay.

11. Deputy Ward 's report states that:

1. the addition of the Waiver changes the fundamental principle of the draft law' which shifts to non-voluntary euthanasia'. This is not the case. The waiver process provided for in the draft law is consistent with the principles and safeguarding objectives as set out in P18/2024. Any decision to make a final request including waiving the requirement for future capacity must be a voluntary decision taken by a person with capacity; and the assisted death must not proceed if person shows any signs of refusal or resistance
2. The  Draft  Law  as  presented  at  many  public  and  political  briefings emphasises that the patient must be competent and have capacity at the point of [administration]'. This is also inaccurate; information about the waiver is included in the summary information about the draft law at www.gov.je/assisteddying and was provided in the Phase 2 consultation documents, copies of public information presentation' slides  are also available at gov.je/assisteddying clearly referencing the proposed waiver.2

12. Consideration of waiver during policy development process

1. As set out above, concept of a waiver was discussed with assisted dying practitioners during the policy development process. As noted by Deputy Ward , the matter was not specifically considered as part of the Citizens' Jury process as, at that point in the process, there had not been active discussion with practitioners.
2. The phase 2 consultation process indicated limited support for a waiver amongst respondents opposed to assisted dying but strong support amongst respondents who were supportive of assisted dying (83%).
3. The UK professional regulatory bodies (e.g., General Medical Council and Nursing and Midwifery Council) raised no concerns about the waiver, noting that its inclusion would not be inconsistent with their professional guidance.

2 Assisted dying in Jersey

Consideration of capacity for assisted dying decisions

13. Deputy Ward 's report sets out neither Jersey nor Westminster capacity laws were intended to cover assisted death requests since they both include a presumption of capacity and do not require coercion to be considered' and goes on to state that The Capacity Law was not anticipated to be used to assess capacity to end one's life'. This is correct. The Capacity and Self-Determination (Jersey) Law 2016 ("2016 Law") was not intended to address matters related to assisted dying requests or decisions, hence the draft law sets out a specific test for capacity in relation to assisted dying decisions and does not rely on the existing 2016 Law.
14. Further to this, the draft law treats the presumption of capacity differently in recognition of the implications of an assisted dying decision (ie. an assisted dying decision may result in a person's death, which is generally not the case for decisions that fall within the scope of the 2016 Law). As noted by the Review Panel's expert advisors:

"[in the draft law as lodged] the assumption of capacity can only be made provided that the doctor/practitioner finds no evidence of a lack of capacity whilst making their assessment. In other words, the assumption of capacity is post- rather than pre-assessment." [3]

15. Deputy Ward further comments that clinicians often do not understand the legal requirements to assess best interests' and more work and training needs to be conducted on this aspect' but it should be noted that:

1. the concept of a best interests' decision (ie. a decision taken on behalf of a person who lacks capacity) is not relevant in this case, as the draft law does not allow for best interests' decisions. An assisted dying decision can only be made by the individual themselves if they have the capacity to make that decision – and this includes the waiver because the Administering practitioner is acting on behalf of the individual at their request, rather that deciding a matter for them
2. the draft law requires the Delivery and Assurance Committee to develop specific mandatory training on capacity [and all other eligibility criteria] for all assisted dying practitioners, in addition to developing detailed operational guidance.

16. In response to Deputy Ward 's comments and to ensure absolute clarity, the Minister has lodged a proposed clarifying consequential amendment to the Capacity and Self-Determination (Jersey) Law 2016 which explicitly states that

nothing in that the 2016 authorises a person to take, on behalf of another person, any decision under the assisted dying law under either:

1. the Lasting Powers of Attorney provisions in the 2016 Law, or
2. the general powers of the Court to make decisions and to appoint delegates under the 2026 Law

Advance decisions  

17. Deputy Ward notes that advanced decision-making' is quite different to a waiver as Advance Decisions [sometimes called Advance Directives] relate specifically to the refusal of treatment, and that assisted dying is not a treatment'. This is correct, assisted dying is not a treatment' and a waiver is not as an Advance Decision'.
18. Deputy Ward notes that: "UK Courts have rejected the principle of demanding a future treatment on several occasions (usually related to Cardiopulmonary Resuscitation (CPR)). The reasoning and opinion given is that an individual could not anticipate the circumstances in which the treatment demand was to be enacted. Therefore, such an advance decision to request a treatment could not be binding on clinicians" but this not comparable to the waiver:

1. an individual who is choosing to make a waiver does so at the same time as confirming the circumstances of their death (i.e. time, date, location and mode of administration for their assisted death, including other matters such as presence of family and friends) hence the individual can anticipate the exact circumstances in which their waiver will be enacted and their assisted death will be carried out
2. a waiver cannot be characterised as binding on clinicians', as the Administering practitioner must not proceed with the assisted death if the individual shows signs of refusal and may refuse to do so for any other reason (under their right to refuse).

Coercion

19. Deputy Ward further expressed concerns regarding the possibility of coercive approaches from family onlookers trying to push a practitioner to administer the terminal medication'. However, in the event that a person has made a waiver, the draft law is very clear; the Administering Practitioner may not proceed with administration if the individual is showing any signs of refusal and, if they were to do so, the Administering Practitioner could be committing an offence of unlawfully administering approved drugs' with a maximum sentence of life imprisonment.
20. Furthermore, the draft law requires that an administration witness is present to guard against coercion, amongst other matters. That witness must be doctor, a nurse or an assisted dying practitioner.

Conclusion  

21. The inclusion of a waiver in the draft law accords with the Assembly's previous decision (P18/2024) with the associated provisions being developed following in- depth  consultation  with  the  public  and  key  stakeholders,  including  UK professional regulatory bodies. This  includes the multiple  safeguards  which ensure that only individuals with capacity can make a waiver, and their decision must be voluntary.
22. Provisions related to the waiver accord with the principle that assisted dying supports a terminally ill individual to have more control over the manner and timing of their death. Furthermore, learning from the lived experience of assisted dying  practitioners  in  other  jurisdictions,  the  waiver  and  the  associated safeguards, provide safe resolution to a highly complex and distressing dilemma for the individual, their loved ones, and the professionals who seek to operate with compassion and enact the known wishes of a dying person.
23. Accordingly, Members are asked to reject the amendment.

[3] S-R-1-2026-Interim-Report-–-Review-of-the-Draft-Assisted-Dying-Legislation.pdf, page 40