Assisted Dying (P.18/2024) – Children’s Rights Impact Assessment

1)  Name and brief description of the proposed decision

The subject of your CRIA may be a proposed law, policy or proposition and in accordance with the Law is referred to in this template as the decision'

• What is the problem or issue the decision is trying to address?

• Do children experience this problem differently from adults?

The  decision:  The  decision  of  the  States  Assembly  to  adopt  the  Report  and Proposition which sets out detailed proposals for the development of a draft assisted dying law.

Background: The Report and Proposition is brought forward in accordance with a decision of the States Assembly (P95/2021) that, in principle, assisted dying should be  permitted  in  Jersey,  but  that,  prior  to  the  preparation  of  the  law  drafting instructions, detailed proposals should be brought back to the Assembly for debate. The Report and Proposition sets out those detailed proposals.

What is the problem or issue the decision is trying to address?

The decision will confirm the arrangements for assisted dying in Jersey, including all processes and safeguards, ahead of law drafting.

Do children experience this problem differently from adults?

The Report and Proposition set out that assisted dying would be permitted only for those aged 18 or over – i.e. children would not be eligible for assisted dying whereas adults, who meet the assisted dying eligibility criteria, would be.

2)  Which groups of children and young people are likely to be affected?

Groups of children could include early years, primary or secondary education; young adults; children with additional learning needs; disabled children; children living in poverty; children from particular ethnic backgrounds; migrants; refugees; care experienced children and LGBTQ+ children

All children have the potential to be affected if assisted dying is permitted in Jersey.

Children with a terminal illness or who are experiencing unbearable suffering as a result of their physical medical condition, may be directly affected in that they would not be eligible for assisted dying (whereas adults with the same or similar conditions may be eligible).

All children have the potential to be impacted indirectly in that the parents, carers or other family members of any child have the potential to request assisted dying.

3)  What is the likely impact of the proposed decision on children and on their rights?

• Identify any potential positive OR negative impacts and include indirect impacts on children and their rights as described in the UNCRC

• Will different groups of children be affected differently by this decision?

All children may be impacted indirectly if a parent, carer or other family member were to have an assisted death.

Children with a terminal illness or who are experiencing unbearable suffering as a result of their physical medical condition, may be directly affected in terms of the rights of disabled children and where this differs from the rights of disabled adults.

4)  Is a full Children's Rights Impact Assessment required?

If you have identified impacts on children and their rights, a full CRIA should be completed. If no impacts are identified then a Full CRIA is not required, but please explain your rationale and how you reached this conclusion

A full CRIA is required in relation to the potential direct impact on children's rights

– specifically because, should the proposition be adopted, a child will not be eligible for assisted dying.

A full CRIA related to the potential indirect impact on children's rights (i.e. impact on children of parents/carers having an assisted death) cannot be meaningfully undertaken until the States Assembly has confirmed the proposals. This is because there will be significant variations as to the extent of the indirect impact depending on whether the Assembly adopt proposals related to:

• Route 1 – terminal illness' only; or

• Route 1 – terminal illness' and Route 2 – unbearable suffering'.

The indirect impact on children's rights (for example, Article 16 - Right to Privacy, including family and home life) will differ where a parent/carer is assessed as eligible under Route 1 – terminal illness', as opposed to under Route 2 – unbearable suffering'. Under Route 1, the parent/carer will already be nearing the end of their life at the point of their assisted death, in contrast to Route 2 – unbearable suffering' where the parent or carer's life may potentially be shortened by a number of years. The potential impact on the child will be different in both cases.

It is, therefore, anticipated that a CRIA on the indirect impact on children's rights regarding their parent/carer's assisted death will be undertaken at the point at which a draft law has been prepared, prior to debate by the States Assembly. The full CRIA below relates exclusively to the potential direct impacts on children associated with the proposed decision that they should not be eligible for assisted dying.

Abduction and non-return of children abroad (Art 11)

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Right to a standard of living that is good enough to meet the child's physical and social needs and support their development (Art 27)

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Special protection for children unable to live with their family (Art 20)

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Best interests of the child in the context of Adoption (Art 21)

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Review of treatment whilst in care (Art 25)

If a child has been placed away from home for the purpose of care or protection (for example, with a foster family or in hospital), they have the right to a regular review of their treatment, the way they are cared for and their wider circumstances.

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Protection from violence, abuse or neglect (Art 19)

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Recovery from trauma and reintegration (Art 39) Children who have experienced neglect, abuse, exploitation, torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life.

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Basic Health and Welfare

Rights of disabled children (Art 23)

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Right to health and health services (Art 24)

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Right to social security (Art 26)

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Right to adequate standard of living (Art 27)

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Education, Leisure and Cultural Activities

Right to education (Art 28)

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Goals of education (Art 29)

Education must develop every child's personality, talents and abilities to the full

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Leisure, play and culture (Art 31)

Every child has the right to relax, play and take part in cultural and artistic activities

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Special Protection Measures

Special protection for refugee children (Art 22)

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Children and armed conflict (Art 38 and Optional Protocol #1)

Governments must do everything they can to protect and care for children affected by war and armed conflict.

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Children and juvenile justice (Art 40)

Right to be treated with dignity and respect, right to legal assistance and a fair trial that takes account of age.

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Inhumane treatment and detention (Art 37 (b)-(d)) Children should be arrested, detained or imprisoned only as a last resort and for the shortest time possible.

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Recovery from trauma and reintegration (Art 39) Children who have experienced neglect, abuse, exploitation, torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life

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Child labour and right to be protected from economic exploitation (Art 32)

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Drug abuse (Art 33)

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Sexual exploitation (Art 34)

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Abduction, sale and trafficking of children (Art 35)

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Protection from other forms of exploitation including for political activities, by the media or for medical research (Art 36)

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Children belonging to a minority or an indigenous group (Art 30)

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Optional Protocol on the sale of children, child prostitution and child pornography

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Optional protocol on the involvement of children in armed conflict

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6)  Information and research

What evidence has been used to inform your assessment?

Evidence collected (include links to relevant publications)

What did the evidence tell you?

What are the data gaps, if any?

Evidence collected focusses on the issue of whether or not children should be eligible for assisted dying in Jersey.

The majority of jurisdictions that permit assisted dying do not permit it for people aged under 18, including:

• All US states that permit assisted dying

• Canada

• All Australian states

• New Zealand

• Spain

• Luxembourg

• Austria

Assisted dying is only permitted for those aged under 18 in the Netherlands and Belgium, and in both jurisdictions it is only permitted in certain circumstances.

Phase  1  consultation: Assisted  Dying  in  Jersey, Public  engagement summary report

Public  engagement

The Phase 1 consultation did  not  identify  a  clear consensus  as  to  whether children  under  18  years old should be permitted an assisted death.

Some  participants expressed  the  view  that those aged under 18 may not  have  the  maturity  to make  such  a  decision. Others  felt  children  and young people should not be  denied  an  option afforded to adults.

A number who engaged in the consultation expressed a  preference  to  legislate for  adults  aged  over  18 years only, and potentially reconsider amendments to eligibility  criteria  in future.

The Phase 1 consultation was a qualitative study to explore key themes and concerns  of  Islanders relating  to  the introduction  of  assisted dying and did not include quantitative  evidence, such as survey work.

summary report on assisted

dying in Jersey (gov.je)

Phase  2  consultation: Assisted  Dying  in  Jersey Consultation  Feedback report

Assisted  Dying  in  Jersey

The  Phase  2  survey responses indicate a mixed view  towards  the  18+' eligibility  criteria.  The consultation survey asked: Do you agree that assisted dying  should  only  be permitted for people aged 18 or over?

To which 40% responded Yes,  I  agree'  and  35% responded  No,  I  do  not agree'.

The most commonly cited reason restricting assisted dying to those aged 18 or over,  was  the  view  that only people aged 18 and over  have  the  sufficient maturity  and  legal capacity  to  consent  to assisted dying.

The consultation feedback considered the views of those who responded to it. By its nature, consultation work captures the views of those who have an interest in assisted dying. It must not be assumed that their individual or collective views are necessarily representative of wider public opinion.

Phase  2  Consultation

Feedback  Report  (gov.je)

(p.48)

Those who did not agree that assisted dying should be restricted to those aged 18+, broadly cited two key reasons,  they  either  held the view that:

• people  of  any  age can experience pain and  suffering  and most young people (15-16  years  old) are  capable  of consent  and  can make  informed decisions  [Some respondents  stated that  assisted  dying should be offered to children and young people  as  long  as there  was  parental consent.]

OR

• did not support for assisted  dying  for any  person  of  any age

Assisted  Dying  in  Jersey Ethical Review

Assisted  Dying  in  Jersey

The review authors noted:

"There are arguments for and  against  allowing competent  minors  to access  AD  (assisted dying).

In favour of allowing such access:  there  are precedents for doing so; it may  be  fair,  just  and equitable  to  afford competent  minors  the same  rights  as  adults  in their  situations  enjoy;  it may be legally consistent to do so; and safeguards may  be  introduced  by additionally  requiring parental consent.

The Ethical Review was undertaken by three ethicists who each hold a different position on assisted dying.

Ethical  Review  Report

However,  most jurisdictions do not allow minors to receive AD and those  countries  that  do have low uptake and their laws  are  controversial. Furthermore,  children may  be  said  to  lack  the requisite  autonomy  and may  be more in need of protection. Offering them access  to  AD  may  also create legal inconsistency (unless children were also to  be  given  a  right  to refuse  life-sustaining treatment). We  also note that  the  public consultation  narrowly preferred  restricting access to adults.

On  balance,  we  believe that  AD  should  be restricted to adults."

7)  Engagement with children

What groups of children and young people (or those who speak on their behalf, such as social workers, teachers or youth workers) have been directly or indirectly involved in developing the decision?

Groups consulted

How they were involved

What were the findings?

Government  of  Jersey  officers  and  the  previous  Minister  for  Home  Affairs corresponded  with  the  Children's  Commissioner  to  establish  her  views  on  the consulting with children about assisted dying.

The Commissioner provided formal advice expressing concerns about engaging young people in a conversation about assisted dying because, by its very nature, it could be a potentially distressing topic. The Commissioner stated that children may not be able to fully comprehend or examine the consequences of assisted dying, and that the principle of engaging with children and young people about policy matters that impact them, and the benefits that derived from engagement were, in this case, outweighed by the risks.

In light of this, it was proposed that an alternative route would be to engage with young adults (i.e. aged 18-24) and parents.

The Phase 1 and Phase 2 consultation and engagement included young adults and parents (demographic data, however, cannot be broken down by age or whether the participants had children); the findings of which are summarised in section 6 above.

There  are  very  few examples  of  engagement with children on the issue of assisted dying in other jurisdictions  where legislation  has  been introduced.

However,  one  qualitative study  in  Canada  was published in Children and Society: The international Journal of Childhood and Children's  Services  in 2023:  Young  people's perspectives  on  assisted dying  and  its  potential inclusion of minors

Only  3  of  the  22 participants  in  the Canadian  study  were children aged 16 or 17, the majority  were  young adults aged 18-24.

The study highlighted the importance and benefits of involving  young  people (as distinct from children >18) in the debate around assisted  dying  and  the possible  inclusion  of assisted  dying  for  those aged under 18.

8)  Assessing Impact on children's rights

Based on the information collected and analysed above, what likely impact will the proposed decision have on the specific children's rights identified in question 5)?

Relevant UNCRC Articles (rights) identified in Q5

Describe the positive or negative impacts on these rights

Which group(s) of children are likely to be affected?

Best interests of the Child (Art 3) to be a top priority

A decision not to permit children  to  have  an assisted death impacts on Article 3 in multiple ways:

• it may not be in best interests  of  an individual child who is suffering (and who is competent to make an assisted  dying decision) to deny that child  access  to  an assisted  death.  This could be perceived as a negative impact on the Article 3 rights

• it may be in the in best interests  of  an individual  child  who may not be competent to  make  an  assisted

All  children,  particularly children  with  a  terminal illness  or  who  are experiencing  unbearable suffering  as  a  result  of their  physical  medical condition.

dying decision to deny that child access to an assisted  death.  This could be perceived as a positive impact on the Article 3 rights

• it may or may not be in the best interests of a child  to  deny  them access  to  an  assisted death if their wish for an  assisted  death brings  them  into conflict  with  their parents'  wishes.  This could  be  argued  as either  a  positive  or negative impact

• it would be in the best interests of a child to deny them access to an assisted  death if their stated  wish  for  an assisted  death  was driven by their parents. This  could  be perceived as a positive impact on the Article 3 rights

Right to Life survival and development (Art 6)

A decision to not permit children  to  have  an assisted death would have negatively  impact  on  a child's  right  to  life survival and development, as  a  child  would  not be eligible  for  an  assisted death

All  children,  particularly children  with  a  terminal illness  or  who  are experiencing  unbearable suffering  as  a  result  of their  physical  medical condition.

Respect  for  the  child's views (Art 12)

A decision not to permit children  to  have  an assisted death may have a negative  impact  on competent  minors'  who are aged under 18 but may have  the  maturity  and capacity  to  make decisions  around  their health  and  care,  and

All  children,  particularly children  with  a  terminal illness  or  who  are experiencing  unbearable suffering  as  a  result  of their  physical  medical condition.

potentially their wish for assisted  dying.  In  this instance,  they  would  not be  able  to  express  their views  in  the  context  of requesting assisted dying.

Where  a  child  does  not have  the  competence  or capacity  to  make  a decision  about  assisted dying, the decision not to permit  them  access  to assisted  dying  has  no effect on their rights.

Rights of disabled children (Art 23)

A  potential  negative impact of the decision not to permit children to have an assisted death, is that disabled  children  would be  treated  differently  to disabled  adults,  who would  potentially  be eligible  for  an  assisted death.

A decision not to permit any  children  to  have  an assisted death would mean treating disabled children in  the  same  way  as  all other children, protecting them  from  making  a decision that they may not have  the  competency  or capacity  to  make  or  to understand  the  full consequences of.

Children  with  a  terminal illness  or  who  are experiencing  unbearable suffering  as  a  result  of their  physical  medical condition.

Right to health and health services (Art 24)

A decision not to permit children  to  have  an assisted death would mean that  children  were  not eligible to access all the services  of  the Government  of  Jersey's Assisted  Dying  Service. They could not access an

All  children,  particularly children  with  a  terminal illness  or  who  are experiencing  unbearable suffering  as  a  result  of their  physical  medical condition.

assisted  death  (unlike adults),  but  allowing access  to  the  Assisted Dying  Service's counselling  and bereavement  support services could represent a positive  impact  on  their Article 24 rights.

9)  Weighing positive and negative impacts

• If a negative impact is identified for any area of rights or any group of children and young people, what options are there to modify the proposed decision to mitigate the impact?

• Could any positive impacts be enhanced?  

The negative direct impact on children's rights relate to the fact that, under these proposals, a child would not be able to request assisted dying or make a decision to have an assisted death. They may, therefore, be subject to suffering as a result of a physical medical condition which an adult could have the potential to end, if the adult had an assisted death.

These negative impacts are accepted in bringing forward proposals that only allow assisted dying for those aged 18 or over, on the basis that:

1. it is appropriate for the States Assembly to exclude children from assisted dying legislation in order to ensure that all children are protected because, as set out in the preamble to the UNCRC "the child, by reason of his physical and  mental  immaturity,  needs  special  safeguards  and  care,  including appropriate legal protection, before as well as after birth"

2. Jersey law already restricts children's access to certain activities / services (e.g. Marriage, smoking, consuming alcohol, working hours) on the basis potential  harm  and  excluding  children  from  access  to  assisted  dying represents a consistent approach to such important issues.

It should be noted that this view is held in most other jurisdictions where assisted dying is permitted.

10) Conclusions

In summary, what are your key findings on the impact of the proposed decision on the rights of Jersey children?

It is essential that any law which permits assisted dying works to safeguard all people (ie. those requesting an assisted death and wider society). This is even more important when considering under 18s who, by reason of potential immaturity, require special safeguards.

• Extensive consultation and engagement with Islanders, which included young adults and parents, did not identify strong consensus on whether assisted dying should be permitted for under 18s

• Research of other jurisdictions where assisted dying is permitted (which have all ratified the UNCRC, excluding the American States) indicates a broad acceptance that assisted dying should not be permitted for under 18s in order to ensure children are fully protected – although this position is not universal given that Netherlands and Belgium, who have also ratified the UNCRC, permit for under 18s

• Not permitting assisted dying for under 18s has both positive and negative impacts on children's rights. In weighting up those impacts, it must be noted that not permitting children to access assisted dying ensures that there is no conflict with Article 6 – the Right to life, survival and development.

Therefore, the proposals take a cautious approach and accord with the in principle' decision of P95/2021 to only permit assisted dying for adults.