The Impact of Assisted Dying Legislation on Life and Health Protection

The current situation 

There are various terminologies to get your head around when you dive into the world of assisted dying, such as physician-assisted death or physician-assisted suicide. However, for insurers, the main thing to understand is that there is a difference between euthanasia and medically assisted death. Euthanasia assumes that a doctor is actively involved in the act when the reality in most countries (including Bills now proposed in the UK and Ireland) is that the doctor’s role is limited to providing drugs for a patient to self-administer and bring about their own death.

Debate over whether someone who is terminally ill or suffering from an unbearable illness should have the right to end their life, without the fear of those assisting them facing prosecution, is a choice that has always been met with equally strong support and objection. It remains a subject of debate, within society, the medical profession, and by law makers.

On average, one Briton every week travels to Swiss-based charity Dignitas for a legally assisted death. For such individuals the associated cost to the individual comes in at over £10,000.00. Sadly, for individuals who make the decision, it is often one that results in them ending their life even more prematurely than they would prefer, as they must be physically well enough to travel. For those who are too unwell, they are left without assisted dying legislation support and may even take their own drastic means to end their life over suffering from an incurable illness palliatively.

On 24th July 2024, a Private Members Bill was submitted by Lord Falconer to the House of Lords to discuss whether a terminally ill adult should be able to seek medical assistance to end their life. This is a debate that has resurfaced countless times in UK legislation history, dating as far back as the 1930’s. A Bill was proposed in 2015 by Labour MP, Rob Marris, and was defeated in the House of Commons having been outnumbered by 212 opponents. Baroness Meacher also succeeded in getting support for her Bill in 2021, but its second reading was not given time to be debated. 

While attempts to reform legislation have never proven successful, this time around something feels different. There is public support from the new Labour Prime Minister Sir Keir Starmer, and celebrities like Esther Rantzen, who has stage 4 lung cancer. Rantzen has also publicly registered with Dignitas as she describes the current UK law “a mess”. There are also increasing amounts of international legislation, and UK charities such as Dying with Dignity who report 75% of respondents supported an individual’s choice to choose assisted dying. In short, there’s a stronger sense more than ever before that Lord Falconer’s Bill may gain Royal Assent. 

This begs the question, if passed, how might this impact insurers and claims for assisted deaths?

Why now?

At present, doctor-assisted suicide and euthanasia is illegal under murder and manslaughter legislation in England, Wales and Northern Ireland (with up to 14 years imprisonment). Scottish law may also prosecute assisting individuals under murder and culpable homicide legislation. 

In the first of half of 2024, assisted dying Bills were tabled in Ireland, Scotland, The Isle of Man and Jersey. Jersey and Ireland have also gone further with their Bill with recommendations to include individuals who are not just terminally ill but also those who suffer from an incurable condition that causes unbearable suffering from neurological conditions. All Bills have passed their initial readings and continue to progress through their parliamentary stages (of which there are several in each jurisdiction). If any of the Bills pass their various stages, we could see legislation in place by as early as 2027.

The Bill Wording

The first thing to acknowledge is that UK and Irish legislation wording will only apply to adults over the age 18 years old. While a lot of insurers now look to cover children’s critical illness up to 23 years, it seems unlikely insurers will be asked to consider claims under the children’s benefit when critical illness remains a higher value benefit option to parents. It also seems unlikely that insures would penalise a parent’s child (over age 18) under the children’s life cover benefit if death was legally assisted or not. 

It’s also important to stress that only Jersey and Ireland have recommended Bill wordings to include terminal illness where death is expected within six months for traditional illnesses (like cancer) or twelve months for neurodegenerative illnesses. Otherwise, the focus is on terminal illnesses where death is expected within six months. 

This could create some inconsistency for claimants whose legislation does not consider neurodegenerative conditions. Notable campaigners for assisted dying legislation, like Tony Nicklinson and Paul Lamb both agonised from multiple sclerosis and locked in syndrome and would still not qualify under the new UK proposals.  That said, insurance claimants would still be able to successfully claim under the critical/serious illness benefit space if they have this cover. 

For terminally ill patients, the Bill steps outside of the traditional insurance wording of death expected to be within twelve months and legally considers a patient “terminally ill” if their death is reasonably expected within six months. Patients whose requests are accepted will then have to wait a further period of time before the assisted death can take place e.g. in the UK, this will be no sooner than 14 days after an individual’s request is accepted (this requirement is shortened to six days if death is expected within one month). 

Under all the Bills proposed, an individual’s capacity to make the decision to end their life reads as if it will be heavily scrutinised. Not only will they have to be deemed of sound mind to make a clear, voluntary and informed decision, but their request will also be independently assessed by two doctors (“the attending doctor” and “the independent doctor”). Both must separately examine the patient and their medical records, and more importantly, bear no personal relationship to the patient or seek to benefit from their act. 

Where both doctors agree the patient may be deemed as “terminally ill” and has the “capacity to make the decision” without undue influence, coercion or duress, the patient would be legally allowed to be prescribed drugs for self-administration, which must be taken in the presence of the “attending doctor”.
If either doctor has any concern with their decision not being voluntary, then their case must be referred to a specialist psychiatrist for further assessment.

It’s also important to stress that the patient may withdraw their declaration at any time during the process right up to the provision of end-of-life drugs, and this withdrawal need not be in writing.

Medical & Public opinion

How do doctors feel about the legislation? Since 2021, the British Medical Association has adopted a neutral position on assisted dying reforms. However, that’s not to say individual doctors still feel this goes against their ethical duty of care towards patients, and it’s not their role to aid end-of-life care. That said, the legislation proposals do accept a doctor’s right to refuse to participate in any request.

Other public bodies feel the answer lies in better palliative care as there aren’t sufficient safeguards to prevent patients feeling like their illness is a burden to dependants or loved ones.

For those in support of reform, the arguments centre around legislation being able to provide a better framework for regulated support and terminally ill patients would be afforded better personal choice over their health care and the ability to choose when they can die with dignity.

The Insured population 

So, if assisted dying legislation was to gain Royal Ascent, would it affect our insured population, and how?

Currently, all the Bills (except for those that also include neurodegenerative conditions) seem largely aligned and this should provide a relatively consistent framework for most insurers and claimants under the life and critical/serious illness benefits available.

The most notable change is around the legal determination over what’s considered a terminal illness i.e. six months over the insurance-based definition twelve months.

There has been a lot of discussion in the industry about the suitability of the terminal illness benefit/wording, and SCOR have previously engaged with our UK & Irish markets as to whether the definition would be better suited to a six-month requirement. This was among many potential recommendations in our publication ‘Terminal Illness Explored’⁽¹⁾. However, it was accepted that this may be perceived by the market as a toughening of the definition and potentially making it harder to claim successfully. 

The reality for most claims assessors is that doctors do not like predicting life expectancy within twelve months and communicating such assessment decisions is one of the hardest an assessor may have to discuss with a claimant. So, perhaps assisted dying legislation could be seen as a legitimate means to unify the benefit with the legal definition of a “terminally ill” person? Only time will tell on this point.

The uptake of the terminal illness benefit in Ireland has historically been relatively low compared to the UK, so it remains to be seen if the introduction of assisted dying legislation would change Irish policyholders’ mentality of claiming under their terminal illness benefit. If legislation was introduced, SCOR would continue to monitor such changes and offer our expert view on the situation. 

But what if the status quo remained and our industry did not change the twelve-month requirement? Should we be concerned that assisted dying legislation would accelerate life insurance claims under the terminal illness benefit? Would this lead to earlier payouts? 

Looking at the legislation proposals, if seems reasonable to assume we would not see a rapid rise in death claims that would have traditionally been terminal illness claims or newly advocated advanced death claims. The wording of the various Bills all appear suitably safeguarded; individuals are required to be of sound capacity, and their request requires independent review by at least two doctors. Mental health safeguarding would be the biggest focus if legislation was passed and there would likely be a very strict criteria to meet (and where we suspect a lot of requests may fail). 

While there may be a small cohort of policyholders who feel motivated to choose end-of-life care to benefit dependents or loved ones with their insurance benefit, we would expect this to be picked up in the independent reviews, especially when the “attending doctor” is likely to be the doctor who gave the initial terminal diagnosis for most cases and should have a fair knowledge of the patient.

Conclusion

There is no doubt that the introduction of such legislation would cause insurers to review their policy terms and philosophy positions.

Historically most insurance policy terms included a common law approach of not allowing the claimant to benefit from their own act. However, these days, most life insurers will only exclude suicide/self-inflicted claims if they fall within the first year, so there seems no logical reason that an assisted death should be treated any differently.

Where a claim for an assisted death falls outside a policy’s first year exclusion, life insurers should treat suicide and medically assisted deaths in the same manner. Assisted deaths will be subject to stringent health and legal requirements and, where these have been fulfilled, should be considered as legally supported for claimants to claim under their life insurance (if legislation is passed) without fear or implication of others assisting in the act.

Current market practice, when assessing terminal illness claims, is (appropriately) flexible in determining the twelve months of life expectancy, despite its negative public perception. Given the existence of the terminal illness product, we would reasonably expect claims to still fall under this benefit. Arguably, the life expectancy criterion for insurers would be more generous than the legal position. We may even see doctors being more willing to provide their patients details of their life expectancy as legislation forces them to adapt to the assisted dying framework.

It's possible that claims experience could see an increase in assisted deaths where policies have restrictions on not being able to claim under terminal illness within the last eighteen months of their policy, or where a term policy nears its expiry. However, if this was the main motivator for a patient to go down the assisted dying route, you would expect such applications to fail under the safeguarding proposals built into the legislation. Therefore, it seems unlikely insurers would have valid grounds to decline such claims (where there was no misrepresentation concern) as the death would be legally supported.

⁽¹⁾ Terminal Illness Explored