Terminally Ill Adults (End of Life) Bill
Friday 29th November 2024
(4 months, 4 weeks ago)
Commons ChamberTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
14:08 - The House divided: - Ayes: 330 / Noes: 275 - Question accordingly agreed to.
Mr Speaker
Before I begin proceedings, I would like to say a few words to help manage expectations about business today. More than 160 Members have indicated that they wish to speak in the first debate. It is not customary to impose a speech limit on private Members’ Bills, but I hope that after the Member in charge of the Bill and the speaker after that, Members will restrict themselves to about eight minutes in the first instance; that includes taking interventions. The Chair will review the guidance as the debate progresses. I may need to ask for shorter speeches to enable more Members to contribute. I should make it clear that the Chair retains the right to impose a formal speech limit, but I would rather colleagues help each other.
At about 2 pm, I will call Front Benchers to make their comments, and then we will move to end the debate. I have got to manage expectations. Not everyone will get in. I will try to get in as many people as possible. This is one of the most important debates that the House has had, so it is about being considerate and respectful of each other. Let us listen to each other. This is the time for the House to show itself at its best.
The reasoned amendment in the name of Dr Ben Spencer has not been selected. I call Kim Leadbeater to move the Second Reading.
Kim Leadbeater (Spen Valley) (Lab)
I beg to move, that the Bill be now read a Second time.
Thank you, Mr Speaker, and thank you to everyone who is attending this hugely significant debate. It is a privilege to open the debate on the Terminally Ill Adults (End of Life) Bill, a piece of legislation that would give dying people, under stringent criteria, choice, autonomy and dignity at the end of their lives. I welcome the debate on this hugely important issue.
Let me say to colleagues across the House, particularly new colleagues, that I know this is not easy—it certainly has not been easy for me—but if any of us wanted an easy life, I am afraid we are in the wrong place. It is our job to address complex issues and make difficult decisions. I know that for many people this is a very difficult decision, but our job is also to address the issues that matter to people. After nearly a decade since the subject was debated on the Floor of the House, many would say that the debate is long overdue.
For my part, I have tried incredibly hard to ensure that the tone of the debate has been—and continues to be—robust, of course, but most importantly respectful and compassionate. I am pleased that, for the most part, that has been the case. I can be confident that that same tone of respect and compassion will be adopted by colleagues today, whatever views they hold. That is particularly important as we have people in the Public Gallery who have a strong personal interest in this issue. They hold a range of views. Some of them have lost loved ones in difficult and traumatic circumstances, and others are themselves terminally ill.
I want to pay a huge and heartfelt tribute to those families and to every single person who has contacted me about this issue, and in many cases shared their own very personal stories of loss and death. I know from my own personal experience of grief that telling your story over and over again takes energy, courage and strength. I am incredibly grateful to them all. It is their voices and their stories that have inspired me.
Such stories are difficult to hear, but it is vital that they are heard as they are at the heart of the debate. They show that the law is failing people. Where that is the case, we have a duty to do what is right to fix it. Those here today or watching at home are dealing with the real consequences of the failings of the current system. I will start by recounting just a few of their stories.
Warwick was married to his wife Ann for nearly 40 years. She had terminal peritoneal cancer, which meant that she could not breathe properly. She spent four days gasping and choking, remaining awake throughout despite being given the maximum dose of sedatives. She eventually died of suffocation. She had begged Warwick to end her life, but as he stood over her with a pillow he could not do what she asked as he did not want that to be her final memory of him. Ann had excellent palliative care, but it simply could not ease her suffering.
Tim fell in love at first sight when he met his wife Louise—he proposed after just three days. But Louise got cancer, twice, and at the end, the morphine simply could not control her pain. In desperation, she managed to smash a small glass bottle and tried to take her own life, not realising that her toddler daughter had got into bed with her. Tim found her. He says,
“You get to a point where you stop praying for a miracle and start praying for mercy.”
Former police officer James waved is mum off as she embarked on her final trip, to Dignitas. She had terminal vasculitis. James desperately wanted to accompany his mum and hold her hand during her final moments, but he knew, because of his job as a police officer, that it was just not possible. Indeed, she insisted that he must not go with her, so she went alone—no one to hold her hand, and no proper goodbye or funeral. Those are just a few examples of the heartbreaking reality and human suffering that far too many people experience as a result of the status quo. the public know this.
I have always been keen to ensure that my politics stays rooted in the world beyond Westminster. It is clear that public opinion is very much in favour of a change in the law. Polling shows consistently that around 75% of people would like to see the legalisation of assisted dying for terminally ill, mentally competent adults. These findings are significant, but it may not be that surprising that most people believe, as I do, that we should all have the right to make the choices and decisions we want about our own bodies. Let us be clear: we are not talking about a choice between life or death; we are talking about giving dying people a choice of how to die.
Let us examine what that choice currently looks like. I do not have a legal background but I have always been driven by a strong sense of injustice. If I see a problem, I will do everything I can to try to solve it. Indeed, in this job, we all do that every week and every day, whether here in Parliament or in our constituencies. When four former directors of public prosecutions, including the Prime Minister, two former presidents of the Supreme Court and many lawyers all agree that the law needs to change, surely we have a duty to do something about it.
Intentionally helping another person to end their life is currently illegal under the Suicide Act 1961, and carries a maximum prison sentence of 14 years. This includes family and friends helping someone who is terminally ill to die, both in the UK and overseas. Existing guidance does not stop people from being investigated by the police, adding fear, guilt and further trauma to grieving families. The law is not clear, and it does not protect individuals, families or medical professionals. That drives people to very desperate measures.
What about coercion? Senior King’s Counsel have said:
“There is currently no established system for identifying abuse or coercion in advance of a person’s death or for helping vulnerable people to make end of life decisions.”
Kevin McKenna (Sittingbourne and Sheppey) (Lab)
I have been a nurse for more than a quarter of a century, and in that time I have worked mostly in intensive care as a specialist. I have worked with compassionate and skilled, well-trained clinicians who have been taught to spot coercion—it is fundamental to our practice. Does my hon. Friend agree that it is wrong to suggest that clinicians cannot spot coercion in these cases?
Kim Leadbeater
My hon. Friend makes a very important point. I thank him for it, and for his years of service as a nurse. I have spoken to many medical professionals about this issue, and they say that this is part of their job. They are very skilled and they work closely with patients, particularly dying patients, to assess their needs and to have those difficult and delicate conversations. As the KCs said, at the moment we check for coercion in cases where people have taken their own lives—when someone is dead. The Bill would make coercion a criminal offence with a sentence of up to 14 years.
Surely, by putting a legal framework around this difficult situation, we will provide an extra level of safeguarding. One psychotherapist, who is terminally ill herself, said to me recently that coercion happens when things are hidden away. The Bill would bring things out into the open. Surely, that must be safer for everyone. Let us look at what the absence of a robust legal framework looks like.
Simon Hoare (North Dorset) (Con)
I thank the hon. Lady for giving the House the time to debate the Bill this morning. She references coercion, and I understand her point about the two medics, but medics will not be able to see or hear everything at all times. People will not be put beyond challenge, because subsequent to the death, if a relative claims coercion of another relative, investigation will remain. I am entirely unclear how, without peradventure, two clinicians can claim that there had been no coercion at any point.
Kim Leadbeater
The hon. Gentleman has made the point for me: within a robust system, we will check for coercion, but we do not have any of that now. At the moment, the person will be definitely be dead. We have to look at the status quo. Putting in layers of safeguarding and checking for coercion must be better than the system that we have now.
Alicia Kearns (Rutland and Stamford) (Con)
Colleagues are right to raise questions around coercion. I hosted a phone-in on LBC where people rang in and said, “I feel like I have to end my life because I recognise how difficult it is for my family to see me suffering.” The limit in the Bill, however, is that someone must have only six months to live according to two doctors and a judge, which I genuinely believe massively reduces the risk of coercion. Are we really saying that people are so desperate to bump off their families that if they were told that they had six months to live, they would escalate the process and do it sooner?
Kim Leadbeater
The hon. Lady makes an excellent point—she is absolutely right. The very strict criteria in the Bill add extra layers of safeguarding, which, again, we just do not have at the moment.
Richard Burgon (Leeds East) (Ind)
I have the deepest respect for my hon. Friend, but one thing that concerns me is societal or systemic coercion. At the moment, elderly people in our society pay thousands of pounds a month to be in a care home. What reassurances can my hon. Friend give that an elderly person in a care home who has been given six months to live would not think to themselves, “I’m a burden. I have been given six months to live. If I end my life now, I can save my family between £25,000 and £55,000”? That really concerns me.
Kim Leadbeater
As I have said, at the moment, we have no idea whether that person would take action because we are not having those conversations. By getting two medical professionals and a High Court judge involved, we would be putting this out in the open. Evidence from other jurisdictions shows clearly that coercion tends to happen the other way; what tends to happen is that families try to prevent the person from making the choice of an assisted death.
Several hon. Members rose—
Wera Hobhouse (Bath) (LD)
Is it not the case that the conversations that patients will have with doctors will bring out whether they have been coerced or are suffering intolerably? The criteria are about suffering, not whether somebody worries that they are a burden.
Kim Leadbeater
I agree absolutely. Those conversations, which are not taking place at the moment, are very important. I will make some progress.
There has rightly been a lot of discussion about palliative care in recent weeks, and I am convinced that a significant amount of that discussion would not have taken place without the introduction of the Bill. It is a long overdue conversation, and I am very pleased to see it happening.
I have met with the Association for Palliative Medicine, Hospice UK, Sue Ryder and Marie Curie, and last week I was delighted to attend the inaugural meeting of the all-party parliamentary group for hospices. I also attended the fantastic Kirkwood hospice, which serves my constituency of Spen Valley. I pay tribute to the dedicated staff and volunteers across the country in the palliative care sector, who do some of the most vital work in society. We must do more to support them, and I look forward to working with the Government and colleagues across the House in that important endeavour. That is why I have included in the Bill a requirement for the Secretary of State to report to the House on the availability, quality and distribution of palliative care.
Of course, assisted dying is not a substitute for palliative care—it is not an either/or. We have some of the best palliative care in the world in this country, and, when it can meet the needs of terminally ill people, it is second to none. However, when it cannot, surely the choice of an assisted death should be one component of a holistic approach to end of life care.
The comprehensive report by the Health and Social Care Committee, published earlier this year, found no indications of palliative care deteriorating in quality or provision in places where assisted dying had been introduced.
Jim Shannon (Strangford) (DUP)
Ever mindful of what the hon. Lady has said about the criteria, I remind her that Belgium started off with a simple project like the one she refers to but it deteriorated and expanded to include sufferers of dementia and under-18s—children. What guarantees do we have that this legislation will not end up with a situation like that in Belgium, in which case anything goes? Is that what the hon. Lady wants? I do not want that. Does she?
Kim Leadbeater
I thank the hon. Member for his intervention, but let us be very, very clear. Huge amounts of research has been done by the Health and Social Care Committee, and indeed by myself and others. The model being proposed here is nothing like what happens in Belgium. It is nothing like what happens in Canada. There are strict, stringent criteria, and if the House chooses to pass the Bill, those criteria cannot be changed.
Mark Pritchard (The Wrekin) (Con)
I am grateful to the hon. Lady for giving way and congratulate her on the measured way in which she has conducted this debate over the last few weeks. Whatever side of the House and whatever side of the debate, I would like to recognise that—it is not always the case. But is it not the case that the Bill crosses a new and irreversible medical red line for doctors and nurses? Is it not the case that in other Bills we have seen in this House over the years, the safeguards invariably become obsolete over time, and so the safeguards in this Bill, however well meant, should be seen as temporary safeguards and not immutable safeguards?
Kim Leadbeater
Absolutely not. I respectfully disagree with the right hon. Gentleman. In countries where a Bill of this nature has been implemented, the safeguards have been in place and the boundaries have never changed. I will come on to talk about that.
Kim Leadbeater
I will take one more intervention and then I must make some progress.
Sir Oliver Dowden
I thank the hon. Lady for giving way. I have a great deal of sympathy for the arguments she is making. However, we have seen, time and again, excessive judicial activism taking the words in this House and expanding their meaning into places we had not foreseen. What reassurances can she give that the words in her Bill will be respected by the judiciary and that we will not find ourselves in a decade’s time in a totally different place that this House did not intend?
Kim Leadbeater
I thank the right hon. Gentleman for his intervention. The courts have repeatedly put this issue back to Parliament. This is not their domain. This is the legislation. There are strict criteria.
Coming back to palliative care, in situations where pain simply cannot be managed, the result is deaths that are so horrific that the person themselves can spend hours, and in some cases days, in unimaginable pain as they die. I want to bring the debate back to the issue that we are trying to solve. For their loved ones, no matter how many joyful and happy memories they have, they also have the trauma that comes from watching someone you love die in unbearable agony and fear. That memory stays with them forever.
Rebecca’s mum Fiona developed metastatic brain cancer at the age of 69. She had very good palliative care, but her pain could not be managed, and she died begging and screaming for assistance to end her suffering. Her family and the medical team treating her cried beside her bedside as it took her 10 days to die.
Lucy’s husband Tom was 47, a music teacher with a young son. He had bile duct cancer which obstructed his bowel, resulting in an agonising death. Tom vomited faecal matter for five hours before he ultimately inhaled the faeces and died. He was vomiting so violently that he could not be sedated and was conscious throughout. Lucy pleaded with the doctors to help. The doctor treating him said there was nothing he could do. His family say that the look of horror on his face as he died will never leave them. Lucy now has post-traumatic stress disorder, which is quite common for families who lose loved ones in such harrowing circumstances.
Rachel Taylor (North Warwickshire and Bedworth) (Lab)
I thank my hon. Friend for the powerful and moving stories she is telling. A constituent of mine watched her mum suffer from pancreatic cancer. Unable to keep any food down, she basically starved to death. Does my hon. Friend agree that that is no way to see a loved one die? Does she also agree that we did not come into this place to shy away from difficult choices, but to listen to our constituents and make better laws for everyone?
Kim Leadbeater
I thank my hon. Friend for her intervention, and I am so sorry to hear that story from her constituency. We all have stories from all our constituencies, and she is absolutely right that we are here to make difficult decisions. On her example there, I have been astonished by the number of people who have been in touch with me to tell me about the terminally ill loved ones who have starved themselves to death out of desperation—something that takes far longer than we may imagine and is just horrific for everyone involved. That is currently legal, and doctors are required to assist the patient through this agonising process. How can we allow that, but not a compassionate and humane assisted death?
Blair McDougall (East Renfrewshire) (Lab)
I join the right hon. Member for The Wrekin (Mark Pritchard) in commending my hon. Friend for the way she has made sure that this binary debate has not been a polarising one. I started the debate where she is now, but I have moved to opposing the Bill by the stories I have heard of disabled people who have had “do not resuscitate” put on their medical records without their permission, or who have been stopped by strangers in the street and been told, “You would be better off dead.” I know she will say that we are voting on the specifics of her Bill, but we are also voting on a principle. Does she agree that there should be a precautionary approach, and does she honestly believe the legislative process gives us the time to be sure that we are making the right decision?
Kim Leadbeater
I thank my hon. Friend for his intervention and I will come on to some of those points later in my speech. Let us be very clear: the title of the Bill refers to terminally ill adults, not disabled people or elderly people, as another hon. Member referred to. The criteria are very clear.
I come back to the status quo, which is the problem we are trying to address. If people want to avoid the trauma of some of the harrowing circumstances I have described, they can have an assisted death—just not in this country. If they have £10,000 or £15,000, they can make the trip to Switzerland or elsewhere but, because of the current legal position, it is often a deeply distressing and very lonely experience, shrouded in secrecy, with people feeling like criminals as the fear of prosecution hangs over them.
Ilana’s husband Crispin had late-stage motor neurone disease. He was paralysed, and Ilana is a wheelchair user, but at his request she took him on a traumatic and difficult journey to Switzerland. She describes the intense stress and anxiety she felt due to the total secrecy of their plan—and we can only imagine what the journey home was like, on her own, with an empty seat beside her.
There are also those terminally ill people who take matters into their own hands. Gareth’s father Norman served in the Welsh Guards. He was a strong man, but his final five years were full of pain and discomfort. He had prostate cancer, which he lived with for 15 years. He was given good initial hormone therapy and chemo, but the cancer spread everywhere and the pain could not be eased. One day, when it all became too much, he went into his garden with the gun he owned and shot himself. Gareth’s sister rushed to his house and found him. Gareth said his father just wanted the pain to stop.
Then there is Peter, from Mirfield in my own constituency, who stopped me in a car park a couple of weeks ago to tell me the harrowing story of his beloved wife, who was diagnosed with metastatic cancer aged 52. The treatment was ineffective and her symptoms were unbearable. She took an overdose of her medication, and Peter found her and took her to hospital. She recovered and he brought her home, but the following day she made another attempt to take her own life, in a way that is too awful to describe. Peter found her dead, and he spent the next eight hours being questioned by the police.
It is estimated that more than 600 terminally ill people take their own lives every year. Often patients will store up medication. Josh, a 33-year-old from Huddersfield went to coach his local kids’ rugby team one Saturday and came back to tell his mum all about it. He found her dead. Lisa, who was terminally ill, had stored up her medication and taken her own life.
Our former colleague Paul Blomfield, the previous MP for Sheffield Central, has campaigned tirelessly on this issue since his dad Harry took his own life in 2014, alone in his garage, after being diagnosed with inoperable lung cancer. Language matters: Harry was not suicidal; he loved life, but he had watched too many of his friends have lingering, degrading deaths and he did not want that for himself. But, like the others, he could not tell Paul and his family of his plan, as they would have been complicit and could have faced prosecution. How many precious days and weeks did Harry miss out on as a result of having to take action while he was still physically able to do so? Hearing these stories is not easy, but it is important.
Lloyd Hatton (South Dorset) (Lab)
What I have been struck by in recent weeks as I have listened to Members from across the House is the clear agreement that the current situation is neither sustainable nor dignified. Almost everyone in this House agrees that the status quo is unacceptable in terms of dignity, palliative care and end of life. Given that, does my hon. Friend agree that today’s debate is about how we depart from the unacceptable situation that we currently face? Is today’s vote not the first stage of an important discussion about we improve the end of life for hundreds and hundreds of people across this country?
Kim Leadbeater
I wholeheartedly agree. I am setting out what we are dealing with now. This cannot be right, and surely we have a duty to do something about it.
Kim Leadbeater
I am going to make some progress, if that is okay.
Some of the most important voices in this debate are, of course, those of people currently living with a terminal illness. Having a terminal diagnosis is perhaps one of those situations where it is very hard, if not impossible, to know how we would feel. I have met many terminally ill people over recent weeks and every one of them is in my thoughts today.
Sophie, who is here today, was diagnosed with stage 4 secondary breast cancer, which has spread to her lungs, liver and pelvis. She is allergic to opioids, so she knows that her pain is very unlikely to be able to be managed. She has a 17-year-old daughter. All she asks is to have the choice to say goodbye to her daughter at a time of her choosing, in circumstances that she can have some control over, and for her daughter to be able to remember her as the vibrant, positive woman she is.
Nathaniel, who also joins us today, has stage 4 incurable bowel cancer, which is now in his liver and brain. Like many of us, Nat says that he does not know whether he would choose an assisted death or not, but he simply cannot understand why anyone would want to deny him the choice. He says:
“I wish to live as fully as I can and for as long as possible. But when the time comes”,
Nat also wants
“the right to die with dignity and compassion”.
Another very emotional lady came up to me at a recent interfaith event. She and her husband thanked me for putting the Bill forward. She said, “Kim, I am a proud Christian and I am guided by my faith. But I also have terminal cancer and I want the right to choose a compassionate death.”
There has been much discussion about the views of people who hold religious beliefs. I fully respect those beliefs and do not intend to say much more about this, other than that I know there are a range of views within faith communities. Indeed, some of the most powerful conversations that I have had have been with people of faith, including in my own constituency. People of different religions have said that although they would not choose an assisted death for themselves or their family, who are they to stop someone else who may want to make that choice?
Kim Leadbeater
I will make some progress, if I may. I hope that I have set out the problem that clearly exists. Now allow me to set out how the Bill can address that problem and, most importantly, do so safely and effectively.
If the Bill were to become law, it would contain the most robust and strongest set of safeguards and protections in the world. Very strict eligibility criteria and multiple layers of checks and safeguards are embedded in the Bill, none of which, as we have seen, exist at the moment. I made a conscious decision to name it the Terminally Ill Adults (End of Life) Bill, rather than anything else. That title can never be changed and ensures that only adults who were dying would ever come within its scope. As such, the Bill is not about people choosing between life and death; it is about giving dying people with six months or less to live autonomy about how they die and the choice to shorten their deaths.
The Bill does not apply to people with mental health conditions. It does not apply to the elderly. It does not apply to people with chronic health conditions, and it does not apply to disabled people, unless, of course, they have a terminal illness, in which case they would and should be entitled to the same rights as anyone else.
Daisy Cooper (St Albans) (LD)
One group of people who are not often talked about are the learning disabled. Clause 9(3)(b) says that if an assessing doctor has any doubt as to the capacity of the person, they may refer them for a further psychiatric assessment. If the Bill is voted through today, will the hon. Member engage in a debate about whether that language should be strengthened from “may” to “must” and whether the training and experience required of the assessor should be strengthened as well?
Kim Leadbeater
The hon. Lady makes an excellent point and highlights a community who we must consider in light of the Bill. I would absolutely be open to that conversation in Committee; it is a very valid point.
There are different views within the disabled community. As Professor of Disability Research, Sir Tom Shakespeare says that it is unacceptable that people with disabilities continue to face social stigma and inequalities, but that it would be a mistake to conclude that we should oppose legalising assisted dying for terminally ill people until those wider problems are fixed. He says that it is paternalistic and wrong to imply that inequalities will be resolved by reducing choices, and that a clear, transparent legal framework for end-of-life choice is better for everyone. He is right. There is, of course, still work to do in the fight for equality for people with disabilities, but once again it is not an either/or. I will campaign alongside many others in this place for those rights, but I will also campaign for the rights of terminally ill people, because their rights are as important as anybody else’s rights.
Barry Gardiner
I have huge respect for the hon. Lady for the way that she has conducted this debate over the last few weeks. My concern is that she has focused today on the individual and the individual choice, but we are here to legislate for society as a whole. In legislating, what we are saying if we pass the Bill is that it is okay to take that choice—[Interruption]—and there will be some people who have six months of their life to go who will then feel, “Ought I to do this? Is this something that I now should do?” That brings into play a whole set of considerations—“Is it better for my family? Is it financially better for my family?”—in ways that, at the moment, are out of scope. Rather than simply focusing on the individual suffering, which we all recognise is acute, we must broaden the debate to the impact that the legislation will have on society as a whole.
Kim Leadbeater
I thank my hon. Friend for his intervention. I suggest that the Bill will give society a much better approach towards end of life. We are already hearing conversations about dying and death which I do not think we have heard enough in this country. We have to take a holistic view. Indeed, that is what happens in other countries and other jurisdictions. Having those deep and meaningful conversations about death and dying is really important. My hon. Friend’s comments bring me on nicely to the protections and safeguards in the Bill.
Mr Toby Perkins (Chesterfield) (Lab)
A decade ago, I voted against a similar Bill, because I felt that perhaps it was not perfect and there were more things that I needed to know. My hon. Friend is right that we have not talked about death for the 10 years since or considered any legislation. The truth is that if we vote against her Bill today, it will be the end of the conversation once again for another decade.
Kim Leadbeater
My hon. Friend is absolutely right. How many people will go through the situations I have described if it is another 10 years before we address this matter?
Several hon. Members rose—
Kim Leadbeater
I am not going to take any more interventions, I am afraid, because I am conscious that lots of hon. Members want to speak; I know Mr Speaker is conscious of that as well.
Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding. The person requesting assistance must have mental capacity and a settled wish at every stage. That means they must repeatedly demonstrate that they understand the information relevant to their decision, the ability to retain that information, and to use or weigh that information as part of the process of making the decision. We know that capacity can fluctuate which is why it is assessed at every step of the process.
Melanie Ward (Cowdenbeath and Kirkcaldy) (Lab)
On that point, will my hon. Friend give way?
Kim Leadbeater
I am sorry but I am not going to take any interventions, as I need to make progress.
The court must speak to one of the doctors and can hear from anybody else they deem necessary. If there is any evidence of coercion, the court will not approve the request, and if evidence emerges subsequently, the court order could be revoked. It is also important to note that the person can change their mind at any time, with periods of reflection built in. Having consulted at the highest levels in the judiciary and the medical profession, I know that they can and will fulfil those safeguarding responsibilities and that they have the expertise to do so.
Let us be clear: as my hon. Friend the Member for Sittingbourne and Sheppey (Kevin McKenna) said earlier, this is not brand new territory for doctors. Doctors, working in partnership with other clinicians, are already required to manage complexity in end-of-life decision making. I followed the request of the British Medical Association that doctors should be under no obligation whatsoever to participate, but if they do participate, they will receive appropriate training and support. Doctors should be able to use their professional judgment when and if a conversation takes place, taking their cue from the patient, as they do for many other issues. I welcome that patient-centred approach. Many doctors feel the change in the law would safeguard clinicians and patients by making everything explicit.
When it comes to the detail of what assisted dying would look like, we have the benefit of drawing on the experience of 31 jurisdictions around the world. I could talk extensively about the international experience of assisted dying. The Health and Social Care Committee report did a brilliant job of that, and this Bill has looked at best practice as well as models which I and many others would not be comfortable with our having here in England and Wales.
Reflecting on their experience, clinicians in Australia say:
“through deep and meaningful conversations between doctors, patients and their loved ones we can dispel fear, reduce suffering, bring death and dying out of the shadows, and so allow patients and their families a better quality of life and quality of death”.
As one Australian Member of Parliament said:
“We have brought ‘behind-closed-doors’ practices into the open and given dying people meaningful, transparent choices. Crucially none of the fears that were put forward as reasons not to change the law have been realised. The status quo was broken and assisted dying works.”
Evidence from around the world shows that the option of having an assisted death actually lifts the fear that terminally ill people have, and that many never actually use it but are able to make the best of the time they have left due to the comfort and reassurance that it provides.
People talk about a slippery slope, but the Health and Social Care Committee found that not one jurisdiction that has passed laws on the basis of terminal illness has expanded its scope. [Interruption.] That is absolutely true. As the courts here and in Europe have repeatedly made clear, Parliament is sovereign. This Bill could not be made any broader through any judicial process.
Speaking of process, with reference to the Bill, having listened to what I know are genuine concerns of Members about ensuring that we get this legislation right, I commit to the House that if the Bill passes Second Reading today, which I sincerely hope it does, I am minded to move a motion that gives the Bill Committee the power to take oral and written evidence in order to ensure that a thorough approach continues to be taken. That is not normal procedure for a private Member’s Bill, but I think that that is the right thing to do. I also reassure colleagues that the Bill Committee will meet over a number of weeks, meaning that there is ample time for full consideration of the details of the Bill, including amendments. The Committee will be representative of the views and make-up of the House. Let me be clear: that will mean there will be representatives of different parties with a range of views on the Committee.
As the Leader of the House said at the Dispatch Box just yesterday, and has said several times, the Government will, of course, work with me to ensure that the Bill is workable and operable. That will quite rightly take time, and I have included in the Bill a commencement period of up to two years—this is not going to happen overnight. That timeframe can be explored in Committee, as it is more important to get this right than to do it quickly.
In conclusion, for the reasons I have set out, I am very clear that the law needs to change to give terminally ill people choice at the end of life and to protect their loved ones from fear of prosecution. There will be some of us here today who are lucky enough not to have personal experience of this issue, but sadly we know that any one of us could end up in this heartbreaking situation. We are all living longer, which is brilliant, and I have campaigned inside and outside Parliament for a greater focus on prevention and early intervention of illness and disease to keep us fit and healthy for as long as possible, but any one of us or our loved ones could be unfortunate or unlucky enough to receive a terminal diagnosis. I struggle to see how it is fair or just to deny anyone the autonomy, dignity and personal choice of taking control of their final weeks. And the right to choose does not take away the right not to choose. Giving the choice of an assisted death to those who want it would of course not stop anyone who is terminally ill from choosing not to make that choice.
Whatever happens today, I am incredibly proud of the work that my fantastic team and the many campaigners have done on this hugely significant, emotional and sensitive subject. We need to be clear: a vote to take this Bill forward today is not a vote to implement the law tomorrow. It is a vote to continue the debate. It is a vote to subject the Bill to line-by-line scrutiny in Committee, on Report and on Third Reading. Then, of course, the Bill will go to the Lords for what I have no doubt will be further robust debate and scrutiny. This will be a thorough process, focused on one of the most significant issues of our time—an issue that people across the country clearly want us to address, none more so than the many families who are facing the brutal and cruel reality of the status quo. Today is the beginning, not the end, of that process, but the debate can continue only if colleagues join me in the Aye lobby today. I wholeheartedly encourage them to do so, and I commend the Bill to the House.
Danny Kruger (East Wiltshire) (Con)
I think you indicated that I could speak for a little longer than eight minutes, Mr Speaker.
Danny Kruger
Thank you very much. I do not want to have too much grumbling at the eight-minute moment. I will take my 15 minutes, with time for interventions.
I start by paying tribute to the hon. Member for Spen Valley (Kim Leadbeater) for her very powerful speech and the way in which she has led this campaign—with great respect, sensitivity and, to use a contested word, dignity. She and I knew each other before we were MPs, when we both worked in the charity sector. I like and admire her greatly, and I know that we have more in common than might appear today.
All of us in this House have this in common: we all share a deep concern about the experience of people dying or fearing death, pain and suffering. I bear heavily on my conscience the people whose lives will be prolonged beyond their wishes if I get my way and this Bill is defeated today. I will not disregard those people or minimise their anxiety. We will hear those voices in today’s debate—we have heard many of them already—speaking through hon. Members in what I know will be very moving speeches.
If I voted for this Bill, I would have on my conscience many more people whose voices we cannot hear—the people who would be vulnerable as a consequence of the huge changes that this Bill would introduce in our society and in the NHS. My view is that if we get our broken palliative care system right and our wonderful hospices properly funded, we can do so much more for all the people who we will hear about today, using modern pain relief and therapies to help everybody die with a minimum of suffering when the time comes. We will not be able to do that if we introduce this new option; instead, we will expose many more people to harm.
I will go through the Bill in a moment, but first I will say a word about process, in response to the points made by the hon. Member for Spen Valley. This Bill is simply too big for the time that it has been given, and I implore hon. Members not to hide behind the fiction that it can be amended substantially in Committee and in its later stages. The remaining stages of a private Member’s Bill are for minor tweaks, not the kind of wholesale restructuring that we would need if we were ever to make this Bill safe. Members who vote for the Bill today must be prepared to see it become law largely unamended. I suggest that if they have any doubts, the only responsible choice is to vote no, and let the advocates of assisted dying bring back a better Bill at another time.
Alistair Strathern (Hitchin) (Lab)
I deeply appreciate the respectful way in which the hon. Gentleman is making his point, but I stand before him not sure of how any colleague in this Chamber cannot have doubts whichever way they are voting today. It feels like there are two necessary harms that we are all forced to weigh up. If the hon. Gentleman is so certain that doubt should push people one way, I am deeply intrigued to hear why that is, when it is very clear that many people will continue to suffer unnecessarily if we reject this Bill.
Danny Kruger
I recognise that there are very many doubts on each side, and I fully respect the arguments that have been made by the hon. Member for Spen Valley. Of course this is a finely balanced debate, but the point about process is that this Bill is too flawed; there is too much to do to it to address in Committee. By all means, let us have this debate, but let us have that before a Bill of this magnitude is brought forward, The consideration of the Bill should be much more comprehensive.
Andrew George (St Ives) (LD)
Contrary to what the media are saying, today’s decision is not about bringing this Bill into law; it is about allowing it to go to the next stage. People may have misgivings, but the hon. Gentleman is making the assumption that the Bill cannot be corrected or amended in order to make it palatable to people who have doubts. We all have doubts, but surely today’s vote is simply to let it go to the next stage. The final decision on Third Reading is the critical one in deciding whether the Bill goes into law.
Danny Kruger
I think I have made the point that this Bill is too comprehensive and there is too much in it to address through the process of a private Member’s Bill. If the hon. Gentleman has serious concerns about aspects of the Bill that he would not be prepared to see come into law, he should not be supporting it today.
Let me explain the concerns about the Bill that I think are too comprehensive to be dealt with in Committee. I recognise how hard the hon. Member for Spen Valley has worked to try to ensure that it is safe, but I do not believe it is, for the following reasons. Let us start at the beginning. The process starts with a conversation between a patient and a medical practitioner—not necessarily a doctor; just a medic of some sort, unspecified at this stage. If the patient tells their ordinary family doctor that they want an assisted death, the doctor is obliged to either explain how it works or pass them on to someone who will do it—which is probably what will happen, by the way. The likelihood is that we would see a new branch of medicine spring up, like the medics I met in Canada.
Danny Kruger
I will in a moment.
These medics I met in Canada are specialists in assisted death and personally kill hundreds of patients a year in their special clinics. [Interruption.] If hon. Members have difficulty with the language, then I wonder what they are doing here. This is what we are talking about. I met doctors for whom this is their profession and their job, and they are proud to do it.
Kevin McKenna
I want to be very clear that “medical practitioner” is a synonym for doctor—not nurse, pharmacist, dentist or any other practitioner. To be a doctor is to be a practitioner of medicine. We need to be very clear on this. There is lots of law and regulation on this, and I believe that what the hon. Member said is incorrect.
Danny Kruger
What the Bill actually says is that a doctor means
“a registered medical practitioner…who has such training, qualifications and experience as the Secretary of State may specify by regulations”.
Obviously they are some sort of regulated medic—I recognise that—but they are not necessarily a doctor. We will find out. I recognise that they will have professional qualifications, but it is not clear what those are going to be because it is not in the Bill.
Gavin Robinson (Belfast East) (DUP)
I commend the hon. Gentleman for the way in which he is engaging in this discussion, in the same spirit as the hon. Member for Spen Valley (Kim Leadbeater). We often hear that one of the safeguards associated with the Bill is that medical practitioners would be involved and that a diagnosis of a terminal illness, with six months or less to live, would be required. Does the hon. Gentleman accept that medicine is not an exact science? It is the science of uncertainty blended with the art of probability. There is no exactitude in this. No court will second-guess medical opinion; it will simply look at process.
Danny Kruger
I entirely agree with the right hon. Gentleman; he is absolutely right. I am afraid that the definition of terminal illness is in a sense the essential flaw in the Bill, but I will come on to that.
Going back to the conversation that the patient has with the medical practitioner, the crucial point is that the conversation does not need to be started by the patient, according to the Bill. It could be started by the medic—any medic—perhaps in hospital, who could make the suggestion of an assisted death to a patient who has never raised the issue themselves, whose family have never suggested it and whose own doctor does not think it is the right thing to do. And so the idea is planted.
Then, for whatever reason—and, by the way, there is no need ever to give a reason—the patient says that they want to proceed with an assisted death. They sign a declaration, or rather somebody else can sign it for them. It could be any professional, someone they do not know—maybe a new medical practitioner. A total stranger can do all the paperwork on their behalf. That is what the clause about the proxy entails. Then these two medical practitioners make their assessment.
Paula Barker (Liverpool Wavertree) (Lab)
I urge the hon. Member to check the wording of the Bill, because if somebody signs as a proxy, they have to have known the individual for two years, and would simply be signing to say that they agree with the patient who wishes to go forward with assisted dying.
Danny Kruger
I do not have time to check the Bill now, but from my memory it refers to someone who has known the patient for two years or someone of good standing in the community, which could be some sort of professional who is not known to them at all. Someone can quickly check the Bill, but my understanding is that it could be a total stranger to them.
Jim Allister (North Antrim) (TUV)
Is the matter not very clear? Clause 15(5) states:
“In this section “proxy” means—
(a) a person who has known the person making the declaration personally for at least 2 years, or
(b) a person who is of good standing in the community.”
So there is no protection such as that which is pretended by the supporters of the Bill.
Danny Kruger
I am grateful for that intervention.
The assessments have to determine whether the patient is terminally ill, whether they have mental capacity to make the decision, and then whether they have been coerced or pressured into the decision. In many ways the whole issue turns on the question of whether someone is terminally ill. I am afraid that it is a term of great elasticity, almost to the point of meaninglessness. It is well known, as the right hon. Member for Belfast East (Gavin Robinson) said earlier, that it is impossible for doctors to predict with any accuracy that somebody will die within six months. It is a purely subjective judgment, made in this case by a doctor whose job will be approving assisted deaths. They simply have to determine not whether it is reasonably certain that death will occur, but that it can be reasonably expected—in other words, that it is possible.
Simon Hoare
The thrust of the Bill, as I understand it, is to ease suffering and pain in a patient who has a diagnosis and will die of the condition that has been diagnosed. But that right could only be exercised within a six-month period, and the pain and discomfort could last a lot longer than that. Has my hon. Friend heard—because I have not—what the importance of six months is? Why not eight, 10 or 12? What would stop people challenging it on the grounds that the dam has been breached, the six months is entirely arbitrary and it could, and indeed should, be extended by negative resolution in a statutory instrument?
Danny Kruger
My hon. Friend makes the right point, and I am afraid to say that is absolutely the case. The six-month cut-off is completely arbitrary and impossible to determine. It is a line in the sand, and of course it could be challenged, as so much of the Bill could be challenged, on human rights grounds. Every one of the safeguards that has been introduced by the hon. Member for Spen Valley would in fact be a barrier and a discrimination against the new human right that has been awarded to one group but should of course be awarded to all—if the point is conceded in this way.
Melanie Ward
Earlier this week, colleagues and I met two eminent doctors who were former presidents of the Association for Palliative Medicine, and they raised serious concerns about the Bill, including that the doctor or medical practitioner who makes the assessment need never have met the person they are assessing, or been involved in their care at all. What does the hon. Gentleman make of that?
Danny Kruger
The hon. Lady makes a very important point. I will not get into the question of public opinion and the polling, because it is so contested, but there is clear evidence that the doctors who work with the dying—the palliative care professionals—are opposed to a change in the law by a great majority. They see the damage that it would do to the palliative care profession and services, and they see the danger for vulnerable patients.
Wera Hobhouse
I appreciate that the hon. Gentleman talks to us as a medical professional and we need to listen to his views. But is it not true that any medical assessment is an approximation; something that cannot be said for certain? For this decision too, we cannot be 100% certain, but that is life. We cannot make legislation that is 100% good because at some point we have to make a decision, on balance, whether something has merit or not. For that reason, we should vote for the Bill.
Danny Kruger
I am grateful to the hon. Lady, especially for promoting me to the status of doctor; I am actually a charity worker and political hack by background. It is good of her to credit me with those skills—perhaps I should set myself up as a medical practitioner. She is right that medics and indeed judges have to make difficult judgments all the time. I think it would be very dangerous and inappropriate to give them the power to do so in this case.
The whole question of the six-month cut-off is very important. I acknowledge all the points that have been made, but there is another problem with the definition of terminal illness. Almost anybody with a serious illness or disability could fit the definition. I recognise that these are not the cases that the hon. Member for Spen Valley has in mind—of course they are not—but that is the problem with the Bill. All that someone needs to do to qualify for an assisted death—for the definition of terminal illness—is refuse treatment, such as insulin if the person is diabetic. In the case of eating disorders, a topic on which I have worked with the hon. Member for Bath (Wera Hobhouse), a person just needs to refuse food. The evidence from jurisdictions around the world, and our own jurisprudence, shows that that would be enough to qualify someone for an assisted death.
Lewis Atkinson
Does the hon. Gentleman accept that every day in the NHS patients refuse treatment, and indeed food, and that there is currently legal oversight in respect of coercion and other such matters? Would the Bill not strengthen protections in those areas?
Danny Kruger
I am perplexed by that argument. The suggestion that there may be coercion—of course there will be—and abuse, and all sorts of injustices that take place in the current system, does not strike me as an argument for regulating and licensing assisted suicide. If we have concerns about practice in the NHS, let us deal with that. Let us not license suicide—and, by the way, evidence from around the world shows that that increases suicide in the general population. Suicide is contagious. For instance, Oregon is often pointed to as an example. The incidence of suicide, outside assisted suicide laws, has risen by a third there since it was legalised. There would be enormous contagious effects were we to regulate and license it in this way.
Richard Tice (Boston and Skegness) (Reform)
The hon. Gentleman is making an excellent case for the Bill to be passed today. What he is actually saying is that there are specifics that require debate, analysis and discussion in great detail in Committee—that is the whole point of it. If it is not dealt with properly in Committee, it will not pass Third Reading. He is suggesting that because he does not like those specifics, we cannot discuss the Bill in any detail.
Danny Kruger
I am sure that the hon. Member for Spen Valley is delighted to have the support of the hon. Gentleman. I refer him to the point that I was making: this is an inappropriate process.
Sir John Hayes (South Holland and The Deepings) (Con)
My hon. Friend is making a superb speech, as I expected him to do. On the issue of process, I say this to the hon. Member for Boston and Skegness (Richard Tice), my constituency neighbour: as he will know, I have introduced some very serious Bills, including the one that became the Investigatory Powers Act 2016. It was preceded by three independent reports and pre-legislative cross-party scrutiny by both Houses, which happened before the Committee stage. The point is that that process should take place before Second Reading, not after.
Danny Kruger
I am grateful to my right hon. Friend. I will now run through the process before taking any more interventions.
As I have explained, pretty much anybody with a serious illness or disability could work out how to qualify for an assisted death under the Bill. Members may think that far-fetched, but it is what happens everywhere that assisted suicide is legal, including in Oregon.
Cat Eccles (Stourbridge) (Lab)
On a point of order, Mr Speaker. The hon. Gentleman is using incorrect language. It is not suicide. That is offensive. I ask him please to correct his language.
Danny Kruger
I am sorry if offence is given, but the fact is that the value of having a Bill in black and white is seeing what the law really is. What the Bill would do is amend the Suicide Act 1961. It would allow people to assist with a suicide for the first time. I respect the hon. Lady’s concern, but I am afraid we do need to use the proper language here.
The Bill’s scope is very broad. Members who think that assisted suicide for people with anorexia or other conditions that would not be regarded as terminal could not happen here should consider the young people in the UK today who are given a diagnosis of terminal anorexia and put on a palliative care pathway—essentially, assigned to death. Of course these are extreme cases—
Danny Kruger
I am not going to give way again.
There are a great many of these cases, I am afraid, and I mention them to show how wide open the Bill is. [Interruption.]
Mr Speaker
Order. May I ask the hon. Member for Bath (Wera Hobhouse) to keep a little calmer? She has intervened twice already, and plenty of other Members who also need to be heard.
Danny Kruger
I think particularly of disabled people, many of whom require constant treatment to stay alive. All, immediately and by definition, will be eligible under the terms of the Bill for a state-sponsored death. I refer Members to the Equality and Human Rights Commission, which has made the point that the line between disability and terminal illness is very blurred. That is why the Bill’s title is, in fact, so dangerous.
Danny Kruger
I will make a little progress.
The second question that medical practitioners have to answer is about mental capacity, and here again is a great vagueness. How do they judge if someone is in their right mind when they are asking for help to kill themselves? The Bill says that the definition of capacity is based on the Mental Capacity Act 2005, but that Act is deliberately expansive. It explicitly assumes capacity in the patient, so having acute depression is no bar to being judged to have capacity under the Act. Being suicidal is no bar under the Act, so the capacity test is no bar at all.
Finally, there is the question of coercion. Is the patient asking for an assisted death because of pressure from someone else? There are two glaring problems here. The first is that the process does not even attempt to answer the question properly. There is no investigation, no requirement for medics to interview friends and family, and no need for a psychiatrist or family doctor to be consulted. The medics just need to satisfy themselves—who knows how?—that, to the best of their knowledge, the person has not been pressured.
The second problem with the coercion test is that it focuses on only one type of coercion—the less likely type. The bigger danger is not other people pressuring someone to do this; it is that they pressure themselves—hon. Members have made this point. The Bill has nothing to say on that. Internal pressure is absolutely fine. If you feel worthless or a burden to others, if the NHS will not offer you the treatment you need, if the local authority will not make the adjustments you need to your home, if you have to wait too long for a hospital appointment, or if you want to die because you think the system has failed you, that is absolutely fine.
Several hon. Members rose—
Danny Kruger
I will get to the end of my speech.
That is the medical stage, and I will jump straight to the judicial stage. The medical practitioners sign it off, and then the judge has to confirm all the same tests. Of course, many eminent judges have made the point that it will overwhelm the family courts if the test were applied properly, but it will not be applied properly, because the Bill assumes that judges will fulfil a new inquisitorial role and actually look into cases as investigators, which is entirely unknown in English common law. But the Bill will not require any actual investigation.
There is no requirement for a judge even to meet the applicant. They simply have to have a phone call, or maybe it will be an email, from one of the medics. That is it. That is the inquiry. On that basis, the judge must decide whether it is more likely than not that there has been external pressure. After the judge approves it—they are required to approve it, unless they can find evidence of external coercion—we go to “the final act”, as the Bill says, where a junior colleague, as a medical practitioner, oversees your death by pills or lethal injection.
And here is the last thing that the Bill does or does not do. There is no requirement at any stage of the process—at either the medical or the judicial stage—for anyone to tell the patient’s next of kin, their wider family or even their GP that the NHS and the judicial system are working in secret to bring about the death of their loved one, maybe their father or their daughter. I say again that these are not the cases that the Bill was designed for, but they are directly in scope, and it is going to take more than a tweak in Committee to get them out.
Is this what is meant by having choice at the end of life? Let us talk about choice. I am often accused of wanting to impose my view on others—that point was made earlier. People say, “If you don’t approve of assisted death, don’t have one, but don’t deprive me of the choice.” In fact, the evidence is that, with this new option and the comparative loss of investment and innovation in palliative care, real choice will narrow. There is a broader point to make about choice, which is that no man or woman is an island. Just as every person’s death, even a good death, diminishes us all, so we will all be involved and affected if we make this change.
The Bill will not just create a new option for a few and leave everyone else unaffected; it will impose this new reality on every person towards the end of their life, on everyone who could be thought to be near death, and on their families—the option of assisted suicide, the obligation to have a conversation around the bedside or whispered in the corridor, “Is it time?” It will change life and death for everyone.
I am very aware of the terrible plight of the people who are begging us for this new law. I think we can do better for them than they fear, but we also need to think in real human terms about what the effect will be on the choices of other people, and I do not mean the people who are used to getting their way. I am talking about the people who lack agency, the people who know what it is to be excluded from power and to have decisions made for them by bigwigs in distant offices who speak a language they do not understand—the sort of people who the hon. Member for Spen Valley and I both know from our previous charity work, and who we all know from our constituency work. They are not the people who write to us campaigning for a change in the law, but the people who come to our surgeries with their lives in tatters, or who the police or social workers tell us about—the people with complex needs. What are the safeguards for them?
Let me tell the House: we are the safeguard—this place; this Parliament; you and me. We are the people who protect the most vulnerable in society from harm, yet we stand on the brink of abandoning that role. The Rubicon was a very small stream, but on the other side lies a very different world—a worse world, with a very different idea of human value. The idea that our individual worth lies in our utility, valuable only for so long as we are useful—not a burden, not a cost, not making a mess. Let us not be the Parliament that authorises that idea.
I mentioned at the start of my speech the voices of those we cannot hear: the frail and elderly and the disabled. As we are surrounded by such a cloud of witnesses, let us do better than this Bill. Let today be not a vote for despair, but the start of a proper debate about dying well, in which we have a better idea than a state suicide service. Let us have a debate in which we remember that we have intrinsic value; that real choice and autonomy means having access to the best care possible and the fullest control over what happens to us while we live; and that true dignity consists in being cared for to the end.
Several hon. Members rose—
Mr Speaker
Order. I remind the House that we want to aim for speeches of up to eight minutes. I call the Mother of the House.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
I congratulate my hon. Friend the Member for Spen Valley (Kim Leadbeater) on bringing forward this Bill, which has been the occasion of a very important national conversation. I recall to the House the fact that, in 1969, Parliament voted to abolish the death penalty for murder. Public opinion was actually against that change, but MPs believed, on a point of principle, that the state should not be involved in taking a life. It was a good principle in 1969 and it remains a good principle today.
I am not against legalising assisted dying in any circumstance, but I have many reservations about this Bill. In particular, I do not believe that the safeguards are sufficient. They are supposed to be the strongest in the world because of the involvement of a High Court judge, but the divisional courts have said that
“the intervention of a court would simply interpose an expensive and time-consuming forensic procedure”.
Sir James Munby, the former president of the family division of the High Court, said recently:
“Only those who believe implicitly in judicial omniscience and infallibility—and I do not—can possibly have any confidence in the efficacy of what is proposed.”
Is the judge supposed to second-guess doctors? Will the judge make a decision on the basis of paperwork? Or will there be a hearing in open court? Where will be the capacity in the criminal justice system to deal with all this? Far from being a genuine safeguard, the involvement of a judge could just be a rubber stamp.
Catherine Atkinson (Derby North) (Lab)
More than two thirds of care proceedings involving the most vulnerable children in our society cannot be completed within six months. Does my right hon. Friend agree that there is a real concern that the safeguard is not deliverable, or risks being the rubber stamp that I know my hon. Friend the Member for Spen Valley (Kim Leadbeater) does not want it to be?
Ms Abbott
I entirely agree with my hon. Friend.
Robust safeguards for the sick and dying are vital to protect them from predatory relatives, to protect them from the state and, above all, to protect them from themselves. There will be those who say to themselves that they do not want to be a burden; I can imagine myself saying that in particular circumstances. Others will worry about assets they had hoped to leave for their grandchildren being eroded by the cost of care. There will even be a handful who will think they should not be taking up a hospital bed.
Jake Richards (Rother Valley) (Lab)
My right hon. Friend makes her case powerfully. Can I ask her to comment on the current situation whereby people ask themselves the question she just asked today? What safeguards are there for those people? What inquiry is made before those people pass away, often having taken the most drastic and horrific action to do so?
Ms Abbott
But if the House passes this legislation, the issue that I have raised will become foremost in people’s minds even more so.
We are told that there is no evidence of coercion in jurisdictions where assisted suicide is possible, but people do not generally write letters to sick relatives urging them to consider assisted suicide and then put those letters on file. Coercion in the family context can be about not what you say but what you do not say—the long, meaningful pause.
Shockat Adam (Leicester South) (Ind)
As a medical professional who is surrounded by even more senior medical professionals, I know we can all miss things when there are tangibles in front of us: the shadows on X-rays and the markers on blood tests. As professionals, we miss things that can be seen. What security will we have that we can pick up things that we cannot see, like coercion?
Ms Abbott
That is the point: coercion is something that there will be no material evidence of and that we cannot see.
People keep saying that the Bill cannot be amended, but of course any future Government could bring in new clauses. We can see what has happened in Canada, which introduced assisted dying in 2016 for adults with terminal illnesses. In 2021, it was extended to people with no terminal illness and the disabled. In March 2027, anyone with a serious mental health problem will also be eligible. The House should remember that no single organisation representing the disabled supports the Bill.
Mary Kelly Foy
My daughter Maria lived her life with severe disabilities and health conditions. Since her birth, we were told many times that she might have only six months to live. She lived for 27 years. Crucially, Maria was non-verbal. I am filled with dread and fear about what might happen to people like Maria who are non-verbal and do not have that capacity, if they are not loved and cared for and do not have somebody speaking out for them.
Graham Stuart (Beverley and Holderness) (Con)
The case of Maria, and others, should give us all pause. Does the right hon. Lady agree, with two thirds of the Cabinet apparently supporting this measure in principle, that we should reject the Bill today, but that we should as a House commit not to go another 10 years ignoring this topic, but to come forward in a considered way, ensure it is looked at properly, and do everything possible to have a system that is more robust, more caring and ensures good outcomes for people like Maria?
Mr Speaker
Order. Let me also say that we must try to keep to the time limits.
Ms Abbott
I agree with the right hon. Gentleman. As I said right at the beginning, I am not against assisting dying in any circumstances. If the Bill passes, we will have the NHS as a 100% funded suicide service, but palliative care will be funded only at 30% at best. The former Member for Dunfermline East, Gordon Brown, has said recently:
“we need to show we can do better at assisted living before deciding whether to legislate on ways to die.”
I represent very many vulnerable people in marginalised communities. I cannot vote for a Bill when I have doubts about whether they will be protected. We can come back, have a commission and craft a better Bill, but I will not be voting for the Bill today.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
I want to make three brief points. First, I have completely changed by mind on this subject since I entered the House during the last century, because I have sat in my advice surgery with tears pouring down my face listening to constituents who have set out so clearly, speaking with such emotion, about how their mother, brother, father or child had died in great pain and great indignity.
I strongly support the Bill, and I congratulate the hon. Member for Spen Valley (Kim Leadbeater) on the excellent way in which she has presented it. I believe that we should give our constituents—our fellow citizens—this choice. I want this choice for my constituents; I want it for those whom I love; and I want it, perhaps one day, for myself.
Dr Scott Arthur (Edinburgh South West) (Lab)
Will the right hon. Gentleman give way?
Mr Mitchell
I will not, I am afraid. The current law forces people to plan their deaths in secret. Their bodies are found by their loved ones. Often, they die in the most horrific circumstances. They have no chance to say goodbye to their loved ones. It is devastating for their families. The former Health Secretary commissioned the Office for National Statistics to try to find out how many people who committed suicide every year were dying people. The figure was between 300 and 650.
Secondly, in our democracy, the Commons must make this decision. Only we, elected by our constituents, have the legitimacy to do this. It is not the DPP, the Crown Prosecution Service, the police, doctors or even unelected Members of the House of Lords—this House of Commons must make this decision. Let us be clear that all of us on both sides of the debate strongly support an increase in the quality and extent of palliative care. For me, the debate is about extending choice, in very narrow and heavily regulated circumstances under the Bill, as the hon. Lady so clearly set out—the choice not to be forced to end your life in pain and indignity. No element in the Bill talks about intolerable suffering. Many believe that the Bill is too narrowly drawn. I stand by the hon. Lady’s drafting. We should remember that in Oregon there has been no serious attempt to change or amend the law.
I had the privilege of speaking to an NHS consultant last year, the day before she headed to Dignitas. She said, “I love my country, but I object very strongly to my country forcing me to make this choice, and to having to travel unaccompanied to a foreign country to die.” The status quo is cruel and dangerous. People caught up in these circumstances have no transparency; there is no regulation, safeguards or oversight. The Bill contains a whole series of safeguards that are not present at the moment.
Thirdly, we are deciding today on a principle. If the Bill is voted down on Second Reading, that will be the end of the matter for many years, and we will do that in the knowledge that Scotland, the Isle of Man, Jersey and many other countries are likely to bring in legislation like this. There are 300 million people in 30 jurisdictions who have secured this ability to choose. There will be numerous safeguards. There will not be a slippery slope unless this Parliament agrees to there being one. If we agree to a Second Reading today it is, in my judgment, inconceivable that the Government Front Bench will not ensure we have the proper time to scrutinise the Bill.
This Bill goes with the grain of our constituents’ views—about 75%, according to the most recent polling. There is an opportunity and a chance, as the hon. Member for Spen Valley has set out, to consider in detail these matters ahead of Third Reading. As drafted, the Bill seems to me a very modest and controlled proposal. Let us not forget this: Oregon shows us that fewer people take these steps once they know they have this choice as a back-up.
I end with something I have never forgotten. Some years ago, I was listening in a debate to a young man who had recently lost his father. He had visited his father and seen him in great pain and indignity. He had seen him three days before he died. In the end his father put a bag over his head and used his dressing-gown cord to hang himself. That young man said to all of us: “If you are ever in this position, let’s hope that God will help you, because they certainly won’t.” Today, this House has the opportunity to ensure that they will.
Andy Slaughter (Hammersmith and Chiswick) (Lab)
It is a pleasure to follow the excellent speech of the right hon. Member for Sutton Coldfield (Mr Mitchell). In preparation for today I have had a number of discussions with my hon. Friend the Member for Spen Valley (Kim Leadbeater), and I want to put on record that the measured way she has dealt with the proceedings has been excellent. I do not know whether she has ever had moments of doubting whether this was the right thing to pick as a private Member’s Bill, but she has been an absolute credit to this House in the way she has dealt with these matters so far.
In 2015, in the last Chamber debate on this subject, I wound up for the Opposition Front Bench, but my interest in it goes back much further. Like all Members of this House, I have had hundreds of emails from constituents on both sides of the argument. Many ask me to oppose the Bill; those emails come from people of faith, and I wholly and entirely respect what they say, but they are the first people also to say that this is an individual decision for every individual Member of the House to make.
As I have been at the bottom of the list of speakers to be called for so many years, I have great sympathy for those who find themselves there today, so I will try to keep my remarks to one narrow point: the legal context of the Bill. There is a false dichotomy that the law as it stands is fit for purpose, that we go into the unknown with the Bill before us and that we should somehow keep the safety of the status quo. I think that could not be more wrong. There are no safeguards in the current law. The only sanction against coercion is ex post facto; we are leaving it to individual directors of public prosecutions to make decisions in individual cases after the event.
DPPs take that job extremely seriously, as anyone knows who has heard Sir Max Hill, the last DPP to speak on the subject. They have, at the instigation of the courts, set out guidelines—I think we know that it was an excellent Director of Public Prosecutions who set out the guidelines on this case. They have done everything they can, but it is not their responsibility; it is our responsibility, and the courts, up to and including the Supreme Court, have made that clear.
We assign in this Bill a role to the High Court as part of the process, but we are the final decision takers. That has been made clear not only by domestic, but by international courts; the European Court of Human Rights has said in every case in which such matters have come before it that the margin of appreciation should be put into effect and therefore it should not interfere with the law as we decide it. We cannot dodge our responsibilities and I know that we do not want to do that. We have a duty to put in place the best law we can, and that is not the law as it stands.
There are three choices for people who want to end their own lives. They can go to Dignitas alone, if they can afford to do that. They can attempt, and perhaps succeed in, suicide. They risk failing. If they succeed, they will have a lonely death. They may, as others have pointed out, simply have to resort to refusing treatment or food. The third option is that they can embroil their relatives or friends, at the risk of their being investigated or prosecuted. They also risk ending their lives too soon.
On safeguards, I do not follow the view of opponents of the Bill. At some times they seem to say that they are too complex, too expensive and that there are not enough resources. If we want to resource the Bill, we can. I do not think that those are the strongest arguments.
Andy Slaughter
I really do not want to, because of the time. I am sorry. [Interruption.] Should I? I will give way once.
Jonathan Davies
My hon. Friend talks a little about safeguards. I invite him and the House to reflect on the covid pandemic, when a lot of safeguards around a lot of things were relaxed. I worry that if we were to see another pandemic on the scale that we saw in 2020, people might feel that they were doing something patriotic by getting out of the way and freeing up a bed for a younger person. I invite him to reflect on that.
Andy Slaughter
In practice, a terminally ill person will need to formally consider their decision at least eight times under the provisions in the Bill. This is a starting point—a number of Members have made that point. I believe the Bill has already had more scrutiny than most public Bills we consider, but we have up to nine months before us to consider it further.
All the practical and legal considerations point towards the Bill. It may well be amended to change the safeguards or the way it operates, but we have the opportunity to do that. In the end, for me, that is not the decision. The decision is about two things: it is about human dignity and it is about agency. I would like to think that even at the end of life—no, especially at the end of life—when someone has their faculties but may be at their weakest ebb, they can still exercise that agency and still make decisions for themselves. They can have the longest life they can and they can end that life in the way that is most beneficial to them, their loved ones and their family. That is simply not happening, and by voting against the Bill today Members ignore those facts.
Kit Malthouse (North West Hampshire) (Con)
When I was a child, my parents shielded me from death. Centuries of art, literature and religion taught me that death was something noble or even slightly romantic. When I became an adult, I learnt pretty quickly that that was not the case. For far too many, it is anything but and certainly not noble. The deathbed for far too many is a place of misery, torture and degradation, a reign of blood and vomit and tears. I see no compassion and beauty in that, only profound human suffering. In 10 years of campaigning on this issue, I have spent many, many hours with dying and bereaved people, which has, time and again, reinforced my view.
I am a co-sponsor of the Bill and I am the co-chair of the all-party parliamentary group for choice at the end of life. I could give a speech to promote the Bill, but my hon. Friend—and I do call her a friend—the Member for Spen Valley (Kim Leadbeater) has done that remarkably well. In my speech I want to address some of the common issues that have been raised, and that will no doubt be raised during the debate, with which I struggle.
First, we will no doubt hear an awful lot about the overseas experience. I am married to a Canadian, and I can tell the House that they love their children just as much as we do. The idea that the Canadians, Australians, New Zealanders, Spanish and Austrians care little for their relatives, or indeed for the wider society in which they live, is frankly offensive. We should not pretend that somehow we are special or different. They have thought as profoundly on these issues as we have over the past 10 years. We can learn from them, and design a system for our own sensibilities and culture, as they have done. They all have different laws on abortion, some of which we would not pass in this House, but that does not mean we should not have abortion laws here. We are a 1,000-year-old democracy, and we should be able to design legislation that deals with this issue for ourselves.
The second issue that has been raised with which I have struggled regards the impact on the NHS and on judges. People are already dying; they are already in the national health service and entitled to care. Even if we think there will be an impact, are people seriously telling me that my death, my agony, is too much for the NHS to have time for, or too much hassle? It is even claimed that such matters would overload the judges—that I should drown in my own faecal vomit because it is too much hassle for the judges to deal with. We send things from this House to the NHS and to judges all the time. Is anyone suggesting that we should not create the new offence of spiking, which has come through this week, because judges are overworked? Of course not. They will cope as they have done with all sorts of things that we have sent from this House over the years, and we should not countenance the idea that some logistical problem will get in the way of our giving a good death to our fellow citizens.
I also want to address directly those Members who are considering voting against the Bill, to ensure that they are clear in their minds that a vote against the Bill is not a passive act. There are two states of being on offer today. I have to break some news to Members: whatever happens to the Bill today, people with a terminal illness will still take their lives. If the Bill falls today, we will be consigning those people to taking their lives in brutal, violent ways, as they are at the moment, and will see increasing numbers of our fellow citizens making the trip to Switzerland if they can afford it. We know that between 600 and 700 people a year are killing themselves in violent ways—shooting themselves, throwing themselves in front of trains, taking overdoses in lonely, horrible circumstances. As I said, many are going to Switzerland, but more than that are lying in hospital—I guarantee that there will be somebody over the river in St Thomas’ hospital now who is refusing treatment and starving themselves to death because they cannot face what is in front of them.
Sam Rushworth (Bishop Auckland) (Lab)
Does the right hon. Gentleman agree that we had a choice today? We have come here to debate assisted dying, but we could have come here to build cross-party consensus on how finally, once and for all, to fix palliative care in this country. We could have come to look at a funding consensus, as that does need to be cross-party. I agree with his point that voting no is also a choice, but what follows from that should be a cross-party consensus on how we fix palliative care.
Kit Malthouse
I agree with the hon. Gentleman, and what a surprise it is that the conversation about palliative care has started. We were not having that conversation before this Bill came forward. The evidence from the Health and Care Committee, published only in February this year, shows that palliative care and assisted dying go hand in hand.
Kit Malthouse
I will not give way.
Improvements also go hand in hand; medics from across the world told us that the two things are complementary. In Australia I discussed this issue with a palliative care doctor who was against the introduction of assisted dying when they were contemplating it. She now finds it an invaluable tool, and she embraces it as something that her patients want and need. My concern is that if the Bill is turned down, as it was in 2015, the conversation about palliative care will wither, as it has done for the past 10 years.
I want to share a story that has particularly affected me. Mark Crampton was a former police chief inspector who was suffering from chronic obstructive pulmonary disease. His COPD became too much for him, so he informed his family that he was going to take his own life. He took his oxygen tank and mask and late one night went out and sat on a railway embankment. He wanted a death that was instant and quick, and that he could rely on. He waited until 2 in the morning—heartbreakingly, he had worked out when the last train was going, so he would minimise disruption to the public—and then took his life in lonely circumstances in the middle of the night. By not passing the Bill, we would deny to Mark supervision, conversation, access to doctors, periods of reflection, advice. Even if he had been through all that and decided it was still too much, the Bill would give him a much better end than he actually achieved. Members should be clear, as I say, that whatever happens to the Bill, terminal people will still take their lives.
I have to say to the hon. Member for Brent West (Barry Gardiner), who says that hundreds of people dying in agony every year is a price worth paying for the good of society, that I find that an appalling prospect. A society that looks away from these people —like those in the Public Gallery who are living in terrible fear of what will face them, or who have watched their families die in fear—and says that that is okay for the good of the whole is a terrible, terrible prospect. We have a duty to assist them, as other countries around the world have done, and to find a way to make them comfortable in the end.
Kit Malthouse
I will not.
Finally, I want to talk briefly about rights. We hear a lot about rights in this debate—quite rightly. We hear about the rights and fears of the disabled community, who are specifically excluded from the Bill; we hear a lot about the rights and fears of the elderly, who are also specifically excluded from the Bill; we are even hearing about the rights of doctors, who are allowed to conscientiously object to participating in this process, if they wish. When are we going to have the conversation about the rights of the dying? Where do we put them in the ranking of rights, as they face their end? When do we grant them the autonomy and choice for which so many of them have campaigned over the years? Surely, as they come towards the end of their life, their rights have to be at the forefront of our mind. The last, best gift we can give them is control over the disease that is destroying them.
If we do not pass the Bill today, we are cornering all those people; we are trapping them, with the law, in their disease, and consigning them to an end of torture and degradation that they do not wish to go through. As I said before, we are a 1,000-year old democracy. It is not beyond us to design legislation that will give those people what they want, while protecting those whom we feel need to be protected. Like my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), I want this choice for my constituents, but profoundly I want it for myself and for the people in the Public Gallery who have worked so hard over the past decade to get us to change our minds.
I ask Members please to be clear that whatever happens today, terminal people will still take their own lives—all we are deciding today is how.
Several hon. Members rose—
Madam Deputy Speaker (Caroline Nokes)
With the reminder that there is no formal time limit, and if we wish to get in as many Members as possible, could Members please constrain themselves to about eight minutes?
Rachael Maskell (York Central) (Lab/Co-op)
This is hard, Madam Deputy Speaker. With compassion, we search for ways to best alleviate pain and suffering and ensure that those we love die in peace. Initiated by the Bill, focus has rapidly turned to caring for the dying and optimising every moment of the life that we want to hold on to; it breaks us knowing that at some point we have to let go. That was the mission of Dame Cicely Saunders, founder of the hospice movement.
Thankfully, most die in peace, but tragically not all. Funding for palliative care has regressed against rising demand in an ageing society with growing comorbidities. Hospices are paring back services. Research by the Anscombe Bioethics Centre in Oxford highlights how jurisdictions with assisted dying fall down the rankings on palliative care, while promised funding never materialises. When more than 100,000 people, predominantly in poverty, from minoritised communities or based on postcode, fail to access any palliative care despite needing it, or when those who access care do so from frequently overstretched services, unable to make timely or optimised interventions, or when, for most, care starts far too late, tragic testimonies follow, as we have heard in recent days.
We all know that the NHS is under significant duress, and just cannot do what it should. Social care is fragmented and costly, and palliative care is significantly underfunded and inequitable. This is a mess. Following Lord Darzi’s devastating report, we must give my right hon. Friend the Health Secretary the opportunity to reset health and care. I believe that that is what we on these Benches were elected to do.
With just 17 days since publication, this Bill has consumed us and that will only intensify if it proceeds. Instead, our focus should be on getting palliation right and then seeing what is really needed. We cannot do both as there is simply not the capacity. More than 70% of the public say that they want a commission on palliative and end-of-life care before we consider assisted dying. Other polls agree. Plans for a commission are well advanced.
Sir Roger Gale (Herne Bay and Sandwich) (Con)
I agree with the hon. Lady entirely: the way forward should be through better palliative care and not through assisted suicide. The Bill does not address the needs of children. Would she recognise that we also need better palliative care for children as well as adults?
Rachael Maskell
I completely agree with the right hon. Gentleman, who makes a pertinent point. After all, we would never write a prescription before making a diagnosis, yet this Bill does that. It is simply prescribing the wrong medicine. Extraordinarily, there is no critical analysis, not even an impact assessment, when such significant matters of life and death are at stake and when our broken health and justice system would be stretched even further.
My constituent was just 46 when she received a terminal diagnosis. She did not have long; the cancer was advancing and the prognosis would have qualified her for an assisted death. Had it been law, she would have consented. Now 54 and in remission, she pleads that the Bill should not pass. Palliative care consultants say that it is nearly impossible to prognosticate at six months; just 46% get it right. Experts say that the arbitrary six-month threshold is insecure. We must recognise its prematurity. Clause 2(2) says that someone for whom treatment only relieves symptoms but does not cure them would qualify for an assisted death if they were within the criteria. We understand someone declining chemotherapy, but the provision extends to any condition where a cocktail of drugs is sustaining life. The person involved may be only 18. That would not need a change in the law; it is written in the Bill.
My greatest concern is coercion. We live in a coercive society; the UK spends £40 billion on advertising and ever more powerful algorithms drive us to content online. We recognise coercion in relationships or elder abuse, but the Bill fails to safeguard against it when someone is dying and there is malign intent. People often recognise coercion only after years have passed, yet within a month someone could be dead. Malign coercion cases may be few, but as a clinician working at the fringes of life, I heard my patients frequently say, “I don’t want to be a burden,” or “I’d rather the money went to the grandchildren than on my care,” or “Somebody is more deserving than me.”
Intrinsic coercion is very real, not least where the law has changed—rapidly becoming an expectation, verbalised as a duty to die. In fact, not wanting to be a burden is cited as a major reason to opt for an assisted death, alongside loss of dignity, loneliness, and needing personal care, yet every day, disabled people live in this reality. We fight in this House to take away stigma and give dignity, equality and worth. That is why disabled people fear the Bill: it devalues them in a society where they fight to live.
We should understand why Disability Rights UK opposes and why Liberty opposes: to push back against the Bill is the cause of the progressive and the libertarian, not just the domain of the conservative. Under this Bill, a doctor may raise an assisted death with their patient—clause 4(2). Given the trust we place in doctors, not least when people are vulnerable, this is so significantly coercive. Let us suppose there is unconscious bias, which is well known in healthcare. Before people question that assertion, let me cite the industrial application of the Liverpool care pathway, and then, five and a half years after its ban, the covid “Do not actively resuscitate” letters. The evidence shows that disabled and ethnic minority people experience bias in healthcare. Those who stand for equality will recognise the safeguarding failures in the Bill. While not wanting to encourage suicidal ideation, rates are 6% higher in jurisdictions where there is assisted suicide.
On the process, two doctors—possibly unknown to the patient—ask a set of questions. It can take days to establish capacity in the courts, but it only needs a consultation. That is the same for assessing coercion and prognosis. Doctors are proponents of assisted dying. Risk increases in closed environments. At least the Isle of Man is considering a parole board-style approach; this Bill does not. The documentation of the decision fails in its rigour, not even seeking evidence for the decision. It is passed to a judge.
Sir James Munby, former family division president, describes,
“a scheme which does not provide for an open and transparent process but, on the contrary, permits a secret process which can give us no confidence that it will enable the court to identify and prevent possible abuses.”
In decrying how the Bill changes the role of the judge to one of certifying compliance, he states,
“the Leadbeater Bill falls lamentably short of providing adequate safeguards,”
describing the suspension of any appeal as an “extraordinary” omission, not least if the patient’s concerned relative or physician cannot take their case. That is backed by Thomas Teague KC, former chief coroner, who said the safeguards “will not hold” and that they
“amount to nothing more than arbitrary restrictions, with no rational foundation.”
Lord Sumption, former Supreme Court judge, highlights that once the law facilitates assisted suicide, it could be deemed discriminatory to deny others—disabled people—the same right. Barristers say they will take cases. They expect the law to change.
Rachael Maskell
I will press on.
Much would rely on regulations using the negative procedure, and some the affirmative. Even if not prepared within two years, clause 42(3) says the Act would be fully implemented. The Bill changes the role of the chief medical officer without any analysis, as is the case for doctors. During the 14-month Health and Social Care Committee inquiry, we heard how the clinician-patient relationship changed with assisted suicide. Record keeping and data collation is inadequate, as we found in Oregon.
Clause 18(9) highlights that the procedure may fail. The Bill is silent on how to manage such cases, but it should be explicit. We must acknowledge that it is not always peaceful. We learned in Oregon that some have seizures or vomit as the body rejects the toxic medication.
The Bill falls woefully short on safeguarding patients, too. It is too flawed to amend. It is a wrong and rushed answer to a complex problem. Today, we must be beyond reasonable doubt of error if voting for the Bill. Remember, the vote is not on the principle of assisted dying or on choice, but the principles detailed within the clauses of the Bill. Polling overwhelmingly says that if Members are in any doubt, the public expect them to vote against the Bill today. We can focus on optimising palliative and end of life medicine to build consensus and to discern what further steps need taking. For death, as with life, is too precious to get this wrong.
Madam Deputy Speaker (Caroline Nokes)
I call the Chair of the Health and Social Care Committee.
Layla Moran (Oxford West and Abingdon) (LD)
I congratulate the hon. Member for Spen Valley (Kim Leadbeater) on bringing the Bill. I commend her for the tone she has set in shepherding the debate and, indeed, I commend Members across the House with sincerely held views for the way we have done this so far—I hope it will continue.
Most things we do in this place have some bearing on life and death, but it is rare we discuss those concepts in their most visceral and direct forms. As a nation, we do not talk about death nearly enough, especially while we are well, but it happens to us all, so I welcome the chance to enable better conversations not just in this place together, but in people’s own minds for themselves. No matter how anyone votes today, I hope that we can all agree that this debate is a profound and proud moment for our democracy.
To that end, I want to be up front: I will be voting for the Bill today, because I want this conversation to continue. To those arguing the moral grounds and making the point that we are crossing the Rubicon, I sincerely respect their views. These are moral judgments. There will be Members who are making the moral case, and I want to hear them. But I urge those MPs who might be minded to vote for the Bill on principle, but are worried about the details—how we might change a word, the role of clinicians or MPs, or whatever it may be—to reconsider the question they are asking themselves today.
This is Second Reading. The media are asking all of us, “Are you for or against the Bill?”, but I urge hon. Members to think about the question differently. The question I will be answering today is, “Do I want to keep talking about the issues in the Bill?” I am asking myself if I want to keep grappling with the detail until I get to Third Reading, when I might reserve the right to vote no. They can decide the answer to that question for themselves.
Mr Cleverly
I appreciate the hon. Lady giving way, but she is misrepresenting what we are doing at this point. We are speaking about the specifics of this Bill: this is not a general debate or a theoretical discussion, but about the specifics of the Bill. My hon. Friend the Member for East Wiltshire (Danny Kruger) has highlighted numerous deficiencies, and I will provide one example. If the proposed legislation is such a good thing to alleviate pain and suffering—a right that we should be proud to pass—why are we denying it to children? If it is a positive, why are we denying it to children? We are discussing the specifics.
Layla Moran
The right hon. Gentleman might want to raise that issue in Committee, at a later stage. However, it is important for hon. Members to appreciate that they can vote yes today, and vote no later.
I want to come on to palliative care, which is really important. The message from the sector, patients and their families is crystal clear: palliative care is not good enough and we must do better.
Mr Lee Dillon (Newbury) (LD)
Does my hon. Friend agree that we are not talking about a choice between palliative care and assisted dying? The two can go hand in hand, but with the knowledge that if palliative care does not provide the individual with the comfort they require, the Bill would give them the option to decide how they want to end their life, rather than drifting away without being able to have a final cuddle or say a final goodbye.
Layla Moran
There needs to be a debate around palliative care. My concern is that we have not had any firm commitments from Government, other than woolly words, about how they are actually going to tackle the issue, and that a royal commission will push it into the long grass.
I say to the Secretary of State for Health and Social Care, who is in his place, that the gauntlet has been thrown down. If he wants someone like me to not vote for the Bill moving forward, he needs to do two things: he needs to put firm commitments on palliative care on the table and resolve them within the next one or two years, and then, afterwards, commit to bringing back a Bill like this one in Government time. Without those firm commitments, I will continue to make the case for wanting to see progress.
Imran Hussain (Bradford East) (Ind)
The hon. Lady and I come to this subject from different places, as I will be voting against the Bill. I agree with her and all the hon. Members who have spoken about the need to massively improve palliative care, but she says we can address some of those concerns at a later stage. How does one address coercion and guilt through legislation?
Layla Moran
These are conversations that I want to keep happening, but I say to those who are making the argument about the process and asking how we can make that better, what does a Bill that addresses assisted dying that they might vote for look like? If the answer is that there is none, let us be honest about that.
I want to end by giving a tiny amount of my time to someone who is in the Gallery today. Tracey, I cannot see you right now, but thank you for coming. I said to Tracey, my constituent, when we met that I would allow some of her words to be spoken today. Tracey was 58 when she was diagnosed with incurable stage 4 breast cancer, which spread to become a brain tumour in 2023. It was successfully removed, but Tracey lives every day knowing that her cancer is likely to return. These are the words Tracey wants us to hear:
“Despite this prognosis I can honestly say that I am a happy person now. I feel lucky to have made it to 60. There is just one black cloud on the horizon for me, and it is the way that I will die. I am terrified that I will suffer a long, painful death. If I knew I had the choice to have a good death, these worries would disappear. Please change the law so I can live what life I have left, safe in the knowledge that I have a choice about how and when I die. If you do this, I will be able to live even more happily today knowing that I do not need to worry about the prospect of a cruel and painful death.”
I will end by saying that there are sincerely held views being heard today. Let this be this Parliament that ensures, regardless of how we vote today, that we give people a good death.
Tonia Antoniazzi (Gower) (Lab)
I have led two Westminster Hall debates for the Petitions Committee on the subject of assisted dying. I have grappled with this subject, and I still do. When my hon. Friend the Member for Spen Valley (Kim Leadbeater) was speaking earlier, I had a packet of tissues, and I made swift work of them. It really is so difficult for so many us, with our personal experience and our own thoughts.
It is genuinely our privilege to be able to say that this is what we want or what we do not want. We may not be facing this right now in our lives, but when you are, you think about it deeply. I will be voting for the Bill today. I think about this all the time—I need to maybe get a bit of a life—because it really is something that bothers me. It is an honour for all of us in the Chamber to be able to debate this today, whatever our views. I have to say, this is just not easy. I want everybody out there to know that it is not easy. It is really difficult, and it is difficult for those on both sides of the debate.
I will get to the Bill now, because as has been pointed out, we are here to talk about the Bill, not to get overly emotional. I want to talk about how it impacts Wales. I hope we will be able amend the Bill to take consideration of these things, and I hope that we can look at this in detail in the Lords. I believe that the Bill should pass today, because we need to discuss it and know how it is going to work. As it is currently drafted, we will need to look to the Welsh Government to see if there needs to be a legislative consent motion, because it does not seem to engage with the Sewel convention in a substantive way.
Issues that have been raised with me include that the Bill places multiple duties on the Secretary of State in England around codes of practice and ensuring assistance within the NHS. The Welsh Government need to be happy with the Secretary of State in England deciding how services are to be provided within the Welsh NHS. There will need to be an amendment, which I suspect will then engage with the Sewel convention.
The need for subordinate legislation to enact the Bill is really complicated, and we need to see how it will be passed in this place. There are issues around the codes of practice, because some of them are devolved. I want to highlight that, because regardless of the emotional stories that we will hear today, we need to mindful that the Bill has an impact on legislation in Wales. It is very important that if the Bill does go through today, those discussions are had, because everybody’s life matters, and we have to get this legislation right.
I do not want to take up any more time, but I thank all my hon. Friends and, in particular, my hon. Friend the Member for Spen Valley, who has been an absolute gem.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
Prior to my election to Parliament, as a consultant psychiatrist with a PhD in decision-making capacity, I would have met both criteria to be a medical expert assessor under clause 9(3)(b), so I have a particular perspective as someone who, in different circumstances, might have been called upon to make these assessments.
I strongly believe that we should respect and support the right to bodily autonomy for people with full decision-making capacity, subject to the caveat that it does not cause serious harm to others. I argued for this when I was on the working group of the independent review of the Mental Health Act 1983 and on the pre-legislative scrutiny Committee on the Mental Health Bill, which, among other things, aims to prevent people from coming to harm when suffering from severe mental illness. These reforms were debated in the House of Lords this week, and they demonstrate how Parliament should legislate in complex areas that balance individual autonomy and risk.
In contrast, as a private Member’s Bill, there is limited ability for scrutinising this Bill’s provisions. It has had no independent review, no pre-legislative scrutiny and no impact assessments. Many MPs support the principle of assisted dying yet have concerns about implementation, resource implications and safeguarding. That is why I, along with colleagues on both sides of the House, tabled a reasoned amendment calling for an independent review and consultation before a vote in Parliament, to provide a third way through. I thank the Members who supported the amendment, particularly the hon. Members for Shipley (Anna Dixon) and for Twickenham (Munira Wilson), for their work and their extensive and careful consideration.
Although the general debate on assisted dying may focus largely on the principles, legislation must address the limits to and the safeguards on consent. Should people be able to agree to a medically assisted death? If so, what restrictions, if any, should there be on people who can make this decision—age, capacity, terminal illness, intolerable suffering? And then, what safeguards are there to uphold these limits and to prevent abuse—assessments by two doctors, judicial scrutiny?
Given that the main argument I see in favour of assisted dying is the exercise of personal autonomy, I believe the most substantive issues we need to wrestle with are the limits that we set. Why is this Bill limited to the terminally ill and not those who are suffering without that being terminal? What even comes within the scope of terminal illness? With the refusal of treatment and medication, conditions such as type 1 diabetes and HIV can be designated as terminal, despite being fully treatable.
There are many questions, but in this Bill the most prominent problem is that, in a legal context, if the availability of assisted dying is limited only to those who are terminally ill, it is discriminatory either to those with or without terminal illness. Either their right to autonomy is greater than others’, or the value of their life is worth less.
We must also ask whether autonomy can be exercised where there is no choice. If good palliative care is simply not available, can we really rely on this as a true and free decision? I would argue that we cannot, and that this Bill does not safeguard against coercion through state neglect.
Dr Spencer
I usually would, but unfortunately that would impact on other Members who wish to speak. I apologise.
What is fundamental to me, given my interest in capacity, is that we have not considered how much human decision making is driven by altruistic intentions. “I did it for my children” is rightly a primary motivation in many settings, but as a society are we comfortable with a decision to seek a medically assisted death so as not to be a burden on one’s family or to save them money?
This will not impact on capacity. We cannot pretend that capacity assessments will be a shield for these moral concerns. Where is the line, if there is one, between indirect coercion and the natural human responses in a stressed family unit looking after a sick loved one?
I believe that we could introduce legislation on assisted dying that has fully reviewed and addressed these issues, but parliamentarians must deal with what we have in front of us today. Proponents on both sides of the debate frame this vote on Second Reading as a vote on the principle of assisted dying, but in reality it is a vote on implementation as put forward in this Bill.
As a former mental health doctor, I am proud that I was there for the most vulnerable. Today, I think about those without a voice in this debate or in the TV studios. I think about the elderly woman in the care home with mild cognitive impairment, who retains capacity but is nevertheless vulnerable to coercion and undue influence, or the sick mother whose child may lose their job or their relationship due to the burden of caring responsibilities. The Bill would not protect them. It risks placing implicit pressure on people already vulnerable at a time of life when they should receive our unwavering care and support. We should and must vote it down.
Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
In my brief remarks today, I want to touch on principle, policy and practice. We have to be very clear that we are having a debate not just on the principle, but on the Bill. The principle at stake is that we would cross a Rubicon whereby someone who is terminally ill, according to the definition in the Bill, is assisted by the state to die. That is a fundamental change in the relationship between the state and the citizen, and the patient and their doctor. If we have a scintilla of doubt about allowing the state that power, we should vote against the Bill today.
Like most of us, I came into politics partly to stand up for the vulnerable, and we have heard heartbreaking stories today about those vulnerable at the point of death. We have also heard—and I concur completely with my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott)—about those who are vulnerable for other reasons and who could be coerced or persuaded down this route.
I have had the privilege of being around the hospice movement for nearly 50 years, as my father established one of the first national health service hospices in this country. I saw what he did as a doctor in a world where death was not talked about, where surgeons would say, “We’ll whip this bit out and you’ll be fine.” He would be one of the first to have to tell the patient that they were actually going to die. The work that he did, on the back of giants such as Dame Cicely Saunders, is something we should be proud of. We were the first country in the world to recognise palliative care as a separate profession, and some of the tragedies we have heard about today arose from a failure in that system. A failure in palliative care and support is not a reason to continue.
I have personal experience of this. Many hon. Members will remember when my daughter was very ill a few years ago. I had not intended to speak about this today, but she was admitted to hospital as a teenager with acute pancreatitis. The Bill would not have covered her, but I did not know for five days—in fact, many months—whether she would live or die. For those first five days she did not sleep and she did not eat, and she was crying out in pain. I saw what good medicine can do. It palliated that pain and got her to a place where, although she was unable to eat for two and a half months, she was saved and her pain was managed. Our best friends were the pain nurses and the anaesthetists. I have other examples of another family member, but I do not have time to go into them today.
I hope my daughter forgives me for raising her personal situation in the House today—
Lola McEvoy
Will my hon. Friend give way? I pay tribute to her for the strength that she is showing. Indeed, I pay tribute to all Members on both sides of the House who are dealing with this very difficult issue. Does she agree that we already have assisted dying in this country? Legislation already allows for choice, proving that people would be able to die at home with carefully administered, practitioner-led pain management. Does she agree that the inconsistency of this application of good pain management at the end of life, causing compassionate legislators to feel that the only option is to vote for the Bill, is a failure of our existing national health system, and does she—
Madam Deputy Speaker (Caroline Nokes)
Order. Interventions will have to be short in this debate because many Members wish to speak, so perhaps that is enough.
Dame Meg Hillier
I thank my hon. Friend for that intervention. She is absolutely right. When we see the system working, it is great, but some of what we have heard today has referred to a failure of the system. That cannot be a reason for us to accept the Bill today. For more than 30 years I have been scrutinising the policies and actions of public bodies and seeing the mistakes that they make, both in the care sector when I was in local government and more recently as Chair of the Public Accounts Committee.
Mr Adnan Hussain (Blackburn) (Ind)
The time for us to make this decision is wrong, frankly. At a time when 44,000 terminally ill pensioners are set to lose their winter fuel allowance—indeed, many of them have lost it—we are discussing whether we will pass a Bill, a state-sanctioned Bill, dealing with a taboo that many of us are reluctant to talk about.
Dame Meg Hillier
Where I do agree with the hon. Gentleman is that the time is not right. We have not had the proper discussions about palliative care. Some of us have been trying to talk about it for many years, and we need to ensure that this debate does not stop today, but the Bill must stop today. It is not developed to deliver the palliative care resource that we need. I do want to touch on the policy, but let me first return to the point that I was making before the hon. Gentleman’s intervention.
We have seen many failures in the system, including contaminated blood, and whistleblowing in the NHS repeatedly shows such failures. There is great trust among those who support the Bill that these safeguards will deliver. I will not go into the details, because others have already done so, and I am sure that many more will, but we made coercive control illegal in 2015, and although the Bill refers to safeguards, I fear that that will not pick up coercive control. When we ruled it to be illegal, we thought that was a moment of progress in the House.
Given the time, I will now move on to some of the practical challenges. My constituents are struggling to see doctors face to face, and seeing the same doctor twice seems like a miracle in today’s Britain. My right hon. Friend the Health Secretary is trying to sort it out, but it will take a long time. We need to sort out our battling health service, we need to support palliative care, and we need to discuss what a good death is. Cicely Saunders campaigned and triumphed to ensure that we had one of the best hospice movements in the world.
If Members have any doubt in their minds about the impact of the Bill on people who do not have the same capacity as those who are talking about this in the television and radio studios, they should think of those in my constituency who have poor English, or the woman who came to see me a month ago with terrible pain in her gall bladder. Removing it would have been a simple daytime operation, but she did not understand what the doctor had told her, and she was not going to have her gall bladder taken out because she did not know what it meant to be without a gall bladder. Let me say this to those Members: if someone who was English, a bright woman in her 60s, was unable to challenge what was said to her and to have that conversation with a doctor, just think what passing the Bill today would mean for many more vulnerable people.
I thank the House for its indulgence.
Sir Edward Leigh (Gainsborough) (Con)
I pay tribute to the hon. Member for Hackney South and Shoreditch (Dame Meg Hillier), and I want to follow her in talking about palliative care. Let me start by reading an email that was sent to me only yesterday by a personal friend and constituent:
“I apologise for adding to the thousands of emails you will be receiving. I just wanted to tell you why I oppose the right to die Bill. I know you are aware of the experience I had when my husband was dying. In hospital we had a dreadful experience because they had no end-of-life care and he suffered. Once in the Hospice it was a different story and he received the loving care he rightly deserved.
My argument is that, instead of assisted dying, we should be spending much more money on end-of-life care and funding the wonderful Hospice movement. Thank you for reading this.”
I will read another letter, from a doctor, which I think encapsulates some of the problems that we encounter in this issue:
“Only recently, I was giving my condolences to a grieving woman who had lost her husband in the early hours. He had been given a few small doses of pain relief and mild sedatives over the last few nights for symptom control and had passed away peacefully at her side. She asked me in all seriousness, ‘Doctor, did the nurses give him something to make him die quicker last night?’ This was an awful lingering doubt that she had. I was able to firmly reassure her that, no, the medication would not have sped up his passing.
For her, and the vast majority of other patients, doctors are there to prolong life and palliate symptoms. Were this to change, then we would not be doctors in the eyes of many, but bringers of death, agents of a state which counts its weakest members as expendable and worthy of nothing but an early grave.
I do not want to be a member of a profession which has that reputation or role”.
Those are two witnesses who have written to me. I have taken an increasing interest in this whole issue of palliative care, and the law frankly—
Sir Edward Leigh
Will the hon. Gentleman forgive me if I do not? I know that many people want to speak. I just want to develop this argument, then I will finish.
The law is so unclear. I have talked to a number of palliative care specialists, and they say that we can give as much morphine as we want to a patient and we will not kill them, but there is real doubt in the minds of the public. A lot of the impetus around this debate, and the reason why people in opinion polls are apparently supportive of this measure, is that they are terrified of dying in pain. There is no need for this. When I talk to consultants and practitioners in palliative care, they say that they can manage pain. I was struck by a very touching email that was sent to me by a constituent, who actually supports the Bill on the grounds that when his wife was dying, and he was begging the doctor in a national health hospital to give her more morphine, the doctor said, “If I did that, I would be breaking the law.”
I can see the Health Secretary is sitting here, and I really think that if we are going to have a serious debate about this issue, we need to have something equivalent to a royal commission to determine what doctors can and cannot do. It is essential that we really reassure the public. There is tremendous interest in and huge doubt about this issue. Many people are conflicted, and we have heard many moving stories about people’s fear of dying in agony, but until we clear this up, I do not think that we can make the progress that this issue deserves. Yes, we have to fund our hospice movement seriously. It is very worrying that we are going to fund the NHS to fund death, but that we are not adequately funding our hospice movement.
Before we take this momentous decision, we have to be realistic about it: if the Bill were to pass at 2.30 pm, that would be it. I do not believe that a private Member’s Bill, which has only five hours of debate and on which many Members of Parliament will not be given time to speak, is the right mechanism. In the last Parliament, we discussed a certain subject that we all know about—it was a very different issue. We had hundreds of hours of debate, questions and scores of civil servants crawling over the issue. Surely this issue is even more important. Surely we should have had more than just two or three weeks to consider this Bill. We should be looking at the detail, because the devil is in the detail in respect of possible coercion, the facilities available to the hospice movement and the issues I have talked about, including the lack of clarity in the law as to how we can or cannot relieve pain. Can we not pause a moment? Those are the practical points that I want to make.
This is so important: the futures of so many vulnerable people are at stake. I was struck by the comment made earlier by the hon. Member for Brent West (Barry Gardiner) that we cannot consider this issue just in terms of individual hard cases. We must consider it in terms of society as a whole. What sort of society are we? Are we a society that loves our NHS, that loves life, that loves caring and that loves the hospice movement? Or are we a society that believes that there is despair? I will vote for hope at 2.30 and I will vote against the Bill.
Peter Prinsley (Bury St Edmunds and Stowmarket) (Lab)
I asked the ear, nose and throat nurse I have worked with for 20 years about assisted dying, and she said it is an essential change. There is no doubt in her mind. Like me, she has seen the unbearable distress that some head and neck cancers cause, and she knows of the very difficult deaths of some of our patients, despite excellent palliative care. It is this experience that has changed my mind. When I was a young doctor, I thought it unconscionable, but now I am an old doctor and I feel sure it is the right change.
I have seen uncontrollable pain, choking and, I am sorry to say, the frightful sight of a man bleeding to death while conscious, as a cancer had eaten away at the carotid artery. It is called a carotid blowout. I know the terrifying loss of dignity and control in the last days of life. I am speaking here of people who are dying, not people living well who have chronic or terminal diseases. We are talking about people at the end of their lives wishing to choose the time and place to die. This is not some slippery slope. We are shortening death, not life, for our patients. This is not life or death; this is death or death.
Coercion and manipulation have been spoken about and are no doubt feared, but the danger of no change to the law is a greater fear for those who are dying and wish to have choice. The very real fear of loss of dignity and control are at the heart of it. Do not underestimate that. There are strict safeguards in this tightly written Bill, and I fervently hope there will be the opportunity to refine them as it progresses.
Steve Witherden (Montgomeryshire and Glyndŵr) (Lab)
Assisted dying is already occurring in unregulated ways, with up to 650 terminally ill people taking their own lives each year, often in traumatic circumstances, causing additional pain for their loved ones. The Bill promotes freedom of choice at the end of life in a controlled and regulated manner. Does my hon. Friend agree that legal assisted dying would provide essential safeguards where there currently are none?
Peter Prinsley
I thank my hon. Friend for that timely intervention. Some may say that we do not have the resources to introduce this change, and many may say that we must invest in palliative care, which of course we must. But I see assisted dying as complementary to, not an alternative to, palliative care.
Melanie Ward
My hon. Friend briefly mentioned coercion, and the well-held fears of many of us in the House about the risk of coercion, particularly for vulnerable people. What does he make of the fact that in Washington state, where the relevant law is restricted to terminally ill people like this Bill, last year 59% of those who went through with an assisted death did so because they feared being “a burden” to “family, friends or care givers”? In Oregon, the proportion last year was 43%.
Peter Prinsley
I respect my hon. Friend’s report of the statistics, about which I have no further information.
Colleagues know the gravity of the law that we are discussing and might feel that the moral weight of such a change is simply too great to bear; they may fear that our wisdom is insufficient. But I urge us to be brave today and allow the Bill to progress in this new Parliament.
Finally, a prison chaplain told me only this week of a gentle old man he met in prison, serving life for agreeing against every instinct in a last act of love to suffocate his wife, who was dying in uncontrollable agony. We are a compassionate people and we can do much better than that.
Several hon. Members rose—
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. Colleagues will realise that we have only a few hours to go. Without absolute speaking limits, if colleagues could keep their contributions to shy of five minutes, I will do my best to get in as many speakers as possible.
Tim Farron (Westmorland and Lonsdale) (LD)
The motives of those proposing the Bill are grounded in compassion—in the heat of this debate, I want to seriously acknowledge that—particularly the hon. Member for Spen Valley (Kim Leadbeater), who has conducted herself with great dignity throughout. Neither side has a monopoly on compassion—I will always be affected by watching my mum suffer at her death at the age I am now—so let us not think badly of one another’s motives; let us instead be courteous and let us be curious.
My opposition to the Bill is grounded in compassion. To legalise assisted dying would be to create the space for coercion that would undoubtedly see people die who would not otherwise have chosen to do so. There are no safeguards in the Bill that would prevent that.
Tim Farron
I had better not.
To be fair, no safeguards would be possible, even if we were not going through this hasty process. First, there is the risk of self-coercion. Many of us will have heard older relatives utter words similar to, “I am a burden to you. You would be better off without me.” We all know reasonably instinctively that people will present it as making a sovereign choice, but it will be a choice born out of coercion. Unless there is a clause in the Bill that I have missed to employ mind readers, no amount of doctors, safeguards or bureaucratic mechanisms will prevent those who self-coerce from opting to die simply because they assume that no matter what their loved ones say, everyone would be better off if they were dead.
To add to the stats we just heard from the hon. Member for Cowdenbeath and Kirkcaldy (Melanie Ward), we know that in Canada more than one in three people opting for assisted dying gave as their reason for choosing to die that they felt they were a burden on others. Honestly, I do not see how we need any further discussion to push us into the No Lobby than that clear evidence from where it is legal.
Secondly, there is coercive control. In the last Parliament, we passed groundbreaking and long-overdue legislation on domestic violence. As society’s understanding of that often hidden evil has developed, our eyes have been opened to one horrific factor in particular: that of insidious, manipulative coercive control. Thousands of people have been—and are today—victims of those who seek to manipulate their will, take over their lives and coerce them into believing that their perpetrator’s will is actually their will. We all know through our constituency casework of people who have been victims. One common theme is that victims often did not realise that they were being controlled until long afterwards. It can take years for the penny to drop. I do not need to spell it out, then—do I?—that for those coerced into choosing assisted dying, that penny will never drop. They will no longer be with us.
Thirdly, people will choose assisted dying because of their pain when they would not do if that pain was properly managed. Here is where the evidence from other countries becomes truly disturbing—in fact, terrifying. In the last decade, the countries in Europe without assisted dying increased palliative care investment by over three times more than those that had legalised it. In the United States, those states without assisted dying saw an increase in the size of their palliative care teams that was also three times greater than that in states that had legalised it. That is clearly no accident and no coincidence. Indeed, the group that have contacted me who are most vociferously against the Bill are palliative care doctors.
Sorcha Eastwood (Lagan Valley) (Alliance)
The discussion we are having—and I pay tribute to the hon. Member for Spen Valley (Kim Leadbeater) for the way that she has conducted it—almost implies that palliative care is of the same excellent standard across the UK. I have to inform the House that it is not, which is a matter of deep regret. I cannot stand by the Bill because many vulnerable, marginalised people will be impacted by it. I want to support and affirm life, and I want that to be with dignity.
Tim Farron
I thank the hon. Lady for her important and powerful intervention. Those palliative care doctors who have been in touch with me know that to opt for legalised assisted dying is to opt, inevitably, to divert resources away from palliative care—that is the evidence. I spoke to one of those palliative care doctors this week, who works in a hospice. She said:
“The only patients I care for, are those who are dying”.
We all know what is coming. Assisted dying means a shift in focus away from helping people to live in dignity and comfort, towards simply helping people to die. Then, it becomes a self-fulfilling prophecy. Let us not kid ourselves: palliative care is a postcode lottery in this country, especially for the poor and the old. If the motivation of those who choose assisted dying is to end their pain, we can be absolutely certain that those NHS trusts with the weakest palliative care offer will be those with the highest incidence of people choosing to die. In other words, it will not really be their choice at all.
An observation made to me by a senior oncologist just last week was that there are fewer more stressful situations in a person’s life than to be given a terminal diagnosis—I remember being with my mum as she was given hers—and to be told you are going to die. The oncologist then explained that among terminally ill people there is a vast amount of severe but undiagnosed depression and psychological illness. Similar but distinct from the danger of self-coercion, there is nothing in the Bill to safeguard against people who suffer like that from choosing to die before their time, yet in so many cases it will be people’s mental health that leads them to choose to die, not their physical condition. We simply cannot be all right with that.
Here we are, on the precipice of agreeing to sanction and support the deaths of people in despair. Our society has chosen a dystopian and contagious path if it chooses to facilitate the death of those who have a terminal illness rather than standing with them, weeping with them, valuing them and loving them against the desolation that any of us would feel if we were given a diagnosis of that sort. It is no wonder that the Government’s own suicide prevention adviser is strongly opposed to the Bill.
I totally respect that many of my colleagues in our corner of the House—my fellow liberals—will take a different view. I am opposed to the Bill because I am a liberal. Libertarians believe that personal liberty is so important that there can be no fetters on it. But I am liberal, not a libertarian. I believe that freedom is essential and that the rights of the individual underpin a decent society, but my rights must be held in check if they nullify your rights.
Since we know—we really do—that to legalise assisted dying is to permit people to die who will self-coerce, as a consequence of manipulative coercive control, outrageously not because of a real, sovereign choice but because of a heartbreaking Hobson’s choice due to inadequate palliative care, I have no right to impose that ultimate and most appalling constraint on the freedom of the most vulnerable in our society. I urge all of us to stand in defence of those most vulnerable people, to defiantly defend their liberty, to make a renewed commitment to world-class palliative care and to human dignity, and to reject the Bill.
Several hon. Members rose—
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. In consideration of colleagues, please keep speeches under five minutes.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Today’s decision has been one of the hardest that I have had to make. In my career in disability law and policy, I chose not to focus on debates about whether disabled people should be born or whether we should die. Instead, I focused on enabling disabled people to live better, more fulfilling lives.
Today, I find myself voting in a way that I thought I never would. I will vote in favour of moving the Bill to the next stage of the legislative process. That has been a difficult journey for me. I have arrived here by looking at the evidence, reflecting on my own lived experience and listening to the many, many constituents who have written to me in support of the Bill, sharing their compelling and tragic stories of death—death which did not come with dignity or respect.
In reflecting on my own life, one moment from my childhood stood out. When I was six years old, I had major surgery on my hips. I was in body plaster from my chest to my ankles, and in so much pain and requiring so much morphine that my skin began to itch. I remember vividly laying in a hospital bed in Sheffield Children’s hospital and saying to my parents, “I want to die. Please let me die.” I needed to escape from the body I was inhabiting. That moment has come back to me all these years later. That moment made it clear to me that if the Bill was about intolerable suffering, I would not vote for it.
I have subsequently had a good life, a fulfilling life, a life where I have worked towards ensuring disabled people are valued by our society. But that moment also gave me a glimpse of how I would want to live my death: just as I have lived my life, empowered by choices available to me; living that death with dignity and respect, and having the comfort of knowing that I might have control over that very difficult time. For so often, control is taken away from disabled people in all sorts of circumstances.
In order to ensure that there is compassionate choice at the end of life, it is right that the Bill is tightly drawn around the final stage of terminal illness for adults and includes the strongest safeguards. The choice of assisted dying as one option for adults when facing six months’ terminal illness must be set alongside the choice of receiving the best possible palliative and end of life care, or it is no choice at all.
Having analysed the Bill closely, therefore, there are changes I would want to see in Committee to strengthen those options and ensure the way that choice is presented by medical practitioners is always in the round. People deserve dignity in death, and for those who do not choose to end their lives in this way, they and their loved ones should feel reassured and safe in the knowledge they will receive the very best of care. I would also want to ensure that the final stages of the Bill properly define “dishonesty”, “coercion” and “pressure”. I think it is necessary to embed mandatory language in the Bill around the need for a code of practice on palliative care, as well as improving the regulations on training for medical practitioners. I trust my hon. Friend the Member for Spen Valley (Kim Leadbeater) to champion those amendments and to continue to diligently listen to Members, as she has throughout this process.
However people vote today in this House—a decision of conscience—it is incumbent on all of us to commit to improve palliative, end of life and adult social care. It must be the start of the work that we do in this place to ensure the very highest standards in these areas. That will be a very great legacy indeed: giving people the dignity they need in the moment of death. For many of us across the Chamber, considering these issues has been extremely hard and upsetting. We have had to go to the very depths of our selves to understand what choice we will make today. While we may enter different voting Lobbies, we leave this Chamber shoulder to shoulder. I know we will all work in our own ways to make systemic change to improve the lives of our constituents, and people up and down this country.
Several hon. Members rose—
David Davis (Goole and Pocklington) (Con)
Thank you, Madam Deputy Speaker. I will try to keep it brief and stick with procedure.
The decision we are taking today must be, for most Members, one of the most painful decisions. It certainly is for me. I am someone who has changed his position. I am a believer in the sanctity of life, but I am also an antagonist to torture and misery at the end of life. Accordingly, I intend to vote for the Bill on Second Reading. I say to those who have made procedural comments that Second Reading is a point of principle, not a point of conclusion. I have changed my position because since the scandal of Dr Shipman and the murders he carried out, the behaviour of the health service has changed. I have witnessed, with constituents in particular, any number of people who have died slowly and in agony beyond the reach of palliative care—the hon. Member for Bury St Edmunds and Stowmarket (Peter Prinsley) made the point brilliantly—so that no matter how well we do it, we cannot fix that problem.
Secondly, I am going to disagree with my right hon. Friend the Member for North West Hampshire (Kit Malthouse): it is not insulting to critique what others who have tried this have done. The countries that have tried this provide a wide range of examples and outcomes. If on Third Reading I think that the outcome we are heading towards is Belgium, I will vote against; and if the outcome is Canada, I will probably vote against. If it is Australia, I will vote in favour. That is what the next stage of this process is about.
I say to both the Bill’s sponsors that it has a number of areas that they know I think they have to put right—about a dozen, in truth.
David Davis
I am afraid not, as I have only five minutes.
I will pick one of those areas, as it is technical and awkward. Clause 4(2) appears to give doctors the right to initiate the process. But after the “Do not resuscitate” scandal during the covid crisis, I do not want that at any price—I do not want the state initiating this process. That is critical for me. I am really making the point that the decision on Second Reading is about principle, not outcome.
The hon. Member for Spen Valley (Kim Leadbeater) has said that she will work hard to make the Committee work. I am sure she will, and she may succeed. But I say this to the Government. I understand perfectly well that they are trying to maintain a route of strict neutrality, but there is a distinction between neutrality and responsibility. They need to focus on responsibility. This Bill is more important than most of the Bills in their manifesto; I am not trying to be rude. Is the hon. Member for Clacton (Nigel Farage) here? He got mobbed over breakfast by people talking about this. More people in the Dog and Duck care about this than they do about most other things that we are doing, so it deserves four days on Report in Government time over the course of several weeks.
We do not need a royal commission. The House can do this, but it needs to be given the option. I say to the Government that the path of responsibility is to give us the time to get this right. If we get it right, it will be one of the things that we can be proudest of in the coming years. I reiterate that I want the Bill to succeed. It is more important than most Bills that we handle. It cannot be dealt with in five hours here and a few hours in Committee. I will vote for it today, but I want the Government to help me be able to vote for a good Bill at the end.
Madam Deputy Speaker
I ask Members to please face the Chair, so that we can pick them up on the microphones.
Anna Dixon (Shipley) (Lab)
I am honoured to have been called in this debate. It has been moving to hear contributions from across the House. Feelings have been particularly raw for me, as I witnessed my close friend Sharon dying of cancer over the last few months aged just 55. She had good access to palliative and hospice care, and died at home with her sister and niece. But even with that support, her final days were difficult. Her sister wrote to me:
“she was highly distressed, everyday she said she’d had enough and wanted to die—it was very undignified for her and it was heartbreaking to observe but be powerless to help.”
Each story we hear of loss and grief is unique. As legislators, we must consider everyone who will be affected, both directly and indirectly, by a change in the law. The public and the courts are rightly looking to Parliament to answer the question of whether the provision of assisted suicide should be a legal option. It is incumbent on us as parliamentarians to do the job properly.
Like many other Members, I have spent the past weeks listening to constituents and professionals in my Shipley constituency and experts in this place. I have read numerous reports and articles. As well as the moral and ethical dilemmas, there are many complex legal and practical considerations that need careful examination. I take a different view from the right hon. Member for Goole and Pocklington (David Davis), who has just spoken. I welcome the reassurances from my hon. Friend the Member for Spen Valley (Kim Leadbeater) and her commitment that the Bill Committee should take evidence, but I am not confident that a private Member’s Bill process will be able to adequately address the issues. That is why I have co-sponsored the cross-party amendment, tabled by my colleague the hon. Member for Runnymede and Weybridge (Dr Spencer), to call for an independent review and a systematic public consultation on these legal changes and for an independent assessment of the provision of palliative care.
With a background in health and social care, and specifically in ageing, I am particularly mindful of the context of the Bill and I wish to make three brief observations that concern me. First, we have heard many times about inequalities in access to palliative and end-of-life care. According to Hospice UK some 100,000 people die each year who could benefit from end-of-life care but do not receive it. Those who are non-white and from lower socioeconomic backgrounds are less likely to get care. Unless terminally ill people are confident of access to high quality end-of-life care, how can they make an informed choice about assisted dying? I believe that investment in palliative care must come before a change in the law is implemented.
My second point is about the failure to reform social care. Some people have to spend their life savings, including the value of their home, on care. Much of the responsibility for providing care falls to family members who fill the gap. Older and disabled people with a terminal illness may feel an unspoken pressure to go down the route of assisted dying to protect their inheritance, or because they do not want to be a burden. There is a real, direct risk of coercion. Annually there are 400,000 cases of domestic abuse against older people in England and Wales.
My third concern is that the NHS is on its knees, as outlined in the Darzi report, and an impact assessment is needed to understand fully the cost of implementation to the NHS. Do we have the doctors? What additional training is required? What is the opportunity cost of the necessary but lengthy process of establishing consent, capacity, and absence of coercion? Without that we risk making dying legal, but finding that it is available only to those who can pay.
I will conclude my remarks, respectful of the fact that many colleagues want to speak. I recognise that people can benefit from a potential change in the law—people such as my friend Sharon, for whom palliative care was unable to relieve her suffering. However, there are also many who could be put at risk by a change in the law, and other direct and indirect costs and consequences that need to be weighed up. I believe we should adopt the precautionary principle in this case, and without a proper public consultation and a detailed examination, I will be unable to support the Bill today.
Carla Lockhart (Upper Bann) (DUP)
Like many others across the House I come to this debate with personal experience. Many of us have been at the bedside of a loved one as they have neared the end of their life. For me that was on 11 June 2023, when my dad’s earthly journey ended. Terminally ill for five years with a painful, aggressive cancer, he had a faith that sustained him and a health service that sought to support, care, comfort and preserve his life. Consultants and medical staff went over and above to ensure that he got every opportunity to see his family, and particularly his grandchildren, grow up. Did I want to see my dad suffer? Absolutely not. Equally, though, those difficult times provided us with an opportunity to care for and express love for a person whose life we valued.
The root of my conviction is this: life in all its forms is of inherent worth and value. While I have come to that conclusion partly because of my faith, like all Members across the House I have listened carefully to the evidence in coming to my conclusion on the danger that this Bill represents. Each individual person is of extraordinary value, not because of their capacity, intelligence or appearance, or for any reason other than that they are human.
It is right that we should rage against death, with its suffering and pain, as it is not natural, but the Bill takes that rational fear to an irrational and dangerous conclusion. The answer to a fear of death or of dying badly, or even a desire for a good death, is not logically to legalise a means of bringing about death in a more efficient or sanitised state-sponsored fashion. We are having the wrong debate today. We should be debating how as a society we can improve an individual’s end-of-life experience through improved investment in end-of-life and palliative care, and the very best medical or hospice facilities. I strongly support efforts to that end, to improve how we provide for those who are suffering in their final months of life rather than seeking to end their life more quickly than is necessary, as this Bill does.
Tragically, at the moment one in four people do not have access to the care they need at the end of life. Many are unable to see their GP and get the pain medication they need as they face their last few months. It is a broken system, and one that the Government have pledged to fix. Surely that should be the priority, rather than introducing a state service that ends life. We need to debate how to properly fund the healthcare system we have, but the Bill would halt that debate and divert much-needed funding for better palliative care into ending life, not preserving it.
The Bill undermines the foundation on which our NHS is built—to preserve and protect life. It is not about individual pain; it is about a societal change that would end and devalue lives. It puts at risk the lives of vulnerable and marginalised people across our communities, with wholly inadequate safeguards against coercion. As has been the case in every country where such legislation has been introduced, it would see the rapid expansion of eligibility criteria, and it cannot protect against the unreliability of a terminal diagnosis. When we look at the complications of the drugs used in places such as Oregon, we see that it would not guarantee a good death.
Death is final. Today I have stood up for what is right, told the truth and warned of the dangers of this rushed and ill thought out Bill. I urge the same honesty from those who support it. This Bill is not the answer to end-of-life care, and that is why I and my Democratic Unionist party colleagues will vote against it.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
I am glad to have the opportunity to speak in this hugely significant debate, and as a co-sponsor of the Bill to support my hon. Friend the Member for Spen Valley (Kim Leadbeater) in advocating choice at the end of life. Since I came into this place five years ago I have spoken many times about assisted dying and the desperate need for reform of the law, and I believe this Bill is a landmark opportunity to change the status quo once for all, so that mentally competent terminally ill adults have the right to choose a peaceful, safe and compassionate death.
We hold a responsibility in this place to legislate for all people across the United Kingdom—for society. The overwhelming opinion of the public is clear. A poll conducted earlier this year found that 75% of people would support a change in the law to make it legal for terminally ill adults to access assisted dying in the UK.
The current blanket ban on assisted dying forces terminally ill people to suffer against their will as they near the end of their life, while loved ones watch on helplessly. Some choose to avoid that fate and seek assisted death abroad, but that comes at a substantial cost of around £15,000 to travel to Switzerland for that purpose. That highlights systemic inequality, whereby only those with the necessary financial means have access to a choice over the timing and manner of their death.
Rachel Hopkins
I will continue, I am afraid.
As a humanist, I believe we have but one life and that we should live it well and make it meaningful. I believe that individuals should have autonomy in life. Similarly, I believe that at the end of life every person should have agency and the right to die with dignity and to a safe and painless death, on their own terms, subject of course to strong safeguards. I believe that the Bill contains stringent safeguards.
Although my humanist beliefs have contributed to my view, personal experience when young sparked my initial questions about the manner in which our lives end. My grandfather, Harold Hopkins, was an optical physicist and is remembered as one of the most innovative scientists of modern times. Many of his inventions are in daily use throughout the world, including zoom lenses, coherent fibre-optics and rod-lens endoscopes, which revolutionised modern keyhole surgery.
Unfortunately, my grandfather was not immune to the grip of a cruel terminal illness, and he sadly suffered greatly in the final weeks of his life, while battling prostate and secondary cancers, rendered blind during his final days, which was a cruel irony for a man who did so much to advance optics. But it was the haunted look on my father’s face when he arrived home having spent the final few days with Harold, who was in terrible pain and suffering before he finally died, that had a lasting impression on me. Surely, in a modern society, if we are able to live a good life, we must be able to have a good death.
My grandfather was just one of many who have faced such a fate. I have heard from many constituents and from other families—many who are here today—who have shared their own stories of watching their loved ones die in unnecessary pain and indignity. While many have raised concerns around the need for better funded and supported palliative care services in our country, I reiterate the point that the Bill does not represent an either/or proposal.
As my hon. Friend the Member for Spen Valley has said over the past few weeks, at its core this legislation is about not ending life, but shortening death. This is fundamentally an issue of dignity, compassion and humanity, and I encourage all Members across the House to use their power as elected representatives to alleviate the needless pain of thousands of individuals and their families by taking the first step towards providing choice at the end of life by legalising assisted dying.
Alicia Kearns (Rutland and Stamford) (Con)
To discuss matters of life and death is to recognise the gravity of one’s role as a Member of Parliament. The Bill before us seeks to shorten the suffering of the terminally ill—those with just six months to live—and no one else. For too many, death is not a singular moment but an excruciating journey of terror and agony as your body turns on you.
Arguments that we must wait for palliative care to improve in our country are a logical fallacy. The Bill does not prevent us from improving our palliative care system, contrary to what has been said today in the Chamber. In evidence to the Health and Social Care Committee, Hospice UK said that:
“it would be totally inappropriate for us to suggest or even imply that hospice and palliative care services can somehow address…pain in all circumstances.”
Imagine you have cancer that day by day is breaking every individual vertebra in your body, one by one, and there is nothing that can take away the pain—that is how my mother lost her life. Her last words were, “I cannot go on like this,” and, thankfully for her, there were only a few more days of pain; however, for others, there will be months more. Before they get to that six-month period, people will have suffered years of excruciating agony that palliative care cannot resolve. Yes, we must improve palliative care, and I will fight for that.
Arguments that this legislation would be the beginning of a slippery slope are not reflected by the majority of legislators, such as Australia and across multiple states in the USA, where such policies have not been expanded. Again, the Health and Social Care Committee has told us that where terminal illness was the basis—not suffering—as for this Bill, the law has not changed.
As a Conservative, freedom, choice and personal responsibility shape my decision making—until those freedoms cause harm to others. I do not see the role of legislation as imposing moral convictions. It is our job to protect choice. I say to those whose religious beliefs drive their arguments today that I will always defend their right to practise their faith and protect their own life choices. However, supporting the choice of others does not diminish the principle of compassion; it recognises respect for individual autonomy. To deny choice to others—especially those with only six months to live, where their personal choice does others no harm—is wrong.
To those concerned about the state mandating powers to decide who can and cannot live, I say that judges already exercise this power. They end lives in far more complicated cases, such as those of children on life support.
On arguments around procedure, we all have to be honest with ourselves: this Bill has been read far more vociferously than most Bills that go through this House. Most Bills over the past 20 years have come to Parliament with far fewer than 14 days to consider them: for the Police, Crime, Sentencing and Courts Bill, we had six days to consider 59 pages; for the Illegal Migration Bill, we had six days to consider far more. We have had sight of this Bill for longer than many others. The idea that a private Member’s Bill is not appropriate is also wrong. Social reform comes through private Members’ Bills: the abolition of the death penalty, the legalisation of abortion and the decriminalisation of homosexuality—all things I hope this House would unite on.
This is the start of the process of debate, and it would be a tragedy if the Bill were defeated today. Members should trust me when I say that I learned early in my career that when we hear promises that things will come later, that is a promise that no action will come at all. The High Court made it clear to my constituent Phil Newby, who has motor neurone disease, that we must make this decision. To those considering abstaining because this is so difficult—and I recognise that it is difficult—I say that we must not shy away from it. I ask colleagues to vote for the Bill in order to allow a long legislative process to proceed and, together, to commit to shortening the suffering of those who are terminally ill in our society, because they deserve that choice.
Paulette Hamilton (Birmingham Erdington) (Lab)
I congratulate my hon. Friend the Member for Spen Valley (Kim Leadbeater) on the way she has conducted this debate. I worked in the NHS as a district nurse for 25 years, working with many terminally ill people. I saw the whole range of human emotion in that time, from joy to grief—everything imaginable. I am also a mum, a daughter, a sister, a wife and a grandmother. I know how crushing it can be when someone we love is terribly ill and how helpless that can make families feel.
It is completely understandable that some would want to feel that they are regaining some control over their circumstances by pursuing an assisted death, but this Bill is not the answer. I simply do not trust that it can be implemented ethically or safely. There are too many blind spots, and it is being rushed through too quickly and with too little scrutiny. It would place enormous pressure on disabled, elderly and poor people to opt to end their lives so as not to be a burden on their loved ones.
The Bill would also do nothing concrete to uplift the hospice and palliative care sectors. All that we have had are promises. According to the Bill, the Secretary of State must ensure that assisted suicide is available. There is no accompanying duty to provide palliative or hospice care to everyone who needs it, leaving those essential services heavily dependent on donations and charity. That is simply unacceptable.
The exercise of coercion or pressure, which are prohibited by the Bill, is difficult—perhaps even impossible—to detect. Families and personal circumstances are complicated. It would take an enormous amount of resources to make this system robust enough to entrust the lives of our loved ones to it. The Bill allows doctors to propose assisted dying to patients. Some of the worst Canadian abuses originated that way. For example, a 51-year-old Canadian cancer patient was notoriously offered death instead of surgery. Even though our proposed system has its differences, this is still a risk that I am not willing to take.
The current law presents us with a clear boundary that can never be crossed. It avoids all slippery slopes, with no room for error. Assisted suicide legislation would replace that with an arbitrary boundary that is rife for misunderstanding, error and, at worse, abuse. Remember: this is all happening in the context of an NHS run into the ground by 14 years of Tory austerity, and the Government have simply not had the time to rectify it. It is not a fair choice as a result.
I will therefore be voting against the Bill and will continue to push for improvements in palliative and hospice care. That is the only way to ensure that no one from any community is left behind.
Sir John Hayes (South Holland and The Deepings) (Con)
I have known well only one person who committed suicide: my former professor. I learnt after his death that he had been haunted by imagined demons for most of his life and, in the later part of his life, hounded by heartless humans. Had assisted suicide been available to him, I am sure that he would have died much earlier. After those demons first visited him, he had a loving wife and three daughters, so he had moments of joy, though most of his life was punctuated by pain. I am just as sure, because I knew him well, that he would have voted against this Bill today, for all our lives are a mix of sorrow and joy.
I will not amplify the arguments about process, although I think it is immensely naive to assume that this Bill could be changed substantially in Committee. As a shadow Minister and a Minister for 19 years, I oversaw many Bills in Committee, and I know what Committees do. They calibrate, refine and improve legislation; they do not fundamentally alter the intent voted for on Second Reading.
Neither shall I talk too much about what happens in other jurisdictions, except to say that it is certainly true that everywhere it has been introduced, assisted dying has expanded—not always by subsequent legislation, but often through judicial interpretation. The idea that we should put this charming but rather naive faith in the judiciary to make these decisions subsequent to the House passing the Bill is just that: innocent—that is the most generous way I can describe it.
What I will talk about is simply this: the Bill would change the relationship between clinicians and patients forever. It would say to the NHS, “Your job is not only to protect and preserve life; it is sometimes to take life.” I am not prepared for our NHS to be changed in that way. Beyond that, the Bill would change society’s view of what life and death are all about. This is not just about individual choices, as hon. Members have said in their interventions and speeches; it is about a collective, communal view on how we see the essence of life and death.
Finally, we have had a civilised debate in this place, but it is very different out there on the mean streets, as each and every one of us knows. There are many cruel, spiteful, ruthless and unkind people in the world, and there are also many vulnerable and frail people. When those two groups collide, the outcome is not good for the second.
I fear this Bill. I will vote against it. I will vote for what a politician in another place once called “the audacity of hope”—hope that we can improve palliative care; hope that we can do better. I fear for the disabled and vulnerable people who would be affected by the provisions of this Bill, which—regardless of the good intentions of its advocates—I believe will fan the flames of fear.
Jake Richards (Rother Valley) (Lab)
I welcome the contributions to this debate from all sides of the House. This is Parliament at its best. I support the Bill and am proud to co-sponsor it. We have all received emails from constituents with harrowing stories of the agonising final days and weeks suffered by loved ones. I have no doubt that those stories will weigh heavily on each of us, however we vote today.
Fundamentally, I believe that if we are able to safely offer peace and empowerment to those at the end of their life, then we have a moral imperative to do so. We are lawmakers, and I also fundamentally support this change because our current legal framework is simply not fit for purpose. Our criminal law is a mess. Four former Directors of Public Prosecutions have told us that change is needed. It is pretty unprecedented for four former Directors of Public Prosecutions, the sole people who make decisions about prosecutions in such cases, to urge Parliament to take action.
In the 2014 Nicklinson judgment, the Supreme Court urged Parliament to take action because the law was not working in this area. The law is chaotic, particularly in how it relates to the argument around coercion. If we vote against this legislation today and it falls, do not think that vulnerable people at the end of their lives will not be subject to coercion this weekend and over the coming weeks. The police will investigate, a coroner will undertake an inquest into the circumstances of any suicide and a prosecution may begin, but all these processes will occur after the individual has died. This Bill would shift the emphasis of such inquiries to before the event, which is more logical, more rational and more humane.
Let me quickly deal with the procedural argument. As the hon. Member for Rutland and Stamford (Alicia Kearns) mentioned, private Members’ Bills were sufficient to reform our abortion laws, abolish the death penalty and change our divorce regime, and a private Member’s Bill was good enough when the issue was last before the House in 2015. I have read every single word of that debate, and there was not a single word of opposition to a private Member’s Bill being the mechanism for such change. Since 2015, there have been Select Committee reports and more evidence from around the world, as other jurisdictions move in the direction of assisted dying. One begins to wonder whether opponents to change are grasping at procedural straws, rather than taking on the principle, as we should at Second Reading.
I appreciate that the decision is difficult for colleagues and I respect views on all sides of the debate, but these moments do not come around often. I urge colleagues to seize the moment, shape the world around us and provide for compassion.
Sir Julian Lewis (New Forest East) (Con)
In the past I have voted against this type of measure, and for one overriding reason: namely, the impracticability of effective safeguards. Even if practical safeguards could be erected against external coercion, I have always felt that there was no prospect whatsoever of having effective safeguards against internal pressures on someone to request assisted dying or even euthanasia.
For example, as we have heard, an elderly person in a care home, knowing that the legacy they could bequeath to their children was being reduced by tens of thousands of pounds every few weeks, would be highly likely to feel obliged to ask to die. I cannot conceive of any safeguard against self-sacrifice of that sort, whether for financial reasons or in order no longer to be a burden on one’s nearest and dearest relatives and friends.
However, there is an additional point that I wish to inject into the debate. In my opinion, the key to this dreadfully difficult conundrum—about end of life care, pain and the possibility of assisted dying—lies, or should lie, in the ability of medical personnel to administer effective pain relief even if it shortens the patient’s remaining time. In my view, there should be no bar on the use of painkilling medication, if that is the only way to ease human suffering, even if it leads to a speedier death—hence the frequent references to putting dying people “on an appropriate pathway.”
It was therefore most alarming to me to read a very important paragraph in a letter sent to me in favour of changing the law and voting for the Bill by my constituent, the distinguished broadcaster Dame Esther Rantzen, in which she explains that doctors no longer feel able to follow this humane course of action since the atrocious Harold Shipman case, which was briefly alluded to by my right hon. Friend the Member for Goole and Pocklington (David Davis). If there has been such a change in regulations, as Dame Esther believes, it is imperative that that should be reversed. That is something positive that could come out of the imminent debate.
Another issue that has been touched on more than once is the uncertainty and the postcode lottery surrounding effective palliative care. Dame Esther’s view is that there are some people, who have some conditions, for whom palliative care never can be effective. Other people expressed the view that there is always a way in which painkilling medication can be used in order to prevent suffering. I suspect the answer to that riddle lies in the fact that that painkilling care, in some cases, might lead to a shortening of life.
Therefore, I conclude that there are three issues that should be in our minds. Can safeguards be effective? My answer to that, I am sorry to say, is still no. Can pain be alleviated sufficiently by palliative care? The balance of the argument is in favour of saying “probably yes”, but it is too uneven across the country and would certainly need the sort of investment that would be necessary to set up system that would work for assisted dying. Above all, have doctors the freedom to administer pain relief that may shorten life? We need to know the answer to that question, because if, since Shipman, they have been prevented from taking such merciful measures, that is a classic example of hard cases making bad law. Doctors need to be able to humanely ease people on their last journey, and the country needs to know where the medical profession stands on that central matter to this debate.
Jess Asato (Lowestoft) (Lab)
After spending almost a decade working to protect women and children from harm, my focus with any piece of legislation is the potential it creates for abuse and coercion. While I would once have been supportive of the principle of assisted dying, and might wish that option for myself, I have been increasingly unable to reconcile my desire to safeguard the most vulnerable with putting that principle into practice. I am concerned that if the Bill passes we will see people coerced, either by an abuser or by societal expectation, into ending their own lives.
We do not want to think about it, but abuse surrounds us—2.3 million victims of domestic abuse in the last year. One in six older people experience abuse. The definition of coercive and controlling behaviour includes behaviour that repeatedly puts someone down, telling them they are worthless. Victims describe this as a “drip, drip” effect, and it goes unnoticed. Not just because we do not want to think about it, but because it is hard for professionals to identify it without proper training and with the lack of specialist support. There is no mandatory training for judges on coercive and controlling behaviour, nor is there effective training for medical professionals. In a 2019 survey, 50% of healthcare professionals said that they did not feel they had received adequate training to identify a victim of domestic abuse.
It is also hard for victims themselves to realise they are being coerced until they have got free. We know that older people, especially those who are disabled, are particularly susceptible to abuse by a family member and less likely to be able to escape their abusers. Those who are coerced are often isolated from friends and family. If people are not required to tell friends and family they are opting for assisted dying, who will raise the alarm? How would any concerns be reported? Will judges be able to investigate the police records of those around a person who has requested assisted dying—family or carers?
I will always remember a conversation I had with a hospital-based independent domestic violence adviser, who was called to the bed of a lady in her 80s in her last days living with cancer. The lady disclosed to the IDVA that she had been abused by her partner of 50 years, and said “Thank you. I have never told anyone before, but now I am finally free to die, and I am grateful for the release.”
We know from the Monckton-Smith report that a third of female suicides could be linked to domestic abuse, and from the Killed Women campaign that as many as 130 women each year could be murdered by a partner or relative but have their deaths are recorded as suicide or accident. Every week, we hear of family court judges failing to spot coercive and controlling behaviour. In one case, a judge found that a man repeatedly calling his partner worthless and telling her to die was not controlling conduct.
Where is the discretion of gender in the Bill? Out of 60 documented cases around the world of euthanasia and assisted dying for people with anorexia, 100% were women. I have come to the view that no Bill, however drafted, could adequately sift those with a genuine desire to end their own lives from those doing it for all the wrong reasons. For that reason, I will vote against.
Siân Berry (Brighton Pavilion) (Green)
I thank everyone who has spoken so far. This has been a very respectful debate, and I do not think any of us here have not shed tears at the messages that our constituents have sent us this week. I have received so many profoundly moving letters, postcards, emails and other messages sent to my office, and numerous people have told me about their personal experiences of loved ones facing really hard choices at the end of their lives. It is very moving. This is a big decision for us.
Well-informed public opinion shows that a very large majority of people want the option to choose assisted dying in the circumstances envisaged by the Bill, and this level of public support reflects the fact that the law, as it stands, too often forces people to endure horrific deaths. I have heard so many stories from constituents of the trauma and pain that they have witnessed in loved ones. Too many people are affected by the current law in truly painful ways, and too many of those who are able to do so now seek unregulated, distressing and unsafe alternatives, because there are no legal options. Those who wish to end their lives at the point when their suffering from a terminal illness becomes unbearable may act too soon. They may take their own lives, and do so before they reach a point at which they require assistance—in secret, leaving a legacy of shock and confusion, instead of peacefully planning an ending to their final few months. Some of the testimony that I have seen from family members and partners who face the consequences of these secret decisions are truly heartbreaking, because the current law also makes it a prosecutable offence for anyone to advise or assist someone in this horrible situation in any way, thus putting at risk anyone who even knows.
Several people have also raised concerns about coercion with me, and I have listened very hard. I aim to cast a vote today that will protect people better. The hon. Member for Rother Valley (Jake Richards) made, very well, the point that the Bill will be a clear improvement on the current law in respect of safeguards against potential coercion for terminally ill people, and we should all listen to that argument.
Like the hon. Member for Gower (Tonia Antoniazzi), I do have one constructive point to make. I think we should be discussing it during the Bill’s ensuing stages, which I hope we will vote for. It concerns the time limit. Other jurisdictions already allow for different time limits, or no time limits for terminally ill people, or a separate time limit for a number of well-known, specific neurological diseases, in which the period of terrible suffering can be much longer than six months.
Siân Berry
I am sorry, but I have no time.
Like many other Members, my colleagues and I have heard many concerns expressed about the availability of palliative care. I hope that we are seeing the start of a much more open conversation about the practical problems that people face at the end of their lives—something we are generally not comfortable with talking about in this country—and about the provision that we do not currently make for people in anything like an adequate way. We must do better and, like other countries, make sure that we see improvements in palliative care at the same time as making this change. While we do not have to choose between the Bill and better palliative care, we do have to give dying people the right to choose which ending is right for them, so please, please, vote for the Bill today.
Lizzi Collinge (Morecambe and Lunesdale) (Lab)
I thank Members on both sides of the House for the care and consideration that they have given to this debate. If the Bill is given a Second Reading today, there will be further lengthy scrutiny, but I want to address what I think is a bit of a misconception about it, namely the ideas that patients taking the decision to die and doctors assessing capacity, coercion and consent are somehow new. We have heard the word “Rubicon”. There seems to be an idea that this is a completely new sort of decision, and that this is something unusual and outlying in medical practice. I want to challenge that, because, actually, patients, doctors and indeed High Court judges are already making life-and-death decisions every day. As my hon. Friend the Member for Bury St Edmunds and Stowmarket (Peter Prinsley) said, in this case we are actually talking about death-or-death decisions.
Let us take the example of withdrawal of treatment. One of my close family members who would not be covered by the Bill’s eligibility criteria starved herself to death through withdrawal of treatment. She had been unwell for many decades with a condition that would have eventually killed her. At one point she became unable to swallow. For many years she had relied on artificial nutrition, and when the type of artificial nutrition she needed changed to a more invasive process, she said, “Enough’s enough.” As a mentally competent adult under the current law, she was able to take that decision. People are already legally able to die early through withdrawal of treatment. I emphasise that she would not have been eligible under the criteria of the Bill, and I have no idea what she would have chosen if she had had a choice, but the fact remains that her capacity was assessed by a doctor and she was allowed under the current law to die early.
The BMA has told us that it regularly assesses for capacity, coercion and consent in, for example, abortion care and—as in the example of my relative—dying through withdrawal of treatment. The Bill and the safeguards it would put in place would give a stronger framework of protection than the existing law.
Under the Bill, two doctors would have to test for capacity, coercion and consent. That would have to be reviewed by a High Court judge and pauses for reflection are built into the process. If it does get to the point of an assisted death, the patient themselves must administer the approved substance.
Let us be clear about who the Bill is for. The eligibility criteria are extremely narrow—some have argued that they are too narrow. The Bill is for mentally competent adults who are nearing the end of their lives. They are dying, and they are dying soon.
Many people with a terminal illness will have a perfectly ordinary death managed perfectly well by palliative care. But we have heard in recent weeks—over many years, in fact—about the people who do need the Bill: the people for whom even the best palliative care simply does not work; those for whom merely the option of an assisted death gives them peace and comfort and a chance to enjoy the rest of their lives without fearing the manner of their death. With the safeguards contained in the Bill, who are we to deny them that peace? Who are we to decide what they must bear as they die?
We have the power through a robust legislative process to prevent human suffering. Good palliative care and assisted dying are not at odds. They are not in conflict. They both aim for the same thing: a good death, surrounded by people you love, with minimal pain and without fear. Today, we can vote for that in the sure knowledge that if the Bill passes its Second Reading, it will undergo further intense scrutiny to ensure that it is a good law that works as it is intended to do. This is the start of a legislative process, not the end. I urge colleagues across the House to vote yes.
Robert Jenrick (Newark) (Con)
I want to talk about two aspects of the Bill: what it could have done in terms of safeguards but does not; and what it does not do but could never resolve. On the first point, the safeguards—in particular the legal and judicial ones—are grossly inadequate. Bad law on trivial things is bad enough—I have seen a lot of that in my time in the House—but bad law on matters of life and death is unforgivable.
We have spoken about the role of doctors; let us think about the role of judges. The test to be applied is a low one: the civil law threshold, which is a balance of probabilities. This means that a judge could see real risk of coercion and still sign off an individual for assisted death. If the threshold of 50% or more was not reached, the judge would sign off the individual. The next of kin is not informed. There is no right of appeal, which is extremely unusual in English law, and the process is conducted in secrecy. It could be done on papers alone. Transparency is critical to the law. It is one of the oldest principles in our English legal system. As Jeremy Bentham said more than a hundred years ago, evil can arise in secrecy, and publicity is at the heart of justice. This is not a transparent process and that leaves it woefully open to abuse.
Secondly, all of us in this House want to believe that the laws that we pass are final, full stop, the end. That is not the case. I worry—in fact, I am certain—that as night follows day this law, if passed, will change; not as a result of the individuals in this Chamber or the other place, but as a result of judges in other places. We have seen that time and again. It may be on either side of the debate, but it will happen. If passed, the Act will be subject to activist judges in Strasbourg. They will change it fundamentally and we have to be prepared for that. I do not want to see that happen.
My last point is not about how we can improve the Bill; it is about something that we can never resolve as a House. The Bill is not so much a slippery slope as a cliff edge. When we walk out of this Chamber, or out of the gates of this building tonight, we will, in a way, walk into a different country if the Bill passes. There will be different conversations around kitchen tables. There will be different conversations had by couples lying in bed at night, or on quiet country walks where people talk about difficult things. They will not be conversations that make our country a better place.
More important, there will be people who do not speak about these things at all. There will be imperceptible changes in behaviours. There will be the grandmother who worries about her grandchildren’s inheritance if she does not end her life. There will be the widow who relies on the kindness of strangers who worries—it preys on her conscience. There will be people—we all know them in our lives—who are shy, who have low self-esteem, who have demons within them. I know those people. I can see them in my mind’s eye. They are often poor. They are vulnerable. They are the weakest in our society. And they look to us, to Parliament, to represent them, to support them, to protect them. In their interests, I am going to vote against the Bill today. Sometimes we must fetter our freedoms. We the competent, the capable, the informed sometimes must put the most vulnerable in society first.
Florence Eshalomi (Vauxhall and Camberwell Green) (Lab/Co-op)
I start by commending the hon. Member for Runnymede and Weybridge (Dr Spencer) for outlining some of the complications with the legislation as it stands. I also put on record my admiration for my right hon. Friend the Member for Birmingham Ladywood (Shabana Mahmood), who has, in my opinion, been disgracefully singled out in comparison with others for her view of the Bill.
The Bill could be the most consequential piece of legislation that has been considered during my time in this House, and is at the heart of the matter of why I came into politics. Many Members have spoken about coercion and about providing a voice for people who often do not have one. It is that principle which has guided my decision to oppose the Bill. I know there are sincerely held beliefs on both sides of the debate. They can seem completely at odds with each other, but it is my firm view that everyone speaking today shares the same goal: a more compassionate society in which everyone can live and die with dignity. But true compassion should have equality at its heart. It is for this reason that I cannot support the proposals as they stand.
We must recognise the hard truth that health inequalities are wide and persistent. We know that black and minority ethnic disabled people have far worse health outcomes than the national average. I saw that at first hand when caring for my mother, who suffered with sickle cell anaemia. As a teenager, I would be by her side when she was in excruciating pain, explaining to a doctor who would not believe her when she told him that she needed life-saving medication. Sadly, that is still the reality today. I am reminded of the death of Evan Smith on 25 April at North Middlesex university hospital. Evan suffered from sickle cell too. He was in so much pain that he had to ring 999 from his hospital bed, because he was denied oxygen and basic care by the doctors. Put simply, we should be helping people to live comfortable, pain-free lives on their own terms before we think about making it easier for them to die.
Colleagues will be aware of clause 15 of the Bill, which outlines the provision for signing by proxy. I am worried that this could create issues for vulnerable groups who are more prone to coercion by family members. As many Members have said, assessing beyond doubt whether someone has been put under pressure or coerced would be difficult. If this legislation is passed, even the legal experts seem to be in disagreement on this, so I do not believe that there has been enough scrutiny. The risk of coercion will be highest for some of the most disadvantaged people in our communities. As a society, we risk pushing people to seek an early death. I cannot, in good conscience, support this.
My late mother lived with chronic illness all her life, and I knew that one day her pain would be too unbearable for her, but she did not let that limit her. She wanted to live. I do not believe that the Bill would protect the wishes of people in her situation, because freedom in death is possible only if we have had freedom in life. How can we possibly be satisfied that this Bill will deliver equality and freedom in death when we do not yet have it in life?
Madam Deputy Speaker (Ms Nusrat Ghani)
If colleagues continue to work with me, I will try to get in as many people as possible.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Diolch yn fawr iawn, Dirprwy Llefarydd.
I think the starting point for many of us today is how to resolve the dilemma of what we want for ourselves against the fear of enabling potentially terrible consequences for others. There is a rational fear of the reality of coercion, what drives decisions within families and what individuals feel is best for their family. There is a rational fear of how institutional pressures, lack of resources and, appallingly, the culture in the NHS might ramp up the convenience of death as an affordable option. This is not a new fear. The hon. Member for York Central (Rachael Maskell) mentioned Baroness Neuberger’s review of the Liverpool care pathway, which said:
“In order that everyone dying in the acute sector can do so with dignity, the present situation has to change.”
That was in 2013. We know, in the aftermath of covid, how little has changed.
Death as an institutional convenience has never been, and never will be, right. It is our duty to demand good palliative care and address the institutional and resource barriers to it, but that is not a licence to sidestep today’s moral question. The people of England and Wales now expect us as legislators to provide an answer in principle. It is our duty to provide that answer not only in principle, but in process. With that in mind, I will support the Bill on Second Reading if there is a guarantee of sufficient scrutiny to stitch together a complete garment out of what is presently threads and patches that could, as we have heard, be rent asunder in court. If Committee scrutiny cannot make the Bill robust, I will reconsider my support in future votes. Surely this House can ensure that there is both cross-party and small-party representation on the Committee, rather than conventional party proportionality—of course, today we have a free vote.
The implications for Wales, where health is devolved, cry out for proper consideration. I support the hon. Member for Gower (Tonia Antoniazzi) in her concerns about the Sewel convention and the need for a legislative consent motion in the Senedd. These concerns are equally true not just for Wales but for remote and deprived communities where ill and dying people already suffer disproportionately inadequate health services.
To close, I credit Iola Dorkins of Morfa Nefyn whom I have known for over 30 years and who is presently dying of motor neurone disease. She wears a brace that her husband has adapted to make more comfortable. Today, she is on respite in a hospice in Holyhead, which is 50 miles away from her home. That is the reality of people’s lives as things stand. We need a change in the law.
Dr Simon Opher (Stroud) (Lab)
I am one of those medical practitioners, sometimes known as a doctor. I have been a GP for 30 years, and every year I look after four or five cases related to palliative and terminal care, so I have a lot of experience in this area.
I would like to make some quick observations. First, a lot of patients who are dying of cancer ask whether we can curtail their life and finish it a bit early. That is a very common thing that they ask. I have had two patients go to Dignitas on their own, without family members, because the family members were fearful that they would be arrested on their return. We have been discussing giving a double dose of morphine. I think that almost all doctors in terminal care have probably done this—doubled the dose of morphine knowing that it might curtail the patient’s life. That is a big fudge. It puts me in a very vulnerable position. We need to resolve that.
I think we are getting a bit confused between palliative care and assisted dying. A lot of people who receive excellent palliative care still request assisted dying. They are not mutually exclusive. I totally support what everyone is saying about developing palliative care, because that is really important, but that should not go instead of assisted dying. The things go together. Assisted dying is one of our tools in palliative care, as I see it going into the future.
I have a couple of points about coercion, which people like me need to assess. If someone says that they feel like a burden, that is immediately not a good reason to approve assisted dying. Doctors are trained in assessing capacity, as has been said, but we are also trained in trying to find out the reasons someone wants to end their life. I think it is judging doctors harshly to say that they will not spot coercion. Interestingly, the only change in Australia was that they found that the judiciary review did not add much to the process. Otherwise, there does not seem to be a slippery slope, as long as the legislation is carefully done.
Joe Robertson (Isle of Wight East) (Con)
The hon. Member opened by referring to himself as a doctor and medical practitioner. Perhaps he could help with the difficulty I have with the Bill, which I would dearly like to support. There are provisions in it that allow the Secretary of State to bring forward regulations so that the independent doctor can be an alternative medical practitioner. There is also a section that makes the court look like an optional process, so I do worry that there are not protections in the Bill for two doctors. Perhaps he could help with that.
Dr Opher
I do think it is right for this Bill to require two doctors and a judiciary review, because this is new legislation and we must be sure that it is safe. These safeguards are incredibly important.
I will finish simply by saying that having been a doctor all my life, I have tried to empower patients to make their own decisions over their healthcare, and this is a great opportunity to do that. I had one patient who had a terminal diagnosis and hanged himself. The family were devastated. It was a horrible way to die. I felt that we had failed as a medical profession. Let us not fail as a Government, a judiciary and the Houses of Parliament. Please support the Bill.
Dr Luke Evans (Hinckley and Bosworth) (Con)
How do you want to die? How do you picture your own death? It is a question we rarely ask ourselves, but one that every one of us will face. For me, I hope it is with peace, surrounded by loved ones, free of pain and content with a life well lived. That is the gold standard. Good palliative care strives to make that ideal a reality.
Let me state unequivocally: we need to support palliative care. However, today’s debate is not about whether we support palliative care, but about what happens when we cannot provide a solution. What happens when palliative care does not or cannot work? The truth is that palliative care has limits. Let us consider the cases that keep doctors and surgeons awake up at night—the likes of the inoperable neck cancer, eroding away into the carotid artery. It is a literal bloody time bomb, and no one knows when it will go off. What is modern medicine’s answer to that? Keep dark towels nearby for the blood, and counsel a partner or family member on what it is like to find someone bleeding out. There is no cure, and no respite. What would you do?
Currently, for such patients we can offer no agency over their end; no alternative to that terrifying death. Can we truly say that that is compassionate? Should we not even offer those facing such suffering at least the chance of dignity in their death? That is what the Bill stands for. To reject it on Second Reading is not just to vote against assisted dying but to silence the debate for another decade and to say that the status quo is acceptable, and it is fine for those who can afford it to fly to another country to end their suffering while others are left here without recourse. I cannot accept that. What is this House for if not to empower people, and to give them the tools to shape their lives and, yes, their deaths? Today, we have the chance to put compassion into action—to offer choice to those who are facing the ultimate suffering.
I hugely respect Members who take a different view. I simply and gently say to them that there are consequences, too. Those intractable cases will still be there with no solution, no choice in this country and no resolution to their suffering. To those who understandably are a little unsure, I say that if they have doubts about safeguards or the implementation—I agree that some are valid—they should let the debate continue. For some Members it will a bridge too far; if necessary they should reject the Bill on Third Reading, but to stop it now is to stop the conversation entirely, take the choice off the table and remove a dying person’s agency. When all is considered, I ask again: how do you want to die?
Mr James Frith (Bury North) (Lab)
The Bill asks us to make a profound and irreversible decision on the principles of our health service and end of life care. With end of life care funded too often on a shoestring for many, the Bill takes our focus to ending life, not improving living as life draws to a close with terminal illness. I believe it poses significant risks. Our wider societal and cultural norms will be changed forever. Those who refuse to acknowledge that prospect now do so with the benefit of things as they are now. My point is that this concept changes immediately today if this Bill is passed.
The safeguards may sound rigorous on paper, but the strained state of our NHS means that many patients do not have a consistent relationship with a named doctor. We are attributed to health centres nowadays, not named doctors. Someone’s consideration of this decision could depend on which doctor they see—one who raises assisted dying as an option, versus one who refuses. That is a deeply troubling prospect. The ideation of assisted dying will become a ballot. We know our GPs have a range of views on assisted dying, so we cannot deny that who someone ends up seeing with their terminal illness might be how they end up. That could be at the doctor’s, possibly in the presence of a loved one who is under strain and in need of respite themselves, and the first suggestion is the beginning of a journey towards, yes, assisted dying. That is before we consider the forces of marketing and commercialisation, and the industry that will spring up if the Bill proceeds and is sewn into our NHS.
Neil O'Brien (Harborough, Oadby and Wigston) (Con)
Will the hon. Gentleman give way?
Mr Frith
No, I will not.
It is possible that we cannot imagine being the victim of coercion, or that as MPs our agency is so baked in to our experiences of living, that we cannot envisage a scenario where those who already claim to feel unseen are directed towards meeting their end sooner than it otherwise might have been. Our casework from constituents is already full of people struggling to access the rights that we have enshrined in law—access to justice, health, education support, the disaster in our special educational needs system—and of victims often of state neglect or state coercion, and the failure of safeguards that were once supported on paper and passed into law.
Disability rights groups and advocates have raised their voices, wanting us to talk about the dangers of normalising assisted dying. For many the Bill represents not a choice but a principle shift that undermines the value we place on protecting the vulnerable. It falls to us as the strongest to stand up and vote against the Bill. Passing the Bill today will not improve palliative and hospice care. My belief is that it will forfeit it. The end of life is complicated; end of life care often is not complicated enough. On reflection, my mother-in-law deserved a frank, trusted conversation about the risk of secondary illnesses and amputation that would follow with the automatic cancer treatment that she was given in her final months of life. We should expect more agility from our NHS, and while dying is the ultimate binary experience, end of life care should be more sophisticated and more personalised. Shortening those expectations with a system that endorses assisted dying would forfeit that too.
Finally, as legislators our responsibility is to protect the most vulnerable and consider all eventualities. We disagree on slippery slope arguments, but if the Bill proceeds it will be a moment of no return, and that is why I am not prepared to support it.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a privilege to speak in this debate, and the way in which the House has conducted itself on both sides of the argument is a credit to this place.
I stand here not only as a medical practitioner who worked as a surgeon for about a decade, but also as a healthcare barrister, so I have looked at the debate from both sides of the argument. I have been deeply moved by some of the stories I have heard about patients who are facing a terminal illness. I am also instructed by my own experiences—my personal experiences of my relatives, and of those patients whom I failed. I failed because I did not give them the good death that they deserved, despite the very best efforts of palliative care.
It is true that we can improve the palliative care offering in this country, but it is not a binary choice. It is not a choice of palliative care or assisted dying; it is a choice about someone having an option over how they want autonomy over their body at the end of their life. I understand the concerns raised in this House—I genuinely do—but this is not the point to cancel the debate. This is the point to engage in the debate. This is the point at which we move it forward, so that people can contribute to it in Committee and say how things can be improved, and so that we can work together to make a societal change, improve our society and support those who want that ultimate choice in those last days.
Paula Barker (Liverpool Wavertree) (Lab)
I am honoured to rise to lend my support to the Bill, and I am proud to support my hon. Friend the Member for Spen Valley (Kim Leadbeater) as one of the Bill’s co-sponsors.
Data shows that in my city of Liverpool 74% of people are in favour of assisted dying. I have been privileged to correspond with and meet so many of my constituents who have shared with me their views and personal stories, spanning both sides of this important debate, and I thank them all. As we have heard today, there are strongly held beliefs on both sides of the House. I absolutely respect those with views that differ from my own, and hope that they respect my views, even if we disagree.
Since long before I entered this place, I have been an advocate of assisted dying, with the appropriate safeguards, to alleviate unnecessary suffering. My own mum cared for my dad during his cruel battle with cancer. Sadly, not even the best palliative care could provide him with a good death—and I do believe that there is such a thing as a good death. At its core, the Bill is sensible, safe and compassionate. But above all else it places human dignity at its heart.
In respect of palliative care, the Bill is not an either/or. Along with many other campaigners for assisted dying, I fully support improving palliative care. It has been proven that end of life care has improved in several countries because of assisted dying reform. I hope that, if the Bill passes, the UK will also belong on that list. Palliative experts, including those opposed to law change, admit that some people’s suffering is beyond the reach of even the best palliative care.
I do not believe that if the Bill finally becomes law, it will create a slippery slope. As the right hon. Member for Sutton Coldfield (Mr Mitchell) eloquently said, terminally ill adults in Oregon have had a legal option for assisted dying for more than 25 years, and not once has it been expanded to include other groups.
Paula Barker
No. I am sorry, but I will not.
Every year, around 650 terminally ill people take their own lives, and countless others who are more affluent make the choice of the long, arduous journey to Switzerland, all without any protections in place. I do not want choice to be available only to those who can afford to pay. That is not just or equitable.
Finally, just like with many other private Members’ Bills that have gone before and looked to bring about social reform—such as those on abortion, divorce and the decriminalisation of homosexuality—this is an historic moment and an opportunity, if taken, to give real dignity to those who have reached the end of life and want a choice, while also respecting the views of those who do not want to take that choice.
Mr Peter Bedford (Mid Leicestershire) (Con)
This is a humbling subject to speak about. I put on the record my thanks to the hon. Member for Spen Valley (Kim Leadbeater) for bringing this important issue before the House.
I have witnessed at first hand the cruelty that a terminal diagnosis brings. As the son of a single mother, my grandparents were like second parents to me. Each struggled with their own incurable cancer diagnosis. At Christmas dinner in 2019, my nan, who could no longer eat and was clearly in a great deal of pain, turned to me and said she was “ready to go”. “It’s time now,” she added. That night, I reflected on how, as a society, we shy away from discussing death. We park it away and prioritise more immediate, palatable subjects, but it impacts members of our communities day in, day out— from terminal diagnoses to medical treatment and, ultimately, their final days. This really matters to me.
In my maiden speech, I pledged to campaign for people to have greater control in their final days and to afford those with terminal diagnoses the right to end their lives in dignity. This is not an argument against palliative care—some wonderful Macmillan nurses made my nan’s final months as comfortable as possible, and I absolutely agree with the many Members who have raised the issue today that we need to do more to support our palliative care sector—but good palliative care and a dignified end of life are not mutually exclusive.
Nor do I seek to control those who have strong religious beliefs. Those who believe that only God can take life have the complete freedom to wait for that moment. But that is their choice. [Interruption.] I am not taking any interventions. Many have legitimate concerns about safeguarding. Of course, the most vulnerable should not be coerced into making a decision. However, this Bill introduces specific offences for this. Indeed, combined with sign-off by two independent doctors, judicial oversight and a period of reflection, this means there would be robust mechanisms to protect the most vulnerable.
Mr Bedford
I am not giving way.
These details are vital, but so is our humanity. Being with my nan in the warmth of her home, as she was surrounded by her loving family after months of excruciating pain and no hope, I knew there and then that she should be able to choose her time to say goodbye to her family. Like so many others, she had had enough. An understanding and compassionate society should not stand in the way of her right to choose.
Members can see the profound impact this has had on me and my belief in the importance of end of life care and choice. It has enabled me to understand a crucial distinction at the heart of this emotive debate. This is not about shortening life; it is about shortening death.
I urge those Members who support the principle of this Bill, but who are concerned about the specifics of the safeguards, to support it on Second Reading. Further debate can be had in Committee, if hon. Members feel that changes are required. This Bill provides the choice to shorten death, which is a right that an empathetic and considerate society should afford its citizens.
Dawn Butler (Brent East) (Lab)
I thank my hon. Friend the Member for Spen Valley (Kim Leadbeater) for how this debate has been conducted.
Yesterday, we buried Tony Warr, a GMB officer and a really good friend. He was diagnosed with prostate cancer. He beat it once, but it took him in the end.
Earlier this week, the cancer community lost Nina Lopes. She had stage 4 triple-negative breast cancer and was given six months to live in 2018. Six months became six years, and she taught us how to dance through her @frodayss account.
As we have heard, it is not an exact science when someone is given a prognosis of six months to live. As a patron of Black Women Rising, a cancer charity that supports black and minoritised women through their cancer journey, someone who had been given six months to live recently told me, “I have had a good life, and I am ready to go.” Six weeks later, they are now fighting to live. The thing is, if we had focused only on the fact that she was ready to go and wanted to die, it would have all been very different.
As we have heard today, there are parts of the law that need changing around coercion, and around doctors being able to help people with their end of life treatment. However, I believe those safeguards and discussions can be separated from assisted dying and assisted suicide. I do not see why we need to have a combined discussion.
Everybody has the right to die with dignity and compassion. Whether or not this Bill progresses today, I hope those conversations will continue. After all, we are legislators, and we have the ability to do that. Eighty per cent of my constituents are against this legislation, and I will be voting against it.
Christine Jardine (Edinburgh West) (LD)
It is an honour to follow the hon. Member for Brent East (Dawn Butler). I also pay tribute to the hon. Member for Spen Valley (Kim Leadbeater). The spirit in which this debate has been conducted today is a tribute to her leadership on this issue.
This debate has been harrowing for all of us. However, to us falls the responsibility and the privilege of making this decision on behalf of those who go through experiences so harrowing that I do not think any of us can imagine them, even though we have heard their tales—I know that I cannot.
Until recently, I put it to the back of my mind that I have actually been in the situation of waiting to find out whether I would have a terminal diagnosis. I was lucky, as it went the other way. I do not know what I would have wanted but, as I waited, I thought about all the things I wanted to do and might be denied. People with a terminal diagnosis think about what they planned to do with their life, such as seeing their children and grandchildren grow and marry.
When we came here today, we were all aware of that, and we thought seriously about the implications and the need for palliative care, but it is not our job to say that we should not do this because palliative care needs to be improved and because the NHS cannot cope. Our job is to say that we need to improve palliative care so that the NHS can cope, and so that we can do this.
On the safeguards that are needed and included in the Bill, I believe they are there. For those with religious beliefs that mean they cannot countenance the Bill, I understand and respect their concerns, but I would not be standing here if I was not convinced that in this Bill we have the best opportunity to provide a choice safeguarded by medical and legal professionals and protected from that slippery slope. It happened in Canada because they did not have “terminal diagnosis” in the definition of the Bill from the beginning, but we do. If we vote the Bill through, it will go on to have the further and tougher levels of scrutiny that every piece of legislation in this place and the other place must go through. I respect everyone’s concerns and beliefs, but I also ask them, and all hon. Members, to respect those who have already been denied so much in their lives—those things I said they might want that they might be denied.
We have a choice today: we can lead a national conversation that examines the issue before all of us, dissect the Bill line by line and check its effectiveness, or we can vote to close it down today, and then the country and the families who are suffering will be denied the light they want to see thrown on the issue and the voice they want their loved ones or perhaps themselves to have.
Many of us have watched loved ones die difficult deaths, and we have over the past few weeks, months and years in politics heard harrowing tales and spoken to families who have had no choice but to watch their loved ones pass in the most harrowing of circumstances, or make an expensive—for many, prohibitively expensive—trip to Dignitas alone. I cannot help about those things they have been denied by the cruellest of fates, but surely we cannot deny them choice at end of life.
Catherine Fookes (Monmouthshire) (Lab)
I thank my hon. Friend the Member for Spen Valley (Kim Leadbeater) for the incredibly sensitive and thoughtful way she is conducting the passage of the Bill, consulting widely with terminally ill people and their families, medical staff, lawyers, faith leaders and those on both sides of the debate.
I have two very personal stories about why I support a change in the law. Last year, my dad’s health took a turn very much for the worse. He had sepsis, kidney failure and heart disease and had lived with Addison’s disease for almost 50 years. He was given the dreaded news that he only had a few months left to live. I would not have wished his last few weeks upon anyone. He was in agony and suffering—his breathing was difficult and he was in such pain. I struggled to see him suffer so much, but the nurses, doctors, carers and my incredible step-mum were all without fault and, thankfully, his palliative care was excellent. He was able to die at home with me, my sister and my step-mum by his side. Seeing him suffer so terribly convinced me that we need a change in the law so that people who are terminally ill have a choice.
My second story is from Australia where my brother lives. My wonderful sister-in-law Kelly sadly died of liver cancer that developed into bone cancer. She had a fractured left arm, pelvis and sacrum, and had cancer in her spine. At 54, Kelly was far too young to die. Her cancer was particularly painful and unforgiving. As she lived in Victoria, she was able to register for assisted dying. For her, it was incredibly comforting to know that if, and only if, she needed to, she could stop the suffering. She did not need it in the end, but she did have the option. In her darkest days—her fearful days—that brought her and my brother incredible peace of mind.
I heard similar stories of suffering in the hundreds of emails sent to me by constituents over the course of the past few months. People want and deserve access to both the best palliative care and a choice if they are terminally ill. The protections and evidence underpinning the Bill are strong. I was there for my dad’s final week when he was in so much pain, and I was there right at the end holding his hand. What a privilege to be with him at the end and to see him through. In memory of my dad and of Kelly, I support the Bill and urge all those across the House to support it, too.
Jim Allister (North Antrim) (TUV)
This is not an easy subject, nor should it be, because this is a matter of the taking of human life—the taking of human life, sanctioned by the state.
Our nation, through many wonderful charities and through Government, reaches out compassionately to those who are threatening suicide. They are urged to use the services of the Samaritans and to get all the help they can. I cannot square the circle where the state would then move to itself sanction suicide—indeed, to facilitate and, in fact, to promote suicide. And to do that in respect of those who are intrinsically the most vulnerable in our society. Anyone who gets a diagnosis of terminal illness is, by reason of that, obviously vulnerable. Many, in consequence, suffer depression and other difficulties, so they are among the most vulnerable in our society. Being vulnerable, they are among those most liable to fall under the foul influence of coercion.
Coercion comes in many forms. Anyone who has listened to domestic abuse cases will know that it can be very insidious, invasive and persuasive, because the coercer has the constant ear of those they wish to coerce. Add into that mix the fact that that person might feel a burden. We have all heard old people say, “I am a burden on society. I am a burden on my family.” Even when they are told, “No, caring for you is not a chore, but a privilege,” they still think they are a burden. If in that background—that matrix—there is still the pernicious influence of coercion, then the thought that people reach a reasoned, considered, independent opinion is a fallacy.
It is those people that this House should be protecting above all, but this Bill does not protect people in that situation. Oh, we are told, “two doctors and a judge”. The judge does not have to, but he might decide to hold Zoom call with the applicant, but he is not to know if sitting in the corner of the room, out of camera shot, is the coercer. Where is the protection in that?
I say to the House that this issue cuts to the very quick of our fundamental duty to be the protectors of the most vulnerable. There is no part of the state’s function to be promoting or assisting the end of life for people who could be in that condition, and we will never know how many are in that condition, so I cannot and will not vote for the Bill.
Ruth Jones (Newport West and Islwyn) (Lab)
It is an honour and a privilege to speak in the debate and to follow so many hon. Members who have made such powerful contributions. I thank my hon. Friend the Member for Spen Valley (Kim Leadbeater)—no longer in her place—for all her work on the Bill; colleagues from across the House who have worked together so collegiately; my constituents who have written to me in their hundreds; and the experts who shared their views with us.
Everybody in the Chamber wants a good death, but at the moment palliative care across the UK is chronically underfunded, mostly paid for with money raised by charities and a postcode lottery. I pay tribute to all the hospices that are working around the clock and doing an amazing job on very stringent budgets, especially St David’s Hospice and the Hospice of the Valleys, which do amazing work. However, we have to remember that although we are talking about people with very powerful stories—some of whom are here today—we legislate for all, and that means ensuring that our legislation is safe and future-proofed.
I have concerns about the Bill on issues such as presuming consent. My worry is that if the door is opened with this Bill, it will then be widened, as it has been in places such as the Netherlands, Belgium and Canada. These things will happen.
More than 65 private Member’s Bills were passed in the last Parliament. Not one of them had more than one sitting in Committee, where the average length of debate was 35 minutes; and just over a quarter had any amendments made to them at all. My hon. Friend the hon. Member for Spen Valley has said that she is willing to extend it, which I welcome; I will be pressing her on that to ensure it is safe. If the House votes to carry the Bill forward—I will be voting against it—scrutiny will be crucial at all points of its passage.
We have talked about terminal illness today, but intractable pain is something that people live with every day. That is another issue. In my 30 years as a physiotherapist, I have seen good deaths and bad deaths. We all want to ensure that we get the best for our constituents, so we need to ensure that end of life care is sorted. This has been a good debate, because we have talked—I have certainly talked to my family. My lovely mum of 89, who is disabled, housebound and widowed, said, “It’s all very well talking about assisted dying, but we need to talk about assisted living as well, because that is most important.” Quality of life is crucial here.
We need to ensure that we are here to legislate for all, which is why I will vote against the Bill today. I am grateful for the opportunity to explain.
Saqib Bhatti (Meriden and Solihull East) (Con)
I acknowledge the importance of this debate and thank the hon. Member for Spen Valley (Kim Leadbeater) for bringing it forward. Although I will be voting against the Bill, I still think this is an important discussion to have, not least because many of my constituents believe that it is the right thing to do. Of course, there are also many who feel that it is not the right thing to do. We have shown the very best of what Parliament can do here today.
I came to my conclusion not because of some sort of zealotry or evangelism. I completely acknowledge that there are people who go through very difficult situations where they lose their normal faculties and are in immense pain. However, we need to be clear about what we are discussing today: we are talking about wholesale change to how the state deals with death. That is really important. The Bill would place people, society and the medical profession in a number of scenarios, and put at great risk some of our most vulnerable people. That is part of the reason I will vote against it today.
The slippery slope arguments are valid in terms of the risk the legislation produces. We are talking about medicalising death, placing an undue burden on our health professionals and legitimising a role for the state in the death process.
Saqib Bhatti
I will not give way at this moment.
I have yet to be convinced that the legislation has sufficient safeguards in place. On slippery slopes, take Canada as an example: there, someone does not even have to have a terminal or fatal illness now; mental illness will be an acceptable reason for assisted suicide in 2027. Even though it did not start that way in Canada, that Pandora’s box has clearly been opened, and we risk embarking on that route today. The hon. Member for Spen Valley has said that there is almost a guarantee that this situation will not change, but she cannot guarantee that future Parliaments will not change the goalposts on this matter. The slippery slope argument is about exactly that: when we embark on this journey, that is where we may end up, as the goalposts start to move.
I am conscious of time, so I will end my comments shortly. We have had lots of conversation about the private Members’ Bills process, and the hon. Lady cannot guarantee that there will be sufficient scrutiny and safeguards. We have not had enough impact assessments or public consultation, and there has been very limited time to look at this piece of legislation. We are at serious risk of passing something that will do immense harm. I worry that in the future we will look back at this, after there has been abuse or coercion of some of the most vulnerable people, and we will come back to the House to discuss the damage that we have caused today.
Several hon. Members rose—
Kim Leadbeater
On a point of order, Mr Speaker. I seek your guidance on correcting the record. I said in my speech that I have consulted with the highest levels of the judiciary and the medical profession. I have received correspondence from the Judicial Office and wish to clarify my earlier comments. Although I have spoken to lawyers and judges, I should not have implied that the serving judiciary have in some way indicated their agreement with the Bill; they have not. The serving judiciary have been very clear that they have made no public comments about the Bill one way or the other. I apologise if I implied anything to the contrary.
Rosie Wrighting (Kettering) (Lab)
I rise to support this incredibly important Bill. Like many hon. Members, I have been contacted by hundreds of constituents on both sides of the debate. I have been moved by their personal stories, which bring home the impact that this legislation could have on them and their families, and I want to put on record my thanks to everyone who has contacted me. I fundamentally believe in the right to choose at the end of life, and that is what the Bill is about: giving dying people a choice on how they die. Anyone who does not want an assisted death can choose not to have one, and anyone who wants the reassurance of an option has it.
My constituents’ stories and the stories shared by hon. Members today have shown me that it is truly unacceptable to maintain the status quo. Without a change in the law, terminally ill people will continue to face the end of their lives with a very limited range of options. Some will travel abroad for help to die, but that is only an option for those with the financial means to do so. Choice at end of life should not be an option only for those who are financially stable or desperate. Death should be peaceful and pain-free, and the Bill gives us the opportunity to make that a reality. There is no doubt in my mind that the Bill, so carefully considered by my hon. Friend the Member for Spen Valley (Kim Leadbeater), would be an improvement for the lives and liberties of my constituents and those across the UK who are terminally ill. I urge Members to give it a Second Reading today.
I want to end with the words of one of my constituents, who wrote:
“We have some amazing care givers in this country who provide the most compassionate care in the most difficult of circumstances & that gives great comfort. But I feel no-one should be forced to know how the book ends when they are only part way through it without having the choice of putting it down and choosing one with a better ending.”
Vikki Slade (Mid Dorset and North Poole) (LD)
We do not need to choose between palliative care and supporting those who want to make their deaths better. It is so fantastic to hear Members from every part of the Chamber with a shared commitment to funding more palliative care, and I hope that the Secretary of State and his team hear that and will go further, knowing that they have our support in investing more. But until they do, we cannot condemn those who are at the end of life to terror, loneliness and being forced into horrible circumstances.
I have been concerned by some of the comments in the debate, so I re-read the Bill as I sat here. It has been suggested that mental health conditions would be included, but they would not—under clause 2(3). It was also suggested that people might not be offered surgery or other treatment, but they must, under clause 4(4). It is also worth noting the suggestion that a person being coerced could be protected by disclosing to the very family that might be coercing them. The provision for a witness in clause 5(2)(c)(ii) and the period of reflection would allow the independent person to be present at the appropriate time.
I have already shared publicly my own family’s death journeys—and I wear them on my jacket—but today is not about them. Today is about all those people who need this Bill. Last night I read the book “Die Smiling”, about Nigel’s journey to Dignitas. It ends with his final journey and a Facebook post, prepared before he made that agonising 20-hour journey to Switzerland with his wife and children. It moved me to tears. However, most people cannot afford that option. Most do not want to put their families at risk of prosecution; they want death on their own terms.
Gary lives in my constituency, and he asked me to tell the House his story of dying with liver cancer. He knows that the end stages will be brutal, and he wants to decide when enough is enough. He me:
“Death does not worry me at all. Dying a slow death with my dignity stripped away terrifies me. So when my time is right I will kill myself—alone and afraid. My sick dog will not have to die alone and afraid, but I am forced to do so. I want to die on my terms. How can this be right?”
Tracie, who was a palliative care nurse, told me:
“I’ve witnessed many end of life patients and I cannot say hand on heart that many of those patients had a peaceful death. I left palliative nursing as the emotional trauma became too much. There are neither the range of medication or symptom relief treatments available for many of the harrowing things people are forced to go through in their last days and weeks of their life.”
This Bill is about compassion and humanity, and we must listen to the voices of dying people.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Today the focus is rightly on Back Benchers, so I will limit my remarks and—mindful of your advice on time, Mr Speaker—I will not be taking any interventions.
It is not for me to make the case for His Majesty’s Opposition, because we have not taken a collective view, and, like many other Members, I have struggled greatly with this decision. I do not believe there is a perfect choice to be made today, just different versions of imperfection, and my time working as a doctor in A&E has made me sympathetic to both sides of the argument. I have seen the pain in the eyes of relatives who want to ease the suffering of their dying loved ones, but I have also held the hand of frail elderly people, forgotten by their families, feeling themselves to be nothing but a burden. When we reduce it to its core, we are facing a difficult dilemma.
Access to assisted dying could reduce suffering for the terminally ill. That is a choice that some people would like to have, and some people would make that choice without any undue pressure. If we vote against this Bill today, they will not have that choice. I caution against avoiding facing up to this hard moral reality by arguing that whatever people may fear about dying can always be managed by modern medicine. For all that it can achieve, modern medicine cannot achieve everything. We have heard examples today of the worst illnesses that do more than cause pain. The hon. Member for Bury St Edmunds and Stowmarket (Peter Prinsley) and my hon. Friend the. Member for Hinckley and Bosworth (Dr Evans) described dying from a catastrophic bleed that takes a person’s life in a panicked final moment.
Of course, the treatments we may use to help people with pain often rob them of what they may sincerely feel to be their own independence and dignity. Some people may not want to spend their final days in a drug-induced state of semi-consciousness to manage their pain. Those minded to vote against the Bill should give that the greatest possible consideration. I do not think that the Bill’s opponents can deny it, any more than its proponents can deny that if this law is passed, it will represent the crossing of a significant legal, societal and moral Rubicon. Every other expectation that we have of the state is for it to help to extend and protect life, but we will instead be asking the state to procure the medicines, provide the staff, and sign off through the courts a process that is designed to lead—and will lead—to someone’s death.
A deep respect for the sanctity of life is not the preserve only of religious thinkers. Opponents of the Bill place great weight on that consideration. They argue that once we accept that the state and its citizens can play a proactive role in causing death, the debate will shift from whether it should do that at all to how and when it should. It may be that we pass this legislation and no other in future, but those who have the utmost concern about even the possibility of an expanded Bill may vote against this one as the surest way for them personally to prevent that from happening.
The Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), argued that coercion is not limited to the selfishly motivated relative directly pressuring a vulnerable person. It can be as simple as knowing that people in the same position as oneself could and did choose to die. Some Members worry that people will then ask themselves not just “Do I want to die?”, but “Should I want to die?”
So where does this leave us? All of us can make a sensible and reasonable case for our positions, and even point to care and compassion, as we see it, in support of our view. Taking all this together, I think it means that one thing more than anything else should be our guiding principle today: we should, above all else, vote with great humility, and with respect for each and every vote cast in whichever direction. I want to direct that sentiment to the country at large. There are passionate campaigners on both sides of the debate, with their own perspectives, who fear greatly the outcome today if it turns out not to be the one that they want. I say to them that as well as being MPs, those voting today are also sons, daughters, brothers, sisters, parents and grandparents. Each Member will have in mind what they would want for their families and themselves.
Our final decisions will come at the end of a great deal of thought and careful consideration. As the hon. Member for Vauxhall and Camberwell Green (Florence Eshalomi) said, if people listened closely enough today they will have heard us all speaking with one voice—the voice of passion, for those people and causes that we are trying to aid with our vote, even if those people and causes are different. That passion represents this House at its very best. That should not be forgotten. I hope that it is something on which we can all agree.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
This Second Reading debate on the Bill sponsored by my hon. Friend the Member for Spen Valley (Kim Leadbeater) provides the House and the country with an opportunity to discuss this complex and sensitive issue. I make it clear that I stand at the Dispatch Box today not as the MP for Pontypridd representing the views of my constituents, although I thank each and every one of them who took the time to contact me with their considered opinions. I stand here today as the Government Minister responsible for the criminal law on this issue in England and Wales, contained in the Suicide Act 1961.
As the Government remain neutral on this topic of conscience, and out of respect for my ministerial colleagues who are not able to outline their views in today’s debate, I will not be sharing my personal opinions on this matter. I will, however, be taking part in the vote. With all that in mind, I will keep my response brief and not take any interventions. The Government are of the view that any change to the law in this area is an issue of conscience for individual parliamentarians. It is rightly, in our view, a matter for Parliament rather than the Government to decide. Accordingly, the Government Benches will have a free vote should the views of the House be tested today.
If the will of Parliament is that the law in this area should change, the Government will of course respect their duty to the statute book and ensure that any Bill is effective and its provisions can be enforced. I thank my hon. Friend the Member for Spen Valley for bringing this important national conversation to the fore and for conducting her campaign with respect and integrity. I pay tribute to the campaigners on both sides of the debate, including Dame Esther Rantzen, Liz Carr, Nathaniel Dye and Baroness Grey-Thompson. They have all used their voices to advocate for what they believe and have contributed significantly to the important national conversation around death.
Regardless of views, the one thing we have in common is that we will all experience death at some point. Death is a topic that we do not tend to talk about very much, but these discussions have undoubtedly enabled families up and down the country to talk openly about their wishes and how they feel about their own death. That powerful honesty is a tribute to how Members of this House and campaigners have conducted themselves throughout, and I thank them for informing today’s debate.
Kit Malthouse
claimed to move the closure (Standing Order No. 36).
Question agreed to.
Question put accordingly, That the Bill be now read a Second time.
Division 51
Ayes: 330
Labour: 235
Liberal Democrat: 61
Conservative: 23
Green Party: 4
Reform UK: 3
Plaid Cymru: 3
Social Democratic & Labour Party: 1
Independent: 1
Noes: 275
Labour: 147
Conservative: 92
Independent: 14
Liberal Democrat: 11
Democratic Unionist Party: 5
Reform UK: 2
Traditional Unionist Voice: 1
Plaid Cymru: 1
Alliance: 1
Ulster Unionist Party: 1
Mr Speaker
Under Standing Order No. 63(2) only one motion relating to the committal of the Bill may be moved, and that has been done.
Terminally Ill Adults (End of Life) Bill (First sitting)
Tuesday 21st January 2025
(3 months ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 January 2025 - (21 Jan 2025)
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Chair
Good afternoon. In the Committee that I was in this morning, someone asked if they could remove their jacket, which seemed unbelievably spartan, but if any Member wishes to do so, they may. We are now sitting in public, so the proceedings at the present are being broadcast. Before we start, I have a couple of preliminary remarks. Please will you all turn off your mobile phones and other noisy electronic devices. I am also asked to remind you that tea and coffee are not allowed during sittings; if you want them, you will have to go outside.
We shall first consider the motion on the amendment paper tabled by the Member in charge of the Bill, Kim Leadbeater, which is to sit in private to consider matters relating to the sittings motion.
Kim Leadbeater (Spen Valley) (Lab)
I beg to move,
That the Committee do sit in private to consider matters relating to the sittings motion.
It is a pleasure to serve under your chairmanship, Sir Roger, and to be here for the first formal meeting of the Terminally Ill Adults (End of Life) Bill Committee. Ahead of the oral evidence sessions next week and the line-by-line scrutiny thereafter, we have two jobs to do this afternoon. One is to confirm the sitting times for the Committee and the other is to confirm the witnesses for oral evidence. Following discussions, I have taken the decision to have some of our sitting today in private. That is normal procedure for discussing witnesses and I think it is the right way to proceed, given that some of those discussions will probably involve conversations about the suitability of witnesses who are not here to speak for themselves. It would be inappropriate to discuss named individuals in such a way. Transparency is of course very important, but so is respecting individuals’ privacy. I hope that is clear to colleagues and to others.
I appreciate that members of the Committee and those viewing our proceedings may wish to know about the purpose and effect of this motion. Most Public Bill Committees are subject to programming, and the Programming Sub-Committee would discuss in private which witnesses to hear from. Similarly, Select Committees discuss in private which witnesses they will hear evidence from. Out of respect for the named individuals that we may call to hear evidence from, I propose that we discuss them informally in private. Once that informal discussion has concluded, the Committee will move back into a public session to formally consider the sittings motion. Any Member who wished to speak about the motion publicly or move an amendment would then be able to do so.
Danny Kruger (East Wiltshire) (Con)
It is a pleasure to serve under your chairmanship, Sir Roger. I look forward very much to the process of this Committee and to working with hon. Members to do what we can to ensure that a good Bill is presented back to the House.
I very much respect the points made by the hon. Member for Spen Valley. Nevertheless, I do have some real objections to the motion, which I encourage Members to oppose. The fact is that this debate was due to be held in public—in fact, people have travelled here in the expectation that they would be able to attend and observe our debate on the sittings motion—but last night, for reasons we do not fully understand, a decision was clearly made to table a motion that we sit in private. I would be grateful to understand why that decision was made so late.
My general point is that there is a clear public interest case. The public should understand why witnesses have been chosen and why other people have not, and if there are concerns about the witnesses, they should be aired publicly. This is the only time that the public are being consulted—that experts from outside Parliament have a chance to contribute to our deliberations. I fail to understand why those discussions cannot be held in public. The only argument that I can imagine—and the hon. Member for Spen Valley made it—is that Members might for some reason be uncivil or speak disrespectfully about potential witnesses, which I do not for a moment believe. I am sure that you, Sir Roger, or the other Chairs will keep us in order throughout our proceedings.
We are here to talk about the overall balance and particular qualifications of the witness list. Looking at the witness list that was presented this morning by the hon. Lady, I have very serious concerns, which should be aired publicly, about the list. It includes eight witnesses from foreign jurisdictions, who are being called to give evidence from abroad; all are supporters of assisted dying in their jurisdictions. There are no people speaking against the operations of assisted dying laws internationally. There are nine lawyers on the list—all of them, with the exception of three who appear to be neutral, in favour of a change in the law. There is not a single lawyer against this Bill. Sir James Munby was suggested, but I understand he has been removed. There might be a perfectly good reason for that, but he has spoken against the Bill.
There is nobody on the list from deaf or disabled people’s organisations, but the UN convention on the rights of persons with disabilities recognises the importance of engaging with such organisations in laws of this nature. With the exception of Dr Jamilla Hussain, there is no one on the witness list who can speak to the equality impacts of assisted dying.
The Chair
Order. I appreciate that the hon. Member for East Wiltshire, and indeed all members of the Committee, received the final version of these documents fairly late in the day, and I am not unsympathetic to hearing what any Member wishes to say, but now the hon. Gentleman is going rather further down the brief than he is probably entitled to. The motion on the amendment paper is very narrow. The Question is, quite simply, that the Committee should sit in private.
Danny Kruger
I understand, Sir Roger, and I accept your reprimand. I was trying to make the case that it should be acceptable for these arguments to be heard in public, but I take your point.
Let me address the specifics of the motion that we sit in private. The point has been made that it is appropriate and, in fact, common for Committees to consider sittings motions privately. In fact, Public Bill Committees that consider private Members’ Bills do not sit in private to consider a sittings motion. That should be the starting point. Members may claim—I think the hon. Member for Spen Valley did—that sitting in private is like a Programming Sub-Committee on a Government Bill, but it is not. Government Bills have a sittings motion that is agreed in the usual channels, between the Whips of each side, and often that does happen privately. The way it works then is that both sides suggest witnesses and agree to them. Those decisions then go to the Programming Sub-Committee, which usually takes a couple of minutes to rubber-stamp them. Then, crucially, the sittings motion goes to the whole Committee, which has the opportunity to discuss what was decided in the Programming Sub-Committee. That is the opportunity for public consideration of the schedule of witnesses in a Government Bill, as set out by the Programming Sub-Committee.
It has also been suggested that the proposal to sit in private today is rather like the private pre-meet that happens before particular evidence sessions, which I am sure we will do when we proceed to take evidence; we will have little private meetings to discuss which Members go in which order and who will ask each question. I fully accept that that is perfectly appropriate for a private discussion, but that is not what this sitting is. Today, we are discussing exactly who we are going to call and the overall timetable for our work. This is much bigger than a discussion about who is going to ask which questions. It is about who the witnesses are going to be.
In the very limited number of private Members’ Bills since 2010 that have had a large number—five or more—sittings, the sittings motions were debated in public. That is the way it works. I could list a whole load, but I will not bother the Committee with that detail. The fact is that we have had no discussion through the usual channels; there are no usual channels in a private Member’s Bill. Everybody in the Committee was invited to submit suggestions to the hon. Member for Spen Valley, which we all did, and we appreciated that invitation. She then made her choice. There was no discussion about who the witnesses should be. It was just a decision made by the hon. Member.
A list was informally communicated last week, which we also appreciated, although it was different from the list before us now. We did not have full advance notice of this list, which we only received at 10 o’clock this morning. It was not tabled in advance and was not on the amendment paper, so we had no opportunity to prepare amendments to the schedule of witnesses or to the timetable that we are discussing. We can table manuscript amendments—and that needs to happen—but the situation still procedurally disadvantages those of us who have concerns about the Bill. Last night, I and colleagues tabled a sittings motion, which I hope we will have the opportunity to debate, in the absence of one from the hon. Member for Spen Valley.
I am afraid that this issue reflects a general concern I have about the process, which is why it is so important that we debate the witness list before a public audience.
Kit Malthouse (North West Hampshire) (Con)
But we will be coming back to public—
Danny Kruger
I look forward to the opportunity to discuss the sittings motion, which I hope we can do publicly. On a general point about process, the Bill was written by a campaign group.
Kim Leadbeater
On a point of order, Sir Roger. That is categorically not true. The Bill was written with senior legislative expertise, along with myself as a sitting Member of Parliament and with esteemed colleagues. I take that point of offence quite personally.
The Chair
Order. A point of order has been raised; I had better reply to it—if only to say that it is not a matter for the Chair.
Danny Kruger
I apologise, Sir Roger, and I apologise to the hon. Lady for causing offence. I hope she will not be offended when points are made that she disagrees with.
Danny Kruger
I am happy to withdraw the suggestion that the Bill was written by a campaign group, on the basis of the hon. Lady’s assurance that it was written by herself. I hope it is not the case that there was significant input from campaigners. I do not see why there should not have been; I just mention it because the Bill came to us with no formal consultation. There was no impact assessment—
Kim Leadbeater
On a point of order, Sir Roger. Surely we are having a conversation about whether we sit in private or not. Can we keep to that matter?
The Chair
Forgive me: I am in the Chair and I will decide—but the hon. Lady is absolutely correct. Once again, I am afraid that the hon. Member for East Wiltshire is straying very wide of the motion on the amendment paper. I would be grateful if he would now come to his conclusion so we can start to move forward.
Danny Kruger
I absolutely will. In fact, I will finish there. The points I have been trying to make are simply in the light of the fact that if the hon. Lady’s motion is accepted, the public will no longer have the opportunity to hear any of our points on the sittings motion—on the process that we will be decide on.
Kim Leadbeater
On a point of order, Sir Roger. That, again, is factually incorrect. We have already said that there will be a private sitting for conversations about individual witnesses, including some that the hon. Gentleman has already started talking about, and then we will open again to the public so that everybody can hear the Committee’s conversations.
The Chair
Order. Once again, that is not strictly a matter for the Chair, so it is therefore not a point of order, although it is now a matter of record. We are going to spend quite a lot of time together and it would be helpful if, reflecting the tone of the debate that took place on the Floor of the House, we were civil and courteous to each other and that the debate was conducted throughout not only these proceedings, but right throughout the entire Committee stage, with customary candour and decency. If we can manage that, accepting that these are highly divisive issues and that strong feelings are held on both sides of the argument, we might just end up with a conclusion that would satisfy most, if not all, people.
Danny Kruger
I genuinely do not want to cause any distress or offence to the hon. Member for Spen Valley. I simply am doing my job, which is to represent my genuine concerns about the process that we are deciding on today. I think it is not appropriate to sit private, and I do not believe it is the case that we will have the opportunity to discuss in public the sittings motion. We are deciding that in private, according to her intention. There is not going to be the chance to debate publicly the list of witnesses or the timetable that we are to follow. So be it. If hon. Members in the Committee want to proceed down that line, that is what we will do. I look forward to that discussion, which I am sure we will have courteously, but I encourage hon. Members to vote against the motion.
Lewis Atkinson (Sunderland Central) (Lab)
I, like you, Sir Roger, hope that we can spend the next five or six weeks in the spirit of collaboration and that we do not get bogged down in procedural wrangling. We need to work across the Committee to get the best procedure we can.
The hon. Member for East Wiltshire made several points, including the precedent for private Members’ Bills. The relevant point here is that this private Member’s Bill is unique already by the fact that the lead Member, my hon. Friend the Member for Spen Valley, has agreed to take evidence—unlike in any other private Member’s Bill. Therefore, in some cases there may be a need to discuss the sensitivity of individual witnesses’ availability and personal circumstances. We cannot agree as a Committee just by calling witnesses in the abstract. We have to agree—as is outlined by my hon. Friend’s motion and indeed by the alternative motion in the name of the hon. Member for East Wiltshire—for them to attend at a specific time and at a specific place. I gently say to the hon. Gentleman that the Committee would do well to have a conversation in private about the individual availability and suitability of some witnesses.
The motion set out on the amendment paper to sit in private is to consider
“matters related to the sittings motion”,
not the sittings motion itself. My hon. Friend the Member for Spen Valley has clearly indicated that we will return to sit in public for the formal proceedings, which I support. That means that the hon. Member for East Wiltshire and any others who wish to place on record their observations can do so then. In the same way that the hon. Gentleman acknowledges happens in Select Committees and other forums where there is discussion about witnesses, how to call them and so on, I suggest that we spend a little bit of time in private to do so too, before agreeing—I hope with a level of consensus across this Committee—to return in public and to operate in public scrutiny as the hon. Gentleman suggests is appropriate.
I support the motion to sit in private for the consideration of these specific matters in initial discussion and then I support returning to public, as my hon. Friend the Member for Spen Valley has indicated, so that we can be subject to the right public scrutiny for the decisions that we make today.
Kit Malthouse
I was going to make exactly the same point. I think my hon. Friend the Member for East Wiltshire has fundamentally misunderstood what is happening. He referred to there being a discussion through the usual channels. What the hon. Member for Spen Valley has proposed is that we have that discussion now—she said informally—because we have not had the chance to do so before, and that we then return. Then my hon. Friend is free to say whatever he likes about whatever witnesses and table his own amendments as he wishes. There is no intention to conceal anything. If I might be so bold, I think he has misunderstood the process.
Naz Shah (Bradford West) (Lab)
Just following on from the speech of the right hon. Member for North West Hampshire, I would not read the situation as a misunderstanding by the hon. Member for East Wiltshire. I read the motion to sit in private not as an informal discussion, but as a very formal discussion. I am grateful to the lead Member for the Bill, my hon. Friend the Member for Spen Valley, who before this meeting explained to me what has now been explained here—about the issue of people’s availability, privacy and so on. But I do not suspect that we will be going into those details. If people are not available, we do not have to discuss why they are not. We do not have to discuss their personal lives. I am not sure that that is a good enough reason not to have a discussion in public. I trust colleagues across the Committee to be collegiate enough and big enough to refer to witnesses with respect. I think that is a given, considering the way in which we have conducted the Bill so far. I therefore do not support the motion to sit private.
The Chair
Mr Woodcock, of course I will call you if you wish to be called. I am rather keen to move forward if we can. Do you wish to make a brief intervention?
Sean Woodcock
I do wish to make a brief contribution. I am broadly sympathetic to the fact that there is considerable public interest in the Bill, so we would all broadly welcome as much public scrutiny as possible of all its aspects. However, I think the hon. Member for East Wiltshire made a meal of his argument, talking about the merits or otherwise of the various witnesses and casting aspersions, which I note he has withdrawn, on my hon. Friend the Member for Spen Valley, who is the promoter of this legislation. I will vote to sit in private, despite the fact that I am sympathetic to the idea that as much of the Committee as possible should be in public.
Question put and agreed to.
The Chair
Once the Committee has concluded its discussions in private, it may—although it does not have to—return to public session.
The Chair
I call Kim Leadbeater, as the Member in charge of the Bill, to move the sittings motion standing in her name, which is available in the room.
Kim Leadbeater
I beg to move, Date Time Witness Tuesday 28 January Until no later than 10.05 am Sir Chris Whitty (Chief Medical Officer for England), Duncan Burton (Chief Nursing Officer) Tuesday 28 January Until no later than 10.45 am The British Medical Association, The General Medical Council Tuesday 28 January Until no later than 11.25 am Association of Palliative Care Social Workers, Royal College of Nursing Tuesday 28 January Until no later than 3.15 pm Dr Rachel Clark, Dr Sam Ahmedzai (Emeritus Professor at the University of Sheffield), Sue Ryder, Association of Palliative Medicine Tuesday 28 January Until no later than 4.15 pm Sir Max Hill KC, Alex Ruck Keene KC (Hon), Sir Nicholas Mostyn Tuesday 28 January Until no later than 5.00 pm Dr Ryan Spielvogel (Senior Medical Director for Aid in Dying Services, Sutter Health, USA), Dr Jessica Kaan (Medical Director, End of Life Washington) Wednesday 29 January Until no later than 10.25 am Dr Greg Mewett (Specialist Palliative Care Physician, Australia), Dr Clare Fellingham (Deputy Director of Medical Services, Royal Perth Hospital, Australia), Dr Cam McLaren (Oncologise, Australia and New Zealand) Wednesday 30 January Until no later than 11.25 am Professor Tom Shakespeare CBE FBA (London School of Hygiene and Tropical Medicine), Dr Miro Griffiths (University of Leeds), Yogi Amin (Partner, Irwin Mitchell), Chelsea Roff (Eat Breathe Thrive) Wednesday 30 January Until no later than 3.00 pm Professor Jane Monckton-Smith OBE (University of Gloucestershire), Dr Alexandra Mullock (University of Manchester), Professor Allan House (University of Leeds), Professor Aneez Esmail (University of Manchester) Wednesday 29 January Until no later than 4.00 pm Dr Lewis Graham (University of Cambridge), John Kirkpatrick (EHRC), Lord Sumption Wednesday 29 January Until no later than 5.00 pm Hospice UK, Dr Jamilla Hussain (Bradford Teaching Hospitals NHS Trust and Hull York Medical School), Dr Jane Neerkin (Consultant Physician in Palliative Medicine), Marie Curie Thursday 30 January Until no later than 12.30 pm Dr Chloe Furst (Geriatrician and Palliative Care Physician, Adelaide), Alex Greenwich MP (MP for Sydney, Parliament of New South Wales), Professor Meredith Blake (University of Western Australia) Thursday 30 January Until no later than 2.00 pm Dr Amanda Ward, Professor Gareth Owen (Kings College London and South London and Maudsley NHS Trust), Professor Laura Hoyano (Professor of Law, Oxford University and Red Lion Chambers) Thursday 30 January Until no later than 3.00 pm Professor Nancy Preston (Lancaster University), Dr Naomi Richards (University of Glasgow), Claire Williams (Head of Pharmacovigilance and Regulatory Services, North West eHealth DipHE Adult Nursing, MSc Pharmacovigilance, and Chair, Greater Manchester Central Research Ethics Committee) Thursday 30 January Until no later than 4.00 pm People and families of those with relevant experience Thursday 30 January Until no later than 5.00pm Mencap, Representative of Senedd Cymru
That—
(1) the Committee shall (in addition to its first meeting at 2.00 pm on Tuesday 21 January) meet—
(a) at 9.25 am and 2.00 pm on Tuesday 28 January;
(b) at 9.25 am and 2.00 pm on Wednesday 29 January;
(c) at 11.30 am and 1.00 pm on Thursday 30 January.
(2) during further proceedings on the Terminally Ill Adults (End of Life) Bill, the Committee do meet on Tuesdays and Wednesdays while the House is sitting at 9.25 am and 2.00 pm.
(3) the Committee shall hear oral evidence in accordance with the following Table:
The motion incorporates an amendment that would involve an extra hour of oral evidence on Thursday 30 January so that we can hear from a representative of the Senedd, to ensure that we cover Welsh devolution, and—as other members of the Committee have advised—from a representative of Mencap.
The Chair
With this it will be convenient to discuss the following: “Thursday 30 January Until no later than 5.00pm Richard Robinson, CEO of Hourglass, Cherryl Henry-Leach, CEO of STADA, Sarah Mistry, CEO British Geriatrics Society”.
Manuscript amendment (c), after
“Dr Ryan Spielvogel (Senior Medical Director for Aid in Dying Services, Sutter Health, USA)”,
leave out
“Dr Jessica Kaan (Medical Director, End of Life Washington)”
and insert—
“Dr Ramona Coelho (Family Physician in Ontario Canada, founding member of Physicians Together with vulnerable Canadians)”.
Manuscript amendment (d), after
“Dr Miro Griffiths (University of Leeds)”,
leave out
“Yogi Amin (Partner, Irwin Mitchell)”
and insert—
“Ellen Clifford (Co-ordinator, UK Deaf and Disabled People’s Monitoring Coalition. Author and Visiting Research Fellow within the Centre for Applied Philosophy, Politics and Ethics at Brighton)”.
Manuscript amendment (e), after “Lord Sumption” insert “Karon Monaghan KC”.
Manuscript amendment (f), leave out
“Dr Chloe Furst (Geriatrician and Palliative Care Physician, Adelaide), Alex Greenwich MP (MP for Sydney, Parliament of New South Wales), Professor Meredith Blake (University of Western Australia)”
and insert—
“Dr John Daffy, previously head of infectious diseases at St Vincent’s Hospital in Melbourne, Dr Stephen Parnis, previous Vice-President of the Australian Medical Association, Professor Sinead Donnelly, a Consultant Palliative Medicine Professor in New Zealand”.
Manuscript amendment (g), leave out “Dr Amanda Ward” and insert
“Barbara Rich (Barrister) and Dr Philip Murray (University of Cambridge)”.
Manuscript amendment (i), at end of table, insert—
Naz Shah
On amendment (b), given the issue we are considering, I think it is important that the Royal College of Psychiatrists is involved. One thing that is very important to me is the issue of coercion, and the royal college would be able to shed light on that. One of the many reasons advanced for giving the Bill its Second Reading was that we would have further debate, and the royal college would add value to that.
On amendment (c), Dr Ramona Coelho is a physician with well-founded concerns about the operation of the law in Canada. She is a member of the Ontario Medical Assistance in Dying Death Review Committee, and she gave evidence to the Scottish Parliament Committee that considered the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
On amendment (d), Ellen Clifford is co-ordinator of the UK Deaf and Disabled People’s Monitoring Coalition, and she has a key role in advocating for people with disabilities.
Danny Kruger
I want to speak in support of the proposed addition of Ellen Clifford. Last week, she won a High Court case against the previous Government for their consultation on benefits reform, so she is no friend of my party, but she is a powerful advocate on behalf of disabled people, and she represents the deaf and disabled people’s organisations that are so important in informing the Government on the implementation of policy that affects disabled people. I recognise that the hon. Lady has included some representatives of the disabled community, but I suggest that there would be particular value in hearing from Ms Clifford because of her role as the co-ordinator of the monitoring coalition of all these deaf and disabled people’s organisations across the country. She is the best person to advise the Committee on the operation of the Bill.
The Chair
Order. Before we proceed any further, let me say that the hon. Gentleman was in order, because I allowed him to speak, but it would be unhelpful if we started to cherry-pick amendments while going through them. Let the hon. Member for Bradford West speak to them—they are being taken together—and then any hon. Member who wishes to comment on any or all of them will have the opportunity to do so. Otherwise, we will have a very piecemeal approach.
The Chair
I do not wish to prevent the hon. Lady from speaking to any of the other amendments, because we have grouped them all. She was doing very well. If she works through them, that will tell other Members where she is coming from.
Naz Shah
Thank you, Sir Roger.
By adding Karon Monaghan KC, an eminent equality and human rights law barrister, amendment (e) would add balance among the lawyers in the Committee. I would also like to add James Munby, or someone from His Majesty’s Courts and Tribunals Service, because we need someone who can speak to court capacity issues in relation to the Bill. Professor Katherine Sleeman is a great expert on all these matters.
I am going through the list, and I am unclear what the Australian MP would add. If we remove the other two, there are other pro-AD Australian experts who will speak instead. If we replace those three, who are experts from—
Kim Leadbeater
On a point of order, Sir Roger. My hon. Friend has just mentioned two names that are not in her amendment, and I find that slightly confusing.
The Chair
Order. First, they are not mine. Please remember that you are addressing the Chair.
Secondly, the hon. Member for Bradford West has a list of amendments that she has tabled, to add some people and remove others. Patently, she cannot refer to people who are not on that list. If she works through it name by name, I think we will get to where we need to be.
The Chair
Are we working from the same list? [Interruption.] Order. Continue to work through the list and you will get to where you need to be.
Danny Kruger
I want to make a general point in support of the hon. Lady’s suggestions.
Naz Shah
I apologise. I thank everybody for bearing with me on this one.
Amendment (e) would insert Karon Monaghan KC after Lord Sumption. I have said that I would like her added because of her expertise.
Amendment (f) would insert Dr John Daffy, previously head of infectious disease at St Vincent’s hospital in Melbourne, Dr Stephen Parnis, previous vice-president of the Australian Medical Association, and Professor Sinéad Donnelly, a consultant palliative medical professor in New York. That is what I was speaking to when I was talking about having three people from one country and not having an alternative voice. I think it is really important to have an alternative voice, and I am not sure what added value the MP for Sydney would bring to the debate when we have so many people contributing from countries that are pro and delivering, rather than from those that have concerns.
Amendment (g) would remove Dr Amanda Ward and insert Barbara Rich, barrister, and Dr Philip Murray from the University of Cambridge.
The Chair
I think you have one more. Would you also like to speak to amendment (i)? It is on the other side of the amendment paper, which we nearly all missed.
Let me assist the hon. Lady: she wishes us to insert, at the end of the table in the sittings motion, a new set of witnesses on Thursday 30 January, to give evidence until no later than 5 pm.
Daniel Francis (Bexleyheath and Crayford) (Lab)
On a point of order, Sir Roger. Amendment (i) clashes with the sitting times on Thursday suggested by my hon. Friend the Member for Spen Valley.
The Chair
The hon. Lady may deal with amendment (i) and with the hon. Gentleman’s proposal. At this stage, let me simply call Kit Malthouse to speak to amendment (b).
Kit Malthouse
I rise to speak to amendment (b) and to the other amendments tabled by the hon. Member for Bradford West. As we discussed in private, I am concerned that the promoter of the Bill, the hon. Member for Spen Valley, has been through an extensive period of trying to collate everybody’s recommendations for the Bill and reach a list that is both manageable within the timeframe and a compromise for all of us on what we would like to see.
The odd adjustment here and there is fine, but we ought to bear in mind that in any one session we need to have sufficient time for people to speak. We have to be careful not to double up because we may or may not think that a particular witness might propose a view with which we are sympathetic, when we already have people who are covering the same subject. On amendment (b), for example, all psychiatrists are regulated by the General Medical Council, as I am sure the hon. Member for Bradford West knows, so effectively the royal college is a doubling up of expertise, which is not necessarily in the interests of time. Similarly, in amendment (c), the hon. Lady is proposing a physician from Canada—
Kit Malthouse
I will just finish, if I may. Our Bill is built on a very different legal framework from Canada’s. Drawing legislative parallels between the two seems like a cul-de-sac, not least because, as the hon. Lady will know, the legal framework in Canada is dictated by the charter of rights and freedoms, effectively a constitution, which has been used there to widen the scope of the law. Canada started from a very different place as well, so I am not totally convinced.
What the hon. Member for Spen Valley has tried to do with the list is to find overseas territories that are analogous to our own and have adopted a model similar to ours. We are therefore trying to learn lessons from the process of debate and legislative procedure that they went through—either to learn from them or to learn from their mistakes. For example, knocking out the Member of Parliament from Australia would be a mistake, not least because Australia has been through a number of iterations with its law. Most of Australia has a bar on doctor initiation of the conversation. The medical profession think that that is a big negative in Australia, as I understand it, so I would like to understand why, politically and in legislation, it was felt that that was needed or helpful, and why it was imposed.
On the other amendments, the hon. Member for Bradford West is making a value judgment about comparative expertise between Amanda Ward and whoever she wants to propose instead—Philip Murray. I do not know why she is making that value judgment, but as far as I can see, the names were properly submitted in the process. The hon. Lady obviously had the chance to submit names during the process. For better or worse, as she may see fit, the hon. Member for Spen Valley has come up with a list that is a compromise. That is not to say that the hon. Member for Bradford West cannot arrange briefings with any of these experts outside the formal process, for Members to attend should they so wish, or that she cannot seek advice from them during the process of the Bill.
My primary concern about the amendments is that we are opening up a whole area of debate where we could all have gone with our suggestions. I would rather stick with the list that we have, because I fear that the hon. Member for Bradford West is doubling up and making value judgments about expertise that are not necessarily warranted.
Danny Kruger
All the names that the hon. Member for Bradford West has suggested were indeed submitted, I believe, to the hon. Member for Spen Valley ahead of the deadline that she put to us at the end of last month.
Kim Leadbeater
On a point of order, Sir Roger. All those names were not submitted.
Danny Kruger
The hon. Lady can feel free to intervene on me without troubling the Chair. I stand corrected if that is the case. We only received the final list this morning. It was necessary to make alternative suggestions ahead of that, which was done. I am now supporting the hon. Member for Bradford West in making suggestions for slight adjustments, as she suggests is all that is appropriate at this point. The list is unbalanced. I had to do a very quick analysis, and of the almost 60 names that have been put to us, 38 of them are in favour of the Bill and the principle of assisted dying, whereas there are only 20 who are opposed. There is an inherent imbalance there. It is only a quick analysis that has been done, and we will be able to do more of that subsequent to this sitting, but that is my impression.
Dr Opher
The Bill as proposed is extremely similar to the Australian law, but it is not similar to Canadian law. Therefore, I do not see that bringing Canadian expertise into the Committee is of any use at all. I also back the right hon. Member for North West Hampshire when he said that in almost all situations we are just replacing one expert for another, so the only contentious bit is whether we have people from Australia in support of or against assisted dying.
A split of 38 to 20, with the other witnesses being neutral, is appropriate and actually reflects the vote in the House. I do not see that as a disadvantage. Are the witnesses really going to change what we are saying? We need to listen to them and learn from them, but having some of them against assisted dying is enough to give us due discipline and ensure we listen to exactly what the problems might be, so I disagree with the hon. Member for East Wiltshire.
Danny Kruger
Very quickly, let me say that 38 to 20—two to one—was not the split that happened on Second Reading. There was a much more finely balanced position in the House. I accept that the hon. Gentleman does not want to hear from Canada and I do not blame him—people who are in favour of the Bill are desperate to keep Canada out of it. Okay—let us look at Australia. There are many people in Australia—MPs included, if we could hear from politicians—who continue to profoundly oppose the Bill on the grounds that it is not working, it is dangerous and it is being expanded. Let us hear some alternative views if we are interested in foreign experience.
Several hon. Members rose—
The Chair
I am going to take the hon. Member for Spen Valley, who is the promoter of the Bill, last.
Sojan Joseph (Ashford) (Lab)
I want to talk about amendment (b). The right hon. Member for North West Hampshire said that all members of the Royal College of Psychiatrists are already members of the General Medical Council. But not everyone on the General Medical Council is doing the same job. Psychiatrists are experts whose day-to-day job is to manage people’s mental state, and deal with people with suicidal thoughts and depression. They are the experts.
I do not think that all members of the Royal College of Psychiatrists are for or against the Bill, so it would be reasonable to listen to those people who are experts in assessing people’s mental state and whether they are having suicidal thoughts—that is part of their job. I strongly support that part of the provision.
Tom Gordon (Harrogate and Knaresborough) (LD)
I want to touch on a few bits of language that have been used so far that just worry me slightly. When we talk about the value that experts can add to this process, it is not necessarily helpful for someone to try to say that some experts would be better than others in that regard. The phrase “best person” was used in one particular instance and there were comments about whether or not experts would add balance.
The list that has been collated has taken the lead sponsoring Member of the Bill a number of weeks and months to produce. Everyone had the opportunity to feed into that process over a period of time. And on balance, it is a list that captures a wide spread of views and different organisations.
During this sitting a number of points of order have been made to correct the record. In the spirit of the Second Reading debate on the Bill in the House of Commons, we need to try to make sure that we are mindful of any comment we make, so that we do not seem to try to say things that are not necessarily accurate.
The point that was made earlier about eight witnesses coming from foreign jurisdictions is important. My understanding of this whole process is that it is not about our trying to decide whether the Bill should go ahead or not; it is about trying to understand what would be workable. So, hearing from people in places that have already implemented assisted dying is far more useful than hearing from people in countries that have not done so. We have also heard from Members about which of those countries are more comparable to us.
It does not necessarily help us if someone takes us round in circles and talks about the point rather than trying to get on with the work. I fear that that is where we are at with these amendments. If we are now trying to rejig who will give evidence and at what time, that stops us from doing the important job of scrutinising the legislation and hearing from the expert witnesses that we want to call.
These amendments are not minor changes. Regarding the list that has already been collated, I know that it has taken a lot of time to establish when the witnesses on it are free and available to give evidence. I am not sure that those witnesses referred to in the amendment have the same level of availability in their diaries. So, on balance, we should proceed as the lead Member has been putting it, and putting it so well.
Lewis Atkinson
I agree with the comments of the hon. Member for Harrogate and Knaresborough. The hon. Member for East Wiltshire said at the start that the purpose of this Committee was not to relitigate the principle of the vote that we had on Second Reading. Yet in his comment just now, he talked about weighing up the numbers in favour or against, which entirely suggests that the issue of witness evidence selection exists in his head and that he is relitigating matters.
I come to the issues around the Australian amendment—amendment (f). Of course the expertise will come from people who are participating in the system. By definition, they are not ethically opposed to it, because if they were opposed to it on the basis of conscience, they would not be participating in the system in Australia. As the Bill makes amply clear, no medical professional or health professional here will be under any obligation to participate in the system here.
Therefore, in order for this Committee to do the serious work of making sure that the Bill is as robust and workable as possible, we need to hear overwhelmingly from people involved in this practice in other jurisdictions, to benefit from their expertise. We do not need to hear from people from other jurisdictions who are, in principle, opposed to this practice. Why would it be appropriate to remove the evidence of a palliative care physician involved in this practice in favour of a head of infectious diseases, whose relevance I do not see because they are not engaged in this practice? That just highlights my point.
I commend my hon. Friend, Kim Leadbeater, for the flexibility she has already shown today in adding names, and for the spirit that she has shown so far. The fact is that all these individuals may give written evidence that we will all consider. I am in favour of us moving on, getting our evidence sessions done and making progress, and dealing with the detail of the Bill, rather than using the selection of witnesses to try to relitigate the Second Reading debate.
The Chair
Order. We are now in formal session, so I gently remind the hon. Gentleman that in formal session we refer to Members by their constituencies and not by their names. I am the only person who uses names, because I can never remember constituencies.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I, too, commend the hon. Member for Spen Valley for her efforts in pulling together this list; it is an unenviable task, given the number of contributions that were made.
It is important that we do not let the perfect become the enemy of the good. There is a wide range of individuals and organisations that we would all benefit from hearing from, but given the time available to the Committee—which is much more extensive than most private Members’ Bills have, by some margin—we are not in a position to hear oral evidence from all of them. But there is an open invitation for everyone to contribute written evidence and for us, as my right hon. Friend the Member for North West Hampshire noted, to speak to engaged parties outside the Committee to feed into our thought processes and deliberations.
On the amendments tabled, I understand the reasons for amendment (b) on the Royal College of Psychiatrists, but I have to say that I disagree. The hon. Member for Bradford West said it was about coercion. I could understand if she were making an argument that we need to hear from the Royal College of Surgeons about the issue of capacity, so I do not think that this is universally confined to psychiatrists; it is something, as a surgeon, I dealt with every day when I was getting consent for operations. We have to think about how we get a wide range of opinions on the subject: we have the Chief Medical Officer, who can comment on such issues from a policy perspective; we have the BMA, which I am sure will send representatives who will be most able to deal with the questions that are to be asked; and, of course, we have the General Medical Council, which is the ultimate regulator and arbitrator of this issue.
The Committee is also about ensuring that this legislation is as fit and as robust as possible when it goes back to the House for consideration. That is where I think that having a legislator from a jurisdiction in which this has been implemented is crucial. Not having the member for Sydney in the New South Wales Parliament—where they have implemented this, and have dealt with some of the thorny issues that the Committee and subsequently the House will have to deal with—would be a mistake. Likewise, having more geriatricians and palliative care physicians is a better balance than having those with some other expertise—well-meaning as they may be, they are not necessarily dealing with this at the coalface. I do not support the amendments for those reasons.
Jake Richards (Rother Valley) (Lab)
I will not speak for long. I merely echo what my hon. Friend the Member for Sunderland Central said: this is not an arms race. It is not about who can get more experts with different views; it is about trying to get a wide-ranging and broad sense of different aspects of the Bill. The list that my hon. Friend the Member for Spen Valley has produced does that. I made suggestions that are not on it, by the way, but as the hon. Member for Solihull West and Shirley says, we cannot let perfection be the enemy of the good.
I want to push back briefly on some things that have been said about the lawyers and legal experts. I do not accept what the hon. Member for East Wiltshire says about whether they are for or against, and I am not sure that his numbers tally with my reading of their views. That goes to the subjectivity of this issue. It is not black and white; lots of people have complex views on it.
I am not sure whether amendment (g) was moved, but in any event the notion that issues such as ECHR compatibility cannot be handled by Lord Sumption, Lord Neuberger and Baroness Hale—three former Supreme Court judges and potentially the best legal minds of their generation—is frankly absurd. We all have roles and responsibilities, as members of this Committee and as Members of Parliament, to challenge their evidence and to push different cases. I have no doubt that we are all qualified and able enough to do so without hearing from a junior barrister and a junior lecturer. That is not in any way to belittle their expertise, because I have read endless commentary from both the suggested witnesses that is very valuable and could be put to the three former Supreme Court justices, who grappled with such cases time and again.
Danny Kruger
I think Baroness Hale has been knocked off the list. Am I right? I do not think we are going to have the huge pleasure of hearing from Baroness Hale.
Jake Richards
Well, we have had lots of lists, but Lord Sumption and Lord Neuberger are giving evidence, I believe; Lord Sumption is, anyway. These things can be tested and challenged, so the notion that we need to have others is slightly absurd. We have the law lecturer from Cambridge University as well.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Diolch yn fawr iawn. I put it on record that I am very grateful that we will be able to find time for a legal adviser. It will not be a representative of the Senedd, because it has become apparent that the Senedd itself will not provide a Clerk to advise us. That seems to be a weak point in the process of making legislation: I think that as legislators we should be able to receive advice on the issue that is non-political and is perceived as non-political, so we probably need to address that in future. It will not be a representative of the Senedd, but I will seek within the time to get a legal advisor who is recognised as an expert in this field.
Jack Abbott (Ipswich) (Lab/Co-op)
I want to briefly address the implication or inference that my hon. Friend the Member for Spen Valley, who is leading the Bill, has not produced an incredibly balanced set of witnesses, or indeed a scrutiny Committee. I put it on record that in principle I am in support of assisted dying, but I did not feel that I could support the Bill on Second Reading, as I had a number of concerns including the strength of the Bill. We will be listening to evidence and discussing the issue not on the basis of principle, but on the basis of the strength of the Bill, the deliverability of the Bill and the number of safeguards, among other things. We are not here to debate the principle—that is a really important point.
Points that have been made about the suitability or otherwise of the people coming to speak to us. It is wrong to imply that any of those individuals will use their personal feelings or principles and discount their neutrality. Are we really saying that the British Medical Association, the judges who have been mentioned or the chief medical officer will put their own views in place of their expertise and knowledge?
I should say for the public’s benefit, my hon. Friend the Member for Spen Valley ensured that all Committee members were able to submit hundreds of names for consideration. In my view, she has come up with a panel of witnesses who are incredible experts in their field and have long-standing expertise in these areas, and we should absolutely listen to them.
I am sympathetic to the right hon. Member for Dwyfor Meirionnydd, who said that we may need extended time to hear from more people. I know that my hon. Friend the Member for Spen Valley would certainly be sympathetic to that and that we can look to do so, if it is necessary. However, the perfect cannot be the enemy of the good. We have to ensure that we move this Committee along at a decent pace and hear from all these people.
Our job is to scrutinise the suitability of the Bill, not the principles. On that basis I oppose the amendment, although I am not against some of the names that have been proposed. Maybe there will be an opportunity to hear from them in future, but I do not think that we can get into a situation where we are removing some names and adding others. We would be here all week if we did, so I will be opposing the amendment.
The Chair
I now call the promoter of the Bill. I will then call the mover of the amendment.
Kim Leadbeater
I thank colleagues for their time this afternoon. It has been an extremely productive session. I am very proud of the tone of the debate: I think we have done a very good job, as we did on Second Reading, of showing this place in a good light.
I reiterate that there are a range of views in this Bill Committee, in the same way that there are a range of views across the House on this significant and deeply emotive issue. There are a range of views among the witnesses we will hear from, and I spent a huge amount of time ensuring that. Colleagues have given me more than 100 names of people they might like to hear from. I had my own list of people I would like to hear from, and many of them are not on the list of those who will give oral evidence.
I have tried to be extremely balanced, so we will hear from people with a range of views and opinions, but most importantly we will hear from people with expertise. That is the purpose of the Committee: to hear from people who can advise us on the detail of the Bill. We will go through this Bill line by line, and we need to hear from people who can help us to do that. We have some fantastic expertise on the Committee, but for many of us there are areas that we need to learn more about. It is important that the witnesses give us the information to enable us to do that, rather than—as numerous colleagues have said—once again going over the fundamental principles around assisted dying, because we did an excellent job of that on Second Reading.
At the end of our endeavours, we will produce a piece of legislation that will be re-presented to the House, and colleagues will again have the opportunity to vote on it however they see fit. There may be people in this room who vote differently from how they voted on Second Reading; there may be colleagues out there who do likewise, one way or the other.
I am very clear about this Committee’s role, which is to work on the Bill together, collegiately and collaboratively, irrespective of our different views, and re-present it to the House so that the House can continue to do its job. It is not just the Commons; the Lords will also have the opportunity to scrutinise the Bill and table amendments. I have always been open about the fact that this is about us working together. Where the Bill needs to be amended to make it more robust and alleviate people’s concerns, whether that is around coercion or capacity, that is now the Committee’s job. I stand ready to serve and to do that.
We have spent a lot of time this afternoon on this, and quite rightly so. As far as I am concerned, we are now in a position to move forward. I am very happy that we will hear from so many witnesses over several days, and I am happy that I have added more time to that so that we can hear from more witnesses, which I think is important. As colleagues have said, our job now is to get on with this really important piece of work.
Naz Shah
I thank my hon. Friend the Member for Spen Valley, the promoter of this Bill, because she has been very helpful. She has certainly added one of my key witnesses to her list, and I am grateful for that.
I want to respond to some of the points that have been made. One of the biggest issues for me is amendment (b), which would insert “Royal College of Psychiatrists”. My hon. Friend the Member for Ashford made the point that all psychiatrists come under the GMC, but not every member of the GMC is a psychiatrist. That speaks to the issue of coercion, mental health and capacity. That is the expertise that I am looking for in the line-by-line scrutiny of the Bill, and I would really like to hear from the Royal College of Psychiatrists.
I am happy to be guided by you, Sir Roger, because I am new to this process and I have not done a Bill of this nature before, but my only worry with the outside evidence and briefings is that they will not be on the record when we are looking at Hansard and seeing whether they have been taken into account. I would be happy to receive some assurance about that. Yes, we can organise lots of briefings and lots of experts, but does that not defeat the object of having this debate so robustly in the first instance?
The hon. Member for Harrogate and Knaresborough raised the issue of language, and the point about added value. I think that language is correct, because I do want to add value to this debate. I want value added, because it is important for my constituents that when I vote on the Bill on Report, I do so knowing that I have listened to all sides of the debate.
My hon. Friend the Member for Stroud asked whether this is a for-and-against argument. In particular, he said that we do not need to hear from those who are opposed, because we want to strengthen the Bill so that it can go through the House. Although I appreciate the sentiment, I put it to everyone that it is not about getting the Bill through; it is about getting the right information so we can scrutinise whether it is fit to go through the House. For that reason, it is important to hear from those who are opposed. It is naive to think that we only need to hear from people who are in support.
Naz Shah
Sorry—may I just make my point?
I need to know the other side of the argument in order to make a balanced decision. Those who are opposed to the Bill might have very valid concerns, while those who have expertise in support of the Bill might not give me the same arguments. I want to hear a balance. At the moment, I think there is a real discrepancy between the number of people who are for and against the Bill; it is not very close.
I appreciate that my hon. Friend the Member for Spen Valley, the Bill’s promoter, really wants to get this legislation through Parliament. I also value how she has taken part in the debate and been amenable to having discussions both in Committee and in our offices. I have given my reasons for tabling the amendment, and I particularly want the Committee to accept amendment (b), on the Royal College of Psychiatrists; that is my top amendment.
Question put, That the amendment be made.
“Thursday 30 January | Until no later than 5.00pm | Richard Robinson, CEO of Hourglass, Cherryl Henry-Leach, CEO of STADA, Sarah Mistry, CEO British Geriatrics Society”.—(Naz Shah.) |
Date | Time | Witness |
|---|---|---|
Tuesday 28 January | Until no later than 10.05 am | Sir Chris Whitty (Chief Medical Officer for England), Duncan Burton (Chief Nursing Officer) |
|
|
|
Tuesday 28 January | Until no later than 10.45 am | The British Medical Association, The General Medical Council |
|
|
|
Tuesday 28 January | Until no later than 11.25 am | Association of Palliative Care Social Workers, Royal College of Nursing |
|
|
|
Tuesday 28 January | Until no later than 3.15 pm | Dr Rachel Clark, Dr Sam Ahmedzai (Emeritus Professor at the University of Sheffield), Sue Ryder, Association of Palliative Medicine |
|
|
|
Tuesday 28 January | Until no later than 4.15 pm | Sir Max Hill KC, Alex Ruck Keene KC (Hon), Sir Nicholas Mostyn. |
|
|
|
Tuesday 28 January | Until no later than 5.00 pm | Dr Ryan Spielvogel (Senior Medical Director for Aid in Dying Services, Sutter Health, USA), Dr Jessica Kaan (Medical Director, End of Life Washington) |
|
|
|
Wednesday 29 January | Until no later than 10.25 am | Dr Greg Mewett (Specialist Palliative Care Physician, Australia), Dr Clare Fellingham (Deputy Director of Medical Services, Royal Perth Hospital, Australia), Dr Cam McLaren (Oncologise, Australia and New Zealand). |
|
|
|
Wednesday 30 January | Until no later than 11.25 am | Professor Tom Shakespeare CBE FBA (London School of Hygiene and Tropical Medicine), Dr Miro Griffiths (University of Leeds), Yogi Amin (Partner, Irwin Mitchell), Chelsea Roff (Eat Breathe Thrive) |
|
|
|
Wednesday 30 January | Until no later than 3.00 pm | Professor Jane Monckton-Smith OBE (University of Gloucestershire), Dr Alexandra Mullock (University of Manchester), Professor Allan House (University of Leeds), Professor Aneez Esmail (University of Manchester) |
|
|
|
Wednesday 29 January | Until no later than 4.00 pm | Dr Lewis Graham (University of Cambridge), John Kirkpatrick (EHRC), Lord Sumption |
|
|
|
Wednesday 29 January | Until no later than 5.00 pm | Hospice UK, Dr Jamilla Hussain (Bradford Teaching Hospitals NHS Trust and Hull York Medical School), Dr Jane Neerkin (Consultant Physician in Palliative Medicine), Marie Curie. |
|
|
|
Thursday 30 January | Until no later than 12.30 pm | Dr Chloe Furst (Geriatrician and Palliative Care Physician, Adelaide), Alex Greenwich MP (MP for Sydney, Parliament of New South Wales), Professor Meredith Blake (University of Western Australia) |
|
|
|
Thursday 30 January | Until no later than 2.00 pm | Dr Amanda Ward, Professor Gareth Owen (Kings College London and South London and Maudsley NHS Trust), Professor Laura Hoyano (Professor of Law, Oxford University and Red Lion Chambers) |
|
|
|
Thursday 30 January | Until no later than 3.00 pm | Professor Nancy Preston (Lancaster University), Dr Naomi Richards (University of Glasgow), Claire Williams (Head of Pharmacovigilance and Regulatory Services, North West eHealth DipHE Adult Nursing, MSc Pharmacovigilance, and Chair, Greater Manchester Central Research Ethics Committee)
|
Thursday 30 January | Until no later than 4.00 pm | People and families of those with relevant experience. |
|
|
|
Thursday 30 January | Until no later than 5.00pm | Mencap, Representative of Senedd Cymru |
The Chair
The Committee has agreed that the first day of line-by-line scrutiny will be Tuesday 4 February. The deadline for amendments to be considered on the Committee’s first day of line-by-line scrutiny is on Thursday 30 January. The first day of oral evidence will be Tuesday 28 January.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Kim Leadbeater.)
The Chair
Copies of the written evidence received by the Committee will be made available in the Committee Room.
For the record, we are seeking a Committee Room in which our proceedings can be televised. I will try to find as much accommodation for public space as possible, because there may be considerable interest in the Bill.
Ordered, That further consideration be now adjourned. —(Kit Malthouse.)
Terminally Ill Adults (End of Life) Bill (Money)
Wednesday 22nd January 2025
(3 months ago)
Commons ChamberTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 22 January 2025 - (22 Jan 2025)
The Minister for Care (Stephen Kinnock)
I beg to move,
That, for the purposes of any Act resulting from the Terminally Ill Adults (End of Life) Bill, it is expedient to authorise the payment out of money provided by Parliament of:
(1) any expenditure incurred under or by virtue of the Act by the Secretary of State, and
(2) any increase attributable to the Act in the sums payable under or by virtue of any other Act out of money so provided.
The Government are of the view that the Bill is a matter for Parliament rather than the Government to decide. In order for the Public Bill Committee that is now scrutinising the Bill to consider the clause that would have spending implications, the Government must first table this money resolution. This is purely to allow the Bill to be debated in Committee, and the Government have taken the view that tabling this motion does not act against our commitment to remain neutral. Only the Government can table such motions, so tabling it allows further debate to happen. To assist that debate, the Government will also assess the impacts of the Bill, and we expect to publish the impact assessment before MPs consider the Bill on Report.
Madam Deputy Speaker (Ms Nusrat Ghani)
I call the shadow Minister, Dr Kieran Mullan.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I am conscious of the limited time available and so will keep my remarks focused. I appreciate that it is not commonplace for Front Benchers to speak at length on money resolutions, but this is not commonplace legislation. I reiterate that His Majesty’s loyal Opposition have taken a neutral stance on the merits of the Bill, both in principle and in detail. The House has expressed its support for the introduction of assisted dying, and Members are currently considering the Bill in detail before it is presented back to the whole House for further consideration. The money resolution is a necessary part of associated legislation. Proponents of the Bill will welcome the Government bringing this forward, as it is not unheard of for Governments to withhold these resolutions in a manner that delays the progress of legislation.
Jim Shannon (Strangford) (DUP)
There are concerns from those of us who voted against the assisted dying Bill. I understand the process, and how it works with the money resolution coming forward, but on the day that this was finalised I asked a question, and the make-up of the Committee was 15 of those who voted for the Bill, and nine who voted against. A secrecy process has now been brought into the Bill, and we do not know what is happening. That is against the rules of this House. The second thing they have done is the issue of withdrawing the opinion of the judges, which is also out of order.
Dr Mullan
I hope that the hon. Member will appreciate that the money resolution is narrow in scope—I will perhaps bring the attention of the House to some tangentially related issues when it comes to the role of the Government in these proceedings.
As I said, proponents of the Bill will be glad of the progress that has been made, but this motion brings into sharp focus the fact that at some point the Government will need to fund, organise and provide assisted dying services to reflect any legislation that receives Royal Assent. As the Minister said, the money resolution will provide the legal basis for funding that service. I recognise that we are not yet at the stage when the Government can say with certainty what exactly those services and their associated funding will look like. There is time still for changes to be made, and we should not of course make an absolute assumption that any Bill will pass all its stages, as likely as that is, given the will of Parliament as expressed to date.
As the Bill proceeds, it will become increasingly important, and helpful to Members voting on future stages, to begin to have some idea of how the civil service and Ministers are envisioning enacting the legislation, not least in relation to the matter of resources before us today. The hon. Member for Spen Valley (Kim Leadbeater) estimated that up to 3% of adults may eventually choose assisted dying. In 2023 there were 577,620 adult deaths in England and Wales. If 3% of those were assisted dying cases, that would result in about 17,000 cases annually. Those are not insignificant numbers, and Members will recognise the considerable existing challenges with resources and personnel in the relevant areas of spending.
Although this is not a Government Bill, the Lord Chancellor has ultimate responsibility for ensuring the effective functioning of our legal system and judiciary, as does the Secretary of State for Health and Social Care for the delivery of this service, and how that will balance and interact with the other health services provided. I therefore have a small number of questions relating to resources, which I hope the Minister agrees will assist the House in better understanding how the Government are approaching such matters.
If information is not forthcoming today, it is crucial that the Minister sets out, in slightly more detail than he did earlier, at what point the Government will engage more fully with the detail of how they intend to resource the Bill, and start sharing their considerations. First, have the Government produced at the very least internal estimates of a potential range of the costs of delivering an assisted dying service, for both the NHS and the judiciary? If they have, will they share that with the House today? If they have not produced internal estimates, when do they anticipate doing so, and when do they intend to publish such estimates?
Secondly, have the Government identified potential sources of funding for the service? If they have, will that funding come from existing departmental budgets, or will it be allocated from outside currently allocated funding? In the latter case, where will those additional resources be drawn from? If the Government have not yet produced options for Ministers to consider on these questions, when will they do so, and when will they share them with the House?
Questions of resources relate to the impact on existing services of any decisions that the money resolution enables. The closer we come to the closing stages of the Bill, particularly ahead of any final parliamentary vote on a settled set of proposals, the more important it will be that Members get the benefit of answers to those questions, which can only come from the Government. It is important to say that it is perfectly legitimate for Members to decide that a better understanding of these issues is not an absolute necessity, and it will be for Members to decide whether they are happy to support legislation purely on principle. That may well be the position for many Members of the House, but I think most would agree that it would be preferable to be able to vote with, at very least, possible approaches and assessments of these matters, even if not definitive answers.
In conclusion, these are not merely procedural or technical issues. The Government’s tabling of this motion signals an acceptance that, should the Bill become law, the financial costs will need to be met, and that will not be a minor area of expenditure. This House has a duty to scrutinise every aspect of the Bill, and I urge the Government to provide a degree of clarity that only they can provide to assist Members in doing that. At this stage there has been a clearly expressed will of Parliament to introduce this service, and it is right for the Government to make legal provision for funding it in principle. However, the Government should enable Members to make decisions at future stages with as good an understanding as possible of how the legislation they may wish to support will translate into the real world.
Several hon. Members rose—
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. Members should keep their contributions within scope. This is about the financial implications of the Bill if it is passed, so let us keep contributions within scope.
Kim Leadbeater (Spen Valley) (Lab)
On 29 November last year, in a debate widely described as showing Parliament at its best, this House sent the Terminally Ill Adults (End of Life) Bill into Committee for scrutiny by a majority of 55. It was the clear will of this place that the Bill should be allowed to proceed, in the knowledge that Members will have further opportunities on Report and beyond to decide whether it should be enacted. For that process to continue, the resolution before us today must pass.
Those who oppose the Bill on principle—something they are absolutely entitled to do—are seeking to suggest that there is something extraordinary or improper about this process, and on that they are simply wrong. This is a standard procedure that comes before this House all the time. Without it, there can be no Bill—that, I humbly suggest, is sadly what some people intend. This is not a blank cheque, as some Members have suggested. The right time to discuss the detail of what expenditure may be required is when we know the final shape of the Bill. At that point, if Members are concerned about the expenditure required, or indeed anything else, they can of course vote as they wish.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Lady says that the right time to discuss the capacity of the judiciary and health service to deliver the Bill is presumably once it has completed its Committee stage, but should the Committee that considers the Bill have the impact assessment that allows it to scrutinise it line by line, mindful of the implications that it might have on our health service and our judiciary?
Kim Leadbeater
I respect the right hon. Gentleman’s question, but I would say that point is slightly out of the scope of the money resolution. However, I think it is a fair point, and I acknowledge that a lot of work is being done, as the Government said it would be, to look at the workability and operability of the Bill. I am working closely with Departments on those issues, and those conversations will continue, alongside the work of the Committee. I hope that provides him with some reassurance.
The other point is that I have never sought to stifle debate on the Bill or this really important issue; quite the contrary. I value it and I welcome it, but I do ask that it continues to be conducted in the same respectful and considered manner as on Second Reading. Where we disagree, let us do so with respect and without questioning each other’s motives or integrity.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I congratulate my hon. Friend on how she has conducted this important debate. On stifling debate, does she share my hope that there will be no vote against the money resolution, because such a vote would end debate? While there was a strong vote in support of the Bill, there were many strong arguments for amendment and there was opposition. Does she agree that that debate needs to happen as the Bill proceeds and not be stifled and ended today?
Kim Leadbeater
I absolutely agree with my hon. Friend. Having done such a powerful job of debating this issue on Second Reading, it is crucial that we continue that debate in the right manner, as Parliament voted to do. It would be wrong for anything that happens today to put a stop to that debate and those discussions.
Let us not forget that the public are watching our deliberations carefully and that the issue we are discussing means a huge amount to many people. It is extremely serious and, for many, hugely emotive. We owe it to our constituents to treat it with the seriousness it deserves. I ask Members to consider carefully what it would say about us as a Parliament if such an important debate were to be curtailed as a result of procedural manoeuvring, which, sadly, is what I worry is being attempted by some colleagues today.
The money resolution is not about the pros and cons or the detail of the Bill; it will simply allow for proper scrutiny—including of any cost involved—to continue, and mean that the Bill Committee can begin its important work. I urge Members to support the resolution.
Several hon. Members rose—
Madam Deputy Speaker (Ms Nusrat Ghani)
To ensure that as many colleagues as possible can get in during the time allowed, there will be a speaking limit of four minutes.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Member for Spen Valley (Kim Leadbeater) is right that this is not unprecedented; in fact, it is the normal procedure for a money resolution relating to a private Member’s Bill to be debated ahead of Report. That is not true of Government Bills, as you know, Madam Deputy Speaker. However, it is really important that we examine the detail of what we are presented with today, which is an open-ended commitment. The wording makes it absolutely clear that
“any expenditure incurred under or by virtue of the Act by the Secretary of State, and…any increase attributable to the Act in the sums payable under or by virtue of any other Act”,
money is so provided. The hon. Lady says that this is not a blank cheque, but it cannot get much more blank than that. Essentially, any moneys associated with the Bill—if it becomes an Act—will be provided.
Pertinent to this vote, we have to ask the question: where will that money come from? Presumably it can come only from existing resource, and one assumes palliative care; it will not come from A&E, surgical treatments or GPs, so it will presumably come from that source. One does not know, of course, but it is perfectly reasonable to ask that question.
Sir John Hayes
I will in a second.
On the judicial point, I simply say to the hon. Lady that the establishment of a judicial competence to deal with this system will be resource-hungry. To offer her a parallel example, when I took the Investigatory Powers Act 2016 through the House, we established what was then described as a double lock—it became a triple lock—which required a whole new judicial function to make it happen. It may well be that the same applies in this case, with immense cost and immense pressure on an already overstretched judiciary.
Therefore, in considering those precise matters—not the ethics of the Bill, which are an entirely different consideration, and highly questionable—it is absolutely right and pertinent to ask what this will cost, when, and how it will be delivered. Those questions have not been answered. I scanned the hon. Lady’s speech on Second Reading, and it contained no mention of scale or cost. That is why I am immensely sceptical about what we have before us. While I accept that the money resolution is not unprecedented, it is certainly not desirable.
Maya Ellis (Ribble Valley) (Lab)
A major argument in the debate on assisted dying has been about making it accessible to all, rather than only those who can afford to travel to access it. The argument is made about dignity in dying. I struggle to see the fairness, however, in pursuing spend to allow dignity in dying when we struggle to fund dignity in other areas of the NHS. I am sure that many midwives and those who have been through pregnancy and birth in recent years will agree that severely underfunded maternity services can lead to experiences completely lacking in dignity for mothers. The impact can last throughout the life of a family. In September 2024, the Care Quality Commission found that almost two thirds of inspected maternity units were unsafe to birth in.
We likewise know that the dignity offered to disabled people, those receiving palliative care and those in supported living is often far less than they deserve. One of the biggest flaws in the Bill, therefore, is the money resolution. I do not see how we can sign a blank cheque to guarantee dignity only in death when dignity in all parts of life is still so desperately in need of resources, and equally deserving.
Maya Ellis
I will not, if that is all right. Sorry.
At the other end of the spectrum, we need to be acutely aware that we are not today expanding overall budgets in the NHS, so what we agree to in this money resolution will put further strain on our already stretched NHS. That means that, for example, St Catherine’s hospice in my constituency, which already requires private fundraising for almost 80% of its income, will have further NHS funding pulled away to accommodate publicly funded assisted dying. It is prudent for us to make clear what we put at risk if we vote through the Bill, having agreed this money resolution. The resolution means that money for palliative care will likely be diminished. The House should consider that in the next stages of the Bill, given what it is supposedly designed to alleviate.
Finally, let us make it clear what we are agreeing to today. I have asked a few times, and never really got a clear answer, why making assisted dying legal has to go hand in hand with a commitment to funding assisted dying on the NHS. Most of us, including me, fiercely protect the idea of an NHS that is free at the point of use, but we risk maternity services encouraging women to pursue induced births rather than planned caesareans, partly because of resource limitations in the NHS. I caution against an agreement to spend money on guaranteeing dignity in dying when we lag so far behind on guaranteeing dignity in birth, and in many other areas.
Kit Malthouse (North West Hampshire) (Con)
I rise to support the money resolution, broadly for two reasons. The first is the significant risk to the reputation of the House. One of the greatest criticisms of this place is that we play games and do not take these issues seriously. We all accept that, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) said, a money resolution is normally a technicality for private Members’ Bills. If the Bill fell at this moment, we would not only deny debate to those Members who expressed either soft opposition or soft support for it on Second Reading, but strike a hammer blow to millions of people in the United Kingdom who are looking to us for a sense of leadership and clarity on this issue.
I hope that there will not be a Division today, but if there is, I urge Members to vote in favour of the resolution. Those Members thinking of voting against should bear in mind that the message that would go out from this place would be that a matter of life and death—a matter fundamental to many people, and on which there are profound feelings on both sides of the debate, as we have seen—can be dismissed on the basis of a casual, technical vote on a quiet Wednesday afternoon. That would be a bit of a travesty. I hope that Members realise what is reputationally at risk.
Secondly, there is broad misunderstanding of what the Bill is designed to do. The hon. Member for Ribble Valley (Maya Ellis) said, in effect, that the money resolution offers a blank cheque. Well, the rest of the NHS is already a blank cheque. Over the years, things have evolved in such a way that Parliament gives Government Ministers permission, through estimates, to make judgments about how they prioritise spending on the services for which they are responsible; and the Chancellor makes judgments about spending for Departments. If this House starts micromanaging spending—saying what the Government should spend on particular drugs, treatments, crimes or interventions—we will end up in an unholy mess. I have yet to hear anyone in this House object, for example, to the creation of a new criminal offence on the grounds that it would be more costly for the police. I have yet to hear anyone in this House object to the NHS prescribing a new drug because it will be costly for the health service.
We must remember that the people we are talking about—the dying individuals who may want to make this choice at the end of their life—are already receiving treatment in the national health service. They are already reliant on expensive care services, drugs and so on, as well as social support mechanisms that cost the taxpayer. It is, of course, important that we see the overall impact assessment, but we should not pretend that the status quo is cost-free, because it is costly—not only in monetary terms, but in terms of humanity. We should not forget that we are attempting to put a price on quality of life, and on mercy at the end of life. I urge Members to reflect on that and support this motion.
Finally, let me address the misunderstanding by the hon. Member for Strangford (Jim Shannon). There was no attempt yesterday to create any air of secrecy about consideration of the Bill in Committee. There was a brief period in which we had hoped to have an informal discussion about witnesses, before the public sitting resumed, which is normal for Bill Committees in these circumstances. Unfortunately, that has been misconstrued, but I guarantee that the rest of proceedings will be open for the public to view.
Paula Barker (Liverpool Wavertree) (Lab)
My hon. Friend the Member for Spen Valley (Kim Leadbeater) has led this important debate with openness and transparency at all times, and has treated all views with dignity and respect. She is acutely aware of the strongly held beliefs on both sides of this debate. Many right hon. and hon. Members expressed the concern that there was not enough time to debate the Bill. It is important to ensure the maximum amount of debate on this important Bill, and to ensure that all views are heard. The public wish to hear a considered view from all parliamentarians in this place, and we owe it to them to ensure that the debate continues, while treating each other with dignity and respect, just as we did last November, when we saw this place as its very best.
A money resolution is standard for any Bill put forward by the Government or an MP. The wording is identical to any other money resolution for any other Bill. It is important that all Members are clear that this debate is not about the merits or otherwise of the Bill, and it would be incredibly disappointing if any Member sought to use it as such.
Mr Alex Barros-Curtis (Cardiff West) (Lab)
Does there not appear to be some confusion about the motion? It clearly says that this procedural motion has to be laid before the House
“for the purposes of any Act resulting from”
the scrutiny and debate that is to come. If hon. Members on either side of the debate, and on either side of the House, having considered the final version of the Bill, think that it should not be agreed to for monetary reasons, will not that be the time to vote no to the Bill?
Paula Barker
I will come to that point shortly. My hon. Friend the Member for Spen Valley has sought every opportunity to be inclusive, and has sought a wide range of views, because she knows the value of all voices being heard. If the resolution does not pass today, the Bill cannot progress. I remind right hon. and hon. Members that that is not what the House voted for in November, and it is certainly not what our constituents want.
Three full days of oral evidence from 50 witnesses will begin next week. That will be followed by at least eight full days of scrutiny. None of that will proceed if the resolution is voted down today. I appeal to Members across this place, regardless of their views, to let us have the long overdue, open and transparent debate that will enable Members to formulate a final opinion on the Bill, irrespective of what that may be. To stifle it would be to stifle democracy. We must remember that democracy is a slow process of stumbling to the right decision, instead of going straight to the wrong one.
Brian Mathew (Melksham and Devizes) (LD)
Let me start by saying that I am in in favour of the motion, so I will vote for it, if it comes to that. However, would the hon. Member for Spen Valley (Kim Leadbeater) and the Minister consider the inclusion of two social workers on the group, made up of two GPs and a High Court judge, that assesses requests for assisted dying?
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. Your contribution has to be within the scope of what we are discussing, which is the financial organisation of the Bill.
Brian Mathew
There would be added expense. Social workers are trained in understanding family dynamics, and need desperately to be involved in these situations.
Kim Leadbeater
I take that point on board. I had a very productive meeting with the Association of Palliative Care Social Workers yesterday, and we had a useful conversation on that issue.
David Smith (North Northumberland) (Lab)
I would like to raise a couple of practical and principled concerns about the finances around assisted dying. First, on the practical, I welcome the comment from my hon. Friend the Minister that there will be an impact assessment in due course. However, until we see it, we have no idea what the measure will cost. We are being asked to approve a blank cheque for assisted dying. We have heard that the NHS is a blank cheque, but the NHS has a clearly defined budget. At this point, we do not have any sense of what the Bill will cost. If that were the case for any other legislation, we would be shouting about it.
The Bill represents a profound change to the very nature of our healthcare system, and we are simply guessing at the cost. That is not good for the Bill Committee’s ability to scrutinise, and not good for this place, or for the democratic and legislative process. In order to legislate well, we need a firm commitment. I am glad to have heard that the impact assessment will be published before Report. We have heard from my hon. Friend the Member for Spen Valley (Kim Leadbeater) that the motion is routine, and I accept that. However, the consequences are extraordinary, and that is why this is an important moment.
On the principle, whatever the cost, once it is assessed, and despite the Government’s recent financial boost for the hospice sector, palliative care is massively underfunded. The postcode lottery in the provision of end of life care has led to some of the horror stories that we heard on Second Reading. The hospice sector has only 30% of its funding provided by central Government, so this technical stage represents a commitment to taking potentially scarce funding from end of life care and allocating it to ending lives.
David Smith
I do not have time. That opens up the dark possibility of a race to the bottom—to looking for savings in the health and social care budget. Any Government would be tempted, where cost saving is a possibility, to push assisted dying as a cost-saving measure; we have seen that in jurisdictions such as Canada.
Finally, let me say this with humility and respect to my hon. Friends on my left. I fear that the Bill will lead to the marketisation of death and dying. We have learned from other jurisdictions that many medical services and clinicians do not want to be part of the delivery of assisted dying, for reasons of principle or because they fear that they will be sued. Independent private health organisations will have to take over to fill the space. Those businesses will have shareholders and annual reports. They will be driven by the desire to maximise profit, with death for the bottom line. They will advertise and seek to expand their market share.
David Smith
I am sorry; I am almost finished. This could seem like a tangential point to make on a money resolution, but, to summarise this and my other points, I fear the consequences of the relationship between money—this resolution in particular—and assisted dying. Although I will not be voting against this resolution, because I believe in the democratic process, I think we seriously need to consider the relationship between money and this Bill.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
Unfortunately, this debate and the circumstances of this money resolution are a manifest example of the concerns I have raised about this Bill and the process of taking it forwards. Many Members talk about debate, and it is important that this issue is debated; however, what is critical is scrutiny—ensuring that we can properly scrutinise the Bill, the work that is put into a very complicated area of law, and what would be, if the Bill were to pass, a manifest change in the relationship between the state and its citizens.
This money resolution is in the name of a Treasury Minister, the response at the Dispatch Box on Second Reading was from a Justice Minister, and we have a Health Minister here today. We cannot say whether the Bill will be paid for by the Ministry of Justice, and what the liability will be. What is the health liability? How much will be in private hands, and how much will not? What about legal aid? There are all these spin-out costs from the Bill.
As a parliamentarian, I like to scrutinise. I want to see impact assessments; I want to see what the spending that I am being asked to vote for looks like, yet we do not have that information. Members have said that the Bill will come back on Report, and the Government are in a hokey-cokey position: sort of in, sort of out—what’s it all about? I am sorry, but I do not think that is good enough for something of such importance to our constituents and for Parliament to get right.
Antonia Bance (Tipton and Wednesbury) (Lab)
Last summer’s Labour manifesto included the words
“Fully costed, fully funded—built on a rock of fiscal responsibility”,
and they were words on which I was proud to be elected. Money resolutions are normally a formality, but not this one—not today. This resolution asks us to give a blank cheque to this Bill, which makes me nervous, because that sounds like something that we in this changed Labour party just do not do. When we put forward a proposal for public spending, we know how we will fund it.
Antonia Bance
No, I will not.
In the case of this Bill, we not only do not know how much it will cost or how it will be paid for, but we do not even know what the money will be spent on. Let us think of the questions that we do not know the answers to. What will be the cost of NHS doctors attending the final appointment and waiting while their patient dies? What will be the cost of a second doctor to sign off? What drugs will be used, and how much will they cost? Will assisted dying happen in hospitals, in hospices or in new, purpose-built facilities? How many will there be, and where?
Antonia Bance
No.
How much will those facilities cost? There are even bigger questions, too. Will this be an NHS service, or will we be contracting private providers? If it is an NHS service, which of my constituents will have to wait longer for an operation or a GP appointment because this Parliament will today authorise massive, unspecified spending in our cash-strapped NHS?
Antonia Bance
I will not—I have only a little time.
It is not just the health system that will take on new costs. Our civil courts are groaning under the strain of years of Tory underfunding, although my right hon. Friend the Justice Secretary is doing a brilliant job of putting our court system back to rights. However, this Bill will impose new unfunded and unknown costs on our courts. It blithely assumes that judges and courts will be available, yet the waiting time for a family court case at the moment is 10 months. That just will not work for the Bill. How much will the extra spending on courts cost?
Antonia Bance
I will not.
Those are all reasonable questions, and this House deserves to have many more answers than it has so far been able to get. According to the Hansard Society,
“To table a money motion, the Government must therefore assess how much money will be required and have some idea about where the funding will come from, although it is not required to set this out in the motion itself.”
That information is not in the motion, so will Ministers make that assessment available and set out where the funding will come from? I am glad to hear we have a timetable for the impact assessment, but it would be good also to see the delegated powers memorandum, given the scale of powers delegated to Ministers in the Bill.
Alongside others, the Minister is a member of the Public Bill Committee, and I thank him and all members of the Committee for their work on behalf of this House, scrutinising and seeking wisdom. I particularly thank the Minister for upholding the neutrality of this Government and our party towards the Bill in his acts on the Committee and in this House.
Those of us with concerns will not push this resolution to a vote today. I know that colleagues are desperate for there to be procedural game playing, but there is no such thing; there are in principle concerns and questions about practicalities. I do hope for some answers to my questions.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Can we just state what is really quite obvious? This House has voted for further debate in order to make workable and legally watertight legislation, and with that debate will come a full understanding of the resources needed for both England and Wales. Of course, in Wales, health is devolved and justice is reserved, and we need to understand the implications for that.
What has been a bit of an eye-opener for me, as a member of the Bill Committee—it is, of course, a larger Bill Committee for a private Member’s Bill than ever before—is the sense of the way in which this place operates. We have been given the role of producing workable legislation as best we can, on the advice of witnesses—there is a part of me that would like the Committee to receive more witnesses, but I am very aware that we have to move ahead with what we have been charged with doing: namely, producing that workable legislation—but we will not arrive today, next week or after we have heard from our witnesses at a complete, perfect, already-made understanding of what we need to do to make correct and workable legislation. For those things to be in place today, the House would need estimates and information that the Bill Committee has been charged with providing, which it will not be able to provide until we have heard the advice from the witnesses we are calling forward to give us a sense of what the resource needs and associated costs will be.
It will then be the duty of us all on Report and on Third Reading to ensure that the money and resources are sufficient for the legislation to be workable. With that in mind, I support this motion.
Daisy Cooper
Members in this House who have spoken against the money resolution say they are doing so because they have so many unanswered questions about the costs. Does the right hon. Lady agree that if Members vote against the resolution, they will never get those answers? That is precisely why the Bill should move forwards.
Liz Saville Roberts
Let us imagine what the public would make of our role in this place if this legislation were to fall at this point.
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. We are going to drop the speech limit to three minutes.
Anna Dixon (Shipley) (Lab)
Colleagues will know that I put forward a reasoned amendment on Second Reading. In that amendment, and in my speech in that debate, I set out some of my concerns about how the private Member’s Bill process does not allow for sufficient scrutiny to develop complex legislation on such a sensitive matter. Indeed, such a once-in-a-generation approach to suicide, death and dying and these changes need to be looked at independently and in a formal public consultation.
This House was given reassurances, both by the promoter of the Bill, my hon. Friend the Member for Spen Valley (Kim Leadbeater), and the Leader of the House, in the light of which some colleagues voted for the Bill on Second Reading to allow the process to proceed. As part of that, reassurances were given about an impact assessment, which would have included an estimate of costs. I am pleased that my hon. Friend the Minister has given assurances that an impact assessment is forthcoming, but we do not yet have it. As a result, we are very unclear at this point how much assisted dying would cost to implement.
I therefore seek clarification from the Minister and others involved on a number of questions. Will assisted dying be offered free on the NHS? How many people do we estimate will expect to exercise their right under the Bill? There are a wide range of estimates out there, based on overseas jurisdictions.
Anna Dixon
No; I have very little time.
How much will it cost for the additional doctors, nurses and other healthcare professionals? How much time will be required to do a proper consultation? What about the lengthy paperwork? Will new clinics be set up, or will existing facilities be repurposed? What will be the costs of the lethal drugs? What about the oversight by the National Institute for Health and Care Excellence and other regulators? What about the training for healthcare professionals involved in the process, and the cost of oversight by the chief medical officer and the Registrar General, and any new data systems required?
It is clear that palliative and end of life care is in desperate need of investment; some 100,000 people die each year who could benefit from end of life care but do not receive it. If assisted dying is to be implemented, it is essential that there is equitable and free access to hospice care, so how much additional funding would be provided to hospices for palliative and end of life care under this money resolution or from elsewhere?
I fully support this Government’s commitment to fixing the NHS, establishing a national care service and providing additional investment, as they have already shown, to hospices. However, I would like the Minister to provide clarification to assist our understanding because, given our inheritance from the Conservative party, I am concerned like others that funding for assisted dying risks diverting essential resources away from end of life care, other NHS services and social care. I look forward to the Minister’s response.
Jim Allister (North Antrim) (TUV)
There is no more important function for Members of this House than that of being the guardians of public money. It is very hard to equate the performance of that function with signing a blank cheque, and yet that is what we are being asked to do today. One thing is abundantly clear: if this Bill passes, it will bring with it a huge financial burden in perpetuity.
Jim Allister
I would be happy to do so in a moment.
It is quite clear that the measures will impose huge costs on the health and justice budgets. Given the provisions in the Bill, is it impossible for that not to be the consequence, so when the Treasury Minister produces the financial information, will he include current Government expenditure on palliative care and suicide prevention, so that we can look at and balance what we are spending? The Bill invites the Government to move from funding charities to prevent suicide to becoming facilitators and providers of suicide.
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. Mr Allister, we must confine our remarks to the money resolution for the Bill.
Jim Allister
Madam Deputy Speaker, I was seeking to do that by asking the Treasury Minister to give us a comparison. What is this Bill going to cost our health service and justice system? How does that compare with what we are already spending on palliative care and suicide prevention? Those are pertinent questions and we need the answers.
Carla Lockhart (Upper Bann) (DUP)
It is mind-blowing that there is no money to pay for winter fuel payments or to support the Women Against State Pension Inequality campaign, yet the House is about to approve the provision of a bottomless pot of money to create a state-funded, gold-plated assisted suicide service.
Jim Allister
I agree. We all have our views on the merits of the Bill, but fundamentally we have a duty to our constituents to handle public money properly. In handling that money, we must know how much the Bill will cost. When it comes to that financial statement, it must not be fudged or opaque; it must be absolutely clear and it must—
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. I must now call the Minister.
The Minister for Care (Stephen Kinnock)
I thank Members for their continued contribution to the debate. The Government are of the view that the Bill is an issue of conscience for individual parliamentarians and it is rightly a matter for Parliament, not the Government, to decide. The money resolution allows the Bill to be debated in Committee, where its detail will continue to be scrutinised. As I have said, the Government will also be assessing the impact of the Bill and we expect to publish an impact assessment before MPs consider the Bill on Report. I therefore commend the money resolution to the House.
Question put and agreed to.
Jim Shannon (Strangford) (DUP)
On a point of order, Madam Deputy Speaker. The right hon. Member for North West Hampshire (Kit Malthouse) made a comment that I feel impinged upon my integrity. I have spoken to the right hon. Gentleman and he knows what I am referring to. I underlined and highlighted that the Terminally Ill Adults (End of Life) Bill Committee went into private session; some 15 Members, who support the Bill, voted for the private session and nine Members, who oppose the Bill, voted against the private session. The record must be corrected about what the right hon. Gentleman said about the comments I made about that. Facts are facts; they matter to me, as does my integrity.
Madam Deputy Speaker (Ms Nusrat Ghani)
Thank you, Mr Shannon, for letting me know you would be making a point of order. The Chair is not responsible for the content of Member’s speeches, but I remind the House of the advice in Erskine May on the importance of good temper and moderation in parliamentary language.
Kit Malthouse
Further to that point of order, Madam Deputy Speaker. There was no intent in my remarks to undermine the integrity of the hon. Member for Strangford (Jim Shannon). I may have misunderstood his remarks, but he implied that the Committee was adopting some kind of veil of secrecy over our affairs and I was pointing out to him that, in my view, that was a misunderstanding of what we were attempting to do yesterday. I am sorry if the hon. Gentleman was offended, as he knows I hold him in great affection and I had no intention to do so.
Madam Deputy Speaker
Thank you, Mr Malthouse. I can see Mr Shannon nodding, so hopefully your apology has been accepted.
Terminally Ill Adults (End of Life) Bill (Second sitting)
Tuesday 28th January 2025
(2 months, 4 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 January 2025 - (28 Jan 2025)
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members to switch electronic devices off or to silent. Tea and coffee are not allowed during sittings. Before we start hearing from the witnesses, do any Members wish to make declarations of interest in connection with the Bill? No.
We will now hear oral evidence from Professor Sir Chris Whitty, chief medical officer for England, and Duncan Barton, chief nursing officer for England, NHS England. Before calling the first Member to ask a question, I remind Members that questions should be limited to matters within the scope of the Bill. I also remind Members that time is tight, so please keep your questions to the point. We must stick to the timings in the sittings resolution that the Committee has already agreed. For this session, we have until 10.05 am. Will the witnesses please briefly introduce themselves for the record? If you are to give an opening statement, please keep it short.
Professor Whitty: I am Chris Whitty, the chief medical officer for England, and I am also representing the chief medical officer for Wales. One statement, which is on behalf of Duncan and myself, and all the CMOs, is that we are completely neutral on the principles of the Bill, which we consider are entirely for society and therefore for Parliament. Although we are answering technical questions, we will not be answering questions of principle, because we feel that is a societal question. We have made it clear to the medical profession, however, that individual doctors should be able to make whatever statements they wish. Obviously, doctors have strong views on all sides of this argument, as members of society do.
Duncan Burton: Good morning. I am Duncan Burton, the chief nursing officer for England. For transparency, I will say that I am also a volunteer trustee of a hospice.
Naz Shah (Bradford West) (Lab)
Q
“But if any provision of this Act has not been fully brought into force before the end of the period of 2 years beginning with the day on which this Act is passed, that provision (so far as not already in force) comes into force at the end of that period.”
My question is: do you believe that it would be safe to implement this legislation if those provisions had not been fully put in place?
Professor Whitty: If this Bill is passed—I want to stress that; I will say it once, but assume it applies for all the answers I subsequently give—we will clearly need both: a period to make sure that there is technical guidance and legislation, via secondary legislation, because obviously the primary legislation is the Bill; and necessary training for people to be able to do this in an appropriate and dignified way, if that is what Parliament chooses.
Naz Shah
Q
Professor Whitty: That is an absolutely critical question, because it is very important that if the Bill is passed, all parts of society, of whatever ethnicity and of whatever background, have equal access to the Bill—or not, as Parliament determines. That will require adjustment in a variety of ways. Some can be done at a macro level—for example, making sure that everything is translated into the major languages spoken in the United Kingdom—but a lot of it will be to do with the individual interactions that doctors, nurses and other healthcare providers have with individual patients, which must take into account their own starting point, their own knowledge and, most importantly, their own beliefs.
Lewis Atkinson (Sunderland Central) (Lab)
Q
Professor Whitty: I will give my view, and it might be useful to get Duncan’s view on the nursing side, because nurses will often be heavily involved in these discussions.
I would divide the kind of training that is needed into two broad groups: training that is essentially normal medical practice but may need some variation, and things that are clearly specific to this Bill. Issues, for example, around mental capacity—as determined by the Mental Capacity Act 2005—are dealt with every day, in every hospital up and down the country; every doctor and nurse above a certain level of seniority should be able to do that normally. It may require some slight adjustment. There is an absolute expectation within the Act, for example, that the more serious the decision, the greater the level of capacity that someone needs to have. That is already built into the principles of the Act and the way that things are done. I would extend that to the management of end of life, which should be a normal part of medical and nursing practice—we will all die eventually, and that has always been part of medicine, and always should be. That training should be generic, but may need some adaption.
There will then be some specific things that will be necessary for people to understand the legislation, including, in some cases—if this Bill is passed—if they are to take part in the final part of prescribing drugs to patients. It is much more likely that a very large number of doctors and nurses may get involved in the very earliest stages, because someone may raise an issue with their GP, nurse or consultant, who will need to have the basic understanding for that. In my view, the more detailed later stages will require some specific training. I think there will be a gradation of doctors: those who are happy to have the general, initial conversation; those who are happy to have the structured conversation that follows; and a minority who will be happy to go on to take part in the final stages.
It is very important that the wishes of the patient are respected. That is the central point of this. We must start with what is good for someone in their last six months of life, and for their immediate family, but we must also make sure that the wishes of healthcare professionals around this area are absolutely protected, when it comes to conscience and to choice.
Duncan Burton: I am mindful that there are two groups of staff who would potentially be working in this service, if the Bill is passed, but also of the wider workforce. At 2 o’clock in the morning, when a patient wants to have a conversation with somebody about end of life, it is going to be a nurse with them, or a nurse in a care home, or a specialist nurse providing cancer care, so we have to think about the training and support that is required for them, be that around signposting or explaining where they can go to access more information. There is an important part about the entire wider workforce that we need to think about.
Clearly, for those people who are working in such a service, we need to think about the safeguarding elements, and how we make sure there is support through safeguarding training and confidentiality—particularly mindful that some patients may choose not to tell their families about this. We need to think about how we enable and support staff in managing those kinds of circumstances and navigating the legal requirements through the Bill. We need to think ahead about what we need to do in undergraduate training for doctors and nurses, and in the curriculum.
Lewis Atkinson
Q
Professor Whitty: You are absolutely right: it is a completely normal part of medical and wider nursing, and other practice, but particularly medical practice, to consider issues of consent and capacity. It can be that someone says they do not want treatment that is clearly going to be lifesaving. A very well-known example is that of Jehovah’s Witnesses, who choose not to have blood products. If they are bleeding heavily, that is an issue that could lead to the end of their life. Provided they understand that and they have capacity, that has to be respected.
The alternative way—the other thing that doctors have to do—is to give people advice before they have major operations, chemotherapy or other drugs that may in themselves lead to the end of their life, but which also may lead to a benefit. Explaining to people the risks and benefits, including the fact that they may lose their life as a result of the next stage—if someone is at high anaesthetic risk, that is not a trivial risk sometimes with operations—is a very standard part of medical practice that you do from the point that you qualify. Obviously, as people get more senior, they tend to be more experienced in it—and, as with most things, if you get more experience, you generally get better at it.
Sarah Olney (Richmond Park) (LD)
Q
Professor Whitty: If I am honest, I think it would be extremely difficult. If I may, I will explain why, because it is a really important question. Let us take cancer. For the great majority of people with the majority of cancers that are diagnosed tomorrow, the doctor who is seeing them will say, in all confidence, “You have cancer and I expect you to be alive not just next Christmas, but for many years to come.” The fact that they have cancer is not in itself a demonstration that they are going to die. In fact, the majority will not. Almost 80% of people with breast cancer diagnosed tomorrow will still be alive 10 years later, for example.
Equally, there are people who may not have a single disease that is going to lead to the path to death, but they have multiple diseases interacting, so they are highly frail; it is therefore not the one disease that is the cause, but the constellation that is clearly leading them on a path inexorably to a death at some point in the foreseeable future. Exact timings are tricky—we might want to come back to that. I therefore think it is quite difficult to specify that certain diseases are going to cause death and others are not, because in both directions that could be misleading.
Sarah Olney
Q
Professor Whitty: At the extremes —most people are at the extremes—it is very clear what is going to happen. For most people, you can say with confidence, barring some extraordinary accident like being hit by a car on the way out, “You’ll be fine in a year, even though you have heart disease, cancer or whatever.” At the other extreme, there are people who are clearly dying and will die in the next two or three days, and virtually nothing will change that reality.
What we are talking about in the Bill, of course, is a point between those stages, but people will definitely reach a point where there will be an inexorable and, importantly for the Bill, unreversible slide towards a point of death. People can make a reasonable central view, if they are experienced in a particular disease, about when the death is likely to happen, accepting that there is a spread around that. I am sure that the general public and Members of Parliament fully accept that this is not a precise science. This is a central view, and there is a big academic literature around this. Some people will die significantly earlier than they are predicted to; a small number will die very significantly later; and some people will certainly die a bit later or to some degree later. The central view is usually reasonably accurate—that someone is now on a pathway from which there is not going to be a return.
Kim Leadbeater (Spen Valley) (Lab)
Q
Professor Whitty: Duncan, why don’t you take the first bit and I will take the second?
Duncan Burton: In terms of looking for signs of coercion, all of our nursing and clinical staff have safeguarding training, which already looks at things like whether people are under financial coercion or other forms of abuse. That training is already in place and it is extensive across the NHS and social care. If the Bill is passed, we will need to look at how we strengthen that training in relation to spotting the potential signs of coercion in this space as well. Given that that mechanism is already in place, I think that would be an extension, so it is important that we factor that in. I am also mindful, given the scale of colleagues we have working across health and care, that the time between the Bill being passed and its implementation is sufficient that we enable everybody to receive that additional training, if it is required.
Professor Whitty: In terms of strengthening the Bill, as a practitioner, I was relieved that the decision was for the Bill—if it stays this way—to stick with the Mental Capacity Act, and that was for two reasons. First, that Act is used up and down the country by doctors and nurses every day; they know it and they understand it. Although, as you say, it is a large piece of legislation, it is one that people have worked through in practice multiple times. If you ask six or seven doctors, “Does this person have capacity?”, in almost all cases you will get six or seven identical answers, because people are used to using it.
It additionally has the advantage of being tested in the courts. That has gone as far as the Supreme Court, and the various ambiguities that were inevitably in the legislation have been clarified by senior judges. Therefore, to practitioners like me, it feels like a piece of robust and predictable legislation. Within the legislation, it is very important that there are some situations where you will need to call for additional assistance. For example, if someone has a co-existing mental health condition, you will probably want to ask a psychiatrist additionally whether that condition is interfering with the decision taken to the point that someone loses capacity for this very important decision. The level of capacity has to be reasonably high.
My own view is that starting this way is the sensible thing to do. That does not mean there could not be arguments for some additional points, but I cannot immediately—again, as a jobbing doctor—see ones where I think, “This is going to make a big difference.” The fact is that this is founded on a very established bit of well-used and well-recognised legislation.
Kim Leadbeater
Q
Professor Whitty: The further you go up in the seriousness of the decision, the more you would do that. For example, if you were setting a finger that had been broken, you are not going to wait until a psychiatrist has said that you can do that. Within reason, provided that someone gives consent, you will do that. You will be much more cautious about moving forward with things like open heart surgery or deprivation of liberty if you think there is uncertainty. It should be clear. For the majority of people, it is very clear they have capacity or very clear they do not. There is a relatively small—but important—number in the middle where that is less clear and where additional views are relevant, particularly where there is a question of co-existing mental health issues. The fact of the mental health condition does not in itself mean that someone does not have capacity, but what has to be taken into account is, “Do they have the capacity for this decision at this point in time?” That is how the Mental Capacity Act works.
Rebecca Paul (Reigate) (Con)
Q
Professor Whitty: As we have seen in covid, the NHS, like any service, can swing very fast if there is a need for speed. In this case, I think most people in society would say that the key thing is to get this right. Personally, I would rather it was not running against a timeline. You would not want it to drag on forever, because then you have uncertainty for everybody, but I think Duncan and I would both say that two years seems a reasonable starting point. With some things, it might take longer than that to work out how we are going to provide this in the most safe and equitable way—for example, in dealing with minority and other groups. We need to get all that right and, at least at first pass, get it as close to good as we possibly can.
Equally, we may find when we first start using the legislation that there are some things that we had not considered at the beginning, and therefore we need to go back and improve on them because we just had not thought about them in the first way through the gates; that is why I hope that some of the more operational issues are done through secondary legislation and regulation. Inevitably, that is true for many bits of legislation, but it is particularly important here.
I go back to my very first comment: the central person here is an average citizen in their last six months of life. What we do not want is a system very difficult for them to navigate so that they spend their entire last six months of life—if the Bill is passed and they choose to take account of it; they are going to be a minority—stuck in a bureaucratic thicket. We need to keep this simple. My view is that the best safeguards are simple safeguards. Overcomplicating usually makes the safeguard less certain.
Rebecca Paul
Q
Professor Whitty: I think that there is a big difference between the Act coming into initial force—that is, “This is now where the law is”—and the service being provided. On the second of those, I would argue against putting a firm deadline, with a reasonable expectation that the NHS and others should be involved in trying to make plans for this as fast as possible. But if the Bill is passed, we are going to have to sort out multiple different things to get this to work. If we were three months away from being able to get something sorted out, I would not want to have a situation where it all had to start the following day. I think that would make it much harder to provide a safe, fair and secure service.
Duncan Burton: In my understanding, the Bill does not call out the NHS specifically in terms of providing this service. A number of steps would have to be gone through to understand the implications—the operational and training implications, as we have already discussed—to understand the timeline required. For the reasons Chris has outlined and as mentioned earlier, when thinking about the wider implications for the workforce there would need to be sufficient time to be able to work through those.
Rebecca Paul
Q
Professor Whitty: That is a key question, and to me that does seem something that Parliament may want to debate. That is not a question for us, but it is a point of principle one way or the other.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Professor Whitty: First, I have had quite a lot of conversations—not just with the chief medical officer for Wales, but all the other chief medical officers and indeed a much wider range of the medical profession; I wanted to feel that I was giving a central view of the medical profession in terms of the practicalities. My view is that, in a sense, the principles of the Bill are no different between England, Scotland, Wales and Northern Ireland, although the legislation would apply only to England and Wales were it to be passed.
The operational questions we have been talking about will be either subtly or importantly different between the different jurisdictions for a variety of different reasons. I do not think that is a problem, provided it is in secondary legislation and it allows the different jurisdictions to do things in the way that best suits their own set-up. Again, as we saw during covid, different nations will choose to reach the same end state using slightly different practical routes.
Liz Saville Roberts
Q
Professor Whitty: Yes. I think in principle it would be better to be as close as possible, but if there were important practical differences why it was not going to start on the same date, the more important thing would be to get it right rather than to get simultaneous timings.
Daniel Francis (Bexleyheath and Crayford) (Lab)
Q
I also heard what you said about the scaling of decision making, but within the Bill, in some of those scenarios there is no mandating; the word “may” is used rather than “must”. I want to understand your viewpoint on whether it would provide stronger safeguards if those parts of the Bill were tightened to include “must” rather than “may”, and if the reference to capacity were replaced with a separate definition of “ability”, as proposed in our amendments.
Professor Whitty: I am probably not the best person to ask about the exact drafting of the Bill in terms of “may” and “must”, but I can answer the second part of your question, which is really important.
If there were no Mental Capacity Act, there would be an argument, which has been used for a long time, that the Bill would have to define what was meant with a fair degree of clarity. It would not be able to do that with just one clause; there would have to be quite a lot of clauses, if I am honest. All systems of this sort are going to be imperfect. The reason why I think it is sensible to base yourself on the Mental Capacity Act is that it is well used and well understood in practice by practitioners every day. Having a system with two completely separate groups of assessment, one of which has never been tested in the courts or used outwith this Bill, would lead to a whole set of potential complications and ambiguities, which are not there at the moment because we have a well-tested mechanism through the Mental Capacity Act.
People should move away from the Mental Capacity Act with some caution, because I think that will cause as many problems as it solves. It is not clear to me what problem people are trying to solve by doing that, given that the Mental Capacity Act clearly makes the point that the more severe the decision, the greater the degree of capacity that has to be assumed before people can actually take that decision. That is the foundation of some of the disquiet that people have had, but it is central to how the Mental Capacity Act works in practice.
Dr Simon Opher (Stroud) (Lab)
Q
“reasonably be expected within 6 months.”
Is that in line with your thoughts on the matter?
Professor Whitty: I think that is a reasonable point in time provided that, in taking that period into account, Parliament assumes that we mean a central view that this is six months, although it might be before that and it might be after. Other times would be equally reasonable, but if you are going to choose one, then six months is reasonable. It is generally very predictable that someone is going to die in the foreseeable future, but predicting whether that will be in five months or seven months is a lot harder, and there would be some caution.
Notably, in the countries that have chosen to go down an assisted dying route—a variety of different ones have been chosen—a significant minority of people die before they actually get to the point where that occurs because there is uncertainty in both directions. I think that period is as good as any other, but I want people to be clear that this is not an exact science where you can say, for example, “On 20 August.” It is not as tight as saying that a baby is going be born on a certain date. It has a wider spread of uncertainty around it. In the overwhelming majority of cases, that does not mean that it will go on for months or years longer, but there will be some degree of uncertainty.
Dr Opher
Q
Professor Whitty: Duncan may wish to comment for nurses. For doctors, we should be very mindful of the fact that for some doctors, as for some citizens, this is a point of very strong principle indeed, therefore there will be a gradation of people feeling that they can personally be involved in it. I suspect that if they themselves did not feel able to do it—because of conscience or choice, or because they did not feel that they had the necessary skills—the great majority would have no problem referring on, but it might be an issue for some people.
Personally, my view is that we should be able to have the range, provided that people are aware in general that, if one person cannot provide it and then does not wish to discuss it, there are alternative routes. But that really is a matter for Parliament and if Parliament says, “No, actually, that is unfair on the patient, because then the patient is having to go through an extra step,” that is an alternative and perfectly reasonable principle. Parliament is going to have to balance those two principles; that is not for me as a doctor. I just think that that range of opinion needs to be thought through when people are coming to that final parliamentary decision.
Duncan Burton: If I could add to that, again, I think that bit about the wider workforce and how we would support them is really important. We have situations like this already. We have advice professionally around things such as abortions and working in embryo services and fertility, for example, so we need to make sure that the safeguards for our staff are really clear. As Chris has said, our staff will have a range of views and opinions on this, as will the wider public. So the work you do in creating this Bill is really important in terms of the advice that we give to people about signposting and having those conversations. Actually, our clinicians are having conversations every single day about the choices that people have at the end of their lives.
Sojan Joseph (Ashford) (Lab)
Q
Professor Whitty: I would hope that most doctors are capable of identifying that someone has some degree—or a large degree—of mental health distress, or mental health illness, if you wish. What not all doctors will feel comfortable doing is actually deciding whether that is sufficient to interfere with someone’s ability to make a decision with full capacity. That is where help from colleagues from psychiatry, and mental health more widely, is going to be useful.
But that should be good medical practice, in my view, under all circumstances. This Bill takes it to a high level of need because of the seriousness of the decisions being taken, but that is part of medical practice. Duncan will have discussed with senior nurses, when he when he was operating clinically, “Should we actually get an opinion from a mental health colleague”—either a community psychiatric nurse, if it is that kind of question, a psychiatrist or others—“to make that assessment?”
That is really the question, but I certainly would not want to be in a situation where the fact that someone with a terminal diagnosis will have some degree of low mood in itself just rules them out from any kind of medical intervention—this, or any other. That should not be the case. They have to have access to whatever the state and the medical profession are able to provide—again, obviously, depending on what Parliament decides on this particular Bill.
Sojan Joseph
Q
Duncan Burton: I think you are absolutely right—anybody working in stressful environments. If the Bill is passed, we will need to make sure that we have sufficient psychological support for nurses and doctors working in these services, as we do now for many of our nurses and other professionals working in these kinds of situations. People working in end of life, or cancer nurses, for example, often have psychological support to help them deal with some very difficult conversations with patients.
We would need to look at that and make sure that sufficient support was in place for anybody working in these situations. We would also need to be mindful about the wider workforce, given the issues from such a debate as this and how the decisions to signpost people on to services might create—for some people—moral injury. We do need to think about the support in place for those people.
Jake Richards (Rother Valley) (Lab)
Q
Professor Whitty: It is entirely a matter for Parliament, at one level, but I can give a view. It goes back to the point that Naz Shah and others made earlier: the situations that people find themselves in are extraordinarily different—culturally, where they are in their lives, where their families are and a whole variety of other issues. Only the clinicians dealing with that person will really know all the different factors at play. If there is a good therapeutic relationship, and you would certainly hope there was, they should understand a whole variety of things that are very difficult for people sitting around this table to predict, however wise you are—although I am sure you are extraordinarily wise, to be clear. That was not my point. My point is that this is very difficult and I could not, at this point, write down a law that would be helpful to someone dealing with a whole range of different scenarios in which they are going to have to have an end-of-life discussion.
My own view, for what it is worth, is that I would do fewer things rather than more. That is partly because simplicity is the key to really good safeguards, in my experience. If the safeguards are really clear and simple, everybody understands them—if you ask six people, “What does this mean?”, those six will give you the same answer. The more complicated you make things, the more room there is for ambiguity and uncertainty—because different things are playing in—and the more difficult it is for the patient, their family and the medical and nursing professionals assisting them, to navigate the system.
Without in any sense wishing to curtail what Parliament might wish to do, I would make a plea for simplicity wherever possible and for accepting the extraordinary variety of people’s lives, which may have unpredictable consequences in terms of the way the end of their lives plays out.
Jake Richards
Q
Professor Whitty: I would certainly recommend that this is done by guidance or in secondary legislation, which can be adjusted if it turns out that it is not having the desired effect. Two things can change: first, we can spot things we had not thought of in the first place, however far-sighted each of us is. The second is that medicine itself changes, the diseases people suffer from change and so on.
An Act has to be durable and that is why I have my view about secondary legislation and guidance, which have the ability to adapt in a way that primary legislation cannot. The fundamentals obviously need to be in primary legislation, but these kinds of issues are often done better in secondary legislation.
The Chair
I am very mindful of the time, as it is now three minutes past 10. This will be the last question of the session.
Jack Abbott (Ipswich) (Lab/Co-op)
Q
“we must not undermine the provision of good end-of-life care for all including the outstanding work done by palliative care clinicians”.
Do we take it, by implication, that you are fearful that this Bill could undermine good end-of-life care? In your view, how might we mitigate some of those risks in the Bill?
Professor Whitty: I will give a view and then Duncan will be able, as chief nurse, to mention the parallel bit of advice that said similar things. I think all medical, nursing and health professionals very strongly believe that palliative care and pain alleviation, which is not the same as palliative care but overlaps with it, and end-of-life care, which is also not the same but overlaps with it, are essential, and in some areas are not to the high standard that we would hope for. That would be a common view across the medical profession.
My own view and hope is that the Bill should not make the situation either better or worse. It changes one particular aspect in a very important way, but it seems to me that on the principle that we should be improving end-of-life discussions, which is where end-of-life care starts from, as well as supporting further the alleviation of symptoms and the provision of palliative care, there would be no disagreement from anybody in the medical or nursing professions, any other professions or the general public. That must be fundamental to how the Bill is thought about—
The Chair
Order. That brings us to the end of our allocated time with these witnesses.
Professor Whitty: Duncan, do you want to say if you agree or disagree?
The Chair
Q
Duncan Burton: I absolutely agree with that. This is, obviously, a decision for Parliament, but it is clear that there is increasing discussion in society around death and dying, and I think that is important. It is important that we have discussions and support people with their choices at the end of life, so anything we can do to increase that is important.
The Chair
I thank our witnesses, Professor Chris Whitty and Duncan Burton, on behalf the Committee. I also thank Committee members for their short questions.
Examination of Witnesses
Mark Swindells and Dr Andrew Green gave evidence.
The Chair
Q
Mark Swindells: Good morning. I am here from the General Medical Council. The GMC, as the independent regulator of doctors across the UK, does not have a position on what the law should be on assisted dying. Similarly to what the chief medical officer said, we view it as a matter for wider society and, ultimately, Parliament. Having said that, we have looked at the Bill and, were it to pass, we would obviously be willing to work on things like the statutory code of conduct that it talks about to make sure the implementation works as well as possible.
Dr Green: Good morning. My name is Andrew Green. I am a retired GP, and I chair the medical ethics committee at the British Medical Association. We had a big survey of our members in 2020 and, on the basis of that survey, we moved from opposition to neutrality. All that means is that we neither support nor oppose any changes in legislation. That position has enabled us to reach out to people with a wide range of views and produce policy that we believe has broad support, looking particularly at the areas where it impacts on our members. We have had very positive engagement with legislators throughout the United Kingdom and the Crown dependencies, with the aim not of supporting the Bill, but of making sure that if it goes ahead, it works for doctors and patients. We have always believed that those things go hand in hand.
The Chair
Thank you very much. For broadcast purposes, can everyone make sure that they are as loud and clear as possible?
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Q
“No registered medical practitioner is under any duty to raise the subject of provision”.
What are your views on the compatibility of that element of the Bill with the principles under Montgomery consent?
Dr Green: Both of these items came about because of things that were in our policy, and we are pleased to see them in the Bill. You are right that assisted dying must not become just another tick-box thing that doctors mention to patients. That must not happen, and that is why we believe that it should not fall within those two Supreme Court judgements that you mentioned. But there is another side to that coin: we think that there are some circumstances in which doctors should be able to mention this to their patients.
I will just explain why that might happen. The consultation shows that some patients find it very difficult to bring up sensitive subjects with their doctors, even when those are the most important thing on their mind. Doctors are aware of that, and I hope that we get very good at reading between the lines of what patients say to get at what is left unsaid. In those circumstances, we need to be able to open the door for the patient, so they can go into a safe space and have those difficult discussions. That is what we are talking about here.
As a clinician, it is very difficult to know when to have those conversations. When we are battling with that internally, the last thing we would want is to feel the weight of legislation behind us, so please do not pass legislation that makes it harder for doctors to understand their patients. That is why it is important that in particular circumstances we should be able to gently raise the subject.
Mark Swindells: The GMC sets guidance on decision making and consent, as you will know. That is based on the existing law, including the case law on Montgomery, so it puts a lot of weight on the patient’s autonomy, the patient’s role and the doctor’s role in supporting that in the provision of information on different options, including the option of no treatment. Our guidance follows the law, so were the law to change, we would look at it and accommodate. We do not have a formulated view on what the eligibility should be, but we know the BMA’s stance.
Dr Shastri-Hurst
Q
Mark Swindells: We have not done a forensic legal assessment of that nature, but obviously Montgomery is in case law, and Parliament has the power to set primary law. I listened to what the chief medical officer said and what Dr Green says about how restrictive or otherwise that might be in terms of the doctor’s role with the patient.
Jack Abbott
Q
Dr Green: Obviously, it would be great if we worked in a system where doctors had all the time they needed to deal with their patients. I believe that the Bill mentions a duty to provide information from the chief medical officer, and having read the Bill, to me it seems very much like this might be in the form of a website or leaflet. We believe that it is important that patients should be able to access personalised information, and we would like to see an official information service that patients could go to, either as a self-referral or as a recommendation from their GPs or other doctors. That would give them information not just about assisted dying, but about all the other things that bother people at this stage of their life, and it would mention social services support and palliative care. It could be like a navigation service as much as an information service. That might address some of your concerns.
Sean Woodcock (Banbury) (Lab)
Q
Dr Green: You are right: all medical staff have safeguarding training, and of course patients make important decisions often with the influence and help of their family members. Usually this influence is helpful, and it almost always comes from a position of love. The point at which such influence becomes coercion is difficult to find out, but my experience is that it is rare. I would recommend that you look at what has happened in other parts of the world that have more experience with this, because they have it as part of their training modules. Certainly, we would expect capacity and coercion training to be part of the specialised training that doctors who opt in would receive. I anticipate that the general safeguarding training should be sufficient for other doctors, who would obviously only be involved at that very early stage.
Kit Malthouse (North West Hampshire) (Con)
Q
As I understand it, the General Medical Council already has guidance on dealing with assisted dying if it is raised by a patient, and how doctors should handle that. How easy would it be to translate that guidance—the process struck me as something that does not hinder but also does not enable—into something more informative?
Mark Swindells: It is important to note that our guidance on assisted dying is framed in the current law, so it guides doctors to explain that it is not lawful for them to assist their patient to die. It talks about the importance of explaining other available treatment options, including palliative care; making sure that the patient’s needs are met; and dealing with any other safeguarding matters. Oure guidance does follow the law, so if the law were to change, we would obviously attend to that. It is not framed quite as you are suggesting, so I do not think that would lift and shift into what the guidance would need to be for doctors if this were to pass.
Dr Green: I do not have any experience with what you are describing, but it would certainly make sense to look at best practice in other areas.
Kit Malthouse
Q
Dr Green: As a general principle, I do not believe that unnecessary barriers should be put in the way of communication. This is such an important area for patients that it is vital that they form a good, trusting relationship with their key medical adviser, who would usually be a doctor. I also have to say that at the end of life, we depend a lot on our specialist nurses— Macmillan or Marie Curie nurses—and it might well be that they are the person whom the patient trusts most. Please do not put barriers in the way of understanding.
Kit Malthouse
Q
Dr Green: Indeed. I believe that in New Zealand—and I think in the state of Victoria, but I would need to check that—there have been official reviews that have identified those concerns, and they are looking to review the legislation.
Danny Kruger (East Wiltshire) (Con)
Q
I would like a quick clarification from Dr Green. In terms of the survey, my understanding is that the British Medical Association’s official position is to be neutral. The majority in favour of neutrality—moving away from an opposed position—were junior doctors and those not working with the elderly and the dying, whereas the great majority of doctors who work in palliative care and work with dying people remain firmly opposed to a change in the law. Is that your understanding?
Dr Green: There were some variations between specialities; that is true, but within all specialities, there was a wide variety of opinion. It is that wide variety of opinion that the BMA has based its policy on.
Danny Kruger
Q
I have a question for you, Dr Green, on the delivery of the service if it is brought into law. Is it your understanding that the Bill mandates the NHS to provide an assisted dying service? I appreciate that it is not clear in the Bill. Nevertheless, it does authorise the Government to pay for it and it establishes this right. My question to you is this: is this a medical procedure that we are proposing to legalise, and should the NHS provide it? If the answer is yes, should that be a separate service within the NHS or should it just be part of general practice?
Dr Green: We have not taken a view as to whether it should be inside or outside the NHS. That is not for us to take. We do believe that it should not be any part of any doctor’s normal job to provide assisted dying. In other words, it should be set up through a separate service with a degree of separation.
We believe that is important for patients, because it would reassure patients who may be anxious about the service that it would not just be part of their normal care. It would reassure patients that the service they were going into had proper quality and proper audit attached to it. It would reassure doctors, because doctors who did not want to have any part would not feel that it was part of their normal job, whereas the doctors who wanted to go ahead would be assured of having support, emotional support and proper training. Also, it should, hopefully, reassure the providers, who would then be assured that it would not be expected of them just as part of their normal duty. We believe a degree of separation is very important.
Danny Kruger
Q
Dr Green: I think we are always concerned about resourcing, and I can only back up what Dr Whitty said about the importance of palliative care.
Danny Kruger
Q
Mark Swindells: I would agree with you that there certainly needs to be really clear guidance for doctors on that scenario. We have not taken a view on whether that needs to be in the Bill, in regulation or in the statutory code of practice. What I would say is that we would be willing to participate in the setting of that. It would be very important to listen to the view of doctors and indeed patients who might be interested in taking such a course of action, to understand their issues.
Danny Kruger
Q
Mark Swindells: I am not trying to duck the question, but because we do not take a general view on whether the Bill should pass or not, we have not taken an established view on the delivery mechanism for it.
Lewis Atkinson
Q
Mark Swindells: We do get inquiries from doctors who are concerned that they are doing the right thing when it might become apparent to them that a patient wants to travel overseas to access assisted dying. We have taken legal advice, and on that basis, we guide doctors that it is permissible for them to provide the existing medical records to that patient, as you might under a subject access request, but to be really cautious about going any further in terms of recommending that or assisting the process more than that. That is based on our understanding of the existing law in the Suicide Act.
Dr Green: Of course, that leads to a further issue. As we heard from Dr Whitty today, this measure may progress at a different speed in Scotland and England and Wales. We also have the Crown dependencies, which are some way further ahead than the mainland Governments on it. That raises an issue for doctors who work in England and Wales but treat patients in the Crown dependencies. We would want clarity about the legal situation regarding a doctor in Liverpool who is treating a patient in the Isle of Man, should the law allow assisted dying in the Isle of Man.
Lewis Atkinson
Q
Dr Green: I do not think I ever suggested that doctors should recommend assisted dying. If I did, I apologise—
Lewis Atkinson
Sorry—I meant the provision of information for someone.
Dr Green: The provision of information would be very useful, because in a situation where a doctor was unwilling to have an initial discussion with the patient, it would provide a way for the patient to get that information that was in no way obstructive.
Lewis Atkinson
Q
Dr Green: We have not taken an official view on doctors recommending it, but I do not think it was ever in any of our minds that doctors would be recommending it as a course of action to patients.
Lewis Atkinson
Q
Dr Green: I am reluctant to make a statement on that in this forum. We will go away and discuss it, and come back to you.
Naz Shah
Q
The question that worries me is, to be able to fulfil all those actions in all cases, without fear of mis-determining, the two doctors would have to be specialists in all the relevant diseases. For example, if somebody has a brain tumour, lung cancer, or a different type of cancer, would the doctor have to be an expert in that to determine that the person is terminally ill?
From the GMC’s point of view, would we find ourselves in a situation where doctors are working outside their professional competencies and expertise? From the BMA’s point of view, how do we protect doctors from finding themselves having to diagnose life expectancy for a disease they are not a specialist in, or to determine capacity when they are not a specialist in that, or to determine a lack of coercion when they potentially do not know the patient and do not have experience of that? Finally, when the next step is taken and the court has to rely on the testimony of these doctors to protect the patient, can those testimonies safely be relied on by a court and by a judge, given all those concerns?
Mark Swindells: There are quite a few points there—let me work through them backwards. We have some existing guidance for doctors when they act as a witness—for example, in a court setting or a medical legal situation—that talks in general terms about the importance of being an appropriate witness. Inherent to that is some expertise and understanding of the topic they are assisting the court on. I suppose that those sorts of principles would be ones that, if the Bill is passed in this form—I say again, the GMC does not have a view on what the delivery mechanism or the Bill should look like—are applicable points from the guidance, which would read across.
You heard from the chief medical officer his caution with regards to going with a condition-based assessment for this sort of thing. We would not have a particular view on that, but there is one thing that I want to highlight. The Bill talks about specialism in the context and seeking advice from a psychiatrist. On the specialist register held by the GMC, there are five specialisms connected with psychiatry, so some clarity—whether the Bill is intended to cover any, or a particular one, of those—would be good.
I know that it is not restricted in the “independent doctor” and “coordinating doctor” roles in the Bill either, but we are aware that when doctors pursue a specialty, in the sense that they become accredited and go on to our specialist register, that does not fix in time their individual scope of practice or expertise. Many doctors will go into slightly different fields, or focus on one particular area, so one cannot necessarily rely on the specialist register as a current indication of a doctor’s area of competence in that way. On what the precise delivery mechanism is and the point you make about whether either of those two roles of doctor have seen the person, because we have not taken a view on what the law should be, we have not taken a firm view of any process or eligibility, but I note the point.
Dr Green: If I may, I will clarify my previous answer, having had a little more thought. I do not believe that it is ever appropriate for a doctor to recommend that a patient goes through an assisted dying process. My internal thoughts on whether it should be on the face of the Bill, contained in guidance or contained in good medical practice was the point that I was unsure about.
Lewis Atkinson
indicated assent.
Dr Green: With regard to the specific questions, no, I do not believe that a doctor has to be a specialist in the individual disease at stake to advise a patient about prognosis. I can only refer you back to what Dr Whitty said: that in the majority of cases, it is fairly clear—this applies to capacity, too—but in some cases, it is not so clear. What is important is that the doctor has the ability to seek further advice if they need it; it is not always required.
Dr Opher
Q
“registered medical practitioner who is unwilling”
to go forward with the assisted dying request
“must, if requested…refer…to another registered medical practitioner”.
Are you happy with that clause?
Dr Green: No, we are not, because we know from our survey that some doctors feel very strongly about this. The word “referral”, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to. There is a particular problem with the word “referral”. Doctors would not be able to be obstructive; they have the same duties under good medical practice as they do, for example, with termination of pregnancy requests.
Dr Opher
Q
Dr Green: We have not taken a view on the qualifications of the doctors involved. We had discussions about what grade they should be, for example, but we took the view that their skillset and training was more important than their grade or position.
Dr Opher
Q
Dr Green: We did not take a view on that. We thought that training and experience was more important.
Sarah Olney
Q
Dr Green: That is why it is important that doctors should be able to opt out at any stage of this. There are doctors who would find it difficult to do that, and it is important that their position is respected.
Kim Leadbeater
Q
Dr Green: What would happen is that the doctor would provide the patient—through their receptionist, through leaflets or through a telephone number—with somewhere they could get the information. You cannot just abandon a patient. They have to be sure that the patient has the ability to do what the patient wants to do.
Kim Leadbeater
Q
Dr Green: Yes. It is the “referral” word that is problematic for us.
Kim Leadbeater
Q
“respect competent patients’ right to make decisions about their care, including their right to refuse treatment, even if this will lead to their death”.
I am interested in how that fits in with those very difficult conversations. When a patient executes that right to refuse treatment, are those cases logged? Are they monitored or reported on?
Mark Swindells: There was an important piece of case law—I think in the 1990s—that clarified that a patient refusing treatment and subsequently dying is not an act of suicide. You are right that our guidance talks about the importance of a doctor explaining to the patient about the likely course of action in terms of the option for no treatment. Again, that is intertwined with the Mental Capacity Act 2005, and puts a lot of autonomy in the space of the patient, along with the consent case law that we covered before.
On the previous point about referrals, our guidance is similar to what Dr Green was saying: in the case of conscientious objection—for example, on abortion—the important point is that, from the patient perspective, they are not left with nowhere to go. If that assists, that may be a principle that helps and reads across.
Kim Leadbeater
Q
Mark Swindells: Yes. It would be important for the patient’s records to cover the points of consent and that the doctor has recorded that they have interacted with the patient that way. I do not believe it is centrally held or collated in any sense like that, but I may be wrong.
Jake Richards
Q
Dr Green: Yes, with the exception of the referral.
Jake Richards
Thank you. I just wanted to clarify that.
Dr Green: Of course, we would regard much of clause 4(4) as normal care in any case.
Jake Richards
Q
Dr Green: As Dr Whitty said, I think simplicity is the key here.
Liz Saville Roberts
Q
Dr Green: In terms of the cross-border issues?
Liz Saville Roberts
Yes.
Dr Green: I think the concerns are that patients, particularly those from the Crown dependencies, might be looking for some things—for example, report on life expectancy—from doctors on the mainland. I think it is clear that if a doctor travelled to the Isle of Man or Jersey to do the work there, the GMC would be happy for them to do so, but we would want a clear understanding that they would not be at risk of any other legislative problems—from the DPP, for example.
Liz Saville Roberts
And of course legislation is progressing in Scotland, which has different definitions from the legislation that we are discussing here.
Dr Green: Correct.
Liz Saville Roberts
Q
Mark Swindells: There are aspects in which the law will differ, including on capacity. As a UK-wide regulator, we have managed to attend to that in our guidance, so that doctors are as clear on their responsibilities as possible when they lie either side of a devolved border. There is a nuanced point with the Crown dependencies. In law, we are a UK-wide regulator, and we know that the Crown dependencies and Gibraltar will choose to use doctors who are on the GMC register. Officially, we do not legally cover those areas, but it does give us some regulatory purchase there. If a doctor wishes to remain licensed to practice on the GMC register, there is a commitment to follow our professional standards.
Sojan Joseph
Q
Mark Swindells: We do not hold data. I have seen the coverage of the Bill and the uncertainty. I think we would agree with a lot of what the chief medical officer said to you about the stepped decision that a doctor will make, depending on the importance of the situation. We try to capture that in our end-of-life care guidance. We also agree with the point about a doctor giving a central estimate. In the guidance we talk about, for example, issues with taking a second opinion where there is a greater degree of uncertainty, and the importance of doctors keeping up with the latest clinical knowledge on the efficacy of different treatment courses to come to that determination. We would agree that there is inevitably a degree of uncertainty in the central ground that the chief medical officer was talking about.
Kit Malthouse
Q
Mark Swindells: I do not believe that we use the word “refer”, but I will double-check. The word “referral”—this is part of the BMA’s position—has a particular meaning in the world of medicine. We talk about the importance, from a patient perspective, of not being left with nowhere to go, so there is some professional responsibility on the doctor to guide.
Kit Malthouse
Q
Dr Green: We would expect that to be done with sensitivity.
The Chair
Order. We have come to an end, but you may complete your sentence, Dr Green.
Dr Green: That was my complete sentence.
The Chair
Excellent. That was perfectly timed.
That brings this session to a close. On behalf of the Committee, I thank the witnesses: Mark Swindells, assistant director of standards and guidance at the General Medical Council, and Dr Andrew Green, chair of the medical ethics committee at the British Medical Association.
Examination of Witnesses
Glyn Berry and Professor Nicola Ranger gave evidence.
The Chair
We will now hear oral evidence from Glyn Berry, via Zoom—hello and welcome—and from Professor Nicola Ranger. We have until 11.25 am. Will the witnesses please introduce themselves?
Glyn Berry: Good morning. My name is Glyn Berry. I am a palliative care social worker and a lead allied health professional. I am co-chair of the Association of Palliative Care Social Workers.
Professor Ranger: I am Professor Nicola Ranger, chief exec and general secretary of the Royal College of Nursing. Previously, I was a chief nurse in acute hospitals for 10 years.
Rebecca Paul
Q
“There is a risk that without a more sustainable model of funding for palliative care, many people will choose an assisted death, as the only way to escape from unbearable suffering.”
Can you elaborate on why you say that?
Glyn Berry: Yes. As experienced social workers, working within the realms of a society that is quite often split into “have” and “not have”, we already see the despair and the difficulties that people encounter with inequitable care in palliative care services. We know that a lot of services are delivered by charities as well as statutory agencies and the trusts, and we know that the funding for palliative and end-of-life care is a real issue and has been heading that way for some years.
We would hate to see what has been happening in other countries in which assisted dying is already in place, where people feel that they have no option other than to apply for assisted dying, because they do not know what else might be out there for them. That is the role of a social worker when we work with our patients: we look at the bigger picture, not just at what is happening clinically. Obviously we depend hugely on our clinical colleagues and expertise, but our specialism, if you like, is to look at what else is out there for a patient—and for their family and friends, because they are as much a part of the patient’s journey as the patient themselves.
We also know that palliative and end-of-life care is hit and miss in terms of what people can access. Marie Curie reporting in 2024 showed that there are massive disparities in terms of better care for people at end of life or with a palliative condition, and they have a significant effect. What we say to people is that we will help them to live as long as they can as well as they can in palliative and end-of-life care situations, but that is really difficult when the resources are not there and things become a huge priority.
Rebecca Paul
Q
The Chair
Order. We are going slightly off topic, so could we have a brief answer?
Glyn Berry: It would be something that is equitable for everybody. At this moment in time, it is not. As I say, some people get it and some people do not. A sustainable model would give fair access to everybody.
Tom Gordon (Harrogate and Knaresborough) (LD)
Q
Glyn Berry: We work very closely with clinicians and other health professionals. We talk about a multidisciplinary approach, because a person is not just two-dimensional; everything about their life needs the input of others in these situations. As social workers, our expertise and strength is in being able to ask difficult questions and really dig into people’s thoughts, feelings and opinions, giving them an opportunity to say things that sometimes they have never said in a whole lifetime. Other areas are around assessing capacity and giving people the option of knowing that there is not just one way of doing things.
I have worked in a hospice setting for the last six or seven years. I see daily how social workers contribute to the wider MD team in terms of safeguarding, capacity and applications for deprivation of liberty, but we also do the psychosocial aspect of palliative and end-of-life care. We sit and talk with patients, we do advance care planning and we deal with practical aspects such as supporting the arrangement of funerals. For families in which the parent or primary caregiver is the person who is ill, we will work with external statutory agencies like local authorities to give support where there may be children or vulnerable adults who are being cared for by the patient, to have provision put in place for after the death of the person. We also provide pre-bereavement support for both the patient and the family, and post-bereavement support for the family.
We have quite an extensive skills catalogue to support patients and families, but one of our biggest skills we have is in communication and in not being afraid to go where other professionals may feel uncomfortable going. Having conversations about people wishing to end their life is not a new thing: we have those conversations quite regularly.
Tom Gordon
Q
Glyn Berry: In our association, we have a list of recommendations. We are very conscious that the Bill is very heavy from a clinical perspective. There are a number of things. We do not feel that the decision and assessment should be all on the shoulders of a health professional, the clinician. Some clinicians are fantastic with assessing capacity and being aware of the safeguarding aspects of situations, but not all are, and we feel that our expertise lies in that particular area.
When we look at the overview of the process set out in the Bill, it is very, very clinical. Nowhere does it talk about the clinician exploring the other aspects of a person’s life; it is very much around the clinical aspect, and quite rightly so, because these are experienced clinicians. We feel that we should be involved in these decisions from the capacity and safeguarding aspect, but also in seeing whether there are things we can do to help the person make a more informed choice. If their decision to take their life is based on the fact that they do not have secure housing, that their benefits or finances are all over the place, that they do not want to be a burden on their friends or family, or indeed that they have nobody at all, those are areas that are very familiar to us in our daily practice. We therefore feel that we are well placed to support the clinicians in the whole process.
Tom Gordon
That was a really comprehensive answer. I think the key point that you touched on is the multidisciplinary approach.
Juliet Campbell (Broxtowe) (Lab)
Q
Professor Ranger: I think there is something really important about having a big difference in the beginning with regard to palliative care and assisted dying, and pain management. It is essential that those two things are slightly separated, because it would be heartbreaking to think that pain management was the primary reason that someone wanted to be assisted to die. We should be able to control and support someone’s symptoms and pain.
I think the primary thing with regard to being referred to another organisation is autonomy. I absolutely agree with what was said earlier: you would want anyone who is considering assisted dying to be slightly separated out of their normal clinical pathway, so it is not part of mainstream care for someone in a hospital or an organisation. There is something really important about separating that out, both in the discussions around the decision making and in any care involved in assisting them to die. I think those two things do need to be separated.
Juliet Campbell
Q
Professor Ranger: Well, you would not really want any clinician to push this view on any patient. It has to come from the person themselves. That is the key thing around capacity and autonomy. I do not think that people should ever say to a patient or an individual, “Is this something you have considered?” It has to be led by the patient.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Q
Professor Ranger: It is vital that any of those barriers be removed and that we always maintain outstanding care at the end of someone’s life. The reality is that the majority of palliative care is given by nursing staff, whether it is in the community, in someone’s home, in a hospice or in a hospital. It is key that it be an expertise and a specialist practice in which someone has extra training and extra education. The skills of listening to patients, advocating for them and ensuring that they are pain-free at the end of their life—these are skills that nurses have now, and it is vital that our nursing members maintain them. They are often the one a patient will speak to at 3 in the morning when no one is there.
As Glyn said, it is vital that the wider team be included in the Bill. The Bill talks about the guidance and recommendations being for the chief medical officer, but I think it is absolutely vital that the chief nursing officer be a key part of the guidance and the drawing up of any care, because even in these circumstances it is nursing staff who will give the majority of the care.
Dr Tidball
Q
Professor Ranger: Safeguarding is part of our professional responsibility now. Whether it is for a child, an adult or an elderly person, part of our role is to be vigilant against financial misconduct, physical abuse and mental health abuse: any of those things is a responsibility of every nurse now. It is a very good and simple process. You do not have to investigate or give a judgment; you need to refer it to be investigated. That takes the pressure off an individual clinician. Our job is to be vigilant and to refer safeguarding anywhere we think that there is any form of abuse. I think that that process would remain and could be part of how we do things now.
Dr Tidball
Q
Professor Ranger: We would want more support. I am not going to say that we always get it right. Sometimes things happen that we miss and we do not report. I cannot say that we get it right 100% of the time. When the Bill talks about education and training for medical staff, it is absolutely vital that nursing staff are included because we will need to be vigilant around anyone feeling they are a burden.
The Bill would add other skills that we want to make sure that nurses are included in. Education for medical staff is absolutely pertinent for nursing staff, so that nurses build on skills they already have. There will be a difference between the care of someone wanting assisted dying and palliative care. Those are two slightly different skills and it is really important that they are not always lumped together. Being involved in assisted dying will require a specialist skill and specialist training, and we would very much want nursing to be included within that.
Dr Tidball
Q
Professor Ranger: I do. They are professionals, and I believe they would be able to.
Jack Abbott
Q
Secondly, what level of training would that person need in terms of time? We have, for example, been talking about a two-year process. If this new role came into effect, how long would that person need to be trained for to fulfil it adequately? Thirdly, do you have a sense of how many of these professionals we would need to make this a functioning system? Those are three separate questions.
Glyn Berry: To answer the first question, we feel, for the reasons I outlined earlier, that the role of an approved palliative care professional would sit beside the role of clinicians, balancing clinical and social observation and assessment.
In terms of the training, we, as social workers, already have continuous training opportunities to become best interests assessors, practice educators and approved mental health practitioners, so we envisage that the training would very much be along those lines. Doing those roles currently requires a course of training at university.
Our thoughts, at the moment, are that that would be for palliative care social workers, whether they are in charities, trusts or local authorities, or are independent, because that is where things sit with us at the moment and we know our roles. We like to think that it would roll out to other professionals, however, because assessing capacity is not specifically the role of the social worker; other professionals are able to, and do, complete capacity assessments.
It is quite difficult to answer your question in terms of numbers at the moment. If we were talking specifically about palliative care social workers, we currently have around 200 members in our association, but there will be other people out there who are not members and we do not know who they are. It is a role that could expand.
One of our other recommendations is that palliative and end-of-life care, as an aside to your question, is also brought into qualifying roles for people in training, such as doctors, nurses and allied health professionals, as well as social workers. We could see that happening in the future.
Kim Leadbeater
Q
I want to ask a bit more about what this end-of-life conversation looks like in your experience, because you are absolutely right; of all the people who are spending time with patients in their last few months of life, it is often nurses and palliative care social workers. You have a really important role to play.
I am also interested in what this would look like in reality. There has been talk of a kind of separation of palliative care and assisted dying, but, actually, I think we should be looking to embrace a holistic approach to end-of-life conversations and end-of-life care, which is what has happened in other jurisdictions. You might have a patient who has signed up for assisted dying but never does it because they have good palliative care and they work with their palliative care experts and specialists. Therefore, I think it is important that we do not try to separate these things.
I would like your views on that, but I think that one of the strengths is that having these conversations about death, about dying and about end of life is a really positive thing. Your members have an important role to play in that, so could you talk a little bit about the holistic approach that your members take?
Professor Ranger: You are right regarding the conversations and the care around dying. Having those conversations with people around pain management and symptom management is particularly the role of palliative care nurses. With assisted dying, I think the conversation is sometimes slightly different. It is talking more as a nurse in some ways, because the primary reason that assisted dying is often a discussion is a lack of autonomy, not pain. Therefore, the conversation generally tends to go in a slightly different way.
Symptom control, and being scared of pain, is understandable, and we absolutely have the ability to get that right for people, but when it comes to seeking assisted dying, the primary reason is usually autonomy, rather than pain and fear of dying. Therefore, in a practical way, I think an experienced nurse or doctor will start to gauge the difference in those conversations, because they are different. I think it is about being really clear around those conversations and really listening to what people have to say, and then having a way to be able to ensure that what an individual wants is something that you have got, and that you listen to.
I absolutely agree with Glyn about safeguards and all the things that we absolutely need to make sure are there, but the whole point of assisted dying is not to be paternalistic, but to respect autonomy. Whatever safeguards we put in with that, we have to be really careful not to ignore that right of autonomy, which is primarily what this Bill is trying to preserve.
I think it is about being really vigilant and listening. A primary role of a nurse is not to advocate their personal view, but to really listen to somebody else and to ensure that what they want is pursued. In all that discussion, it is really important that that does not get lost.
Kim Leadbeater
Q
Kim Leadbeater
Yes. It sounds as though you are saying that your professionals are trained to have those conversations, which is very reassuring. Glyn, do you want to add anything?
Glyn Berry: Just to say that I absolutely agree with Professor Ranger. My experience of working with palliative nurses, and nurses in general, is long, and I have historically had exceptionally positive experiences and continue to do so. I think that we learn from each other, and it is really important that we can have those conversations with the person and ask questions that they might never have been asked before, such as, “What is it that you want?”
Professor Ranger is absolutely right in terms of autonomy and the person having control, because once that diagnosis is given, it can be a downward spiral for a person and they feel that they lose control. Patients and families talk about that—about having no control over what is happening. In effect, that is true in terms of what is happening in the disease or illness trajectory, but it is so important to remind a person that they are still the person that they were before that diagnosis, that they will continue to be that person, and that they still have a voice. In both our roles professionally, and alongside other clinicians, that is what we seek to do all the time. That is why a multidisciplinary team approach is so important.
Ultimately, we could find that, once you have asked all the appropriate questions and you have put potential safeguards in place following conversations, a person may not choose that particular point to end their life—as you mentioned, Kim—and may continue to live to the end of their natural life.
Sojan Joseph
Q
Professor Ranger: Yes, we would want to see more support and protection for nurses. Of course, in the exploring of assisted dying legislation in Scotland, the second clinical decision maker is a nurse—so it a doctor and a nurse, whereas in England and Wales we are looking at two medically qualified practitioners. We absolutely want to make sure that the skills and support is there for nursing staff, and the ability—as I heard our medical colleagues saying—to not be involved in assisted dying absolutely has to be supported. It cannot be an expectation of the role; it has to be something you choose to proactively take part in as a conscious decision. It cannot ever be just an expectation of a nurse. We are absolutely adamant about that. The Bill cannot just support the needs of medical staff—nursing absolutely has to be included within that, both in skills and support.
Kit Malthouse
Q
Professor Ranger: It is difficult. If I am honest, we have probably not explored that enough within our thinking as a college. We know what we would not want to see, which is a situation where there is an expectation that it becomes part of a pathway. It has got to be something you actively seek and opt into. I think how that is administered probably requires more thought, if I am honest, but I would not want to see it becoming an expectation of a pathway, because then the pressure on the individual may change. That is something we need to safeguard against.
I am worried that we should not make it so bureaucratic for the individual that it becomes impossible to have their autonomy respected, but how that happens is something that needs further exploration. We would fully support making it as clear and unbureaucratic for the person as humanly possible. But we would not want to see it as a sort of pathway within our current setting, because there could then be a sense that this is something that is externally influenced rather than being something that someone actively seeks for their autonomy.
Danny Kruger
Q
Professor Ranger: It is difficult, but in my experience there are ways to try and get people palliative care, whether that is, as was said earlier, via other organisations outside the NHS and within hospice care. There are ways through the current routes to get people the care that they need.
Danny Kruger
Q
Professor Ranger: I do not think it is as good as it needs to be. We know that it is sometimes hard for people to access care. We know the struggles regarding hospices. We know far too many people die in hospital. We know there are real challenges in social care and the health service. I cannot say it is not without challenge.
Danny Kruger
Q
Professor Ranger: When you put it like that, it could be possible, but we would want to strive to have a system that does not leave anyone in distress.
Danny Kruger
Q
Do you think—I cannot decide for myself what the answer is—it should be possible for a care home director to exempt their whole service, that care home and the people who work in that care home, from being involved in assisted dying? That is where people live, after all. If somebody is having it there, it could affect the entire atmosphere of the place, and the work that all of the people there have to do. Do you think they should be protected as an organisation?
Professor Ranger: Particularly for nursing homes, I think that would be difficult. How and where people end their life probably needs further thought and further explanation. There is something about being really clear— if you are the leader of that nursing home, we would have to explore your ability to be able to advocate for the care that you want to be able to give in that nursing home. All of these practical things need further exploration.
It is difficult, because for someone who wants to end their life, if that is their home, they may want to be there. It is all of these practical things that probably need further thought and exploration, because I think it could be argued either way.
The Chair
Q
Glyn Berry: I do not think so. I think that the last question around care homes was a really good one. I am already thinking about the implications for registrations with the Care Quality Commission and what that would mean in terms of the process and the protection of staff, residents and families. It is a really helpful question to think about.
The Chair
That brings us to the end of the time allocated for the Committee to ask any questions. I thank our witnesses on behalf of the Committee, Glyn Berry, co-chair of the Association of Palliative Care Social Workers, who appeared via Zoom, and Professor Nicola Ranger, chief executive and general secretary of the Royal College of Nursing. Thank you all very much indeed.
Terminally Ill Adults (End of Life) Bill (Third sitting)
Tuesday 28th January 2025
(2 months, 4 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 January 2025 - (28 Jan 2025)
The Chair
Q
Dr Clarke: I am Dr Rachel Clarke. I am a hospital palliative care doctor with a decade practising in a whole range of settings: the community, hospices, small district general hospitals and a large teaching hospital. I am also a former journalist and a current author who has written four best-selling books for the public about medicine in the UK. I campaign very actively for greater awareness amongst the public around the topic of death and dying. I have extensive experience teaching communication skills to medical students, junior doctors, nurses and other members of multidisciplinary teams. My personal view on assisted dying is that I am not opposed in principle, but I have significant concerns around the issues of consent and capacity.
James Sanderson: Good afternoon. My name is James Sanderson. I am the chief executive of Sue Ryder, a leading palliative and end-of-life care organisation, which also supports people living with grief and bereavement. I have recently joined Sue Ryder and have been there for six months. I was previously in NHS England as director of community health services, personalised care and palliative and end-of-life care. I am also the former chief executive of the Independent Living Fund.
Sue Ryder, as an organisation, has adopted a neutral position in regard to the assisted dying Bill. I am here today to provide information regarding the provision of palliative and end-of-life care and some of our concerns in relation to how the system is currently operating across the country.
Dr Cox: I am Sarah Cox. I am a consultant in palliative medicine. I have been in palliative care for over 30 years. I am also the president of the Association for Palliative Medicine of Great Britain and Ireland. It is a member organisation with over 1,400 members. Naturally, there are different views amongst our membership, but in polls over the last 10 years, the results show that about 80% of our members are opposed to the legalisation of assisted dying and about 5% are in favour. The reason for this opposition are many, but include the inadequate current provision of palliative care, which does not offer patients a choice, concerns about how the safeguards would be enacted in this Bill, and concerns about the impact of assisted dying on palliative care resources, funding and the workforce.
Dr Ahmedzai: Thank you very much for inviting me here today. My name is Sam Ahmedzai. I am a retired professor—a professor emeritus—of palliative medicine from the University of Sheffield. I have—not boasting, Sarah—39 years of experience in the speciality. I was one of the people involved in setting up the new speciality of palliative medicine back in the 1980s. My experience is of working in a hospice for nine years, and then 20 years as a consultant and professor at the University of Sheffield.
I am a clinical academic, so I very much take an evidence-based view of healthcare, and palliative care is just another kind of healthcare. For instance, I chaired the National Institute for Health and Care Excellence guidance on the last days of life. I was also clinical adviser to the NICE guidance NG142 on service delivery in the last year of life. I come from that background. I have experience of lecturing and working around the world as a visiting academic. For 10 years, I was the visiting Spinoza professor at the University of Amsterdam, where I lectured people who were delivering euthanasia in Amsterdam about what they could do through palliative medicine as well. That is where I am coming from. I am a supporter of changing the law, and I commend the Bill. It is the safest I have seen in the world.
The Chair
Members should indicate if they wish to ask a question and who they wish to ask.
Naz Shah (Bradford West) (Lab)
Q
James Sanderson: There are clearly gaps in the provision of palliative care. However, to start with a positive, I think that the provision of palliative care in this country is exceptional. We are leaders in many ways across the world in the way in which we support people who are facing those challenges in their lives. However, our findings in relation to palliative care show that, although about 90% of the population could benefit from palliative care, only 50% of people are currently able to access it.
One of our concerns is that the provision of palliative care across the country is quite patchy at the moment. I do not think there has been a thorough assessment of the level of palliative care in place—not just the provision of palliative care specifically, but how other services, such as district nursing services, interact with palliative care. In some areas, the provision of district nursing services for general care and support for people who may be at the end of their life is very strong and in other areas it is not so strong.
At Sue Ryder, there is one thing that we are really concerned about. In our survey, 77% of respondents said that they were concerned that the lack of availability of palliative care might enable more people to consider an assisted death than otherwise would. That concern went up to 84% for those who were in favour of assisted dying. We really need to look at the provision of palliative care and the specifics in the Bill that make reference to the fact that people should be offered what is available to them. We need to have a much clearer definition of what “available” means.
Naz Shah
Q
“I have studied the reports from, and spoken with medical and nursing clinicians from US and Australian jurisdictions and am satisfied that external coercion has never been reported or led to a prosecution.”
The state of Oregon carried out a survey of people who died under its assisted dying scheme in 2023. Its report stated that 43% of those who chose to die said they did so because they felt they were, and I quote directly from the term used in the survey, a
“Burden on family, friends/caregivers”.
Is that something you are prepared to see happen in the UK?
Dr Ahmedzai: It goes absolutely to the core of being British—we are always saying sorry, aren’t we? We apologise for everything. In everything we do, or everything we might do, we think we might be treading on toes and are always worried about being an imposition. All my professional life, I have come across patients and families in which there clearly is that feeling going on, usually with an older person or even a younger person who is drawing a lot on the emotional and physical resources of the family. It is natural that we feel a burden; it is impossible to take that out of human nature.
The issue is, does feeling that one is, or might become, a burden something that could influence a decision as major as looking for assisted dying? In that respect, I look to all those jurisdictions that have been offering assisted dying in different ways, and I have never seen a single case ever taken to the police or prosecuted. Evidence I have heard from other jurisdictions shows that, yes, it is possible—we all go through life feeling that we are a burden on someone—but it does not influence people in this particular decision. If anything, I am told that, in other jurisdictions, families are saying, “No, don’t do it.” They are exerting negative coercion—“don’t do it” coercion—but people are saying, “No. It’s my life. I’ve made my mind up.” They have mental capacity, and we respect that.
Sean Woodcock (Banbury) (Lab)
Q
Dr Clarke: Based on my clinical experience, I would push back on that in the strongest terms. I am the kind of doctor who believes there is nothing to be gained from sugar coating reality. We have to be absolutely honest with patients and the public about shortcomings, failings and areas where my profession and the rest of the NHS are getting things wrong.
It is my clinical experience that not only are the majority of doctors not necessarily trained in spotting coercion explicitly, but they are often not trained explicitly in having so-called advance care planning conversations with patients around the topic of death and dying, and how a patient would like the end of their life to proceed. It is almost impossible for me to overstate how much avoidable suffering occurs right now in the NHS not because of a lack of resources for palliative care—although that is an enormous problem—but because of a lack of confidence, skill and expertise among the medical profession writ large with these very difficult conversations.
We are all familiar with the idea of death and dying being a taboo in society. People are scared of it, and they hesitate to bring it up with their friends and family. In my experience, many medical students and doctors also suffer from that anxiety. They are scared, and they find it a taboo subject. What that means is that sometimes coercion occurs because the doctor—the consultant responsible for this person’s care—will not even bring up the fact that they think the patient is dying, because it is an uncomfortable conversation. Conversely, I have worked with senior hospital consultants in the NHS who have deliberately prevented our team from accessing their patients, because they believe that the hospital palliative care team wants to kill the patients, and that if I go and see the patient, I will give them a lethal dose of drugs.
These are the kinds of extraordinary misunderstandings and failures to prioritise patient autonomy that are happening now. That is even before we get started on conversations around whether someone would like to consider assisted dying, so it is a huge problem.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Q
Dr Ahmedzai: I have visited many of the jurisdictions around the world—such as Oregon, where I met the original judge who brought in the law, as well as the doctors, nurses and patients involved—and it was clear to me that if patients had not accessed palliative care, they were pointed towards it. Obviously, you cannot force anybody to go and have palliative care, but they were certainly informed about it.
In the Netherlands, I commend a system for doctors called SCEN—support and consultation on euthanasia in the Netherlands. These are trained doctors working for the equivalent of the BMA, I believe, who, as Dr Clarke has referred to, are going and supporting doctors who are not familiar with things. They often come from a background of palliative care and pain medicine, so they are making options available that other doctors in the process, for instance, have not brought up. In Australia, there is clear evidence that palliative care is becoming more available.
The European Association for Palliative Care produced a report more than 10 years ago in which it examined all the countries in Europe at the time, and it found there was evidence that palliative care was improving in scope and availability alongside the forms of assisted dying that were happening there. I am reassured that bringing in some form of assisted dying, particularly the form proposed here, would be a boost to palliative care.
One of the things I would like to see is that anybody who is involved in the process is constantly asking the patient, “What about palliative care? Have you actually accessed it?” Right now, if they have not raised their hand and asked for assisted dying, no one has that conversation with them. They are in a vacuum and a bubble, and not receiving palliative care, whereas this provision would possibly make it more available.
The Chair
Order. I do not want to squash any discussion, but I ask Members and the panel to bear in mind that we have until 3.15 pm for this session. I will be as lenient as I can with questions.
Dr Tidball
Q
Dr Ahmedzai: In the interests of brevity, yes.
Dr Tidball
Q
“entirely consistent with current medical practice and with compassionate care”
to raise assisted dying. You also said that raising the topic did not have adverse effects. How could clause 4 be strengthened to ensure that patients are presented with a range of treatment options at the end of life and relay any concerns that others have raised about suggestibility where this is mentioned in isolation?
Dr Ahmedzai: That is a complicated question. The first point is that right now, as Dr Clarke pointed out, it is scary to patients to be told that they may actually be receiving palliative care. When it has been mentioned—by an oncologist, for example—many patients say, “I do not want that. Don’t let them come anywhere near me or anywhere near my relatives.” It is not unusual that people may have an adverse reaction to just hearing about the service, but here the difference is that the person has actually asked for it.
I personally believe that it would be advantageous if there was formal training, as Dr Clarke has mentioned, specifically to have the kinds of conversations that we now talk about, such as about psychological issues and suicidal tendencies. It used to be thought that if you mentioned suicide to somebody, it would give them the idea, but of course it does not; it saves them, because they say, “Thank you. Yes, I was having those thoughts.” Bringing up assisted dying is never going to be harmful to the person, even if they had not thought of it. They will just say, “Well, it is not for me.”
Rebecca Paul (Reigate) (Con)
Q
Dr Cox: Professor Ahmedzai has talked about the evidence, which was written up to 10 years ago. There is actually more recent evidence, looking at the last 10 years, where European countries and American states have been assessed in terms of the development of palliative care services. That more recent evidence shows that although palliative care services have improved in those countries where assisted dying has been implemented, they have improved three times more in countries where assisted dying has not been implemented. The evidence from that study shows that the implementation of assisted dying is impeding the development of palliative care services.
The other thing we are really concerned about is the impact on funding. It is unclear how this is going to be funded. It looks as if it is going to be within healthcare, and if so, there will inevitably be competition with other aspects of healthcare, including palliative care, for those limited resources. There are finite numbers of doctors, nurses and side rooms in hospitals. If palliative care and assisted dying were funded from the same pot, I think there would be a massive detrimental effect on palliative care because we would be in competition for a limited resource.
I am also concerned about our palliative care workforce, which we know is already in crisis. Eighty-three per cent. of our members told the Royal College of Physicians in 2023 that they had staffing gaps, and more than 50% were unable to take leave because of those staffing gaps. Forty-three per cent. said that if assisted dying were implemented within their organisation, they would have to leave. This has a massive impact on palliative care, in terms of its potential to develop both our funding and our workforce, who are really concerned about this.
Rebecca Paul
Q
Dr Cox: The first thing to say is that palliative care is currently inadequate. Not only do we need to ensure that it does not decline, but we need to massively improve it so that this Bill offers patients a real choice. We know that effective palliative care can change a terminally ill person’s point of view from wanting to die to wanting to live.
We also know that 25% of people who die in this country do not have the palliative care they need. That is more than 100,000 people a year. Providing palliative care, which might make their lives better, reduce their suffering and even change their perspective on whether they would want assisted dying, should be our priority in reducing suffering in this group.
I do not know how we prevent this from happening. Making sure that palliative care has separate funding is important, because assisted dying and palliative care need to be separate in how they are delivered and in how they are funded.
Sarah Green (Chesham and Amersham) (LD)
Q
Dr Clarke: The fundamental principle is always that, by default, the patient has capacity unless there is clear evidence that they do not. We presume that patients have capacity. As doctors, we are obliged to ensure that patients have informed consent when deciding between different treatments. That means we need to lay out the whole array of treatment options, and the risks and benefits of each, to empower individual patients to make decisions for themselves.
Regarding the issue that has been alluded to of whether doctors should be prohibited from raising the issue of assisted dying, it is my belief that that would fundamentally alter the doctor-patient relationship. If consent is not informed—and it is not informed if we are not laying out all the different options to a patient—we are denying patients the opportunity to make decisions for themselves. A patient is always able to refuse every treatment, and in particular every life-prolonging treatment, that they choose to, provided they have capacity. We, as doctors, may think that a decision is unwise, but that is irrelevant, because those days of bad old paternalistic medicine are gone. The patient makes the choice. If a patient says, “I do not want chemotherapy. I do not want to eat. I do not want anything at all—no treatment”, we respect that, unless they lack capacity.
The elephant in the room with all of this is the capacity assessments. I would suggest that anybody who pretends that those assessments are easy and routinely done well in the NHS has not got enough experience of observing that happening. I teach capacity assessments to doctors and medical students, and it is often the case that they are very poorly conducted. The doctor often does not understand the criteria for assessing capacity. That is if it happens at all. Sometimes, a paternalistic doctor will decide that a patient is dying, and we should stop their antibiotics because they are clearly now at the end of their life. They have a chat with the family, who say, “Yes, we agree,” and nobody talks to 82-year-old Mrs. Smith and asks her what she feels about it, because they assume that she does not have capacity because she is old. I see that regularly. Sometimes, a palliative care team will intervene in those situations, because the professional and legal framework that is meant to guide this practice is just not happening. It is a very fraught and tricky area.
If there is one thing that I would say to the Committee regarding making the Bill as robust, strong and safe as possible, it is: please consider seriously the matter of education and training from day one of medical school onwards. Death is at the periphery of a medical school curriculum. Death and dying are not taught. You might get a week of palliative care in five years, and that has knock-on effects all the way through, at every level of seniority in the medical workforce.
Sarah Green
Q
Dr Clarke: Yes, I think that in the spirit of transparency and making this as safe as possible, it needs to be significantly strengthened. I would suggest that there need to be more safeguards in place. For example, if anyone in a hospital—whether staff, patient or family member—has concerns around a particular case, there should be mechanisms for those to be raised in a proactive way. Just as we have guardians of safe working and freedom to speak up guardians in hospitals, those opportunities to assess and appraise the safety in real time once a Bill is in place—I just do not think they are robust enough at all. The more we can have of that, the more that will allay people’s fears.
Daniel Francis (Bexleyheath and Crayford) (Lab)
Q
Dr Ahmedzai: You have caught me on the hop, because I cannot quote the level of training that doctors have received elsewhere, except for examples in the Netherlands, where there are additional doctors who are, through their medical association, trained specifically in assisted dying. I cannot tell you the number of years’ experience that doctors have in other countries. I felt that it was self-evident that you would want doctors who are experienced—three years, five years or whatever post qualification—and who have seen real life. It is up to the medical associations to stipulate how much experience, but I would not like the idea of a doctor immediately, having got their certificate of training, going off and making these kinds of decisions. That is why I suggested that ballpark figure.
Daniel Francis
Q
Dr Ahmedzai: Probably not, but this is a very, very special situation, and it may be, once it has become embedded in the health service, that that stipulation could move back.
I am so glad that Dr Clarke keeps coming back to training. One thing that is absolutely needed if this Bill goes forward is to take the topic of assisted dying out of being an optional training—where people might sign up for a course—to become mandatory. In the NHS, we do mandatory training for all sorts of things, including washing hands, lifting and basic life support. There should be basic dying support mandatory training as well. Why do we not have that? That kind of provision would become part of training doctors up to become good at those conversations that Dr Clarke is obviously involved in teaching, and in ensuring that they keep up to date with how the law is changing too. I would look to the royal colleges and the GMC to lead on those aspects.
Dr Simon Opher (Stroud) (Lab)
Q
Dr Clarke: I absolutely agree that in a small number of cases, palliative care at the highest level cannot eradicate all suffering, and cannot prevent a person from wishing to end their life and have assistance in ending their life. That is absolutely the case; I would say that it happens surprisingly uncommonly, in my experience, but it does happen.
Autonomy is the crux of the issue for me, because autonomy is predicated on having meaningful choices. Can you actually choose option a or option b? Let us say that option a is high-quality not just palliative care, but medical care in general—district nursing care or social care, for example. If that is not available to you, you are potentially being pushed towards “choosing” option b—the route of assisted dying—not freely and not autonomously, but because option a has been denied to you by real-world failures. We all know about those real-world conditions—we are all familiar with the latest winter crisis, where patients have been dying on trolleys in corridors, etc—that are preventing the actual option of a death in which dignity, comfort and even moments of joy can be maintained right up until the end of life, when that patient is getting the high-quality palliative NHS and social care that they need.
That is the crux of the issue. If you do not have that as a real option for patients, we can say that they are choosing autonomously assisted dying, but actually society is coercing them into that so-called choice because it is not funding the care that makes them feel as though life is worth living. That is why I think many of my colleagues are so concerned about legal change now. It is not because of an opposition to assisted dying in principle. It is because the real-world conditions of the NHS today are such that people’s suffering means that occasionally they will beg me to end their life, and I know that that begging comes not from the cancer, for example, per se, but because they have been at home not getting any adequate pain relief. Once you start to provide proper palliative care, very often that changes.
Danny Kruger (East Wiltshire) (Con)
Q
Dr Cox: I and my colleagues have concerns about the safeguards in the Bill. It is not just the capacity assessment; we also acknowledge that prognosis is incredibly difficult to assess accurately. I would say that you cannot always identify coercion. You can identify it when it is very obvious and extreme, but when it is very subtle, we cannot always identify it. After the event, there is nobody to tell us about coercion, so it is very difficult to monitor.
The other thing that concerns me is that we are putting all these assessments on the shoulders of two doctors individually, followed up by a High Court judge. In any other clinical practice, when we are making very serious decisions, we know that shared decisions are much better quality, much more robust and much safer. In clinical practice, we make all these decisions in multi-professional teams. I would never make these decisions independently of my team, because the perspective they bring can help me to understand things that I am not seeing.
The thing that I am really concerned about is how it is possible for these doctors, even with training, to have a good understanding of all illnesses in order that they can identify prognosis—neurological, cancer and every other. How is it possible for them to really understand capacity when capacity is not an absolute; it does change and it is very complex to assess? How is it possible for them to see all cases of coercion, which can be invisible?
In addition to that, are those doctors going to be looking out for opportunities to refer to palliative care when they see somebody who has suffering that could be addressed and may change their mind? Are they looking out for untreated depression? We know that treatment of depression can result in people changing their minds about wanting to die. It is a lot to ask these individual doctors to do, and that really concerns me.
Kit Malthouse (North West Hampshire) (Con)
Q
Dr Cox: There are two differences that I would identify. The examples you give are of somebody who may be naturally dying and is being kept alive, so the difference is that you are withdrawing a treatment; you are not intentionally killing them. This is the first difference with assisted dying.
The second difference, I would say, is that you are absolutely right that we do make those decisions with patients—with their families, if they wish—but in a multi-professional team. I would almost never make those decisions as an individual doctor without the support of my colleagues, for several reasons. First, as I have said already, that makes for much better decisions—they are safer and more robust. Secondly, the moral distress associated with these decisions is much less if you share them. That is also a worry for me—what happens to the moral distress of the co-ordinating doctor and the other assessing doctor? They are carrying a lot of moral distress. My understanding is that a very small percentage of doctors will want to engage with this—maybe 1% or 2% of all doctors will want to be in those assessing positions. They are carrying a lot of that distress because they will be doing a lot of assessing.
Kit Malthouse
Q
Dr Clarke: I think that is not quite right, and certainly not what I intended to convey. There are rules. There are very clear legal and professional rules and guidance and protocols around how to have these conversations. However, in practice, the quality of the conversations is contingent on the confidence, expertise, training and background of the individual clinicians having the conversations. There can be a great deal of inter-doctor variability in how conversations are conducted. In terms of addressing that, I would suggest that in an assisted dying scenario the crucial thing is to make the guidance and training as robust as it possibly can be to reduce the inter-practitioner variability.
Kit Malthouse
Q
Dr Clarke: No, of course not.
The Chair
Order. We have half an hour left. Nine people have asked questions and there are eight people left who want to. If we want to get through the questions by 3.15 pm, people will have to be self-disciplined when they ask their questions.
To the panel, forgive me, but we need answers in as reasonable a time as possible given the circumstances. Dr Clarke, if you wish to answer the last point, feel free.
Dr Clarke: Of course we want as much autonomy for as many patients as possible. The issue is around safeguards. If, for instance, you say to a vulnerable patient who has just been told they have a diagnosis of terminal cancer, “Have you thought about assisted dying?”, I would suggest that stating it broadly like that is a form of pressure and that you are potentially unintentionally coercing that patient. The very act of raising assisted dying in that way will make that vulnerable patient think, “God, is this doctor telling me that my life is not worth living any more?” Autonomy is much more subtle and complicated than we assume from outside.
Juliet Campbell (Broxtowe) (Lab)
Q
“Sadly, only half the people who need palliative care receive it.”
In your opinion, who are the people who receive palliative, and who does do not?
My question to Dr Clarke is similar. You have talked about the population being
“carved up into two groups…those who deserve to live and those are expendable”.
Could you expand on that quote and the two groups you referred to, as well as the impact that has on their treatment and care?
James Sanderson: You draw a really important point about not just the provision and totality of palliative care across the country but the inequity of access. Unfortunately, we find that the diversity of people who are accessing care in hospices across the country is less than those who are dying in hospital—43% of people currently die in hospital.
One of the things we really need to do is move to a new ecosystem of palliative care that looks at supporting people in different settings. We need specialist provision in hospices to support people with significant needs, but increasingly hospices are reaching out beyond their walls into the community, and 80% of Sue Ryder’s work is in people’s own homes. People tell us that they want to die at home, so supporting people in their own homes enables us to access more diverse communities and get to people in their own setting.
Increasingly, one of the things we feel is necessary is the provision of support inside hospital. Alongside wards, we would bring support to that 43% of people who are currently dying in hospital, to ensure there is equality of access in all places, both in in-patient settings and in the community. You draw a really important point that we have to look at the totality of provision and ensure that, when someone is offered palliative care—the Bill talks about that provision being available—there is universal access, in terms of the type of palliative care available and the access for everybody in society.
Dr Clarke: My comment refers to the fact that there is an immense gulf between the theory of the NHS being a cradle-to-grave service—or a service that cares for us at the end of life as it does at the start—and the reality. The reality that I see every day at work in my hospital is patients coming into the emergency department from the community sometimes in utter, abject misery, in agony, with a lack of dignity. They have been forgotten completely. They are not getting healthcare or social care, and no one cares about them.
Even in the hospital, patients who have a terminal diagnosis are sometimes cast out into the corners of the hospital. There are hospitals, and mine is one currently, where we do not even have a 24/7 palliative care service face to face. Every night in my hospital, and every weekend from Friday to Monday, you cannot see a palliative care nurse or doctor, despite the fact that for a number of years that has been an NHS standard. That is an absolute disgrace and it shows how little people who are dying are truly cared for in a civilised society.
It does not necessarily have anything to do with assisted dying, except that if we do not address that simultaneously, some of those people will “choose” to end their life, because we as a society do not care about them enough to give them the care that might make life worth living. Surely that is a travesty for Britain.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Q
Dr Cox: My understanding of the plan is that in the Bill—forgive me, but I am sketchy on this—the aim is for the registration to be as a natural death. It would not be referred to the coroner, and “assisted dying” would appear on the death certificate.
I am also a medical examiner. My concern is that, as a medical examiner, I am obliged by law to scrutinise all deaths to ensure that a referral to the coroner is not required and to identify any learnings. What concerns me in that role is whether enough recording is happening around decision making and the process to do my job properly. With my medical examiner hat on, do I know what happened? I do not see anything written down in the Bill about the records that are to be kept. What happened when the patient took the substance? What happened afterwards? Were any actions taken in the meantime? That is not so much something I have thought about a lot with my palliative care consultant hat on, but as a medical examiner it concerns me.
Dr Clarke: For the sake of time, I do not have anything to add. I completely agree with that.
Jack Abbott (Ipswich) (Lab/Co-op)
Q
Dr Cox: In European countries and American states.
Jack Abbott
Q
Dr Cox: I suppose it depends who you are. If you live in one of the postcodes where you cannot get palliative care, if you are socially deprived, if you are a member of an ethnic minority or if you have a lung cancer diagnosis, you will not get very good palliative care in this country. I think that is awful.
Jack Abbott
Q
Dr Cox: The position we would ask you to consider is whether this is the right time to bring in a law to give people a choice of assisted dying, when they do not have the choice to have good palliative care.
Jack Abbott
Q
Dr Cox: The NHS is very different from any other jurisdiction—
Jack Abbott
Yes, so the direct comparison is not necessarily relevant. Is that correct?
The Chair
I understand that, but address it through the Chair.
Dr Cox: Palliative care may well have improved in this country over those years when it also improved in other countries where assisted dying was not available. What we are saying is that there has been chronic underfunding of palliative care, so where we are now is inadequate.
Tom Gordon (Harrogate and Knaresborough) (LD)
Q
Dr Cox: I accept that there will be people even with a very good palliative care system who would still choose assisted dying. We do not currently have the very good palliative care system that we need. That is the thing that concerns me.
Tom Gordon
Q
Dr Cox: I will give you some examples. We need to make sure that the 75% to 90% of people who are dying and need palliative care are getting it. We need to make sure that there is not inequity in palliative care, so that you do not have to be white and rich and have cancer to get good palliative care. We need to make sure that hospitals have seven-day services. Seven-day-a-week cover is unavailable at 40% of hospitals. We need to make sure that communities have telephone advice services at night. One in three do not have any advice overnight for patients and their families to access. There are some concrete things that we could change to demonstrate that we are delivering a good service. But currently we are not.
Tom Gordon
Q
Dr Cox: I would love to see it continue. I am part of the commission on palliative and end of life care. There is no guarantee that the recommendations of that commission will be funded, and that is what concerns me. I would love to see that happen. Would it not be great if the two could happen simultaneously? But there is no guarantee that that will happen.
James Sanderson: I want to come in on your point and agree with Sarah’s points. Obviously, we welcomed the Government’s announcement of the additional funding for the hospice sector, but the Committee will be aware that the hospice sector currently receives only about 30% of its funding from statutory sources. We are therefore reliant on the good will of the population to raise money and support us in various ways, and through retail and other ventures that we have.
On the point about universality of service, we have in the Health and Care Act 2022 a requirement for integrated care boards to commission palliative care services that meet the needs of their population, but although there is guidance as to what that should look like, there is not universal take-up of that guidance and delivery of all of the stated services. Although that is outside the scope of this Bill, it comes back to the context of how much the overall position can be strengthened across the country. The context for anybody looking to make a decision is within the same space. As Dr Clarke said in respect of informed choice, if the context is the same for everybody, we can have more confidence that that informed choice is made at the right level.
Kim Leadbeater (Spen Valley) (Lab)
Q
To go back to your point, Mr Sanderson, it is important to acknowledge the fantastic work that palliative care professionals do. Indeed, it is extremely important that we are having these conversations, which is why we gave extra time to this panel of witnesses.
Dr Cox, on your point about the pressure on the individual doctors involved in the process, the Bill is very clear that if they do not have the relevant specialism, they must refer to a specialist in that condition, and they “can” refer to a psychiatrist. There is probably consensus that we maybe need to strengthen the Bill in that regard. When there are doubts around capacity, doctors probably “must” refer to a psychiatrist. That is something I am taking away from these sessions.
I was interested in the comments about the multidisciplinary approach. We heard about that this morning from colleagues in social work and in nursing. I would love to know your thoughts, Dr Ahmedzai, about the idea of a multidisciplinary approach. I think there is a lot of value in that.
Dr Clarke, on this concept around training, it worries me that we have seen this afternoon a very different picture painted by you and others compared with what we heard this morning, when we had doctors and nurses telling us that they regularly assess for capacity and coercion. They said it is part of their day-to-day work and they were very confident in their ability to do that. Training is fundamental, and this is an opportunity to look at gold-standard training. I would be interested to know your thoughts on that.
Dr Ahmedzai: You asked me about the multidisciplinary nature of this. I am really glad you raised that, because we seem to be focusing on palliative care as being very professional, and I would remind people that there are levels of palliative care. A lot of palliative care is given not by specialists like the three of us here but by generalists—either GPs, as we have heard, or by oncologists or geriatricians. When we talk about increasing palliative care and improving palliative care, it is not just about more doctors like us working at a specialist level.
The other thing is that it is not just doctors. We have to acknowledge that nurses are on the frontline; they do so much more than doctors. When doctors clock off at 5 o’clock in those sad institutions that still do not provide 24/7 cover, there are nurses at the bedside all around the clock. Then, there are social workers, physiotherapists and others. If we are talking about meeting the needs of people who may not necessarily have pain but have other forms of suffering or worries, which are not even physical—the loss of dignity and the loss of independence—nurses are so good at supporting people in that. A doctor will just get in the way.
What we need to do is make sure that we are addressing the reasons why many people choose this. I know, from speaking to people abroad, that it is loss of dignity and loss of independence. Is that not a legitimate reason for wishing that you were not a burden on somebody, or on the state even? It is really important that we consider that.
The other thing to bring in as well, if we are thinking about the big picture, is another elephant in the room: palliative care is not strictly speaking actually in the NHS—not all of it. A lot of it is outside of the NHS, for historical reasons from 50 or 60 years ago when decisions were made. Although there are excellent charities providing discrete areas of it, we rely so much on non-NHS services. You would never think of going to a charity to get your heart transplant or your kidney dialysis. We need to confront the fact that palliative care is fractured because of that history and the genesis of how palliative care came to be. It is not just NHS. We must think about the multidisciplinarity.
Dr Clarke: Regarding training and how much it is required, I would not be the first person to make the observation that sometimes doctors can be very pleased with their own abilities at a particular practice, and that practice might be having a conversation where you are assessing someone’s capacity.
What is interesting as a palliative care specialist is that I and my team will be asked to get involved with patients in every possible bit of the hospital—surgical wards, medical wards, intensive care, emergency departments—so you actually see a huge number of patients being treated by many different teams and many different doctors, junior and senior, all of whom are having these difficult, nuanced conversations around the end of life with varying degrees of skill. Of course some doctors and nurses are superbly skilled at having them, and I would say that there are many who are not.
The reason training is so important is that it is a little bit like Donald Rumsfeld’s unknown unknowns. You might not even be aware of the fact that you have caused a patient or their family distress. In a conversation where fear is a dominant part—the patient is fearful of suffering misery and loss of dignity at the end of life, but they may not voice that—you as the doctor can be completely oblivious of the fact that you have sort of stamped over those unvoiced fears with your hobnail boots. You are not aware of it.
This idea that a vulnerable patient needs to be absolutely at the centre of any conversation you are having is quite radical in some parts of the NHS. It needs to be taught much more assertively from day one of medical school, so that vulnerable patients are always at the centre of the room. That is why I think the single most important thing for the Bill and its safety comes down to training and actually recognising that these conversations are difficult and nuanced. If we assume that, we are going to make sure that the Bill is as safe as it can be.
Lewis Atkinson (Sunderland Central) (Lab)
Q
James Sanderson: I welcome the provision in the report. What is necessary is a benchmarking of the current position. Rather than waiting a significant period of time to do a review, we need to benchmark the current state of palliative care and then base subsequent reviews on any changes. As I mentioned before, we also need to look at the wider context. If we look narrowly at the provision of palliative care, we will not properly see what goes on across the whole environment of the health service and social care.
We have mentioned the fact that district nurses and general practitioners are providing a huge amount of palliative end-of-life care, so it may not just be what goes on inside hospices and in palliative care teams in hospitals. I agree that that needs to look at the demographic information so that we are collecting details on who is accessing palliative care and where, and the certain types. All that is necessary as part of the review.
Dr Cox: I agree completely that we need to be doing reviews now and in the future regularly on palliative care aspects. I also think there is an opportunity to write into the Bill other monitoring that would be really helpful in ensuring safety on an ongoing basis. That includes monitoring in terms of decision making—how often assessing doctors refer to others, how often they disagree and what happens after the declaration.
In the Bill there is, as far as I could see, no limit to the delay between the declaration and the request for the substance. That would be an interesting thing to look at in the future, because somebody could delay for six or eight months. Do we do another capacity assessment then? That is a tricky question. What about the taking of a substance? We have not talked about that. There are a lot of things we could look at in future that would be really helpful to monitor.
Lewis Atkinson
Q
Dr Cox: It is really difficult to know how many people who die by suicide because of their terminal illness would instead access assisted dying, and it is really difficult to understand the impact of assisted dying legislation on that. If we look at the evidence of suicide, we know that it is increased in people with serious illnesses, but it is actually increased in the first six months after diagnosis, not in the last six months of their lives, so it is about the trauma of the diagnosis. What we need for that is better mental health services, better support around diagnosis and earlier palliative care.
The other piece of evidence that I would offer to you is that the global picture of what happens to suicide rates after assisted dying legislation is introduced is confusing and mixed. But there are jurisdictions, for instance Germany, where after the introduction of assisted dying legislation the incidence of suicide has gone up year on year. I do not think we can say that introducing assisted dying legislation will stop those suicides.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Q
I was struck by the way the RCN talked—and you, Dr Clarke, used the word as well—about not being paternalistic, about having the patient at the centre of that conversation, and about ensuring that we listen to the patient and ask them, “What is it that you want?” That, for me, is all about autonomy. Do you agree? The emphasis must be on patient autonomy and their choice at the end of life.
Dr Clarke: One hundred per cent. Sometimes, those of us who work in palliative care almost see the extent to which we try to place the patient at the centre of everything as quite radical, when contrasted with a lot of the other medical specialities. My opinion about what is best for a patient does not matter; their opinion is what counts.
The power of the multidisciplinary team, and the reason for thinking that it may be worth considering amending the Bill so that there is a greater role for a multidisciplinary team, is this: the fact that everybody in that team brings their unique perspective. In my hospital, whenever there is a tricky issue regarding a palliative patient, we will have an MDT. There may be 10 people in the room, all discussing the issues. It might be that someone has decided that they want to withdraw their life-prolonging treatments, or they want to have life-prolonging treatment and, for whatever reason, it is really complicated. We will have the patient, their family, doctors, nurses, social workers and dieticians—a big group of people—in the room because that is the way to make the decision most safely and most effectively, in terms of enabling the patient to have the treatment that they wish to have. It is incredibly important to have that.
Rachel Hopkins
Can I ask Mr Sanderson to reflect on that, for the different context, Mr Dowd?
The Chair
No. Order. We have two and a half minutes to go. One other hon. Member wants to ask a question. I want them to come in.
Sarah Olney (Richmond Park) (LD)
Q
Dr Cox: I think it is a choice for the patient. It is always a choice for the patient who they want to involve from their social circle, whether that is family or friends. However, I think that if the patient wants the family involved, then they absolutely should be, and they should be part of those conversations and discussions.
Kim Leadbeater
Q
Dr Ahmedzai: Clearly, British people have had that option for many years, since Switzerland first offered that. It is clear that two things happen. One is that it selects people who are better off and more functionally capable—they can do it—so it discriminates against disabled people. Also, people tend to do it long before they need to, when they are still fit. That is because mostly, they want to go on their own, without dragging relatives along. It is doubly damaging to families who are going through an illness with somebody who is dying. They have to say goodbye to them long before they need to. However, that is because we do not offer that option here.
Kim Leadbeater
Does anybody else want to comment? Dr Cox?
Dr Cox: I am happy to. Of course we do not want people to have to make that choice. I will refer to everything I have said before: are they are making a real choice, and have they had access to really excellent palliative care?
I also make a brief point about the impact of the discussion around what dying looks like that the Bill has raised, and the fact that the stories that have been told have suggested to many members of the public that death is inevitably ugly, horrific and dramatic. Actually, that has made many people fearful, and they have been emailing me and saying, “I am now afraid of dying, and I wasn’t before.” They may then choose assisted dying before they need to because they have had a fear instilled in them that death is inevitably horrible and dramatic.
The Chair
Order. That brings us to the end of the time allotted to the Committee to ask questions. I thank our witnesses on behalf of the Committee for their evidence.
Examination of Witnesses
Sir Max Hill KC, Alex Ruck Keene KC and Sir Nicholas Mostyn gave evidence.
The Chair
Q
Sir Max Hill: Good afternoon. I am not sure how much by way of introduction you want, so please stop me. I was the UK independent reviewer of terrorism legislation 2017-18, and the director of public prosecutions 2018 to 2023—so I stopped 15 months ago. I am not a campaigner; I am here to bring any experience of criminal casework that I may have picked up along the way, as that was part of my diet as DPP. I have been quite close to the construction of the Bill, and I am happy to deal with any questions that I can.
Sir Nicholas Mostyn: I am Nicholas Mostyn, and I was a judge of the High Court family division, of the Court of Protection and of the administrative court until 2023, when I retired with the onset of Parkinson’s disease—which is a genuine slippery slope, unfortunately. I am now a podcaster and devoting myself to alleviating the hardships of people living with Parkinson’s.
Alex Ruck Keene: I am Alex Ruck Keene. I am a barrister in independent practice, and I need to emphasise that I am giving my evidence as a self-employed barrister, not on behalf of any organisation I am associated with. You will have seen from my written evidence that I am associated with quite a few different organisations, because my practice and career straddles both advising and appearing in court cases involving mental capacity. I teach law on the end of life as a professor of practice at King’s College London. I am also heavily involved in law reform in different ways; for instance, I was the legal adviser to the Independent Review of the Mental Health Act 1983. I also do an awful lot of training in the context of mental capacity of both healthcare and social care professionals.
Naz Shah
Q
Sir Max Hill: If the problem is anybody in future going on their own or accompanied by their loved ones to Dignitas, the answer is no—this Bill does not satisfy that. What we have learned from other jurisdictions around the world, where we see broader or multiple groups beyond the terminally ill who are entitled to use new legislation, has not been the model for this legislation, unless you and Parliament were to dramatically change it. The nuanced answer to your question is that this Bill does provide an opportunity for those in the category of being terminally ill, as defined in the Bill, to no longer have to resort, on their own or supported by loved ones, to going to Dignitas. So, yes, it can and will make a positive difference.
I should add, in answering this question, that my often-quoted personal experience is that 27 cases investigated as assisted suicide came across my own desk as the DPP —five to six cases a year. A substantial proportion of those cases did involve Dignitas, because an accompanying relative who had returned alone was then investigated, but a proportion did not involve Dignitas at all, because there had been deaths at home. Of all those 27 cases, I made the decision to prosecute in only one, which was the case of an individual who was 19 years of age encouraging another teenager to end their life. That was a correct and successful prosecution.
I will also add—because until 15 months ago I was a prosecutor, and prosecutors look to bring criminal cases whenever the law is broken—that there was an additional handful of cases in which, although I was not making the personal decision, I supported authorisation of charges for murder or manslaughter where it was clear that an individual’s life had been brought to an end not at the time of their choosing. It is perhaps important to remember that this Bill, as and when passed—that is a matter for Parliament—would not truncate the homicide jurisdiction in this country. It will still be possible to prosecute for murder in those cases when one would expect to be prosecuted for murder. I think it is important to say that, as a very recent former prosecutor.
Naz Shah
Q
Sir Max Hill: That small handful of cases involved an elderly couple where either he—it was usually a he—or she had chosen to bring to an end the life of their lifelong partner and, once that act had been carried out, claimed that it was an assisted suicide in circumstances where the surviving partner was merely carrying out the wish of the person now dead. There are a handful of cases in which that is clearly wrong and should not be accepted and where murder should be the offence brought before the court.
The point, though, is that throughout the time that I served as DPP—and, indeed, the time served by all my predecessors—we did not have the coercion offences created by the Bill, which I suggest would be a significant advance, and nor did we have a legal system in which the investigation was taking place before the death. It was the other way around. In each of the 27 cases I considered, the deceased individual was already dead, and that is when the scrutiny started. The major advantage of the Bill, if I can put it that way, is that that will be reversed, and scrutiny will be before death. In the case of coercion, where it fits the new potential clauses, prosecutions can—and, I am sure, will—be brought.
Dr Tidball
Q
Sir Max Hill: I think that coercion and the coercion clauses in the Bill should be read alongside the capacity clauses. What we are looking for, as required by clause 1(1) and clause 1(2), is a clear, settled and informed wish, voluntarily made without coercion or pressure. Those aspects were taken, at least in part, from the Crown Prosecution Service guidance on 1961 Act cases. Capacity involves understanding information, retaining it, using it and communicating it. If those hallmarks are not there, you may be in a situation where you should be considering coercion. I think you read the two together.
To answer your question directly, the criminal liability clauses—clause 24, and the new offences in clauses 26 and 27—are robust. As a matter for your scrutiny, they are aspects that we do not have in the law at present. There is, of course, the addition of clause 36, under which you cannot be a witness or a proxy to the procedure that is enshrined in the Bill if you are too close to the terminally ill person. That is another hallmark of the Bill that will hedge against coercion.
Dr Tidball
Q
Sir Max Hill: My inclination is that clause 26, which is part of the full body of the Bill, is the right place for this. As with the interpretation clause, clause 40, and as with the way we interpret statute as a matter of course, there are aspects of other statutory offences or Acts of Parliament that help us when we are seeking to determine what coercion is. The creation of the offence of coercion and control, now very commonly used in domestic abuse investigations and prosecutions, has brought us into this territory. It is not beyond the wit of anybody who seeks to use and interpret this Bill to also look for other parts of statute that deal with coercion.
I make the same point about capacity. What is in the Bill is very slender, one might say, because clause 3 simply invites the reader to look across to the Mental Capacity Act 2005. But that Act is very clear on what mental capacity is and how it is defined. I think what I am saying is that it is a drafting point, and I am not a parliamentary draftsman, but I do not have a problem with the definitions of dishonesty, coercion and pressure being in clause 26, where they are. It is not the only place one would look, though; there are other sources.
Dr Tidball
Q
Sir Max Hill: “Dishonesty” is a term of art in common use, but it is also a term of statute. Anyone investigating or, still more, prosecuting would understand what dishonesty means. I accept that there is a wider point—not so much for interpretation but for understanding—that this Committee may want to consider, of how much of that existing definition needs to be imported into the Bill. As with mental capacity, I would suggest that, beyond perhaps the odd footnote, it is not necessary for you as a Committee to define again what dishonesty means, because we have it elsewhere.
Alex Ruck Keene: On pressure, I think the Committee would be really assisted by having a look at the learning of the High Court judges exercising their jurisdiction under the inherent jurisdiction in relation to people who are said to be vulnerable. They have developed an awful lot of tools, where they are trying to look at people in complicated situations—potentially, but not necessarily, with impairments—who are caught up in what one person brilliantly described as being caught in a spider’s web. Those are the sorts of sets of tools used when judges are trying to work out what is going on, and whether it is the side of the line we consider to be acceptable or the side of the line we consider unacceptable—because “pressure” is doing a lot of work there.
Jake Richards (Rother Valley) (Lab)
Q
Sir Nicholas Mostyn: One per cent would be 6,000 deaths a year. If each took two hours to process in the High Court—you have to read it and hear the evidence; one of them has to be oral and you have to write a judgment—that is 12,000 hours. Each High Court judge does 1,000 hours in court—outside court, they do lots—so you are talking about nearly three quarters of the entire family division doing nothing but this. It is impossible, in my opinion, for this to be done by the High Court. It should be done in the Spanish way by a panel that is set up. In Spain, the chairperson of the regulator sets up a panel for each case—a doctor and a lawyer. They have to agree and they check that everything has been done lawfully. They do not make any value judgment about whether it is in the person’s best interest. They check that it has all been lawfully.
Interestingly, in 2023, 10% extra denials were done by the panel. I do not know whether that was because they were concerned about voluntariness or whether they were concerned about suffering—because the criterion is suffering there—but an extra 10% was done by the panel, so the panel was not just rubber-stamping. They denied an extra 10%. I believe that an ad hoc system like that, with a doctor and a lawyer doing a check, would be the best way of doing it. The High Court—trust me, I’ve just come from there—has not got the capacity to deal with 6,000 cases of this nature.
Jake Richards
Q
Sir Nicholas Mostyn: Can I just answer before he does?
Jake Richards
Yes—it’s just that otherwise I will be cut off. I was trying to get two questions in.
The Chair
Order. I said earlier that this is not a dialogue. Address your comments to the Chair, and I will decide who speaks and when. I do not wish to be rude, but everybody’s got to have their fair share.
Sir Nicholas Mostyn: I do not know if you have seen Sir Stephen Sedley’s memo, which came today. He has suggested that the Official Solicitor should be the checker of these facts, which seems a sensible idea. The Official Solicitor would be able to recruit more staff to do this. It would not be nearly as expensive as High Court judges, and it would be an efficient way of dealing with the problem. The advantage of the Spanish system is that you have a qualified doctor as well as a lawyer doing the checking. Remember—a High Court judge is not going to be a qualified doctor. That is a significant advantage in my opinion.
Danny Kruger
Q
Sir Max Hill: I am not sure about that. I would always default to the code for Crown prosecutors and the two tests that the prosecution must go through, regardless of the crime that is being investigated. The evidential stage test sets out what it is necessary to be able to prove—some people say to a reasonable level—to afford a reasonable prospect of conviction. One can well imagine that, in Dignitas cases, that hurdle or test is often satisfied. It was often satisfied in the cases that I considered, and could often be satisfied in the future, but the evidential stage test being satisfied does not always mean that a prosecution results. That is because prosecutors must then go to the public interest stage and consider the non-exhaustive list of factors that are set out in the public interest stage test together with other policy, which, in this area of law, has developed since the legal case of Purdy in 2009.
In common with many other forms of crime, there are some legal policy considerations that a prosecutor is entitled to consider. They start at the very obvious—for example, what is the age of the suspect? Here, one is not thinking about the deceased who has gone to Dignitas. What is the age of the suspect? What are their characteristics? Have they ever committed a criminal offence before? What is their proximity to the case? What motivation did they have, emotional or otherwise, to lend assistance that technically means they have committed the offence?
I am going through that because, as I said, a proportion of the cases I considered were Dignitas cases, and it was often at the public interest stage that I determined that a public prosecution was not necessary. That is because, after full investigation, it transpired that the surviving relative had acted wholly out of compassion and, may I say, love for the deceased and was not seeking any gain for themselves—far from there being any dishonesty before or after the fact. That would still remain the case. It does not follow that, were this Bill to pass and were people then to take elderly relatives to Dignitas, they would necessarily face prosecution, but the premise of your question is “Could they?” and the answer to that is yes.
Danny Kruger
Q
Sir Nicholas Mostyn: I do not agree.
Danny Kruger
Q
Sir Nicholas Mostyn: I think it is unlikely. I am sorry for interrupting you. I always used to say, “Don’t interrupt”, so I am sorry about that.
I fear that I will be one of the people, referred to by the lady who asked the first question, who has to go to Dignitas—frankly, I could afford to do that—because the Bill is not ever going to provide an assisted death for me. I will not be graphic about what the advanced stages of Parkinson’s are like, but the medical Members among you will be able to describe what is likely—not definitely; I do not want to say definitely—to await me. I am choosing my words carefully. It is either going to be a poor death here or to go somewhere like Dignitas. If my children took me as far as Calais, and then helped me after Calais—assistance only applies to within the jurisdiction—and drove me on to Zurich, I would be extremely surprised if any prosecution ensued.
Danny Kruger
Q
Alex Ruck Keene: I think there are two different questions. First, is any idea of capacity sufficient at all? I think that is an existential question that I am just going to park. Turning to the Mental Capacity Act itself, it is important to understand that there are three different bits of that Act in play. We have a set of principles: the presumption of capacity; the presumption that you have to provide all practicable support before you find someone to lack capacity; and the idea that you cannot, just because a decision seems unwise, say that someone lacks capacity. Then we have a functional aspect—in other words, can you understand, can you retain, can you use and weigh the relevant information, and can you communicate that decision? We also have what some people call the diagnostic element—in other words, is there an impairment or disturbance in the functioning of the mind or brain?
These are the three separate things, all of which we make work—more or less—in everyday practice. I say “more or less”, because yesterday I was on the advisory group for a project funded by the National Institute for Health and Care Research, which was funded in 2022 to try and increase the quality of mental capacity assessments in healthcare settings. We need to be under no illusions about how well we are doing it at the moment, but we make it work, more or less.
The Mental Capacity Act works more or less in the healthcare context, because every time we reach the view that someone cannot make a decision, we have an alternative—we can think about best interests. What we are asking the idea of mental capacity to do here is different, because there is no suggestion that, if you cannot support someone to make a decision, you will ever make a best interest decision in their name to assist death. It is also not obvious that the idea of a presumption of capacity should apply. If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do? Also, it is not immediately obvious that it is right that the diagnostic test applies in this context. In other words, I think you cannot understand the information, but I cannot prove the reason that you cannot understand it is that you have an impairment or disturbance. That is where my concern came in when I was explaining it in my written evidence.
I want to be absolutely and totally crystal clear: as far as I am concerned, at this stage, this is policy development. I am so glad that evidence is being taken and the public is thinking about this, but a Bill of this nature needs to be drafted by the Office of the Parliamentary Counsel. I am really trying to get across the policy line, which to me is about what doctors need to be interrogating—or anyone else, as I would love it if other people were involved—is, can the person understand the information? Can they retain it? Can they use and weigh it? Can they communicate their decision? If they cannot, we do not need to start mucking around with, “Why not?” It is just that they cannot, and that is the central idea of capacity. It is the functional idea, but it is tooled for use in the Bill rather than, as it stands at the moment, just being cross-referred out to the Mental Capacity Act, raising a whole series of additional complexities.
My only other observation is that I spend an awful lot of my life trying to improve Mental Capacity Act practice more broadly. I would be massively concerned were a knock-on effect of the Bill’s seeking to deal with a very specific group of people to be that it starts inadvertently—it would be inadvertent—interfering with how we think about healthcare decision making more broadly in the context of those people with impaired decision-making capacity. It is an insulation point, a making sure you have the right tools for the job point, and a not having a knock-on effect on thinking about things more broadly point. Sorry for the long answer.
The Chair
I will move on to Sojan Joseph, but perhaps you can pick this up. We have eight people wanting to ask questions and half an hour, tops.
Sojan Joseph (Ashford) (Lab)
Q
Alex Ruck Keene: I think for many reasons it can. On the pure capacity side, this is, at one level, an existential question. This is not a healthcare decision but an existential decision. The more people we have who are able to bring their different perspectives—the social work perspective on the person’s social circumstances or the medical perspective on their medical condition—the better, so that we have as many eyes on the person and insights into the person as possible.
It is about trying to make sure that the decision goes back to whether we are really satisfied that the criteria set out at the beginning of the Bill are met. I personally think we should have MDTs, for instance, as you would have in a Mental Health Act detention, so that we have more than one pair of eyes on it from more than one discipline.
Jack Abbott
Q
Sir Nicholas Mostyn: I was sort of taken by surprise when she asked the me the question in the pub, and I would not have phrased it like that in court 50.
Jack Abbott
Q
Sir Nicholas Mostyn: Parkinson’s is such a complex condition. The medically qualified amongst you will know this—there are so many symptoms, and with the rate of development and the direction of travel, it is an enormously complex condition to know. That is why it is commonly accepted that you do not die from Parkinson’s, you die with Parkinson’s, and it is almost impossible to give a mortality rate as to when that is likely to happen—almost impossible.
When I was doing my research, I was slightly surprised to see that last year 6,000 death certificates had Parkinson’s written on them. They do say that the experts in Parkinson’s are the people with it, but the people you talk to are quite clear that it is impossible to predict and it is a really complex thing. That is why this arbitrary—I use the word technically—six-month period is a problem. If a doctor opines conscientiously and honestly, unless the Parkinson’s patient has already developed pneumonia, sepsis or something of that nature, or complications from falls—the common reasons for death—you will never get that six-month ticket. That is the thing; that is the problem.
Jack Abbott
Q
Sir Nicholas Mostyn: Neurodegenerative.
Jack Abbott
Yes, those with such conditions. Are they left out of this debate?
Sir Nicholas Mostyn: They are.
Jack Abbott
Q
Sir Nicholas Mostyn: It has been suggested that I want to expand the definition of terminal illness. I do not want to expand it. I want to redefine it so that it is more appropriately focused, in my opinion, on what this Bill should be about, which is the relief of suffering. That is what I believe the Bill should be about. You should get the permission to have an assisted death if you are suffering intolerably within five months of death or seven months of death—there should not be this arbitrary line.
Moreover, it should not be open to people who are not suffering, but who happen to have a six-month life expectancy. There are probably quite a few of them, for one reason or another, whose life expectancy is short, but their pain is well-managed. I do not believe that assisted dying should necessarily be available for them. I do believe very strongly—this is not an expansion, but in my view, a more appropriate focused redefinition of terminal illness—that it should be, as in Spain and in Holland, focused on suffering.
Rebecca Paul
Q
My second question, which is completely different—just to mix it up—is on a really interesting point in your written statement about how we need to give consideration to the national suicide prevention strategy. I found that really interesting, because the Bill potentially turns on its head the way we view suicide, and obviously we have been sending a certain message out there, particularly to our young people. Could you elaborate on the point you were making in your written evidence to the Committee?
Alex Ruck Keene: Gosh—yes. There is absolutely no way that you can stop people trying to challenge whatever Act is passed; there is no way you can stop people seeking to challenge that under the ECHR. We then get into this enormous argument about whether it is inevitably discriminatory. Courts to date have been very clear: “We are not going to get into this; it is for Parliament to decide whether to make assisted dying legal.” Once it is made legal for some people, but not for others, there is a difference in treatment. Whether it is discriminatory, and therefore contrary to articles 8 and 14 of the EHCR, depends on whether that difference is justified.
I am trying to be very careful in my language, because I try to do that. The Bill Committee and Parliament need to be very clear how, if you are going to limit this to a cohort of people—I feel acutely conscious that I am sitting next to somebody who would be excluded—it could be explained to somebody that they are not eligible and that there is a difference in treatment but it is perfectly justified. If you cannot do that, it will be discrimination.
The courts have been very clear that you do not have to have a system, but if you are going to have one—for example for social security benefits—then you need to have one that is non-discriminatory. That is the answer I can give to that. The one thing I can say is that you cannot stop lawyers trying to challenge. That is what they will do.
Sir Nicholas Mostyn: All laws discriminate; 69 mph is not an offence but 71 mph is. All laws discriminate. The question is whether it is justifiable.
Sir Max Hill: It is also a question of providing legal certainty, which is why the definitions in the Bill are so important. Provided that it is articulated clearly and within what the European Court so often calls the margin of appreciation, which it gives to sovereign states, then although I agree with Alex that a challenge may be possible, I cannot see a successful challenge to the Bill if it is drawn with the sorts of provisions we have here. Indeed, we have not seen local nation state examples of this sort being struck down by the European Court elsewhere in Europe, so I think it is very unlikely that we would see such a strike-down here.
Alex Ruck Keene: I really hate to get into it with such eminent lawyers, but there has not been a case in Strasbourg seeking to say that a limited class of case is discriminatory, so we just do not know.
Sir Nicholas Mostyn: I agree with that. I have changed my mind twice about this subject.
Alex Ruck Keene: Do you mind if I quickly touch on something else?
Daniel Francis
Q
Alex Ruck Keene: I should make it absolutely clear that all I am trying to do is make sure that whatever law is passed is a good law and has as few inadvertent consequences as possible. My concern here arises out of the fact that understandably the proponents of the Bill want to make it very, very clear that this is about people carrying out a final act, and no doctor is allowed to do something that involves going beyond that. At the same time we have a situation where doctors—I am using the word “doctor” slightly loosely, but for present purposes that is what we are talking about—have to be present and have to remain with the person. We know that there will be some people for whom there are complications.
My concern is to make sure that there has been sufficient consideration given to what exactly a doctor is meant to do at that point, because it seems to me that it ends up putting the person who is undergoing those complications in a horrible position. It is also—I am perfectly happy to use this phrase—putting the doctor in a position of extraordinary moral distress. Are they at that point supposed to try and rely on the doctrine of double effect and say, “All I am trying to do is treat the complication, not bring about your death,” but the Bill is saying, “No, you are not allowed to do that”? I understand entirely why the intention is to say that the doctor must always be hands off, as it were, but you need to super clear that you are going to put some people in some very, very difficult positions, and Parliament needs to be clear-eyed about that.
Dr Shastri-Hurst
Q
Sir Max Hill: I would not look at it on grounds of discrimination. What I would do is put that clause alongside what are generally referred to as the slippery slope arguments in other jurisdictions. In other jurisdictions—Canada might be one and some of the US states might be another—the provision of life-ending medication is expressed in a form of treatment by a doctor. This is not that. We are clear when reading clause 18 that it is not a permission to administer; in fact, it is a prohibition on administration. It is making available in certain tightly defined circumstances and then standing by—not necessarily in the same room, as stated in subsection (10)—while the self-administered medication takes effect.
Having said that, I am absolutely clear that there is only so far a Bill or Act of Parliament can go as primary legislation. There is then further distance that must be covered by the provision of practical and professional rules, under the auspices of the national health service here, to indicate precisely the circumstances in which this will physically happen. I do not see that as discriminatory; we are dealing with a tight category of defined individuals to whom this applies and it does not apply to anybody outside that, as we have just discussed. But it is not prone to the slippery slope arguments of something that is generally to be made available in the course of treatment. In fact, the Bill has been couched in a very different way.
Dr Shastri-Hurst
Q
Sir Nicholas Mostyn: I did. What particular aspect do you want me to address? The range is quite wide. In relation to the administration of the substance, it is interesting that in Spain, which is now in its second full year of doing this, take-up has been extremely low. There have been only 700 requests, with a quarter denied, and a quarter of the people died prematurely. Three hundred were granted, but of those 300, in 95% of cases the substance was administered by the doctor and auto-administered in only 5%. I am trying to work out why that is, culturally, in Spain. Maybe people go when they are extremely infirm, and that is the reason for it. I am not able to see the moral distinction between having the substance administered and auto-administration. On your question, there are devices that enable somebody who is locked in to end their lives by a blink of the eyelash, aren’t there?
Sir Max Hill: Yes.
Lewis Atkinson
Q
Sir Max Hill: I would say two things. First, it bears weight that, looking at all the provisions in the Bill, the additional level of scrutiny currently being called judicial scrutiny or approval is absent in all the comparative examples around the world. That already makes this a tighter pre-legislative model than we see in other countries that have gone down this route. That is worth remembering.
Secondly, while I am not a family lawyer—I was, but a very long time ago—I think that the family division of the High Court would be very well-placed to perform the sort of exercise enshrined in current drafting, which is not a rubber-stamping exercise, but a substantive consideration of heavily objective medical opinion arrived at by not one, but two doctors, one of whom is not the treating doctor.
I listen to and accept the question of pressure on the justice system generally. That is something the Committee will be concerned about because, if the Bill passes, we want something workable. I heed what Sir James Munby said. The sitting judiciary, for good constitutional reasons, is highly unlikely to say anything. But there is therefore merit in looking at clause 12, under the heading, “Court approval”, and performing quite a simple exercise, which for me would be going through subsections (1) to (6) inclusive and, where it says “High Court”, replace that with something else. Personally, I have an aversion to the word “tribunal”, which indicates a right and wrong or some kind of fault-based system—that is not what we are talking about here. But a panel, as Nick said, is the way to go—
Sir Nicholas Mostyn: A panel appointed by the Official Solicitor.
Sir Max Hill: Whether appointed by the Official Solicitor or not. Dare I say it—because I am sitting next to a very distinguished one—I do wonder about the recently retired members of the judiciary and the role that they could play under a replacement panel system.
Sir Nicholas Mostyn: That is what I had in mind—the Official Solicitor looking at the retired judges.
Sir Max Hill: Yes, so there is legal professional capacity among the retired judges—not that they would sit alone on a panel. It would bring with it the extra benefit of having suitably qualified medical professionals, like the Spanish model. So yes, I think that could be done. That is not the same thing as saying that the High Court approval model is fatally flawed and could not be introduced, but I do think there is a viable alternative, which is worth looking at.
Alex Ruck Keene: I have only one observation, and I said this in my written evidence but I also want to say it out loud. You have to think very carefully about what purpose any form of this oversight is actually serving societally, if the oversight panel, whether that be a judge or a panel, cannot decline to approve an application if it considers that the reason the individual is seeking assistance in dying is because of service provision failures by the statutory bodies responsible for meeting their health and social care needs. That is a question of principle, and I want to make sure that that is squarely before you.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Alex Ruck Keene: We have capacity, but we also have to make sure that it is settled, informed and voluntary, and that we do not have things like pressure or influence going on. It is important to make it clear that we are not just saying that this is about all the weight going on capacity. For instance, if you have social workers involved—if you have, say, palliative care social workers involved, assuming it is a palliative care situation—they are going to be far better informed about what options might be out there than a doctor, potentially, depending on the doctor. Social workers more generally might well have more expertise in picking up signs of coercion or influence than a doctor, but I do not necessarily want to get into, “Some disciplines are good at X” and “Some disciplines are good at Y”—I have come across brilliant examples and bad examples in both zones.
It is partly about multidisciplinariness and also about the fact that you have more than one person trying to talk it through. When I train, I always try to tell people that 85% of capacity assessments are not all that difficult —they are just made difficult because you do not have time or you are not listening—but 15% are more difficult. I think a lot of these will be in the 15% zone, and in that zone, the more people you can have thinking about it, so long as they have an agreed framework within which to think, the more reliable, transparent and accountable the outcome is going to be.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
Sir Nicholas Mostyn: The former.
Sarah Sackman
Q
Sir Nicholas Mostyn: It will have the statements in schedules 1 to 4, signed by both doctors twice. This is where it gets slightly tricky. Is the panel expected to be a ferret and say, “This does not quite chime for me”? The Committee will have to consider how investigative the panel will be, or whether it will purely sit back, be passive and work on the material it has. Of course, under clause 12, it has to hear orally. That might get the alarm bells going, but I believe that the panel should be entitled to call for further evidence if it has concerns. As I say, I have been trying to find out why 10% of cases were rejected by the panel in Spain. There must have been some kind of procurement of further evidence by the panel in order to do that.
Sarah Sackman
Q
Sir Nicholas Mostyn: Article 10 of the Spanish law gives an appeal on a point of law to their high court, so I would have the same, with an appeal on a point of law to the High Court, but only on a point of law.
Alex Ruck Keene: Either way—it would have to be either way. It could not just be against a decision not to approve, logically, because the current model is very odd in saying that you can only appeal one way to the High Court.
Sir Nicholas Mostyn: Yes. Spain gives either side the right to appeal, so I agree with that, but it is confined to a point of law.
Sir Max Hill: I would only add that I wonder whether that is the only route through, namely leaving open a judicial review appellate process, or whether, for example, as we imagine with a number of commissioner-led processes already in this jurisdiction, the panel—or frankly, I suspect, panels, which might sit regionally, chaired perhaps by the retired judiciary—would have an appellate route to a national body, which you could call a national commission, instead of a judicial-review route to the Court.
There are a large number of commissioners, some sitting under the Home Office and some sitting under the Ministry of Justice—in a sense, I was a commissioner when I was the independent reviewer of terrorism legislation—with closely defined powers. There are many others who sit in an enhanced regulatory position—highly qualified individuals. You could describe them as national commissioners, if that is an appropriate term, and they would have superintendence over regional panels, and the power to appoint retired judiciary, perhaps with the assistance of the Official Solicitor, to sit on those regional panels, and then to have an internal appellate mechanism.
Sir Nicholas Mostyn: You have to have an appeals process of some type, because otherwise there will be judicial review. If there is no appeal, there is judicial review—so you have to have an appeal of some type or there will be judicial review.
Sir Max Hill: Yes, I agree.
The Chair
We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.
Jake Richards
Q
Sir Nicholas Mostyn: Relations who say, for example, “My father has been pressured by his new wife to do this”. If a father has given permission and the child has asked to intervene, there would be some process where the child would be allowed to become a party to the proceedings, because that will have to be specified in rules, and that person would then be the appellant.
Jake Richards
Q
Sir Nicholas Mostyn: Well, it does.
Jake Richards
It is an autonomous decision, so—
Sir Nicholas Mostyn: No, but it says, procedurally, they can determine their own procedure.
The Chair
Order. I am giving you an opportunity to ask a question, so ask the question, we will get the answer back and then we can move on. I do not want this dialogue, I am afraid.
Jake Richards
Forgive me, Mr Dowd. I meant that, in terms of the assisted dying process in the Bill, there is no automated mechanism for family members, or indeed any third parties, apart from the doctors, to have notice of this intention. Is there a concern, regarding this appeal point, that perhaps interested parties would not know?
Sir Max Hill: I would suggest that the key to this is in clause 12(5), and that is why I have recommended just striking out the words “High Court” and putting in the word “panel”, and then reading the whole of clause 12 as amended, with those situations in which there are steps that “must” be taken—and there are many—and those in which there are steps that “may” be taken.
In clause 12(5), following that logic, we would imagine that a panel, just as the High Court,
“may hear from and question, in person, the person who made the application”
but
“must hear from…the coordinating doctor”.
The appellate mechanism, which I agree there needs to be, will be looking sharply at the operation of that subsection. In other words, when the panel made its decision to refuse, on what basis did it make that decision and from whom had it heard? We can well imagine situations in which a co-ordinating doctor, having taken his or her own steps to ascertain the views of the nearest and dearest, would satisfy the panel as to what the views of the family are. The reverse of that is that there is no indication here that, having gone all the way through the panel, the family would have been made aware or considered at all. I think that that will be a rare scenario, but I am not a medical professional. I think you can cover that, perhaps with some changes here or there on what you impose on the panel as a mandatory duty and what you leave by way of discretion, subject to the rules of procedure that the panel would then adopt.
Dr Tidball
Q
Alex Ruck Keene: This is, for the moment, predicated on the fact that we are still in the High Court, as opposed to slightly making up policy on the fly about a panel. Assuming it is the High Court, it seems to me the Court has to be discharging a properly inquisitorial jurisdiction, which means it has to be armed with the tools to do that, which includes arming it with the tools to call for its own evidence. It also seems to me that the High Court would have to be armed with its own ability to not just receive evidence from one side and have someone testing it. That then brings you to the only player in town who could possibly do that, which would be the Official Solicitor as advocate to the Court.
I do not want to emphasise too much the question of resources, because if Parliament thinks this is sufficiently important, the resources will be voted through. But it is vitally important to note that the Official Solicitor is completely overloaded, and we would be asking the Official Solicitor to act as advocate to the Court in every single one of these cases. You could not have it be optional; you cannot say that it is some and not others. If it is going to be inquisitorial, the High Court has to have the ability to say, “This is one-sided; someone needs to tease it out,” so the Official Solicitor would have to be funded to be advocate to the Court and, if necessary, instruct lawyers in every single case.
Sir Max Hill: The model that I was espousing would not necessarily involve the Official Solicitor at all. It would make no draw on the administration of the Court or any officer of the Court, still less full-time judges. It would allow the appointment of recently retired judges, as we have in a number of scenarios—surveillance commissioners, for example—and a fresh administration. With that, as with the High Court model at the moment, there is the primary set of provisions, which Parliament must impose, and it is important that that is sufficient for what Alex called an inquisitorial function. Those are in part mandatory—those things that the panel must be satisfied about, which are set out in clause 12(3). Then there are those that are discretionary, which are set out in clause 12(5).
What sits between the two is very important. That is currently expressed as “Rules of Court”, but it would be the rules of the panel, or the commission that appoints the panels. In a court scenario, we are all familiar with criminal procedure rules and civil procedure rules; that is the secondary stage that is reached once the primary legislation has been fixed. That, too, would apply to the commission or panel process, but I do not necessarily think that it would involve using existing, paid judicial resources at all.
The Chair
We have one and a half minutes, so it will be a 10-second question and a 20-second answer; unless you can do that, I am going to call it to a close.
Dr Opher
Q
Sir Nicholas Mostyn: I would frame the law to define terminal illness in the way that it is defined here in clause 2(1)(a), but where the “person’s death in consequence” is referred to, I would delete clause 2(1)(b) and substitute “suffering intolerably”.
The Chair
Thank you. That brings us to the end of the time allotted for the Committee to ask questions. I thank our witnesses on behalf of the Committee; thank you for your forbearance.
Sarah Olney
On a point of order, Mr Dowd. I had my hand up at the beginning. I was really keen to ask a question in this session because it is pertinent to an amendment that I have tabled. Could you advise how best I can have the opportunity to ask my question?
The Chair
I am more than happy to speak to you afterwards. We have had lots of questions today and I tried to get people in as much as possible, but there has to be an element of self-discipline from the people asking the questions and interrupting. I am happy to facilitate if I possibly can, but I am afraid that there is also a responsibility on Members to look to other Members’ needs.
Examination of Witnesses
Dr Ryan Spielvogel and Dr Jessica Kaan gave evidence.
The Chair
We will now hear oral evidence from Dr Ryan Spielvogel, who is senior medical director for aid in dying services at Sutter Health, California, and Dr Jessica Kaan, who is medical director for End of Life Washington. Both witnesses will appear via Zoom. I call on Members to ask questions, but in view of the last point of order, I must be absolutely clear that I will interrupt if questions to the witnesses are too long. We do not have much time and people want to get their questions in—there has to be an element of self-discipline in that regard.
Kim Leadbeater
Q
Dr Spielvogel: Thank you all for having me today. I am Ryan Spielvogel and I am senior medical director for assisted dying services for Sutter Health in California. I have been an assisted dying physician for the past eight and a half years, since the law went into effect here, so I have seen many terminally ill people going through the process.
You asked specifically about coercion and capacity. Determining mental capacity is something that we use physicians to do every day. There are codified steps and processes for us to be able to assess a person’s capacity. Capacity for anything, for any procedure or medical intervention, is presumed—that the patient has capacity—until they are deemed to not have capacity. We do that through asking questions, determining their understanding of their disease process, asking them to repeat what their understanding of their options is, and making a decision and then telling us their judgment as to why they came to that decision.
That is something that we do every day. It is oftentimes informal. For instance, if I am prescribing someone blood pressure medication, I might not go through the entire process of assessing capacity, but in longer or higher-stakes conversations like end-of-life discussions, I usually do ask somebody to repeat back to me what they understand of their disease process, their options, what their decisions are and why they are making those decisions. That is basically exactly what I do in these conversations.
In terms of coercion, I understand the concern. It is a very valid concern that people have. I have seen this in many jurisdictions in the US, where different states are considering legalising assisted dying, but I will tell you that in practice it just does not happen. I have seen assisted dying laws go into practice across numerous states and have helped many, many people through this process, and I have never seen a case where I even suspected coercion. People are just not that good as actors.
So we get the family out of the room. We dig deep into their concerns, their justifications and the reasoning behind their choices. It is often crystal clear, when you are speaking to someone who is suffering from a terminal illness. They are very focused on their symptoms, very focused on their quality of life, very focused on their suffering. I do not ever get the sense from them that their family, their doctors or anybody is coercing them into the decision. In fact, if anything, I have seen it many times the other way around. I tend to see it where the patient is really ready to let go, but the family is really not ready to let go, and the family puts up varying degrees of roadblock to the patient accessing assisted dying. I have seen many cases of people being coerced out of it; I have never seen someone being coerced into it.
Kim Leadbeater
Q
Dr Kaan: I echo exactly what Dr Spielvogel has said. As part of our medical training, we are trained to assess capacity in both small and big ways, depending on the size of the decision at hand, as he said. Throughout our medical training, we are trained to do that and to assess with a patient progressively over time, as we are seeing them in subsequent visits as well. This is really no different from that, although obviously the stakes are a bit higher than a blood pressure medication discussion.
We look at whether, for instance, the patient is able to voice a reason for making their decision. Do they have a logic behind it? Do they have a set of values that they can express? Is their decision consistent over time? We are looking at a longitudinal assessment, rather than just one fixed moment in time. Over the course of our assessments, it really does become clear in almost all cases that somebody either does or does not have the capacity to make this decision or any decision. This is really not outside the realm of what physicians are trained to do in any other case of medical decisions, especially large ones.
In the case of coercion, I agree that virtually all the time it is the opposite way: family members and loved ones are well-intentionedly trying to coerce or convince someone not to make this choice or not to proceed with this option, which they may have available, rather than pushing them to do it. I think the way to properly assess that is to ask open-ended questions: as Dr Spielvogel has said, to have them in the room alone, at least for a portion of the assessment, so you can have a one-on-one conversation; to ask the questions in various ways, so you are seeing the consistency of answers over time; and to look for non-verbal cues that may indicate that something else is going on. I have also never come across a case where I felt that a patient was being coerced into this decision by a family member, but rather the opposite.
Bambos Charalambous (Southgate and Wood Green) (Lab)
Q
Dr Spielvogel: The original version was called the End of Life Option Act. It legalised assisted dying in California when it went into effect in 2016. It was then amended in 2021, I believe; the effect of the main amendment was to shorten the waiting period. There was a 14-day mandatory waiting period between two verbal requests that a patient would give directly to their physician. What we found when we were studying it was that approximately 30% of people died during the waiting period.
There were many conversations with patients. The thought process behind the waiting period is that somebody is making a persistent, well-thought-out and non-capricious decision when they are asking for this, but there is a false premise there—[Interruption.]
The Chair
We were in the middle of your reply, Dr Spielvogel. Could you pick up where you left off?
Dr Spielvogel: I will make it brief. I was saying that it is an erroneous assumption that people start thinking about assisted dying the first day that they give their first verbal request. In reality, people have usually been thinking about it for weeks before that visit. Because of that, we did not see anyone’s decisions really ever change between the first verbal request and the second, 14 days later. That and the fact that 30% of people were dying during the waiting period led us to shorten the waiting period to 48 hours. That is the main change that we have had in our law since it was implemented.
Bambos Charalambous
May I put the same question to Dr Kaan?
Dr Kaan: You will know that throughout the United States there are a variety of aid in dying laws, all of them slightly different across jurisdictions. I practise in both the state of Oregon and the state of Washington, so I have to keep track of two slightly different laws.
In the state of Washington, where I am the medical director for End of Life Washington, we updated our law in 2023, mostly because we were trying to increase access to it for people who lived in rural communities or for people in underserved communities. Any healthcare system in the world right now has experienced a shortage of physicians, so the requirement for two physicians to do the certification was a barrier for people in those communities that did not have access to two physicians. One of the things we did to increase access in 2023 was to make it so that one of the two providers could be a non-physician: a physician assistant or a nurse practitioner with advanced training. One of the providers still needs to be a qualified physician, but that has increased access for those in rural communities and underserved communities. We are very proud of the fact that we have done that. Additionally, we shortened our waiting period for similar reasons, from 15 days down to seven days.
In Oregon, they shortened their waiting period. Well, they still have a 15-day waiting period, which has been stable since the start in 1997, but they also now have a provision whereby, if a patient is expected to die within those 15 days—if they are at the very end of their life and are not expected to be able to survive those 15 days—they can bypass the waiting period. I really like that provision, because there are patients who come very late in their process to this decision. It may not seem like much to us, who are healthy and relatively well, but 15 days for a dying person who is suffering and really wants this option is an incredibly long time.
Tom Gordon
Q
Dr Spielvogel: People often feel that at the end of life, just in general. I think that conscientious people will often think about their family and how their situation is affecting their family and loved ones. That is something that many people go through, so that is something that comes up relatively frequently. It is usually embedded within a laundry list of reasons that people are looking for assisted dying. When people bring it up with me, it is more of a commentary on what they do not like about their dying processes—that they are also feeling like a burden on their family. That is a red flag for me, though: when I ask someone, “Why are you reaching for this?”, and they say, “Well, I am a burden to my family,” it is a red flag for me as a physician.
This goes back to the argument about capacity and coercion, because we are trained professionals who listen for these things. This is not a rubber-stamp evaluation. When we ask people why they are looking for this, we really want to assess their judgment and see what their reasoning is. If they are saying, “I’m suffering intolerably. I’ve tried all the things that palliative care and my regular physician are offered me, but I’m still suffering irrevocably. Also, there is this other piece: I see what this is doing to my family,” that is totally valid. That is something that any of my dying patients might say, whether or not they are seeking an assisted death.
If that is the only reason, that is going to lead me to ask a lot of probing questions. It would be a red flag for me, but it is incredibly rare that something like that would be the only reason. Dying is a very complex process, and people’s thought processes during their own dying are equally complex. There are a lot of things that people think about during that time.
Dr Kaan: I echo Dr Spielvogel. It is common that among the lists of things that people mention as reasons, they may mention not wanting to be a burden on their families or not wanting to put their families through an onerous and prolonged dying process. Obviously, if that is the only thing that they are mentioning, it will definitely get them further discussion and exploration into what is going on and what other resources we can point them to, such as connecting them with social workers and available community resources for helping with caregiving.
However, I hear most commonly that people’s desire to save their families from a prolonged dying process comes from lived experience, where they themselves went through the process with a loved one such as a mother or father: they were caregivers, sometimes for years, and felt that it was a burden on them, although they were happy to do so and it was loving. They have that lived experience and they are looking to save their family from what their experience was. I think it is common that people feel some element of that when they are in a situation where they require heavy caregiving.
I think it also goes back to autonomy. People who are in their right mind and have the capacity to make this decision should have the autonomy to have their reasons and their value systems respected, whether or not we share them or see it in the exact same way.
Jack Abbott
Q
Dr Kaan: The thing I have been reading about that is concerning to me is the court approval that you seem to have written into your law. I heard your discussion this morning about how that might be done and whether it is a committee or the High Court and so on. I think that that is really going to limit access to this, and that makes the process a much lengthier one.
Again, these are people at the end of their life. People are not looking, by and large, to cut off a huge amount of their life; they are looking to shorten their death, not shorten their life. By making people go through a court appeal in addition to two qualified physicians, as well as the waiting period, I think that you are going to limit access for people who desperately want this option. It seems like that might be baked into your law, but I would say that that is a concerning feature to me. I think that you are going to limit access that way.
Dr Spielvogel: Something that it turned out was not in our law, but everyone thought that it was for a few years, and it really limited our practice, was that many people were under the impression that the physician could not bring up assisted dying with the patients, and that the patients had to bring it up themselves. That turned out not to be in our law, but that idea really hampered our ability to take care of patients, so I would strongly recommend that there not be anything like that in your Bill. People cannot make informed decisions for themselves if they do not know what their options are. While this is top of mind for all of you and for the doctors—we all know that this exists—even if this Bill becomes law, the general population is still not going to realise that it is an option.
I eat, sleep and breathe this. I am a primary care physician, and when I am going through the options with patients who are newly diagnosed with a serious life-threatening illness, I say, “Okay, here’s what disease-directed treatment would look like. We can continue with your chemo. Here are some side effects and complications that you might have, and here are the benefits of that. Here’s what palliative care or hospice care would look like.” Then I say, “I don’t know if you know this, but in our state we have this other option for people nearing the end of their lives when they have intolerable suffering. You can ask me to fill a lethal prescription for you to help end your suffering sooner.”
The number of times that people look at me and say, “You can do that? That’s an option here?” is astounding. I would say that nine out of 10 of patients I have conversations with have no idea that that is even legal. If they do not know it is an option, they are never going to ask for it. For physicians to do their jobs properly and deliver care to people, and for people to actually have a choice, physicians need to be able to discuss it with their patients.
Dr Kaan: I will just piggyback on that. I cannot count the number of times I have given a presentation or a talk to communities, and people—usually family members of someone who have died, not using this law—have come up to me afterwards and said, “Thank you for what you said. My loved one was interested in having this information, or wanted to talk to their doctor about it, but their doctor never brought it up, so we weren’t sure if we should be bringing it up.” It is a huge burden to put on patients and their loved ones if they have to bring it up themselves. I would highly caution against any sort of language that requires that, because it is just not fair to them. They are already going through so much and, as Dr Spielvogel said, you cannot have an informed decision-making discussion with a patient if they do not have all the options available for discussion.
The Minister for Care (Stephen Kinnock)
Q
Dr Kaan: That is a really important question, because this is a really important topic in the United States. Our laws are very clear that participation is voluntary, so there is no such mandatory training across medical training in general. It is always voluntary. If a physician or provider wishes to have training, they can seek it out. What is available and the standard of care differ from state to state. Certainly, in the state of Washington, where I am the medical director of the organisation that is most largely involved with this, the bulk of my job is doing training, mentoring and shadowing. There is no exam at the end of that process, but there is certainly shadowing and a feedback process.
I am also heavily involved with the Academy of Aid-in-Dying Medicine, which has been very active in creating professional training. We have a Journal of Aid-in-Dying Medicine, which is a peer-reviewed journal that puts out articles that are relevant to the topic. The Academy of Aid-in-Dying Medicine is now undertaking certification pathways, so each level of provider—social workers, chaplains, physicians and anyone else who might be involved in the aid-in-dying process—will be able to take these certifications. A more uniform education system will be available. We are just at the beginning of creating those, but it is very exciting, and we are very happy to have those out. A lot of resources are out there in the world already, in general, to train providers in how to do this well, and it would be really smart to have something in your Bill that outlines what the training should be, whether you will make it mandatory or voluntary and perhaps some sort of certification pathway.
Stephen Kinnock
Dr Spielvogel, I do not know whether you have anything new to add to that. If not, that is fine.
Dr Spielvogel: Without repeating anything that Dr Kaan said, I was just going to say that in addition to my assisted dying hat, I am also the programme director for the family medicine residency programme, so my main job is actually training young physicians who are becoming what you would call GPs.
We have instituted curricula as part of our residency programme here to train interested physicians in learning how to do assisted dying. We go through a whole process for that, including lectures, them shadowing me and me shadowing them, listening in on their conversations, giving them pointers and walking them through the steps of the process. They then do this with multiple patients through the course of their residency, so when they graduate, they feel confident in being able to offer this care. As with most medical training, this should be included in that part of the training process. All the other things, such as pathways in continuing medical education, are very important for physicians out there in practice who want to start doing this, but really getting this into medical training at its roots is vital for normalising the practice.
Speaking of which, something else I have heard a lot is that this might be distressing to physicians, or that physicians would not want to offer this care. I would like to say that 80% of our residents on our programme opt to receive this training. When we did a study on this of graduates from our programme who were continuing to offer assisted dying, 70% of the surveyed residents said that their assisted dying work was more rewarding to them than the rest of their primary care work—70% said that it was more rewarding.
I want to come back to the notion that physicians would feel burdened or that this would be some sort of psychological negative to physicians practising it, because it is actually quite rewarding work. It has led me to be a better physician to all my patients because it has helped me with having these difficult end-of-life conversations with them. That was a bit of a twofer, sorry—I added that on there.
Danny Kruger
Q
Dr Spielvogel: A lot. I have actually been quite surprised. Everybody is different. This is the whole point: different people have different goals, objectives and values. I have mentioned it to people who say, “No, I would never do that,” and I never bring it up to them again.
The Chair
Order. Do not interrupt the witness, please. Let him finish. You can then come back in with a question.
Danny Kruger
I apologise.
Dr Spielvogel: No problem. To answer your question more directly, I have had several people over the past couple of years who had no idea that it was an option and said, “That’s what I want to do.” They then went through the process with me.
Danny Kruger
Q
Dr Spielvogel: Yes. I think it could be made into a misdemeanour, a felony or whatever the equivalent is over there—sorry, I do not have the terminology. You could make it illegal to interfere with a patient’s right to make this choice. We stopped short of that in our most recent addendum to our law here, but I think that was a lost opportunity.
Danny Kruger
Q
Dr Kaan: You characterised it correctly in that I think that for people who have capacity, and who are making the decision to have this as an option, a part of their reasoning is that they want to save their family from an onerous caregiving experience. I think that is their right and it is part of their value system.
Of course, if that is the only reason, we are going to be exploring that. As Dr Spielvogel has said, that is a red flag. We are going to be exploring that, and exploring whether acceptable alternatives exist and what are the resources that the person may not be aware of. That is always part of the discussion. These discussions are always broad and multifactorial. But I think it is appropriate and okay for somebody to say, “I do not want my family to experience what I myself had to experience when I was caregiving for my elderly parents with dementia.” I have heard that many, many times. I do think people who have capacity should have their autonomy respected, in terms of the values that are driving them to make this decision.
We always want to work towards improving the social support for caregiving that exists in our society. There is certainly a lack of it here in the US, and probably there in the UK as well. Hand in hand with allowing people to make an informed decision about the option of having an assisted death, you should also be a strong advocate for social support and caregiving services at the end of life, because those really are important and needed.
Naz Shah
Q
Dr Spielvogel: That is a good question. I do not know the specific status of the Bill, but I would assume that it has itself undergone an assisted death at this point. That Bill is not really being supported by any of our advocacy groups or, by and large, the physicians who perform assisted dying, because it is, as you mentioned, very broad and not aligned with how we feel standard practice is going and where we would want it to go. That Bill did not receive support from many of us.
Naz Shah
Q
Dr Spielvogel: Can you clarify what you mean about kidney disease and the six-month prognosis, and the interplay with insurance there?
Naz Shah
Q
Dr Spielvogel: That is not factually accurate. When people go on dialysis, they automatically get Medicare, which is our version of the NHS, more or less. That is a national health insurance for people who are 65 and older or who have certain kinds of diseases. When you have end-stage kidney disease and you need dialysis, you automatically get Medicare and you get dialysis for the rest of your life, however long that is. People are often on dialysis for years. It is not that you are on it for six months and then you are off.
Naz Shah
Q
Dr Spielvogel: If you have a six-month prognosis to live, regardless of the condition, that would fall under this. That would make you eligible. That has nothing to do with insurance coverage for your condition. Insurance coverage is completely separate. It is not tied to this. All that prognosis does is to allow the individual to seek this care.
Naz Shah
Q
Dr Spielvogel: No. Insurance does not run out. There is maybe a misunderstanding of how medical insurance works in the US. Medical insurance does not run out. I think we are talking about two different things.
Naz Shah
Q
Dr Spielvogel: No, I actually do not think that you are right. When we are talking about lifesaving interventions such as chemotherapy or dialysis, that is not correct. They are bound by law to cover all things that are medically necessary. They do not say, “You have gotten six months of chemo. We are not paying for any more.” That is not how it works.
Sean Woodcock
Q
We heard from experts earlier about the paucity and lack of provision of care across the country. Certain people can get access to very good care, but too many people struggle to, particularly people of certain ethnic backgrounds, people on low income, and so on. Please correct me if I have misinterpreted your views, but from what you have said so far, it sounds as if you think that exercising the right to assisted dying because there is a paucity of appropriate care in your locality, or because you cannot afford it, is a perfectly legitimate exercise of autonomy, based on the society around you. Would that be a fair assumption of your views?
Dr Kaan: I think that is not an entirely fair representation of what I am saying. Yes, we do need respect for people’s autonomy and the reasons they may come to this choice, but I also think that from what I have heard this morning, it sounds like there is a conception that people choose assisted dying and then they do it. What I see, by and large, is that people want to have this as an option. It is an option among the other options of hospice palliative care or palliative treatments. The availability of this as an option often brings people tremendous relief from their suffering—just from the anxiety over how they might die, or what suffering might be in store.
I had a case of a woman with ALS, or amyotrophic lateral sclerosis. She was very afraid of how she might die with that condition, and she felt like she might suffocate to death. She was so focused on having the option of aid in dying because she was terrified of what might be in store for her. We were able to incorporate her into a hospice that offered comprehensive end-of-life care, including the option of aid in dying. We got her through the process, we had the medications available and she told me how much relief she felt from having it as an option, but ultimately she decided not to use it. She decided that she was getting really good care from her palliative care and hospice teams, and that her symptoms were well controlled. Although she was extremely grateful that she knew the medications were available should she decide to use them, she did not end up needing to use them or wanting to use them.
That is the reality of what is happening in a lot of cases where this is an option among other options. The availability of this option is, in and of itself, a palliative care treatment for many people. On whether or not wanting to avoid being “a burden” to a family member or to a caregiving team is a valid reason to pursue this, yes, I think that is a valid reason among many for people who have a value system that highly orders that.
Dr Spielvogel: I just wanted to add something, if I may. I have heard this argument—or rather, this concern—a few different times, and it strikes me as what is called a false dilemma logical fallacy: that there is either/or, when in reality there are many alternatives that people can choose from. Saying “If we don’t have all of these types of care, we shouldn’t offer this option” is like a hospital that does not have sufficient amounts of IV pain medications saying to a labouring woman, “Well, we don’t have enough IV pain medications, so we are not going to offer you a labour epidural, because that is a false choice.” That does not actually make sense.
Look at it from a patient’s perspective. Think about a patient who is dying from terminal cancer, is in lots and lots of pain and does not have any good options for their pain control. Imagine saying to that person, “We don’t have all of this care or this option over here available to you, so we are not going to allow you to have an assisted death”, even if they are telling you, “This is what I want. Why won’t you give this to me?”. It does not make sense to remove this as an option just because all of the options might not be available to everyone all of the time. It is a bit cruel when you think about it from a patient’s perspective.
The Chair
We have two minutes left before the evidence session finishes. Dr Simon Opher, please ask a very quick question and perhaps we could have a short response. I do not want to interrupt our witnesses at the end.
Dr Opher
Q
Dr Spielvogel: I literally had not formed any kind of opinion on this. When I was in medical school, it was not talked about. We did not talk about it; we did not discuss it; it just literally was not a thing, and then when it became law in California, I still had not really thought of it until my medical institution asked me whether I wanted to participate. I said, “Sure, I will give it a try,” and then with my first patient, I saw how amazingly transformative it was for him and his family. I had seen lots of death before then; I saw how tragic and traumatic it often was and how this was a dramatically different experience, and I became a convert.
Since then, I have seen many other physicians undergo the same journey with their patients. They have been very ambivalent to it until they have a patient who is asking for it. They go through it with that patient who they have known for a long time, and then they come out on the other end realising just how amazing this option is to the people who want it. Again, I am emphasising that this is a choice. For people who do not want this, they do not need to have it. For doctors who do not want to do it, they do not have to do it. But for the patients who want this, it is an incredibly powerful piece of agency.
Dr Kaan: The jurisdictions I work in have quite a bit more experience. In Oregon, of course, it has been legal since 1997, and it has been legal in Washington state since 2008. Both of those laws were actually started by voter referendum, so the general populace at large wanted this, and that is how these laws got started in both of those states. The general population has, by and large,, been supportive, and is growing more and more supportive of this as an option each year as it becomes normalised and clear that this is a practice which is careful, safe and has appropriate safeguards in place.
The medical community has also come along with that. In Washington state, we have now 15 years of practice with assisted dying. When this law was first passed, there was hesitancy in the medical community: this was an unknown, in many regards. We were the second state in the entire United States to pass this law and so the medical community was a bit hesitant. I will say that, in those last 15 years, we have seen a tremendous growth in the support of physicians and the medical community at large in wanting to make sure that this is an option for people and that they have access. Just in my own experience in Washington state—
The Chair
Order. I am sorry; I hope this does not sound rude, Dr Kaan —regrettably, there are procedures in Parliament that require me to do this—but we have come to the end of the allotted time for the Committee to ask questions. I thank the witnesses Dr Spielvogel and Dr Kaan for your contributions and time. This was very valuable.
Thank you to our witnesses and for all the contributions, and for your forbearance on this very sensitive subject.
Danny Kruger
On a point of order, Mr Dowd. I wonder, given the fact that we have had so many really helpful conversations and questions but not enough time for everybody to ask everything they wanted, whether it would be appropriate for Members who want to write to witnesses to ask for follow-up information or further questions could do so through the Committee, rather than us all deluging the witnesses with our own messages, some of which will duplicate each other. I appreciate that there is a capacity question for the Clerks, but it might be appropriate to ask the Speaker for a bit more resource to enable that to happen. I think that the hon. Member for Spen Valley broadly supports the idea; I do not know if others do, as well.
The Chair
Let us be clear. Witnesses can submit written evidence until the Committee reports to the House. It is open to Members to individually write to witnesses and invite them to give written evidence, if they so wish. My advice to the hon. Member is that if he wishes to look at this in a more formal way or through a more formal mechanism, he is to speak to the Committee Clerks, because it is beyond my remit.
We now come to motions (a) to (d) amending the sittings motion tabled by the Member in charge. I have selected the amendment tabled to motion (a) and will group all four motions and the amendment for debate. I will first call Kim Leadbeater to move motion (a), then Naz Shah to move the amendment. The scope of the debate is all four motions and the amendment.
Kim Leadbeater
I beg to move amendment (a), in the list of witnesses set out in the table in the Sittings Motion agreed by the Committee on 21 January 2025, after Mencap (Thursday 30 January, until no later than 5.00 pm), leave out “Representative of Senedd Cymru” and insert—
“Professor Emyr Lewis (Emeritus Professor, Department of Law and Criminology, University of Aberystwyth), Royal College of General Practitioners, Royal College of Psychiatrists.”
These amendments allow additional witnesses to be called to give oral evidence, including representatives from Disability Rights UK, the Royal College of General Practitioners, the Royal College of Psychiatrists, and an expert in Welsh devolution and constitutional matters.
As the sessions today have shown, hearing from expert witnesses is an extremely important part of this process, so I hope I have the support of the Committee in making these additions. On the motion to call additional witnesses tabled by my hon. Friend the Member for Bradford West, I respect the suggestion but I am confident that we have an eminently qualified witness to cover issues of coercion and domestic abuse in Professor Jane Monckton-Smith, who was suggested by my hon. Friend.
We have also heard today—and will hear from many witnesses over the next few days—from medical doctors, social workers, nurses, palliative care experts and geriatricians. That is around 50 witnesses in total. While I fully appreciate that a wide range of additional charities and organisations has valuable contributions to make, I would encourage them to submit written evidence so that the Committee has the benefit of their thoughts.
Regarding the start of the line-by-line scrutiny of the Bill, given the huge volume of evidence—both oral and written—that we have received and are still receiving, I have consulted with colleagues across the Committee and there is a consensus that having next week to absorb and evaluate the evidence, and to prepare any amendments in light of it, is extremely important. Consequently, we would begin line-by-line scrutiny on Tuesday 11 February, as per the amendment.
I hope that these amendments demonstrate the robust approach that the Committee and I are taking to our work, and I encourage colleagues to support them.
Naz Shah
I beg to move an amendment to amendment (a), at end insert—
“Richard Robinson, CEO of Hourglass, Cherry Henry-Leach of STADA, Standing Together Against Domestic Abuse ”.
I completely agree with my hon. Friend the Member for Spen Valley and I am grateful to her for adding Professor Jane Monckton-Smith to the witness list. I also absolutely agree that the evidence we receive is really valuable.
This is an amendment tabled yesterday by the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) yesterday, to which I have added my name.
The reason for the amendment is that Hourglass focuses on domestic abuse of older people and it has particularly noted that the majority of such victims are female. Hourglass estimates that one in six elderly people are victims of coercion in the UK. This raises serious concerns that such people could be pushed into ending their lives if the Bill is enacted. Hourglass has not published a public opinion on the Bill.
Standing Together Against Domestic Abuse has said that
“We must echo concerns raised by the VAWG sector”—
the violence against women and girls sector—
“and disability activists about the bill’s current safeguards. There is insufficient clarity on what constitutes coercion and limited reflection on carer capacity to support someone terminally ill. Without robust measures, there is a real risk that assisted dying could be exploited as a tool for coercion or even femicide.
Statistics show that over 88% of unlawful ‘mercy killings’ are perpetrated by men towards women, often involving violent means. These troubling realities demand urgent consideration in shaping this legislation.
We also highlight the health sector’s role in identifying domestic abuse. With 80% of victim-survivors having their first or only point of contact in healthcare, it is critical that health professionals are equipped to identify and respond to abuse.
We call on the Government to ensure the proposed bill includes stringent safeguards and that healthcare systems are equipped to recognise and prevent the potential misuse of assisted dying. Femicide is already a crisis in the UK, and no law should inadvertently contribute to its escalation.”
All my adult life, I have had experience of dealing with domestic abuse and coercion, and I draw on that experience to speak to these amendments. Although Professor Jane Monckton-Smith is an expert, she is an academic. These two organisations work with people who have been victims of abuse.
In addition, we had an official meeting with the Clerk to discuss the proposals for Committee sittings. It was said at that meeting that we would only have witnesses who would give evidence, particularly in person, that would contribute to the deliverability and the workability of the Bill. Since then, we have had families added to the list of witnesses. That adds weight to the argument that we should have witnesses who are providing a service to victims directly.
Dr Tidball
I, too, support my hon. Friend the Member for Spen Valley and in particular I want to highlight the helpful addition of Kamran Mallick of Disability Rights UK. That augments an already comprehensive list of expert disabled people, which includes: Professor Tom Shakespeare, an internationally renowned disability rights academic; Dr Miro Griffiths, a Disability Studies scholar at the University of Leeds; and Chelsea Roff, the founder of Eat Breathe Thrive. On the panel, we will also have a representative of the Equality and Human Rights Commission, who will be able to give a good overview on the intersection between protected characteristics. Finally, there will be Jon Sparkes, the representative of Mencap.
I am really pleased that my hon. Friend has worked so hard to ensure that the voices of disabled people are integrated across a number of the panels that we will see over the next two days, and the addition in her amendment is really helpful. I commend her for it.
Kit Malthouse
I, too, support the amendment proposed by the hon. Member for Spen Valley, and in particular the addition of Jane Monckton-Smith. I have read her book; it is definitely worth a read and is pretty alarming. I will address why I do not think the Committee should support the amendment to the amendment tabled to add other witnesses.
Jane Monckton-Smith has done a huge amount of research in the area, and as well as being an academic who specialises in coercion and femicide—and the impact that coercion has on femicide—she is a former police officer, so has significant frontline experience. As part of her research she will have spoken with and interacted with many of the groups that the hon. Member for Bradford West is proposing to include—although maybe not specifically. I would prefer it if we stuck with the list that the hon. Member for Spen Valley has put forward, and not add the additional witnesses proposed.
Lewis Atkinson
I agree with my hon. Friend the Member for Spen Valley. Having agreed to extend the time on Thursday to hear devolution issues and from the Royal College of General Practitioners and the Royal College of Psychiatrists, by adding two further witnesses, the amendment to the amendment would reduce the time available on those options. In an ideal world we would like to hear from all sorts of people. The option of written evidence is available. We have got other evidence, and I want to ensure that Thursday’s session is focused on the proposals that my hon. Friend has made.
Naz Shah
There is nothing in my amendment that suggests Professor Monckton-Smith is not capable in her expertise. I am asking for other expertise to be brought to the table. Yes, there is the argument that people can submit written evidence—but so could every witness we have heard from today, and that we will hear from tomorrow and the day after. If that is the yardstick, is this just a tokenistic exercise? I would argue that for women in particular, who are the victims of domestic abuse—
Dr Tidball
I note that Laura Hoyano, who is giving evidence on Thursday, is a domestic abuse barrister. She has also been involved in inquiries on child sexual abuse, and has a great range of experience in that area. She will bring that to the table as a practising barrister working closely on such cases.
Naz Shah
I welcome my hon. Friend’s intervention and I recognise Laura Hoyano’s expertise. I would respectfully push back that, as a victim of domestic violence—as a person who has experienced it and campaigned on it for all my adult life—there is a difference between an academic who has studied it and people who have worked with victims, in particular elderly women. The expert is a barrister with experience of young people and children and domestic abuse, and Professor Monckton-Smith is also an academic—yes, she has been a police officer—but I would value a witness who has worked with victims of domestic abuse. That is all I have to say on it.
Question put, That the amendment be made.
Question negatived.
Main Question put and agreed to.
Amendments made: (b), in the list of witnesses set out in the table in the Sittings Motion agreed by the Committee on 21 January 2025, after
“Professor Aneez Esmail (University of Manchester)”
insert “Disability Rights UK”.
Amendment (c), in the list of witnesses set out in the table in the Sittings Motion agreed by the Committee on 21 January 2025, after
“Dr Lewis Graham (University of Cambridge),”
leave out “John Kirkpatrick” and insert “Baroness Falkner”.
Amendment (d), in paragraph (2) of the sittings motion agreed by the Committee on 21 January 2025, after “Wednesdays” insert
“starting on 11 February 2025”.—(Kim Leadbeater.)
Ordered, That further consideration be now adjourned. —(Kit Malthouse.)
5.30 pm
Adjourned till Wednesday 29 January at twenty-five minutes past Nine o’clock.
Written evidence reported to the House
TIAB 01 Ben Scott
TIAB 02 Michael Vidal
TIAB 03 Compassion in Care
TIAB 03(a) Compassion in Care (further evidence)
TIAB 04 Dr George Gillett, an NHS doctor and psychiatrist
TIAB 05 Dr Stephen Hutchison MD
TIAB 06 Dr Andrew Boorne
TIAB 07 Jess Carrington, Registered Social Worker and Best Interests Assessor
TIAB 08 Greg Lawton MPharm MRPharmS FFRPS MBCS LLM, Barrister and Pharmacist
TIAB 09 Australian Care Alliance
TIAB 10 Dr Peter Knight
TIAB 11 Dr Isky Gordon FRCR, FRCP, Emeritus Professor Paediatric Imaging, UCL, London
TIAB 12 Dr Peter O’Halloran, RN, PhD, Registered Nurse, Senior Lecturer, Queen’s University Belfast, Researcher in chronic illness, palliative and end-of-life care
TIAB 13 Rose
TIAB 14 Dr Rachel Fisher
TIAB 15 Nigel Andrew Gordon Jones, a retired Consultant General Surgeon
TIAB 16 St Gemma’s Hospice
TIAB 17 Sir Nicholas Mostyn
TIAB 18 Leah Locke
TIAB 19 Alison Taylor
TIAB 20 Dr Katharine Crossland
TIAB 21 John Forrester
TIAB 22 Don Stickland
TIAB 23 Christina Blandford-Beards
TIAB 24 Society for the Protection of Unborn Children (SPUC)
TIAB 25 Catholic Bishops’ Conference of England and Wales
TIAB 26 British Association of Social Workers
TIAB 27 Plunkett Centre for Ethics: A centre of Australian Catholic University located at St Vincent’s Hospital Sydney
TIAB 28 Dame Sarah Mullally, Bishop of London, Lead Bishop on Health and Social Care for the Church of England and former Chief Nursing Officer for England on behalf of the Bishops of the Church of England and the Archbishops’ Council
TIAB 29 Cicely Saunders International
TIAB 30 Lejeune Clinic for Children with Down Syndrome
TIAB 31 Voice for Justice UK
TIAB 32 Get on Downs - a Down Syndrome Support Group
TIAB 33 British Medical Association (BMA)
TIAB 34 Portsmouth Down Syndrome Association
TIAB 35 Better Way campaign
TIAB 36 Hospice UK
TIAB 37 Association of Catholic Nurses for England and Wales
TIAB 38 East Midlands Palliative Medicine Consultants and Specialty Doctors
TIAB 39 Marie Curie Palliative Care Research Department, University College London (UCL)
TIAB 40 Humanists UK
TIAB 41 Nuffield Council on Bioethics’ (NCOB)
TIAB 42 Marie Curie
TIAB 43 LOROS, the Leicestershire and Rutland Hospice
TIAB 44 Professor Emeritus Sam H Ahmedzai
TIAB 45 Professor Nancy Preston, Professor of the International Observatory on End of Life Care, Lancaster University; and Professor Suzanne Ost, Law School, Lancaster University
TIAB 46 Professor Alex Ruck Keene KC (Hon)
TIAB 47 Anureg Deb and Dr Lewis Graham
TIAB 48 Australian Centre for Health Law Research, Queensland University of Technology, Australia
TIAB 49 The Bios Centre
TIAB 50 The Orders of St John Care Trust
TIAB 51 Living and Dying Well
TIAB 52 Professor Katherine Sleeman, King’s College London
TIAB 53 British Islamic Medical Association (BIMA)
TIAB 54 Joint written evidence submitted by Chelsea Roff (Eat Breathe Thrive, UK), Dr Angela Guarda (Johns Hopkins University School of Medicine, US), Dr Philip Mehler (University of Colorado School of Medicine, US), Dr Patricia Westmoreland (University of Colorado, US), Dr Scott Crow (University of Minnesota, US), Dr Catherine Cook-Cottone (University at Buffalo, SUNY, US), Dr Anita Federici (York University, Canada), and Dr Agnes Ayton (Oxford Health NHS Foundation Trust, UK)
TIAB 55 Professor Allan House
TIAB 56 National Care Forum (NCF)
TIAB 57 AtaLoss
TIAB 58 Compton Care
TIAB 59 Dr Odette Spruijt, Medical Director, Launceston Specialist Palliative Care Service
TIAB 60 Rachel Pegrum, Independent Social Worker
TIAB 61 Abdul Rahman Badran
TIAB 62 Alan Thomas, Professor of Old Age Psychiatry, Director of Brains for Dementia Research, Translational and Clinical Research Institute, Faculty of Medical Sciences, Newcastle University
TIAB 63 Dr Julian Neal
TIAB 64 Dr Raymond Towey
TIAB 65 Multiple System Atrophy Trust
TIAB 66 Dr Adrian Tookman
TIAB 67 Royal College of Psychiatrists
TIAB 68 UK Medical Freedom Alliance
TIAB 69 Association of Anaesthetists
TIAB 70 Catholic Union of Great Britain
TIAB 71 My Death, My Decision
TIAB 72 Health Advisory and Recovery Team (HART)
TIAB 73 Kyam Maher MLC, the Attorney-General of South Australia, in his capacity as a member of the Legislative Council of South Australia
TIAB 74 Dr Calum MacKellar, Director of Research, Scottish Council on Human Bioethics
TIAB 75 Christian Medical Fellowship
TIAB 76 Christian Medical and Dental Association of Canada
TIAB 77 Christian Legal Centre
TIAB 78 Written evidence submitted on behalf of a group of anorexia nervosa sufferers and carers
TIAB 79 Dr Angelika Reichstein, Associate Professor in Law, University of East Anglia
TIAB 80 Dr David Randall
TIAB 81 Cruse Bereavement Support
TIAB 82 Compassion in Dying
TIAB 83 General Medical Council (GMC)
TIAB 84 Pathfinders Neuromuscular Alliance
TIAB 85 Royal Pharmaceutical Society
TIAB 86 Motor Neurone Disease Association
TIAB 87 Dr Simon Eyre
TIAB 88 Macdonald Amaran
TIAB 89 Patrick Pullicino
TIAB 90 Luis Espericueta, Researcher and lecturer in bioethics at the University of Granada, Spain
TIAB 91 Healthcare Professionals for Assisted Dying
TIAB 92 PSP Association (PSPA)
TIAB 93 Association for Palliative Medicine of Great Britain and Ireland (APM)
TIAB 94 Academy of Medical Royal College's
TIAB 95 Care Not Killing
TIAB 96 Dr Alexandra Mullock, Senior Lecturer in Law
TIAB 97 Rt Hon. Sir Stephen Sedley
TIAB 98 Carole O’Reilly
TIAB 99 Dr Hannah Denno
TIAB 100 Prof B Anthony Bell MD, Neurosurgeon, University of London
TIAB 101 Matthew Hoyle, Barrister
TIAB 102 Royal College of Nursing
Terminally Ill Adults (End of Life) Bill (Fourth sitting)
Wednesday 29th January 2025
(2 months, 4 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 January 2025 - (29 Jan 2025)
The Chair
Good morning, ladies and gentlemen. We are now sitting in public and proceedings are being broadcast. I remind Members to switch off electronic devices.
We will hear first this morning from three witnesses, all of whom join us online from Australia, where it is either early or late evening: Dr Greg Mewett, a specialist palliative care physician; Dr Clare Fellingham, deputy director of medical services for Royal Perth hospital in Western Australia; and Dr Cam McLaren, an oncologist in Australia and New Zealand. Will Members please keep questions as short as possible? We have until 10.25 am for this session, so we have very limited time.
Dr Mewett, would you be kind enough to introduce yourself and make a very brief opening comment?
Dr Mewett: I am Greg Mewett. I am a palliative care physician of many years’ standing. I live in Ballarat in central Victoria. I have been involved as a palliative care physician over many years and became involved in the Voluntary Assisted Dying Implementation Taskforce, which was charged with bringing the enactment of legislation into practice. I subsequently incorporated voluntary assisted dying into my specialist palliative care practice, and more recently have been appointed as a member of the Voluntary Assisted Dying Review Board in Victoria. I am here to assist in whatever way Committee members feel I can help.
The Chair
The Committee is deeply grateful to you. Dr Fellingham.
Dr Fellingham: My name is Dr Clare Fellingham. I am originally from the UK. I now live and work in Western Australia as a consultant anaesthetist. I also have a clinical fellowship in palliative care, and I am due to complete a master of bioethics—the study of applied ethics—this year. I chair our regional clinical ethical committee. I led the clinical implementation of voluntary assisted dying across my health service in 2021 and then became a voluntary assisted dying practitioner. I was a high-volume practitioner for two years, and I have recently scaled that back to work more with VAD Australia and New Zealand, which is the peak body that Dr Cam McLaren set up to try to represent and promote assisted dying throughout Australia and New Zealand.
I would like to contribute anything that I can, from a multifaceted position but with lots of lived experience in this space. I begin by stressing to the Committee that the law you are proposing only applies to people who are terminally ill. It is exactly the same as the laws that apply across Australia and New Zealand and very unlike the more permissive models that exist in Europe and Canada. It is so important to keep that in sharp focus. We are talking about giving dying people who do not have a choice, a choice, but it is not a choice between—
The Chair
I am sure we will come back to that. Dr McLaren.
Dr McLaren: I am Dr Cam McLaren. I am a medical oncologist and an early adopter of voluntary assisted dying. I was not involved with the campaigning for voluntary assisted dying. On the eve of its introduction in Victoria, I did the training thinking that it was just an extension or the next step in patient-centred care, as this was a patient-led adjustment in our legislation. In Victoria, our law requires a specialist in the area of disease that the patient has to be one of the two assessing doctors, and due to the low uptake among my peers, I became quite exposed to this. I have been involved in over 300 cases of application for voluntary assisted dying, and through that experience have contributed to the development and implementation of voluntary assisted dying laws in other states of Australia and also in New Zealand. I have spoken on the Isle of Man and at the World Cancer Congress in Switzerland. I am a founder of Voluntary Assisted Dying Australia and New Zealand, where I saw a space to improve the quality and safety of the provision of voluntary assisted dying care from a provider perspective. Thank you very much for having me.
The Chair
Colleagues will have noticed that there is a slight delay on the line. Take account of it when asking questions and ask them briefly, please.
Sarah Green (Chesham and Amersham) (LD)
Q
Dr Fellingham: Certainly. The training is very stringently developed, and very rigorously tested. Our management training practice, which is required of all doctors who want to practice assisted dying, was developed by our colleagues in the Australian Centre for Health Law Research at the Queensland University of Technology. It drew on extensive research that the group had conducted around the world to create an online training package that takes at least a day to complete and covers a huge amount of things that are of great concern. Not unsurpris-ingly, it includes things like how to assess capacity, how to detect coercion, how to assess for voluntariness, and how to determine the various different eligibility criteria that apply in our Western Australian law.
To be able to access that training and become a voluntary assisted dying practitioner, a person already has to be a doctor of quite some standing in their own specialty. They have to be a consultant in a specialty with at least one year of full-time practice under their belt, or a general practitioner with at least 10 years of broad experience. We are not talking about junior doctors being able to offer this; we are talking about doctors of significant clinical standing with a very broad range of patient experiences. They put themselves forwards and do that training, and then that training has to be refreshed and updated every three years.
I have five hospitals in my health network, and together with my colleagues I developed a very comprehensive package of training, education and awareness that is tailored for people who may have a role in this at various different levels, from a nurse on the ward all the way through to someone who actively taking part in the process. A very wide range of documents and training packages have also been developed by our Department of Health. In addition, all practitioners who work in this space are invited to become members of our community of practice, where we share peer education and experiences. We also have guest speakers from national and international viewpoints to continue to educate us as a group, and to ensure that our practice is consistent and in line with local and international standards.
The Chair
Do either of the other witnesses want to come in on that?
Dr McLaren: When we started this in Victoria, we saw a bit of a gap with the implementation. A lot of the education was surrounding the legalities of providing an assessment service in a way that conformed with the legislation, rather than that focused on the clinical skills and applications. I am quite proud of the role that we have had in rolling that out, in providing that peer experience, and in focusing more on some of the clinical skills that apply within a VAD context.
Naz Shah (Bradford West) (Lab)
Q
Dr Fellingham: A point of clarification: I work in Western Australia, rather than Victoria, but I can give you a view for Western Australia, which is significantly larger, so the problem you have alluded to is much more complicated. Would you like me to speak about the Western Australian context?
Naz Shah
I was talking about southern Australia, in particular. That is fine; we can move on. Thank you.
Dr McLaren: I can speak to the Victoria question, if you prefer. To answer your question, we have a state-wide service that supplies the medication across the state. Medication for pain relief is available through standard pharmacy access, so there are no barriers to accessing medication for palliative purposes in rural Australia. It is quite hard to get voluntary assisted dying medication dispensed to Mildura, which is many hours away from the single-state pharmacy, so access is more difficult for voluntary assisted dying than for palliative medication.
Naz Shah
Q
Dr Mewett: From a palliative care perspective, like Cam and Clare, I have been involved in assessing and having discussions with many, many patients who have requested assisted dying. These patients come from a whole range of socioeconomic backgrounds. In fact, if anything, they tend to come from a perhaps slightly higher, more well-educated background. There is no evidence in our jurisdiction of Victoria, where we have had five and a half years’ experience, that people who are underprivileged, less educated or vulnerable in some other way have readier access to or apply more for VAD.
The case you alluded to, like many cases that are reported from Canada, is certainly tragic in its own way, but such cases are an absolute minority compared with patients who are genuinely determined to have a choice about the way they die and when. Those are separate issues: one is a social welfare issue, and the other is a VAD issue. A patient such as that would not be found eligible, unless he was eligible under the strict criteria that apply in the state in which he lived.
Dr McLaren: As Greg touched on there, when that gentleman applied for voluntary assisted dying, that may have been one of his drivers, but it certainly would not have made him eligible. He did not access voluntary assisted dying, so the system worked. We do see higher socioeconomic status patients applying for voluntary assisted dying. That is evidenced in our Voluntary Assisted Dying Review Board reports, which show a greater proportion of people with higher levels of education. That data is freely available through the Victoria Government website.
The Chair
Dr Fellingham, you had your hand up.
Dr Fellingham: Ms Shah asked for some evidence, and I have just looked this up. Our Voluntary Assisted Dying Board reports from Western Australia are also freely available, publicly searchable documents. Each year, the board asks the patients’ reasons for accessing voluntary assisted dying. In order of commonality, the only ones over 50% are
“Loss of dignity, or concern about it…Loss of autonomy, or concern about it”,
and
“Less able to engage in activities making life enjoyable, or concern about it”.
What that reflects to me is that the type of people who seek access to assisted dying are those who tend to be, as my colleagues said, more health literate and more socioeconomically advantaged than your average healthcare consumer, and people for whom the existential reasons that upset them about their disease process are the primary drivers for seeking access to voluntary assisted dying. It is very rarely the absence of service provision or because they feel that they do not have any other choice.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Q
Dr McLaren: Throughout the roll-out of the voluntary assisted dying legislative process in the other states that I have been involved with across Australia, the main concern that has come from disability organisations is that they do not want to be found eligible for the sole reason of their disability, and that is involved in all our legislation—that people are not eligible purely on the basis of that. They also voice a very strong concern that they do not want to be found ineligible based on their disability either. They would like to have access to this in the event that they have a disability but then also develop a terminal illness. That has been a very strong voice throughout all the debates in Australia and New Zealand.
Dr Mewett: I wanted to reiterate that, of the 13 of us who were representing various people on the implementation taskforce in Victoria, we had one disability advocate who was a strong voice in ensuring that the laws were not discriminatory in any way against patients with any degree of disability. I would always indicate that this is a voluntary assisted dying programme. The word “voluntary” is not used often enough in this space.
The Chair
Dr Fellingham, do you wish to add to that?
Dr Fellingham: Just briefly—I will go back to the point that I was making in my introduction. It is extremely important to keep in very sharp focus that the law you are proposing in the UK is similar to the laws that exist in Australia and New Zealand and most of the laws in the United States, but it only applies to people who are terminally ill, and therefore people who only have a primary disability, a primary mental health condition, a primary dementing condition or a non-terminal condition such as anorexia or a whole host of other conditions, who are found eligible in the more permissive laws, simply would not be able to be found eligible. It is really, really important to keep it in very sharp focus that this law is only for terminally ill people.
Dr Tidball
Q
“For the avoidance of doubt, a person is not to be considered to be terminally ill”
just by those statuses.
I am very interested to hear about the implementation taskforce. I am personally keen that if the Bill passes into law, we monitor the impact on disabled people on an ongoing basis. Do you have any recommendations for how we can ensure that disabled people have a strong voice in that process, to keep the provisions in check and understand the impact, if any, on the culture within the NHS and other services?
Dr Mewett: Only that if there is an implementation taskforce—most legislation requires an implementation period; in our case, it was 18 months—a strong disability advocate is involved in it.
Dr McLaren: It would be to plant the seed of funding for research throughout the implementation and early stages of voluntary assisted dying legislation. Conducting qualitative research particularly in this area would be very revealing, to understand not only everyone’s reasons for applying for voluntary assisted dying but also those of marginalised groups and whether there are any other factors influencing their decisions.
That also extends to research conducted in culturally and linguistically diverse populations. We have a concern about health awareness, and particularly that what we affectionately call our gag clause—whereby our medical practitioners are not able to initiate conversations with patients about voluntary assisted dying—unfairly disadvantages people from culturally and linguistically diverse populations and those who have lower levels of health literacy in accessing information about the care available to them and their health options. We feel that that comes mainly from discussions with general practitioners. Not allowing those general practitioners to discuss the options with them certainly does not do them any favours.
Dr Fellingham: Both my colleagues have made excellent points that I was going to make. I think they have covered it very well.
Daniel Francis (Bexleyheath and Crayford) (Lab)
Q
Dr McLaren: We are undergoing our review at the moment. It was meant to commence after the first five years of operation of the Voluntary Assisted Dying Act in Victoria. That review has yet to be tabled or published. Certainly, the recommendations that we have submitted to it involve reducing or removing the so-called grace period, or waiting period. My experience, and that of an almost homogeneous group of practitioners, is that patients serve their own lock-out periods, grace periods and periods of reflection, as I believe you have called them, before applying. Subsequently, there are several logistical pauses throughout the process, which also instigate their own grace periods. The addition of further periods for reflection is, I think, superfluous and unnecessary.
Secondary to that, in all our Bills and Acts, we have an ability to bypass those waiting periods. Forgive me if I am wrong, but I did not see the capability to bypass any of those in your current Bill. If the person has a prognosis of less than seven days, they should be able to be expedited and not serve that time. I do not see the purpose of putting extra time on these people to apply for this.
I always say that people do not know that they have six months to live until they have six weeks to live. We as oncologists do not know that either. In a matter of one CT scan, we can change a person’s prognosis from 18 months to three months. All of a sudden, they start thinking about how they see their life ending, and then they have to engage in a process of application. Out of that three-month period, it might take a month to apply. My recommendation has always been to increase the prognostic eligibility criteria from six months to 12 months and to remove waiting periods, which patients will place on themselves regardless of the legislative requirements.
The Chair
Dr Mewett, you are nodding.
Dr Mewett: Yes—not nodding off, you will be pleased to know.
The Chair
It is not that late yet.
Dr Mewett: As I am a member of the Victorian VAD review board, as well as being here as a palliative care practitioner, I want to give you an insight. The review board is now a statutory body under the Victorian Act. We are in the process of finalising a number of recommendations to our Health Minister to make some adjustments to the law. I am not at liberty to go into detail, but many of those things, such as the gag clause and the waiting period, are really up for challenge. They have been shown not to be safeguards but, in fact, impediments and barriers to equitable and compassionate access to the scheme.
Dr Fellingham: I agree with Dr Mewett. They seem like a good idea, but they do tend to be barriers more than safeguards.
Daniel Francis
Q
Dr Mewett: One has to understand that although there are some broad similarities, there are a number of differences state by state, and now the Australian Capital Territory has legislation. In the ACT, they have passed legislation, although it has yet to come into practice, whereby one of the two assessing practitioners could be a suitably qualified nurse practitioner. In all the other states of Australia, each of the assessing practitioners has to be medically trained. Different states have different requirements. There is also, in some states, the ability for a suitably qualified nurse practitioner to be the administering practitioner in the case of practitioner-administered voluntary assisted dying.
The Chair
For the benefit of our guests, the next questioner, Stephen Kinnock, is our Health Minister.
The Minister for Care (Stephen Kinnock)
Q
Dr Fellingham: Our law was passed on 19 December 2019 and came into effect on 1 July 2021. Ostensibly we had an 18-month period, but of course something fairly dramatic in health happened in 2020. Despite that, what happened at Department of Health level began first. The Department of Health set up an implementation leadership team and gathered specialists together from all across Western Australia in various different aspects. They had eight different workstreams looking at the eight different parts of the Act that they had to operationalise—the pharmacology, the substance and what that was going to look like, the doses and how it was going to be administered, the set-up of the pharmacy, and things like that. Each of those eight workstreams worked everything out at a Department of Health level.
Approximately six months before the law was enacted—on reflection, that was probably not long enough, but covid was very much complicating everything at the time—they set up a working group with the clinical leads in the various health service provider organisations. We were then tasked with taking that broad overview and turning it into a service at the point of delivery, on the understanding that we understood the nuances and expectations of the different hospitals and health systems in which we operated.
I will not lie: it was an enormous task. I leant very heavily on our wonderful Victorian colleagues who had gone first. I do not know what I would have done if I had been the first to pave the way. Subsequently, I have been able to offer that level of assistance to each of the other states and territories that have gone after Western Australia, and then of course to the UK, Scotland and Jersey, which I have been working with quite a lot. There is a wonderful international, collaborative sense of information sharing and wanting to get this right, learning from experience and not reinventing the wheel.
The vast majority of the laws that apply across the whole of Australia and New Zealand are quite similar, and they are similar to what you are planning to legislate for in the United Kingdom. A lot of fantastic groundwork has been laid already, and it can be done even in a challenging healthcare context, like covid or our resource limitations.
Stephen Kinnock
Thank you very much for that very comprehensive answer. Is there anything that our other guests would like to add?
Dr Mewett: As I was on the very first implementation taskforce, running blind, I probably could not add much more, except to say that it can be done. One has to focus on the readiness of practitioners, the readiness of health services, the readiness of the population and a whole range of other issues, including the pharmacy service. We have a state-wide care navigator service, which assists patients and doctors in the space. We had to set up a lot of services, and that gave us the time to do so. It was very successful and very challenging, but fortunately we did not have covid in our way.
Danny Kruger (East Wiltshire) (Con)
Q
Dr Fellingham, I was interested in your point about the distinction between the Australian model and the model in Canada and elsewhere. You are suggesting that most people who seek assisted death do so for what I think you called “existential reasons”. It is certainly not because of an absence of care, although we do see evidence of that in many countries. Can you expand on why you think it is so important that we have the terminally ill definition in the Bill, rather than recognising pain and suffering as the reason for seeking assisted dying, when I think most of the public who support a change in the law do so because they recognise that many people would naturally want to avoid pain and suffering? Yesterday, we heard from people who said that that is the right reason and that we should write that into the law. Why should we not do that?
Dr Fellingham: That is a very good question and I am grateful that you have asked it. We absolutely have to keep at front and centre that pain and suffering are primary drivers for people seeking access to relief of suffering, whether that is at the end of life or in any interaction that they have with healthcare providers. I speak to remind you that these laws apply to terminally ill people, because I feel that that is a lot easier for us to understand and get our heads around, but it does not detract from the fact that suffering can be a feature of non-terminal illnesses. There are people who can suffer terribly for very long periods of time—dementia being a clear example, but one that would be incredibly challenging to legislate for at this early stage.
What is interesting about the parallels you draw between pain and suffering is that it is a quite common conception that pain is suffering and suffering is pain, and that people seek access to relief of suffering at the end of life because it is the physical symptoms that are the most debilitating. Of course, the physical symptoms can be horrendous—pain, nausea, vomiting, anorexia; there are a multitude—but they are symptoms that we tend to be really quite good at treating. We have a whole range of medications in our palliative care spectrum that are very good at treating those physical symptoms, so it is quite rare that people prioritise those when thinking about this.
But suffering is subjective and it is context-dependent. What suffering is to me might be completely different from what it is to you, even if we are suffering from what looks to be, from the outside, the same disease. Suffering and distress—the thing that makes us human: the existential overlay of our own interaction with the world and how that is impacted by our disease process—is an incredibly personal journey and one that is extremely challenging to palliate, and it is very, very distressing for patients, their families and their practitioners if we cannot support people who are suffering at the end of life. Does that answer your question?
Danny Kruger
Q
Dr Fellingham: In our law, in Western Australia, one of our eligibility criteria is that a person is suffering intolerably, in a manner that they consider intolerable, and that we have taken all reasonable steps to alleviate. The important thing about suffering is that it is a personal experience. It is not mine to judge as a clinician; it is mine to delicately and expertly tease out of a patient and to attempt to mitigate and treat to the best of my ability. Yes, suffering absolutely is what the patient says it is, and these laws are designed to honour individual patients who are dying. They are not designed for us as practitioners or clinicians looking in from the outside; they are designed to be supportive of an individual patient’s illness journey, and only they can know what the experience of that is.
Dr McLaren: It is a very good question, Mr Kruger. I think one of the distinctions is where the point of hope is and where the point of no return may be for that suffering. If you were to say that patients or people may apply for this or self-confess suffering in the absence of an end-of-life condition, that leads to questions about whether it applies to a 21-year-old with a decompensated mood disorder that could be treated or improved. When we are talking about patients within the last six months of their life, that suffering is very hard to come back from in the time that is given to them. It is about that recognition of the point of difference between hope for the future and a different type of hope—hope for improvement in symptoms or control of the situation, but not for physical improvement or a return to normal function or living. That is the real difference between legislating purely on the basis of suffering, versus in the context of suffering that will not get significantly better.
The point is that the line must be drawn somewhere. We have seen patients who have been ineligible under our laws where we have found immense suffering, and that is a difficult space to navigate in its own right, but those cases are going to happen regardless of where the line is drawn, and it needs to be in a place where people are comfortable to navigate on one side or the other. That is where the clinical education comes into the process, in terms of how we best manage that, recognise the suffering in the individual, try to make things better and work hand in hand with palliative care and other colleagues to try to improve symptoms for the patients who are not eligible under these laws.
Dr Mewett: As a palliative care physician, I spend all my professional life addressing people’s suffering in the context of an advanced, progressing, incurable illness. Palliative care, of course, approaches that from a range of different angles. I see VAD—assisted dying, voluntary —as an end-of-life choice among a range of end-of-life choices that people may or may not make. A minority of our patients will take that choice and have some control. They require and should have excellent palliative care up to the time that they die, whichever way they decide to die.
I think we should understand that despite the best palliative care in the world, there are still patients who suffer uncontrollably, unremittingly and intolerably. I believe that it is that small minority of patients who should have a legal option to take control of that stage when it is irreparable. It is not incompatible with palliative care; it is part of palliative care and an end-of-life choice, and not the philosophy of care that palliative care is.
The Chair
Colleagues, if we are to try to get everybody in, I will have to confine Members to one question each from now on. Panel, if you could, be kind and, without denying us the information we need, keep your answers as brief as possible.
Dr Simon Opher (Stroud) (Lab)
Q
Dr McLaren: Again, each of our states, as well as the Australian Capital Territory, has different legislation and therefore different processes. In broad speaking terms, say in Victoria, for example, a patient will express their wish to engage in voluntary assisted dying independently, and often they are connected to the state-wide patient navigator service, which will connect them with a doctor to receive that patient’s first request and become their co-ordinating medical practitioner. That doctor will then conduct the patient’s co-ordinating assessment and determine whether they believe the patient is eligible or ineligible. If the patient is eligible, the doctor will refer them on to a consulting doctor, or a doctor who acts as the consulting doctor, for a consulting assessment.
If that process is also approved and the patient is found eligible, they meet again with the co-ordinating medical practitioner to make a written application to engage in voluntary assisted dying. That process then goes to our review board, to ensure that it is compliant with the legislation, before we can apply for a permit to prescribe the medication. The permits are specific to our state; many other states, such as Dr Fellingham’s, do not require a specific permit for individual prescription. The permit will come back within three days, and then we write a prescription, which goes to our centralised pharmacy service. The pharmacy will wait for the patient or the contact person to contact the pharmacy and organise the delivery or dispensing of the medication.
In Victoria, self-administered oral medication will be dispensed to the patient, and that is then their property; they may use it immediately or never use it—that is completely up to them. They do not require medical attendance at that time, although I have provided that on many occasions, sitting with a patient and their family as the patient has taken their medication and died. If the medication is not used, the contact person nominated by the patient is legally required to return the medication to the pharmacy.
If the patient is unable to ingest or digest oral medication, we can apply for practitioner administration, which I believe your Bill does not currently provide for. This authorises a co-ordinating medical practitioner to administer the medication, either via a percutaneous endoscopic gastrostomy feeding tube or by other means, including intravenously, to the patient to bring about their death. I have certainly done that—I do not keep count, but I have engaged in that many a time.
Jack Abbott (Ipswich) (Lab/Co-op)
Q
Dr Fellingham: In the UK you are missing a number of the challenges that we have, such as the geographical challenges in a state as vast as Western Australia. You also have a golden opportunity to look, as you are, across every jurisdiction that already has laws in operation and cherry-pick the best bits of what is working well in those jurisdictions, and so create the very best, most robust and most patient-centred legislation you can.
The healthcare systems are broadly similar. We are both first-world, developed western countries. We are still operating in a context of resource limitation, but not resource limitation that is so prohibitive that it would make it particularly difficult to enact a law in the UK. The United Kingdom would be broadly able to follow any of the laws that exist in Australia and implement them very successfully.
Kim Leadbeater (Spen Valley) (Lab)
Q
Dr Mewett: There is no doubt that traditionally palliative care has eschewed any idea of voluntary assisted dying, for a number of historical reasons that I have spoken about in other fora and will not go into now. But it is changing, and there is a general change in attitude, especially among the younger palliative care training doctors and young clinicians, who see this as part of patient-centred care, honouring the patient’s autonomy and choice, while still addressing deeply their concerns and suffering in pain management and so on.
That will see a change. I do understand where it has come from. When one looks at it almost forensically, it does not stack up and will continue not to stack up to have someone saying, “Well, VAD is not part of palliative care.” VAD is part of patient choice and it will be part of palliative care ongoing. That will evolve over time.
I am sorry but I did not quite catch the meaning of the question about the multidisciplinary aspect, Ms Leadbeater.
Kim Leadbeater
Q
Dr McLaren: This was born out of when we started as a Victorian group. We were very individual and we interpreted the law in our own ways. We complied with it as best we could, but we did not have a centralised discussion board or peer group set up at the time. We have propagated advice through the other states to ensure that there are what we call community practices, where clinicians can discuss their cases and learn from each other.
Several months after, from I think June to November, we had no interconnection with other VAD-practising doctors. In November, we had a forum set up where we are able to connect and talk about difficult cases and how we would each interpret them. As the subsequent states came online, we were approached by some of the practitioners from other states saying, “We don’t really want to reinvent that wheel, so can we join your community of practice?” Because it was set up by our state government, they were unable to join, so I saw a gap in terms of creating an organisation where we could propagate that knowledge and not all start from scratch.
It initially started as a group of voluntary assisted dying medical practitioners, and we would discuss cases across the board and ask things like, “What would you do under your legislation?” and we all learned from that. Then we were approached by pharmacists, nurses and others involved in voluntary assisted dying provision, including legislators who wanted to contribute to the custodians of the voluntary assisted dying law, who are the people who actually run the projects. That then led to the creation of Voluntary Assisted Dying Australia and New Zealand, which is a multidisciplinary group of predominantly doctors, but we do have nurses, pharmacists and legislators involved. We have had two annual conferences where we discuss issues faced by many of our practitioners. That has been a great resource for people.
We are developing standards. We feel that in our legislation there was perhaps too much about instilling what the standards are. We feel as though the appropriate-ness of such things as telehealth should be regulated via standards rather than via legislation, which it currently is in Australia. These are the types of topics we have weighed in on and created position statements for in order to protect the laws that we believe in, uphold and like to think of ourselves as responsible practitioners of.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Q
Dr Fellingham: It is important to reflect that only people who are at quite a significant point through their own specialty careers are eligible to become assisted dying practitioners in this country. For instance, I was a consultant anaesthetist and I had already been practising for more than a year. I had lived experience of caring for patients both living and dying, both anticipated and unexpectedly, over a career spanning more than 10 years, before I came to the point of assisted dying.
To become eligible to offer assisted dying, I then had to undertake training developed in a special package by the Queensland University of Technology. That training package takes about two days to complete and there is an exam at the end before someone can become eligible. The exam has a 95% pass rate.
Once someone has qualified with that training, they are offered the opportunity to give their details to the state-wide care navigator service. The vast majority of people opt to do that. Once they do that, they basically become engaged in this incredibly supportive, collaborative and nurturing multidisciplinary team within a professional organisation that, in our state, covers all the assisted dying practitioners—the doctors—but also the care navigators, the pharmacy service, the individual voluntary assisted dying programme managers and the end of life choices co-ordinators, who exist in all our hospital systems.
Because we are all consultants in our own specialties, there is not the same level of supervisory oversight as we would give to junior doctors—there are not forms that we fill in; we do not accredit one another—but we do acknowledge that we are all learning and growing in this space. These are new laws: even the oldest in Australia has only been going for five years. Every single one of us is motivated from a place of wanting to support, collaborate, grow and learn from one another, and ensure that the care we are offering to people in this challenging space is of the absolute highest quality.
We have a really robust community of practice. We meet monthly. Half those meetings are online to allow our regional practitioners to join, and half of them are face to face. They are extremely well-attended closed sessions where, especially over the time that we have developed relationships with one another, we find an incredibly supportive space to share our experiences and to learn, grow and develop from one another.
In terms of CPD, we all have to maintain our professional registration. I have both general and specialist registration with our supervisory body, which is like the General Medical Council. I complete my mandatory CPD requirements each year, as per my specialist college. On top of that, I have just redone the refresher training, which is once every three years. That is just what was mandated in our state. If someone has not done VAD practice, they have to do the whole thing again. That is only for people who have been active in this space. That training is shorter—it is about half a day—but it is really a reflection of what we are doing on a weekly basis. We are living and breathing this work, and really strongly collaborating with everybody else who does it.
Kit Malthouse (North West Hampshire) (Con)
Q
The Chair
Who is best qualified to answer, please?
Dr McLaren: Greg, I might dob you in for the neuro-degenerative perspective, if that is all right? I have been involved in several of those cases but, as a medical oncologist, it is a little outside my field.
Dr Mewett: In most Australian states, the law was made so that a patient was eligible if they had a terminal prognosis of six months or less, except in the case of a neurodegenerative disorder—the most archetypal would be motor neurone disease, but there are a number of other neurodegenerative disorders for which prognosis can be made, including Parkinson’s—in which case it was 12 months or less. We have been trying to tease that out as part of our Victorian VAD review board work, and we could not find the logical or consistent reason why there would be two different prognoses for different disorders. We think it was because the advisory to the legislators thought that patients with neurodegenerative disorders might lose capacity to continue with the process earlier.
We and all our learned colleagues know, however, that patients with all sorts of diseases can lose their cognitive abilities during their disease, particularly with cancer and motor neurone disease. We do not see that as logical or reasonable. In fact, as Dr McLaren said, we are considering recommending that prognosis is set at 12 months, which is what Queensland legislated for and practices. A 12-month prognosis is reasonable for a whole range of reasons.
The Chair
Thank you very much. I have three questions remaining and five minutes, so we need brevity, please.
Lewis Atkinson (Sunderland Central) (Lab)
Q
Dr Mewett: I will say one thing briefly. Palliative Care Australia, which is our peak body, commissioned a report a few years back that studied the introduction of voluntary assisted dying legislation throughout the jurisdictions of the world. It concluded—this is a body that was not pro-VAD—that there was no adverse impact on palliative care services; indeed, it was often the contrary. Palliative care services were actually strengthened and enhanced because of the emphasis now being placed on more choices at the end of life. So I think that is an absolute furphy, as we say in Australia—you might say a red herring.
Palliative care services are not in any detriment. In fact, I would go on to say that this idea that palliative care doctors will leave in their droves if such legislation is introduced is just false. We respect conscientious objection in this space, and we have learned to live with each other and respect that people are entitled to set their own ethical limits.
Sojan Joseph (Ashford) (Lab)
Q
Dr McLaren: We were made aware of one situation in Queensland last year. The eligible patient was given the medication, but they ended up in hospital and died from their disease. Their husband then went home, took the voluntary assisted dying medication and died. That was obviously a tragedy and no one wants that to occur, so I do not want to be flippant in talking about it, and I hope my comments are taken in the way they are intended.
We know that spousal suicides occur when people die, and we have had one case across Australia compared with thousands of successful cases of voluntary assisted dying conduct. No other cases have been evidenced, so the rate of that is incredibly low. The voluntary assisted dying team in Queensland, on the same day that they became aware of that case, put in steps to ensure that it would not happen again, which I believe included the required return of the medication.
We also have to balance the autonomy of having the medication available to patients at 2 in the morning, when they have an exacerbation of their pain and say that enough is enough, instead of waiting for business hours when the doctors are available to come and sit with them. It is a very delicate balance and there will always be that risk. I think the balance is struck well and the safety can be upheld by still providing the patients access to their own medication.
The Chair
I am going to take one final comment from Dr Mewett, as we are practically out of time. I am sorry that there is one Member who has not been called.
Dr Mewett: To be absolutely clear, spousal suicide occurs with leftover palliative care drugs, and we had two cases of that in Victoria prior to voluntary assisted dying. It is hardly surprising that that may occur in a very rare number of cases.
The Chair
I am afraid that has to bring this session to a conclusion. Dr McLaren, Dr Mewett and Dr Fellingham, thank you for giving up your evening for us. The Committee is indebted to you. Thank you very much indeed and have a good night. While we are changing over, I call the Member in charge of the Bill to move a motion.
Kim Leadbeater
I beg to move,
That in the list of witnesses set out in the table in the sittings resolution agreed by the Committee on 21 January 2025 and amended on 28 January 2025, leave out “Professor Jane Monckton-Smith OBE” and insert “Hourglass”.
Unfortunately, we found out in the early hours of this morning that one of our witnesses is unable to join us this afternoon.
Question put and agreed to.
Examination of Witnesses
Professor Tom Shakespeare, Dr Miro Griffiths, Yogi Amin and Chelsea Roff gave evidence.
The Chair
Q
Dr Griffiths: How long do I have for the opening statement?
The Chair
It should be very brief, please, because the Committee will put questions to you and you will, I hope, have adequate opportunity to make the points you wish to make.
Dr Griffiths: My name is Dr Miro Griffiths. I am based at the University of Leeds. I hold several advisory positions on disability policy in the UK and across Europe. I am also connected to organisations such as Not Dead Yet UK.
My position is that I am overwhelmingly against the principle of and the clauses set out in the Bill, primarily because of my concerns about how it coalesces with the systemic injustices faced by the disabled people’s communities in the UK. I also have reservations about how it will affect the relationship between medical practitioners and disabled people’s communities. There are some deep concerns around issues of coercion that are not satisfied within the Bill. I also have reservations about the way in which we are navigating towards emphasising the trajectory of a health service that facilitates, and arguably accelerates, death over other forms of assistance within the community and within our health service.
Chelsea Roff: Thank you, Chair, and to the Committee for having me. I have been the director of a charity based in the United States, but now working in over 50 countries around the world, for the past 11 years. I am here in a personal capacity, and really I am here as a researcher.
My area of research has historically been the treatments and prevention of eating disorders, but last year it took a turn and I, along with my co-author, Dr Catherine Cook-Cottone, completed a systematic review of assisted death in eating disorders. Our findings really shocked me. We found that at least 60 people around the world have been euthanised or assisted in suicide—I am using jurisdiction-specific terminology there; I will use “assisted death” and “assisted dying” today—including in three jurisdictions in the United States, where I am from: Colorado, California and Oregon.
That is important for the Committee because those are jurisdictions where assisted death is legally restricted to terminal conditions. We saw anorexia nervosa listed by name as a terminal condition. Most alarmingly to me, in two of the states we could find no mention of documented cases in the annual state reports. Had a physician and her colleagues not written a paper and told the world about it, we would not know that those young women had died. In 100% of the cases we reviewed, the people were women, a third were between the ages of 18 and 30, and two thirds were under the age of 40. I have to emphasise that these were young women who did not have failing organs and did not have comorbid terminal conditions; in none—zero—of the cases we reviewed was there organ failure or comorbid conditions, and they had decades of life ahead of them.
I hope that I can be helpful to the Committee in sharing the evidence that we have uncovered internationally. The evidence is most relevant to clause 2, on the definition of terminal illness, and clause 3 on mental capacity, but it is also relevant to latter parts of the Bill, on reporting and on the approved substances used for this process.
The Chair
Order. I am going to have to urge brevity on everybody this morning, because of the time that we have not got.
Chelsea Roff: I am done.
Yogi Amin: Morning—thank you for having me. I am Yogi Amin, and I am a partner at Irwin Mitchell solicitors, where I head up the public law and human rights department. I have worked in the area of mental capacity law and public law for over 20 years. That includes on cases where there are disputes over medical treatment and safeguarding aspects. I have put a written note into the Committee this morning; I am sorry it is late, but it arrived just before I did. I can touch on some of the points in that note.
The evidence I give, and the information I have given, is in a personal capacity and should not be attributed to my employment or any organisation I am in; I am a trustee of the Royal Mencap Society. I am also a Law Society accredited legal representative, which means that as part of my practice I represent people who are vulnerable and come before the Court of Protection for decisions about disputes on mental capacity and best interests.
Professor Shakespeare: Thank you for inviting me. My name is Tom Shakespeare, and I am professor of disability research at London School of Hygiene and Tropical Medicine. I am a sociologist, and have done considerable qualitative research with disabled people.
I am here to say that most disabled people support the Bill. There are some very vocal people who oppose it—and they have every right to do so—but the Bill is supported by disabled people, probably because it is restricted to terminal illness, which I think is a good thing. I would oppose the Bill if it was relevant to all disabled people; this Bill is only relevant to people who are dying already. It defines terminal illness very clearly. For example, mental illness cannot be the sole criterion —so that would rule out people who have eating disorders, I think.
Obviously, we live in a difficult world and there is a lack of social support. I would like to see better palliative care, more hospices, and more options for disabled people and people who have terminal illnesses, but this legislation should be a tool in the toolbox for people who have terminal illness. They may not select it, but knowing it is there will give them the assurance that they will face death knowing that they have a way out and a quicker, better death if they choose that. Most will not, but some will and they should have that right.
Jake Richards (Rother Valley) (Lab)
Q
Yogi Amin: Reservations—no. In fact, I wholly recommend and support the idea as drafted to defer to the Mental Capacity Act for capacity assessments. I have been working in this area for over 20 years, before and after the Mental Capacity Act came in, and I have done cases all the way up to the Supreme Court, as well as day-to-day different cases around the country. It is well understood how capacity assessments are done, and it is ingrained into the practice of practitioners generally and of legal practitioners in the courts. Certainly when I give training to advocates, doctors and so on, it is well understood how to apply the test. That could be adapted for this particular decision, which is done here. In the past couple of years, we had a decision in the Supreme Court which settled how to approach the question of capacity, and to disturb that would concern me.
Jake Richards
Q
Yogi Amin: It is a well settled and understood approach to the law, and producing a new one would throw up a whole new conundrum, where people would be questioning how to approach it, etc. It is not broken—it works well.
The Chair
That was a specific question to Mr Amin, but it is an important issue. Does anyone else wish to come in, briefly please?
Chelsea Roff: One thing I would like to highlight in our study is that all 60 people who died—young women, mostly—were found to have mental capacity to make the decision to end their life, so I worry that mental capacity will not be an effective safeguard to prevent people with eating disorders from qualifying under the Bill.
I also note that Oregon and California, where I am from and where we have found cases, have an additional safeguard to mental capacity. That is, if there are any indications that the person might have a mental disorder, that person must be referred for a mental health assessment. It is important not to make a false equivalence between mental capacity and mental health.
We could, for instance, have a person who has a prognosis of six months or less, but their wish to die is emerging from severe depression, from suicidality. We saw very high rates of suicidality and depression: 89% were depressed and nearly half chronically suicidal when they died. Physicians emphasised, still, that the wish to die was not emerging from a mental illness, despite them having diagnosed mental illness.
Rebecca Paul (Reigate) (Con)
Q
Chelsea Roff: Thank you for that question. No, I do not think it is accurate, but I have to emphasise that laws in other countries have expanded through clinical interpretation, not just legislative amendment. There are clinicians—a very small minority—who disagree and who have characterised anorexia by name as a terminal illness, but they have also said that eating disorders qualify because of the physical manifestation of the disorder. You cannot disentangle a mental disorder from its physical effects. They cite terminal malnutrition; we have identified 25 cases between California and Colorado where malnutrition was listed as the terminal condition. I cannot rule out whether that was anorexia or something like voluntary stopping of eating and drinking, but I worry that it is the physical manifestations that will be cited and, without a mental health safeguard in the Bill, that puts a whole lot of people at risk.
The Chair
Dr Griffiths or Professor Shakespeare, do either of you wish to comment, because you have not spoken yet?
Professor Shakespeare: If you look at clause 2, the definition of terminal illness is very clear:
“a person is not to be considered to be terminally ill by reason…of…having one or both of…a mental disorder”
or “a disability”. I think that would cover that case.
Chelsea Roff: May I add one sentence? I think you have left out an operative word in that sentence, which is “only”. It reads,
“a person is not considered terminally ill by reason only of”—
Dr Tidball
Q
Professor Shakespeare: I would say that it is very important that the Bill is for terminal illness only. It should give a sense of safety to disabled people. In jurisdictions like Oregon, California and Montana, which Chelsea has mentioned, we have not had an expansion from terminal illness to, as it were, suffering. If you do not carry suffering in the Bill, you will not get into the situation that Canada got into.
I gave evidence because Canada was seeking—some people were seeking—to expand the coverage of their Act to all disabled people. They did so by referring to the Canadian charter of rights and freedoms and to the word “suffering”. They said, “Look, lots of people are suffering, not just terminally ill people”. Therefore, it is very important that it is only terminally ill people who are covered by this Bill. That, as I say, should give disabled people some support.
As you know, Marie, we talk about choice and control as being the principles of independent living. Disabled people should have rights over their lives. This applies to people who are disabled, yes, but terminally ill primarily. That is why they should have this law, which gives them choice and control over their lives. They are going to die anyway, but it removes the fear and reality of a difficult, unpleasant and undignified death.
The Chair
Dr Griffiths, do you want to add to that?
Dr Griffiths: This issue highlights a fundamental flaw with the Bill, which is the nonsensical division between a terminal illness and what constitutes being a disabled person. Section 6 of the Equality Act 2010 states that a disabled person is somebody who has a “physical or mental impairment” and the impairment
“has a substantial and long-term adverse effect”
on their
“ability to carry out…day-to-day activities.”
If you have a terminal illness, it is likely that you will be defined within the terms of what is outlined in section 6, so it is a fundamental flaw, because disabled people will be incorporated within this.
The issue also highlights this arbitrary nonsense about a six-month perspective. What constitutes six months left to live, particularly if you are engaging with technological devices, medical assistance and so on? For example, I have a progressive condition that continuously makes me weaker and has respiratory complications and so on. If I remove the ventilator that I use at night, if I remove my other medical devices and if I stop my engagement with therapeutic services, does that constitute me having a terminal illness, because my rapid acceleration towards death becomes more evident?
These concerns highlight fundamental flaws, but they also play into what a key issue: the campaigning that will continue after the Bill, if it is to succeed. You will get people who will say, “Why not five months, or seven? Why not other conditions that are not being highlighted in our current discourses?”
Sarah Olney (Richmond Park) (LD)
Q
Dr Griffiths: I think so—I think the coercion principles outlined in the Bill are incredibly weak in terms of the scrutinising and the process of how you judge whether coercion has taken place. We know that coercion is a complex issue, but put that against the context of disabled people’s lives; we are talking about disabled people who are struggling day to day to access sufficient support and to live in participatory, accessible societies. The feeling, then, of societal coercion—the feeling that this is a tolerable idea—highlights my concerns about coercion.
It also plays into the issue of support and assistance to understand what your rights are, not just in terms of what we are talking about here but broader disabled people’s rights. There is a lack of advocacy services available to disabled people, and there is a lack of support for disabled people to have accessible information about their rights. If you feel that assisted dying is your only choice—as opposed to accessing support or calling out discriminatory practices in, say, access to social care and healthcare—that highlights, again, situations where coercion will manifest. The infrastructure to support people either to respond to coercion, or to understand that they do not have to be in that position in the first place, is non-existent.
Tom Gordon (Harrogate and Knaresborough) (LD)
Q
Professor Shakespeare: When I read the Bill, I thought that it did have many safeguards. It has, for example, five opportunities for a conversation with doctors or other supporters. That is a good safeguard. I think it makes a criminal offence of dishonesty, coercion or pressure, so that would scare off people. Miro is quite right—there are people who might put influence on somebody, but I hope that they would be covered under clause 26 as having committed an offence. That would scare people who may have a particular view against assisted dying.
How can we make it stronger? We could have more of an advocate for the person who is requesting assisted dying—somebody who will support them, within the law, to make that decision or to think about their decision. We are trying to make sure that everybody who is thinking that this is for them has the opportunity to talk about it and to think about it. The time and the conversations are all about that, but maybe an advocate also would be the person who is requesting this step, who is not a beneficiary in any way of that death, and they could be a neutral party to give advice. I am not sure. However, there is a lot here. There are five conversations. I am not surprised that people thought it was strong. I think it is a strong Bill.
There is scope for doctors and other medical practitioners to act on their conscience and to withdraw from this. Miro made a useful point, which is that we do not want any disabled person frightened of their doctor or worried that their doctor, who has been supporting somebody else to die, might do that with them. In conversation, Marie, we have talked about an assisted dying service as being a part of the NHS, but I wonder whether it might be specifically around this. I think that it is worth considering whether the average doctor is the person to whom a person should take a concern or a wish to die.
So this is about advocacy and maybe having a specific service for people who want to go down that route. However, I think it is a strong Bill as it stands.
Tom Gordon
Q
Professor Shakespeare: I think the law is only one of the influences that might be involved. There is also physical health, mental health and social wellbeing. I think a multidisciplinary panel might be a better way of finding out. But I bow to my friend Mr Amin, who has a lot more experience of legal panels than I have.
The Chair
Mr Amin, do you want to comment?
Yogi Amin: The way the Bill is drafted, the judges reviewing the case are not making an order; they are declaring a plan that someone else has produced and has put in front of them. It is a strong, independent, legal and judicial safeguard, as part of the Bill. My written submission, you will note, says that the courts are well used to doing that. The courts have been doing it for many years. They have been dealing with disputes over facts, disputes over capacity and disputes over medical treatment. They are able to identify safeguarding issues. The courts and the judges are certainly able to do it. I am not speaking to the question of capacity. If the question is about whether to introduce something different from a High Court judge, I will wait to see it and scrutinise it, but as it is drafted at the moment, I would say that a High Court judge is a strong legal safeguard as part of the mix of safeguards in the Bill.
The Chair
I will come back to Marie Tidball, but I want to make it plain to the panel that, while questions are being directed to specific panellists, if anybody wishes to come in on something, do please indicate.
Chelsea Roff: To your question, Mr Gordon, about whether this is the safest Bill in the world, I know that due care has been taken to make that happen. One of my biggest concerns about clause 2 of the Bill is that it makes no distinction between a person whose illness can become terminal if they refuse or cannot access treatment—for instance, someone with diabetes. Type 1 diabetes affects 300,000 people in this country, and it often co-occurs with eating disorders. The way this is written would not prevent someone who chooses to stop taking insulin from qualifying as terminal.
In the US, we are seeing voluntary stopping of eating and drinking used to circumvent the terminal illness safeguard. I will quote the American Academy of Aid-in-Dying Medicine, which is the professional body:
“Legally, there is nothing in the letter of the law…that explicitly prohibits accepting voluntary stopping of eating and drinking as a terminal diagnosis to qualify for aid in dying.”
It describes this as a “legal gray zone” that would “essentially eliminate” the terminal illness criteria. There is nothing in this Bill as written that would prevent that, and we have to look at the letter of the law, because it expands through interpretation, not just amendments.
Dr Tidball
Q
Dr Griffiths: This plays into a broader issue around the reporting mechanisms associated with the Bill. I think there needs to be further robust action around how to collect data and allow it to be analysed, to see the trends that are occurring in why people are pursuing this option and how that may play into broader political and socioeconomic issues, such as a lack of services elsewhere or frustrations for disabled people and their families in trying to access particular services.
This goes back to a point that Tom made. While we may see popular opinion within disabled people’s communities, it is worthy of note that no deaf and disabled people’s organisation—these are organisations that are representative of disabled people who engage critically with the issues facing disabled people’s communities—has been in support of this. I would therefore encourage their representation on any form of advisory council. I would also request that disability studies scholars, who are often left out of the discourse around disability policy, are part of any form of mechanism to advise or scrutinise.
Professor Shakespeare: I think the council is a very good idea. It should reflect the range of views, as Miro says. In Oregon, disabled rights advocates have not, as I understand it, opposed the Act that they now have. Of course, it is mixed, but some disability groups are definitely in favour. There is a difference between organisations of disabled people and disabled people on this. Politically, the disability rights community are against assisted dying—they always have been. That does not mean that they reflect what ordinary disabled people want, and that is what is important. I think you should be interested in what people want, and they want this.
Sean Woodcock (Banbury) (Lab)
Q
Dr Griffiths: That goes back to my previous point around how coercion can manifest in various different ways. One can be exposed to the societal pressure to feel that your life is no longer tolerable because of the struggles that you have in terms of accessing services, provision and support. We know from data that we have people in the community who are struggling to see their GPs or consultants associated with their conditions and changes in their conditions. The coercion, I feel, will come from how society is organised, and does not respond to the injustices faced by disabled people.
Also, there is a broader, slightly different issue, which is that there is nothing in the Bill, in my view, that satisfies the concern that—if it were to pass—you would create a network of practitioners who are sympathetic to the principles of assisted dying, and therefore, when somebody comes forward to say, “I want to die”, they will be more receptive to those ideas that the individual has. They will therefore facilitate their process through that, which I think undermines any attempts to have objective scrutiny of coercion that may occur. There is nothing that stops you from saying, “I know that there are these certain people I can go to who have either been public or have supported others to have access to this service. Therefore, that is my best chance of gaining access.” That then collapses all attempts to address issues of coercion.
Chelsea Roff: To add to what Miro is saying, we have seen in our study a more subtle form of influence, and sometimes it actually comes, tragically, from the clinicians themselves. We saw 95% of clinicians tell the patient and their family that they had an incurable, irremediable illness with a prognosis of six months or less in some cases. That has an influence on a person and does not cohere with the evidence on eating disorder recovery— in fact, we have no good ways of making prognosis in eating disorders. The only good prognostic indicator we have is weight restoration.
I would also highlight—relevant to here, where we live —that the all-party parliamentary group on eating disorders just put out a brilliant report on huge gaps in the care system. I am working with a person and a family right now, who has been to the Court of Protection, whose eating disorder team presented her and used the term “not treatable” to the judge, as well as the term “in the end stage of her illness”, and predicted that she would die within six months. Eighteen months later, she and her family are still fighting for treatment and are being denied services. That is the kind of coercion I am worried about, which happens within a healthcare system that I know many of you were elected to fix. That is what so many people have called for—to fix a broken NHS. That is not my choice in terminology—I love the NHS, but I think that is what we need to be worried about.
Clause 4(4) especially to me reads like a formula for coercion. A physician could say to a young woman with an eating disorder, “You have a severe and enduring eating disorder”, which you will not find in any diagnostic text, but is used frequently in these cases and in the Court of Protection. They could say, “We have done all we can. The treatment options are exhausted”—again, you will find that in the Court of Protection—and, “Your prognosis is poor”. It leaves you with a feeling that you have nothing left to choose from, especially if you are struggling to access services.
The Chair
I mean no discourtesy to the Committee, but we have 20 minutes, and 10 Members wishing to ask questions, so we have to move this on I am afraid.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Q
Yogi Amin: As I said, I have worked in this area for over 20 years. I represent individuals week to week in this area and safeguarding is all across what is needed for these individuals. The professionals who are involved in their lives are regulated. We are talking about doctors who are meeting individuals, and they understand what it means to identify safeguarding triggers and where referrals are required. That makes it quite strong in this particular Bill.
I am comfortable with the wording as you have it in the Bill, and I say that as someone who has worked in the area for many years. Lawyers will go to court and pick over words, but the way it is drafted, it is understood that there is voluntariness, as described in the Bill, and coercion. I do not think that additional words are necessary to describe what is required here—it is a voluntary, free-will decision, and coercion is defined. When we are talking about a doctor trying to understand that and a court then interpreting it, I think it is pretty clear what that is, so I am comfortable with the way it is drafted.
Generally, from a safeguarding perspective, there are, as Tom said, a number of points at which professionals ask individuals for a decision on this over a number of weeks, and it goes into months. There is quite a robust process. I point also to footnote 3 for paragraph 4 of my written evidence, where I have referred to the current existing law outside the Court of Protection, where it might be thought that the person has capacity but there are concerns about coercion and so on. There is, under section 42 of the Care Act 2014, the provision for safeguarding referrals. There is, under section 222 of the Local Government Act 1972, provision for a local authority where referrals are made to bring the matter before the court under the inherent jurisdiction.
The inherent jurisdiction does not go away; it is here and available where there are concerns over the safeguarding of an individual to allow them to make their own individual, free-will decision. It is not there to do anything other than protect that individual and have a safety net around them to ensure they can make individual, autonomous decisions. Nothing needs to be tinkered with in the current Bill, because that is there—Parliament has already provided for that. Have I answered your question?
Juliet Campbell (Broxtowe) (Lab)
Q
Professor Shakespeare: It is natural and right that somebody should discuss their wishes with a doctor who supports and treats them. I do not think there is a problem there. Marie’s suggestion that there should be a wider body to look at this is very relevant. At the moment, doctors refer women for abortions, and that does not stop them also supporting pregnant women. I do not think that women would distrust their doctor because they are sometimes involved, at some point, with an abortion decision. That is quite obvious. As my colleague Yogi Amin said, the Bill covers what the terminal illness is, and why we should support people to voluntarily exercise their choices. Lots of doctors will not be in favour of this, but they will be clinically professional and they will discuss with the person. I do not have a concern about that. You are more likely to be kept alive against your will than you are to end your life under this Act.
Dr Griffiths: My first point is that, for me, the Bill raises concerns because it relies on doctors’ interpretations of prognosis. If a doctor assumes that you have six months left to live, and is therefore going to start having a conversation with you about the possibility of assisted suicide, that draws into question how we allow assumptions to be made about whether an individual has six months left to live. That is particularly the case given that we have evidence that shows that, with certain interventions or mishaps surrounding prognosis, individuals can live for months, years and decades longer. The idea of bringing in the conversation from the point of view of the medical practitioner could, arguably, accelerate one’s death—if you take into account that their idea of prognosis might be flawed.
It also, I think, raises problems, because we know that many individuals with health conditions and impairments—irrespective of whether we want to create this false line between disabled people and people with terminal illness—do not have access to advocacy or representation in these kinds of processes. Having a conversation where there is extreme credibility and validity that rests on the medical practitioner could exacerbate issues around coercion.
We could take a moment of reflection. When we were going through the pandemic, the Parliamentary and Health Service Ombudsman highlighted how medical practitioners could think about “do not attempt resuscitation” orders and how they were utilised in the disabled people’s community. That has parallels with the issue we have here, where medical practitioners will be making assumptions about whether conversations or applications should be made.
Yogi Amin: Can I just raise one point on representation? I point Members to paragraph 10 in my written submission, which tries to make the important point that if we are involving courts, individuals need access to justice. They need access to advice, and that means legal aid. I point in that paragraph to the provision of non-means-tested legal aid, just like in the case of parents of children and the withdrawal of life-sustaining treatment. Those current rules are in place for parents, and a similar arrangement could be put in place for individuals who are brought before the court in this matter.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Yogi Amin: If the legal panel is not a High Court judge, but it is a multidisciplinary panel, then it just draws upon the people in the local areas. The Court of Protection operates in England and Wales and the judges apply the law the same way. That is what the panel would do in this case. Are you more concerned about the make-up of the panel or how they apply it?
Liz Saville Roberts
Q
Yogi Amin: Are you talking about responsibility for resourcing it?
Liz Saville Roberts
Q
Yogi Amin: Oh, I see. I suppose if there is a multi-disciplinary panel, the judiciary would appoint the individuals. It would be a judicial body, essentially. I do not know if you are talking about a tribunal that is multidisciplinary, although I know people shy away from tribunals.
Liz Saville Roberts
I think there is a question, because we are a Committee on a private Member’s Bill, as to how we ascertain these details.
Naz Shah
Q
Dr Griffiths: There is no indication of how you would place the infrastructure for support for people whose discrimination or injustice is exacerbated through an intersectional lens—for example, the cross-cutting of different experiences—and how that can be attested for within the Bill. For example, if an individual comes forward to discuss with their doctor their concerns, there is no infrastructure for how that would be acknowledged with an intersectional critique.
There is also a concern that many within disabled people’s communities from particular backgrounds, such as women, are pre-exposed to further levels of injustice that are not accounted for, and their experiences of trying to access support for certain aspects of their life are compounded by inequalities. These issues are not addressed by the Bill. In my view, if this mechanism becomes available, the issues that some individuals face in terms of injustice will play into the consciousness of their decision to go forward with this. I cannot think of any clause or amendment that would address that issue in its totality.
Naz Shah
Q
Chelsea, thank you for your evidence. Eating disorders are classified as mental disorders under the Mental Health Act. The Bill explicitly states that a person cannot be considered terminally ill only because of a mental disorder. You have also talked about the withdrawal of insulin. Could you respond to both of these? Why do you believe that eating disorders would still meet the criteria under the Bill, and likewise for the issue of stopping insulin?
Chelsea Roff: There is a false distinction being made in the Bill between a mental disorder and its somatic or physical manifestations. Mental disorders, especially eating disorders—not just anorexia—impact the body, and have life-threatening consequences. We had 20,000 acute hospitalisations for eating disorders in this country last year, and we have massive gaps in care. Those are individuals who, if they were to choose to forgo treatment or could not access treatment because they were on a wait list for a long period of time, would qualify under this Bill.
I draw your attention to the evidence I submitted with Dr Agnes Ayton from the Royal College of Psychiatrists, and Dr Angela Guarda, a leading physician from John Hopkins University. I also draw you to our own case law in the Court of Protection where we have had physicians represent eating disorders as terminal conditions, as in the end stage of their illness.
I am grateful that you have drawn the connection to diabetes, because it is not just about eating disorders. Substance use disorders would have the same effect. Outside of mental disorders, HIV/AIDS is a progressive condition that cannot be reversed by treatment. Are you okay with a 19-year-old young man who decides to discontinue treatment qualifying under this Bill? Those are the questions you have to ask. I am not, in principle, against the Bill, but you have to look at the letters on the page, because they will be interpreted after the Bill is passed. Your constituents are depending on you.
The Chair
I am sorry, but we still have more Members and questions than we have time, so I am going to come down to one question per Member.
Kim Leadbeater
Q
“an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment”.
It also says, for the avoidance of doubt, that this cannot be “a mental disorder” or “a disability”. I hear your concerns, and I want to support you and work with you on this. I am keen to know: what else do you want to see in the Bill that would reassure you that this is not about disabled people or people with mental disorders?
Dr Griffiths: I am conscious of time, so I will be very quick. My first point would be, why would you stick it at six months then? Why not have it at seven days, for example, as a way to take out our concerns? If you are talking about prognosis, let us go back to Chelsea’s point and the point that I made before. My condition is a neuromuscular condition. I have had meetings with clinicians where some have referred to it as a terminal illness, some have referred to it as a life-limiting condition, and others have referred to it as a progressive condition. The articulation of the ideas and the ways in which we think about conditions show the complexity of the issue. We are talking about terminal illness, and people who are terminally ill do constitute disabled people under the Equality Act, so you cannot make the distinction.
If you want to be quite proactive about it, then why not reduce the prognosis timeframe and make it as short as possible to take out the concerns about prognosis, and the concerns around whether individuals are going to live longer or could be facilitated access to alternative treatments to prolong life? I do not understand why we are fixated on a six-month prognosis because, as we have seen in other countries, as soon as you pass the legislation on six months, you will have individuals who say, “Why not seven months? Why not five months?” You will have campaigners who will say, “This does not include me and I have been campaigning for this.” There will be pressure to change and Governments will change. There is no guarantee that you can make that the eligibility criteria will be fixed.
Danny Kruger
Q
Professor Shakespeare: First of all, a terminal illness is defined as a “condition which cannot be reversed by treatment” I know that that does not mean a cure; you are not aiming at a cure—but it says, “cannot be reversed”. Surely that would not include things like HIV and diabetes because they can be reversed. They cannot be cured; they are still there, but they can be reversed with insulin, antiretrovirals or whatever.
I think, yes, terminally ill people are disabled people almost always, but that does not mean that all disabled people are terminally ill. Even if you have a disease or a condition—like Miro does or like other people do—that will probably result in your death eventually, you are not going to die tomorrow or in six months. You may die in 16 years or whatever. It is very difficult to define terminal illness, and that is why six months, I think, is used in this Bill.
Very recently, my aunt died. She was unconscious for the last month or so of having cancer and then she finally died. She would not have been able to express her will and her preference to have assisted dying, even if she wanted it. Therefore, I think six months when you can have capacity, you can anticipate, you know you are going to die but you want to have control in the manner of your death, is more useful than seven days or less, when you might be unconscious and you might not be able to express a will or preference.
Dr Opher
Actually, my question has already been asked.
Chelsea Roff: May I respond briefly? I want to address the question. I know it is not your intention for eating disorders to be included in this Bill, and I am grateful for that. When I started our research, I thought, “We just need stronger safeguards.” That was where I began, and after looking at 33 jurisdictions around the world, I have real doubt about whether safeguards are enough; I know how difficult it is to put it on the page, and I am seeing it expand and be applied through interpretation. I disagree with Professor Shakespeare, respectfully, that diabetes is a reversible condition. You cannot go back in time and reverse that condition.
I agree that you are doing this for a noble purpose, and there are members of my family that want this Bill to go through, and yet I emphasise to all of you on the Committee that the question before you is: could this Bill have knock-on effects for some of your most vulnerable constituents? How many deaths are you okay with? If the safeguards fail once, that is a human being who maybe, in a despairing moment, was handed a lethal medication instead of the care, the treatment and the help they needed. That is what we are talking about. You really have to get this right, because those people are depending on you.
Lewis Atkinson
Q
Yogi Amin: I have worked in a range of medical treatment cases over many years, covering different illnesses and conditions, and clause 2 reads fine to me. It works. It is clear. I do not consider that it needs any additional words. I can understand, when we go to court, that cases will come through and they will fall within those definitions, and it will be clear. I do not consider anorexia to come under a terminal illness unless it is right at the end of life, and that does not really fit within the parameters of the Bill, because we are not talking about right at the end of life. We have section 63 of the Mental Health Act, which deals with anorexia, and there is force-feeding that clinicians consider. That is my view on the anorexia side of things.
Doctors will provide the evidence on terminal illness. You heard from the chief medical officer yesterday, and they will provide guidance around all of that. Subsequent to the Bill, there will be secondary legislation and then the guidance. They will provide clear guidance that will then feed into this and the evidence that will be before a judge that says, “Yes, it is a terminal illness, and this is the prognosis” and so on. It is nothing different from what we produce in medical treatment cases before the court at the moment, where the doctors produce expert reports and give evidence. They explain the condition, the prognosis and their decision on capacity, and they explain what is in the best interests of an individual if they lack capacity. As I understand it, the Bill is crafted to produce the evidence as you go along the path here, and then eventually to the judge.
Chelsea Roff: May I add one sentence, because it is related to eating disorders? I would refer to a 2012 Court of Protection case, where a 29-year-old with anorexia was described as being in the terminal stage of her illness and multiple physicians described her death as inevitable. I would also refer to a 2023 case seen at the Court of Protection, which said, “I recognise with deep regret that it will probably mean that she will die.” She was also described as being at the “pre-death stage”. Again, that young woman is still alive and still fighting for services. Although I respect what Mr Amin is saying, and I agree with his interpretation, we have case law in the UK where people with anorexia are being found to be terminal. We have to take that reality into account.
Yogi Amin: I do not think they were found to be terminal. They were described by a doctor in a case as being terminal, and that doctor may not have described it properly.
Chelsea Roff: Indeed, but a judge will be relying on doctors.
Jack Abbott
Q
Yogi Amin: Mr Conway was an extremely intelligent and brave individual who campaigned in this area. His strong view about autonomy led him to bring that case, and what he was arguing for in that case forms part of what you have here in the Bill. He was certainly asking for a process in which a decision could be made and some robust safeguards could be provided, which would end up with a court process, and that is what you have within the Bill. I also learned through that case, and others over the years, what the Human Rights Act, the European convention and parliamentary sovereignty mean here. On all three counts, the cases have always said that it is Parliament that makes the decision—so it is you who are deciding. I do not see a court overturning that.
The courts in the Conway case—the High Court, the Court of Appeal and the Supreme Court—were all very clear that it is a matter for Parliament. I really do not see the European Court of Human Rights overturning it in any way at all, and that is from my long experience. The margin of appreciation is very strong with this Parliament to make the decision. I also think, from a drafting perspective, the Bill very carefully defines the individuals—it has drawn the line. Certainly, the courts cannot do it; they cannot extend that line and they will always defer back to Parliament. If you craft the Bill as it is, I am very confident that it will be left here.
Terminally Ill Adults (End of Life) Bill (Sixth sitting)
Thursday 30th January 2025
(2 months, 4 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2025 - (30 Jan 2025)
The Chair
We are now sitting in public and the proceedings are being broadcast. I remind Members to switch off any electronic devices. We will now hear oral evidence from Alex Greenwich, MP for Sydney in the Parliament of New South Wales, and from two witnesses joining via Zoom: Dr Chloe Furst, a dual-trained geriatrician and palliative care physician in South Australia and a board member of Voluntary Assisted Dying Australia and New Zealand, and Professor Meredith Blake from the University of Western Australia. Could the witnesses briefly introduce themselves for the record, starting with Alex Greenwich?
Alex Greenwich: My name is Alex Greenwich, Member for Sydney in the New South Wales Legislative Assembly, and I introduced our voluntary assisted dying laws.
Dr Furst: Hi, nice to see you all. I am a geriatrician and palliative care specialist in South Australia. I have been quite instrumental in the implementation of South Australia’s voluntary assisted dying laws. I am a practising practitioner with experience with over 150 patients.
Professor Blake: Nice to see you all. I am a professor of criminal law, and health law and policy, in the law school at the University of Western Australia. I have been writing, researching and presenting in the area of end-of-life choices for about 25 years.
The Chair
Before calling the first Member, I remind all colleagues that questions should be limited to matters within scope of the Bill. We have to stick to the timings set out in the programme motion. The first session will finish at 12.30 pm, so can we stick to the points and keep them as short as possible, please? Members who wish to ask a question have indicated that, and I will call them in no particular order. I will start with Simon Opher.
Dr Simon Opher (Stroud) (Lab)
Q
Dr Furst: The medications are completely effective. I have not experienced any failures. One of the things I feel quite comfortable reassuring my patients and their families is that this medication absolutely works.
In terms of oral administration—the default option in South Australia unless the patient cannot consume the medication or has problems with absorption—it puts them to sleep within a couple of minutes. They are heavily sedated, as if undergoing an anaesthetic, and then death ensures—that is, the heart stops and respiration stops. For about 95% of patients, that happens within about half an hour. There is a small, small percentage of patients who will continue to be sedated but circulation will not cease for some hours after that. We warn patients and, more importantly, their families that this may be the case, and that is an enzymatic issue.
The medication it is highly effective. Personally, I have not had any experience where patients have had complications—vomiting, respiratory distress or any other concerns. Certainly in South Australia, those have not been issues that have been reported to us. I think there have been a couple of cases of vomiting elsewhere, but the medication has worked in all cases, as far as I am aware, around Australia as well, so this has not been an issue.
IV administration is also highly effective. By the time the medication has been administered completely, the patient is deceased.
This works—it is peaceful. Patients say to me, “I want to go to sleep and not wake up,” and that is absolutely what happens. It is a very peaceful death.
Dr Opher
Q
Dr Furst: There have been no failures of treatment in South Australia, as far as I am aware. I am not aware of any other particular ones around the country that have been heavily broadcast to us.
Naz Shah (Bradford West) (Lab)
Q
Dr Furst: Every legislation within Australia is slightly different. For South Australia and Victoria, you are correct—well, there is pretty much no obligation all around Australia for a doctor to be present for self-administration. The reason for that is to give individuals autonomy over their death, and over the time and place of their choosing. We in South Australia do touch base with what we call the individual’s contact person to understand if there have been any complications and to check in after the death. A large number of our patients, though, will seek out support from a voluntary assisted dying nurse navigator, who is often present in the house just as a support person. We do also have a lot of feedback from them as to any complications, but the doctor often, or a nurse, will come at a later time to declare life extinct.
The reasoning was that we did not think that there would be complications and we wanted to give people autonomy. We work on a permit system in a lot of jurisdictions in Australia, so people have a permit; they get given their substance and they can take their substance at a time of their choosing. They might have the substance in their house for weeks or months, potentially. Again, there is no obligation to follow through with taking that substance, which we also think is quite important. We know that in Australia, about 30% of patients who have a permit or who are approved for voluntary assisted dying actually decide that they do not want to consume the substance, but it is about giving them that choice and autonomy, and the strength to maybe pursue other lines of therapy.
Naz Shah
Q
Dr Furst: I am in South Australia, but a recent survey by Palliative Care Australia surveyed over 900 palliative care specialists, and more than 80% of patients receiving voluntary assisted dying are actually getting combined palliative care and voluntary assisted dying. In our legislation in South Australia, there are key provisions for the monitoring of the funding to palliative care to ensure that no palliative care funding is diverted to voluntary assisted dying, but we feel very strongly that palliative care and voluntary assisted dying should go hand in hand. That is a feeling that is being seen around the country now. Palliative care physicians who are finishing off training now see voluntary assisted dying as part of their core business. It is no longer seen as something that should be provided by separate practitioners. It is really becoming quite integrated.
Professor Blake: I am coming in from Western Australia. We were the second jurisdiction in Australia to introduce voluntary assisted dying laws. Ours have been operative since July 2021, so we have had the opportunity to collect quite a lot of data. Year on year, the number of people utilising voluntary assisted dying in Western Australia is increasing. In the year 2023-24, there were 292 deaths by voluntary assisted dying, which represented 1.6% of WA deaths. I agree with Chloe and confirm her view around the palliative care side of things: 83.8% of those persons who accessed voluntary assisted dying were also accessing palliative care.
Sarah Green (Chesham and Amersham) (LD)
Q
Dr Furst: It has been a journey, certainly. Victoria started their voluntary assisted dying in 2019. I would be lying if I said that the palliative care community were completely on board with it at that point, but over the last five to six years there has been a real shift in mentality. We have seen that they can go hand in hand. Palliative care is about end-of-life choices. Voluntary assisted dying is about end-of-life choices. It is about putting the patient and the individual front and centre, and working with them. That is fundamental to palliative care. We have realised that voluntary assisted dying is a promotion of palliative care and it gives back choices.
Probably some of the older palliative care clinicians have not embraced voluntary assisted dying quite as much. That is probably very generalised, but certainly new consultants and new doctors that are coming through really see this as something that they want to do. I do not think that there is any animosity any more between the practitioners that choose to work in this space and those that do not. I get huge amounts of support from other palliative care physicians that do not necessarily act as practitioners. There is no real divide. It has been embraced, to be honest. In another five years, I think there will probably be very few palliative care practitioners who do not support this, unless they are true conscientious objectors for their own reasons—I guess, probably religious reasons. Palliative Care Australia and the peak medical bodies in Australia have generally shifted to see this as part of patient choice.
Alex Greenwich: The journey to voluntary assisted dying in New South Wales, and indeed across every Australian state, has benefited palliative care access and funding. In New South Wales, 85% of people who have accessed voluntary assisted dying are receiving palliative care. As part of the process, the co-ordinating and consulting practitioners also advise them on palliative care. The doctors are trained on the latest advances in palliative care. Baked into the principles of our legislation is access to palliative care for all citizens of New South Wales. Importantly, throughout our debate, whether Members supported or opposed the reform, our entire Parliament came together to ensure palliative care received an increase in funding and any access issues were addressed. The Australian experience with voluntary assisted dying is that it benefits and strengthens the palliative care system.
Professor Blake: Can I can I add to that? The Voluntary Assisted Dying Board in WA, as in all the other jurisdictions, produces a report. The very strong sentiment of the Voluntary Assisted Dying Board, and indeed within the Western Australia community, is that voluntary assisted dying is seen as part of the end-of-life journey. The board’s report states that the statistics and experience of Western Australians
“confirms…that voluntary assisted dying is an established and enduring end of life choice”.
For that reason, there has been quite a significant awareness that practitioners should be able to bring up voluntary assisted dying with the patient as part of that suite of end-of-life choices. That has been something that the evidence has suggested is very important, because if the practitioners are feeling that they cannot raise it in that context, that is having a detrimental effect on the patients who would like information on it. That has been our experience in Western Australia.
Jack Abbott (Ipswich) (Lab/Co-op)
Q
Alex Greenwich: Thank you very much for your question. At the outset, I will just stress that every jurisdiction should legislate the form of voluntary assisted dying that is appropriate to them. In New South Wales, that was six months for a terminal illness, or 12 months if that terminal illness was a neurodegenerative disorder. We had learned from the other schemes in Australia that that was going to be important because of the decline that occurs in neurodegenerative disorders like motor neurone disease, for example. It was because of that that we went down that path.
Professor Blake: I should add that in Queensland, there is no such distinction in life expectation between other diseases and neurodegenerative diseases. Queensland legislation is different: it sets a 12-month period of expected death, and the reason for that approach was in response to feedback from people living with neurodegenerative disease that they felt that they were being put in a different position to people suffering from, or experiencing, other terminal illnesses. The Queensland Parliament took a different approach to address that particular feedback.
Dr Furst: From South Australia’s perspective, we are similar to New South Wales; we have less than six months for all conditions bar neurodegenerative conditions, which is less than 12 months. As a clinician, personally, I think that 12 months for neurodegenerative conditions is really helpful, because—as you have heard—if you are looking at prognosis and trajectories, with things like cancer, a patient will be going along and then often have quite a steep and rapid decline. That six-month prognosis is quite noticeable, but for patients with conditions like motor neurone disease, their decline can be slow and very distressing to them. Also, when trying to balance the prognosis along with getting them through the process, 12 months is really helpful, so if there was any chance, I would be strongly advocating for that.
Kim Leadbeater (Spen Valley) (Lab)
Q
It is really valuable for us as a Committee to hear your reflections on the experience of the process of passing this legislation. How did you manage to keep that process patient-centred but also take into account the concerns around the broader societal issues, particularly when it comes to equality and human rights—those really important issues? What was that process like, and what are your reflections on it? Also, Dr Furst and Professor Blake, one thing that I feel really strongly about is having really good training around assisted dying, and end-of-life care and choice. Would you like to make any comments on what that looks like?
Alex Greenwich: Thank you very much for that question. I will take you through a little bit of the journey to voluntary assisted dying in New South Wales, what encouraged action, and then the safeguards that we put in place.
The New South Wales coroner had reported to us that there were a number of really horrible suicides of people with terminal illnesses who felt they had no option—that those were cruel and lonely suicides. That was backed up by paramedics and police who would arrive on site. Myself and my parliamentary colleagues decided, “We can do better, and we can regulate in this space.” Voluntary assisted dying in New South Wales is an important form of suicide prevention. What voluntary assisted dying does, in the model that we legislated, is ensure that a person who has a terminal illness and knows that it is going to be a cruel and painful end of their life is instead directed to a doctor—a doctor who will be able to take them through all of their palliative care options, provide and link them with social supports, and give them the choice to have a death that is better than their illness would otherwise provide.
It has been important to make sure that our legislation is limited to that cohort of people who are terminally ill and know they will have a cruel end of life. Our legislation is not about people with anorexia nervosa. It is not about people with a disability. It is not about people who are feeling a burden. It is about a very limited and narrow cohort of people who know that they are going to have a very cruel and painful end of their life, and want that control to know that they can have a death that is better than what their illness would otherwise provide.
We have ensured that decision-making capacity needs to be enduring. We have ensured that a person cannot be under any form of coercion. We ensured that we had a really strong period of implementation, from the time the Bill was passed to 18 months later, when it came into effect, to make sure that our health system and the various doctors required training.
In New South Wales, the experience of voluntary assisted dying is that it has been a form of suicide prevention, and that it has also been, as I explained earlier, very pro-palliative care. As I reflect on our parliamentary debate, it was also one of the first times that our Parliament had grappled with the concept of death. We were very honest about it, and we were very honest in having to admit that we are all going to die, that there are some people with some terminal illnesses who are going to die in a really cruel and painful way, and that we could provide them with an option of control, peace and respect. We believe, and our annual reports into our legislation indicate, that we have been able to provide that. I am happy to answer any further questions, but I will wrap up on that.
Professor Blake: Given that the Western Australia legislation has been in force rather longer than the other jurisdictions that have been talked about today, we have had the opportunity to reflect upon it—I am speaking here as a lawyer; I assume that is why I have been invited to talk—and that has revealed some of the very good things about the working of the legislation, but also some of the challenges that have emerged.
As Dr Furst has said, the legislation in all Australian jurisdictions varies slightly, but it follows a particular legislative model, and is highly prescriptive. It requires a number of requests and, in Western Australia, assessment by two different practitioners. In Western Australia, there is no judicial double-checking of that process. Although I note that that is contemplated within the UK law, that is not something that we have found to be necessary or even appropriate in Western Australia, and I think that would be the case in other Australian jurisdictions.
One of the issues we have experienced is that there is a struggle to get people to take up the training, whether that be medical practitioners or nurse practitioners. One of the thoughts around that has been the very prescriptive nature of the model, which requires a lot of work on the part of the practitioners. It is worth bearing in mind when looking at your piece of legislation that the more prescriptive it is, the more work it requires on the part of practitioners, and that is a lot of work. We need those people to undergo the training in order that the process is done properly and all the safeguards that are included within the legislation—and they are extensive—are respected. That is something to bear in mind.
We have prescriptive provisions around capacity and voluntariness and lack of coercion. I would add that we also have a requirement around residency. If we are looking at when the legislation has come before a tribunal or judicial body, the only circumstance—in Western Australia, at least—where it has come before the tribunal, which is the State Administrative Tribunal, has been where the practitioner has regarded the patient as not eligible on the grounds of not fulfilling the residency requirements. There has been no other ground on which a matter has been taken to a judicial body.
You asked about the training. That is an essential requirement for practitioners who are involved in making assessments and in the whole process. It is intrinsic to the operation of the Act. The feedback I have heard is aligned with what Dr Furst has said—that no divisions have arisen within the practitioners here, and that those who have chosen to do the training are indeed very valued and very much appreciated by the people who have accessed the scheme.
I will say two more things about the regulation. One is that in the report that has been handed down, the only negative feedback has been about delays. That has been identified as being due to a lack of education among health professionals. One of the recommendations of the report is that education really needs to increase so that people’s journey on VAD is not unnecessarily delayed and, perhaps, their wishes are not able to be granted.
The second thing is on conscientious objectors: 13.7% of applications for VAD in Western Australia from 2023 to 2024 were declined on the basis of conscientious objection. But in Western Australia, unlike some other Australian jurisdictions, if a practitioner declines to become involved in the process, they are required by law to give the patient an information sheet outlining options around voluntary assisted dying. That is actually mandated in the legislation.
I have probably said enough for now, so I will hand over to Chloe.
Dr Furst: I completely agree with Meredith that the training is fundamental. For most jurisdictions, it probably takes a full day. It is often an in-person event followed by an exam, which you have to pass. In South Australia, we had a whole lot of mandatory questions that you actually had to pass to be eligible, to make sure that you were upholding the legislation.
This is so different from anything else in medicine. In any other part of medicine that I practise, if I see a process that I think can be improved—if I see efficiencies that can be made or bits of the system that are not adding to patient care—I can choose to adapt the process as I see fit to give the patient the care that I want to give or that is compatible with what the patient wishes. That is so different from voluntary assisted dying, where, as Meredith said, it is so legislated, down to who can be a witness for various documents. As a doctor, the amount of documentation that is required for voluntary assisted dying is second to nothing. We just do not do that kind of documentation in any other areas of medicine. So it is quite different, and it really does require being quite precise around that documentation and making sure that you are meeting all the timeframes and guidelines. The training is hugely important in terms of the operational component.
There is also the training around end of life and conversations, and how you support the patient and the families. That is a lot harder to teach. That is, I guess, why people will fall into this, and why a large number of palliative care doctors will do it—because it is already second nature to them or they already have the relationship with the patient and they see these conversations as something they are good at and good at facilitating.
So there are two parts of that training that are really important, and then, as Meredith said, there is also the training we need to be giving to the rest of our workforce, and really all health practitioners. A patient might ask the social worker, the orderly or the dietician about assisted dying, and they have to know how they can respond and how they can connect that individual to the right practitioner. That is really important. We have done a lot of work in South Australia, as all the other jurisdictions have, around upskilling the whole workforce, because this is everyone’s role and job.
I also wanted to speak briefly on what we in South Australia call the gag clause. In South Australia and Victoria, we are not allowed to bring up voluntary assisted dying with patients, and that is really, really problematic. From my perspective, it leads to poor provision of care. In medicine, when I am talking to a patient, in every other area, if they needed treatment, I would be obliged, and it would be good practice, to tell them about all the treatment options that are available to them. If someone had cancer, I would want to be telling them about good palliative care, potentially surgery, and radiotherapy and chemotherapy, yet voluntary assisted dying is the one thing we are not allowed to talk about and is taken off the menu. Some people may not know that voluntary assisted dying is available to them. They might be waiting for me as the doctor to bring it up to them. I have brought up every other option for them; why am I not able to talk about voluntary assisted dying? I just think it is really important that we do not stigmatise voluntary assisted dying and that we see it as a valid option for people.
Professor Blake: To add to what Chloe said, in Western Australia practitioners can raise voluntary assisted dying as long as it is in association with other end-of-life choices, but the way the legislation is worded is confusing, so one of the recommendations in the most recent report is that that be removed altogether so that voluntary assisted dying is treated like any other treatment option. As Chloe indicated, the evidence was that treating voluntary assisted dying differently can compromise the whole end-of-life journey, because it interferes with discussion of other end-of-life options. The strong recommendation from the board is that it be removed altogether and that voluntary assisted dying be treated just like any other appropriate treatment option so that the patient has a true choice.
The Chair
Colleagues, before we continue, let me say that we have 13 questions and less than 30 minutes, so the question and the answer need to be no more than two minutes.
Daniel Francis (Bexleyheath and Crayford) (Lab)
Q
Dr Furst: Capacity assessments are taken every time a doctor sees the patient. In my state, that would be at first assessment—first request—then a consulting doctor would come and do another hour-long assessment of the patient and assesses capacity at that stage, and then I would come back as the co-ordinating doctor for a second or third assessment of the patient, and assess capacity. They would then be given their drug, if it is self-administered. We assume and hope that they retain capacity, and we strongly advise patients and families that, should they lose capacity, they will have voided their permit and they cannot take the drug, but there is less oversight of that. However, we know that the majority—over 80%—of these patients are connected with palliative care, so we often have community teams going in and seeing them, and we are still touching base with them, maybe more peripherally, and checking capacity as we are having conversations or as we are coming and doing home visits from a palliative care perspective. If it were deemed that the patient is quite delirious, the permit would be voided and we would remove the substance from the house. If it is practitioner administration, we are also, obviously, testing capacity right at the moment that we are administering the substance.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Q
Alex Greenwich: In New South Wales, our legislation deals with and goes through coercion in quite some detail, with pathways to assess it. It deals specifically, for example, with a situation in which someone is under coercion from a person who is a beneficiary of their will; obviously, the person seeking voluntary assisted dying then becomes ineligible. In the space of coercion, that is a key part of the training for a doctor who will be a consulting or co-ordinating practitioner. We have made it a criminal offence in New South Wales, and indeed our board will report on it and on whether eligibility for access to voluntary assisted dying has been denied to someone. Our most recent report indicates that it has.
The overwhelming experience is that having voluntary assisted dying in place is itself a safeguard from coercion for people with a terminal illness. If someone wants to end their life quickly, voluntary assisted dying through a regulated process is not the option that they are going to take. Someone engaging in voluntary assisted dying will be assessed against coercion and against decision-making capacity, and will have to make sure it is an enduring decision.
When we talk about coercion, and the concern that people may currently have in the UK about people with a terminal illness feeling in any way coerced, the experience in New South Wales and elsewhere in Australia is that voluntary assisted dying has provided a safeguard in that regard. Our legislation, the training and the reporting is very clear on that.
Danny Kruger (East Wiltshire) (Con)
Q
Dr Furst: I do not think that is the case. We are seeking out from relatives—within a month, normally—around any complications. As I said, we are also informally speaking to the nurse practitioners who are on site, but I do not think that that has been published as part of our state report. In terms of coercion, I would say that it is much more likely that patients are being coerced into invasive and intensive treatments, like cancer treatments such as chemotherapy, than being coerced into voluntary assisted dying.
Danny Kruger
Q
Mr Greenwich, you said a couple of things. You said that voluntary assisted dying supports palliative care in terms of funding. I read that although New South Wales committed to spending an extra 743 million Australian dollars on palliative care, in fact the budget was cut by 249 million Australian dollars in 2023; at the same time, New South Wales allocated 97 million Australian dollars in new funding to assisted dying. I do not understand how you think that palliative care benefited from this introduction.
You talked about suicide prevention. The fact is that unassisted suicide rises in states that have assisted suicide laws, because suicide is contagious. It is too early to tell what is happening in New South Wales, but in recent years in Victoria unassisted suicide rose by 50%, while in New South Wales, before it had this law, it stayed the same. Again, I do not understand how you think that this helps with suicide.
We have just heard about the so-called safeguards and we heard yesterday from Australian colleagues. Do you agree that the safeguards that were introduced were in fact impediments to access and that it would be the right thing to do to remove them?
Alex Greenwich: I will try in the time to answer all three of those questions and I am happy to provide more information on notice as well.
On the palliative care funding, it is accurate that New South Wales had a record boost in palliative care funding. Not all of that could be expended as the workforce was being trained up, but that commitment from all sides of our Parliament is there. You can always seek to improve palliative care funding; that in no way should be competing at all with voluntary assisted dying.
When it comes to the question of suicide, as I addressed in my opening statement, voluntary assisted dying is a form of suicide prevention. If someone wishes to end their life, voluntary assisted dying is not the process they are going to take. It is a process that provides a safeguard to ensure that people are getting full information on palliative care and getting social supports.
In terms of the safeguards in our legislation and being proposed in your legislation, it is really important that you have in your head and in your heart the experience of a person with a terminal illness who is going to have a cruel and painful death. We are talking about people who are dying and who want to have a death better than their terminal illness would otherwise provide them with. We are talking about a small cohort to whom we in New South Wales sought to give peace, dignity and control. We are really proud that we did.
Kit Malthouse (North West Hampshire) (Con)
Q
Alex Greenwich: Our experience in New South Wales was based on evidence from doctors and people with the lived experience of a terminal illness. It is an extremely confronting thing to be told that you have a terminal illness, to be told that you have six months to live or to be told, if you have advanced bowel cancer, for example, that your end of life will look like you are going to be choking on your own faeces.
In New South Wales, we decided that it is important that that person, who has been told that they have a terminal illness, is able to have a full conversation with their doctor about all their options—one of those options being that they could have a better death than their illness would otherwise provide them with. We decided that being able to really talk through with your doctor all your options—from access to palliative care, to social supports, to what the process of voluntary assisted dying looks like—was so important. We believe that it is working really well in practice. We would be concerned about gagging those conversations, as that would ensure that a patient is not receiving the full information about their end-of-life choices.
Kit Malthouse
Q
Alex Greenwich: Yes. In our legislation we make it clear that the doctor has to make sure that the patient is aware of their palliative care options, and we have referral pathways for psychosocial support as well. All that is prescribed in the legislation. Obviously, in the training for voluntary assisted dying a lot of that stuff is covered. In the legislation, we also define the things we want to have in that training.
Kit Malthouse
Doctors?
Professor Blake: In Western Australia, which was the second jurisdiction to introduce voluntary assisted dying—
Tom Gordon (Harrogate and Knaresborough) (LD)
Q
Alex Greenwich: New South Wales was last in the nation when it came to adopting voluntary assisted dying, and that was actually beneficial because we were able to draw on the experiences of particularly Victoria and Western Australia to make sure that things like the gag clause were not in place. With all respect to the introducer of the Bill, as a result of the Australian experience this is not a revolutionary law reform. It has been tried and tested, we have appropriate safeguards in place throughout Australia, and they work.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Q
Dr Furst: First up, a patient has to specifically ask me about voluntary assisted dying. They have got to use words that really imply that that is what they want. I will often ask any relatives to leave so that I can have a conversation just with them, to try and reduce the risk of coercion, and then invite the family back.
One of the practical things that I often ask the patient is when they started thinking about this. Is it something that they have always considered should be a right, or is it more of a new-found belief given their current suffering? I want to understand what their current suffering is. I ask specifically whether they feel a burden on their family and friends. It is an hour-plus long conversation to really understand them and their suffering.
Again, I make sure they understand all the other treatment options available to them and what good palliative care looks like. I will often be prescribing other medications as part of that good palliative care—opiates and anxiolytics. As a geriatrician, I am also making sure that their mood is also addressed, and that this is not a reactive depression. I am really doing a holistic and comprehensive geriatric assessment as part of that voluntary assisted dying assessment as well.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Q
Dr Furst: All around Australia, mental health as the primary terminal illness is excluded, so anorexia by definition is excluded. I have had a patient come to me with anorexia as their terminal illness requesting voluntary assisted dying. It is a relatively easy assessment because they do not meet the standard criteria, and I was able to explain to them that they were not eligible. But it opens the opportunity to have good, in-depth conversations with them about what they are going through.
I cannot talk to the learning disabilities question, other than to say that every time a patient comes to me the assessment is directed to the patient. I saw a patient today with motor neurone disease who is on continuous bi-level positive airway pressure and is using Eyegaze. The assessment and conversations I have with her are based around what she can do for me. I have had patients who have been able to put a thumb up and down, and I have had trachy patients. I cannot necessarily talk about learning disabilities, but as a holistic practitioner you are trying to make sure that the patient in front of you understands everything and is given the full opportunity to express their wishes.
Professor Blake: I would just say—
The Chair
Order. I can only take one answer. I am sorry, Meredith, but we have not got time. It is one answer to one question.
Sojan Joseph (Ashford) (Lab)
Q
Dr Furst: We have experience of those cases in palliative care, but I would still say that they are not eligible for voluntary assisted dying. None of us would feel comfortable, because the condition has to be irreversible. Capacity-wise, you would have to make sure that they had capacity, and I would question whether someone that is anorexic truly has capacity around their illness.
Lewis Atkinson (Sunderland Central) (Lab)
Q
Alex Greenwich: In New South Wales, and across Australia, having a disability or complex mental health issue like anorexia does not make you eligible at all for voluntary assisted dying. The legislation we are dealing with and you are dealing with is not for people with a disability or anorexia nervosa, and not for people who feel they are a burden. It is for people with a terminal illness who may want the choice of a death that is better than what the illness would otherwise provide.
We worked closely with disability groups in New South Wales. Their main concern was that they would be treated equally in terms of access to the law if a person with a disability had a terminal illness. The key point is that this legislation is a safeguard to those concerns. To the point about people who are starving themselves, that is happening today in the UK because people do not have access to voluntary assisted dying. They are starving themselves to death rather than accessing a regulated scheme where they can discuss all their options and choices.
Jake Richards (Rother Valley) (Lab)
Q
Alex Greenwich: If I think of our health system and how we adopted voluntary assisted dying, like all health systems we were under pressure following the covid pandemic. By legislating in this space you give your health system the priority of dealing with this, making sure doctors are trained to be able to address it and that there is a good implementation period. I believe the Bill has two years, and I think that is completely appropriate to make sure your health system gets up to speed. When it comes to end-of-life choices and healthcare, voluntary assisted dying provides a great deal of honesty and safeguards.
Sean Woodcock (Banbury) (Lab)
Q
Professor Blake: That is not the evidence that we have got.
Sean Woodcock
Let me just clarify. The state’s own report in 2023-24 had 35%.
Professor Blake: We have in a place a system whereby at least 20 case studies are examined by the board every year to look at the reasons behind the taking up of the option. As a means of checking up on how the system is working, that has proven to be very workable.
There are people who feel that they are a burden. People can feel that they are a burden, and that is part of their autonomous thinking. People have their own views of their own life. The system in place is adhering to the very well-established tests for valid decision making in healthcare generally. If we are talking about people making decisions because they feel like they a burden, well, people make decisions about their healthcare in all sorts of contexts. We have a system of ensuring that decisions are valid, which has proven to be long-standing and successful. That is that the person has capacity, that their decision is voluntary, and that they are informed of the relevant facts and information. That test has stood the test of time, and our legislation, and the legislation throughout Australia, seeks to replicate it.
I would add that with our voluntary assisted dying laws, there is a very clear emphasis on the information that the patient is entitled to. The information that the practitioner has to give to the patient is extensive. It must go through the palliative care options. It must go through with them what voluntary assisted dying involves, and it must also include discussion of, “What if the voluntary assisted dying moment does not work?”
The list of matters that must be discussed by the practitioner is very extensive. In no other sphere of medicine where a patient is working with their healthcare practitioner does this level of informed consent apply. In terms of medical practitioners ensuring that people have the capacity to make the decision, are making it voluntarily and have all the relevant information at their disposal, we cannot find anywhere, in any other context of healthcare, the level of safeguards and protections that we find in this sphere.
If there are people who are saying they are a burden, that does not mean that their decision is not voluntary. That does not mean that they do not have the capacity. It simply is an expression of how they feel. The key thing is not whether they think they are a burden; the key criteria are whether they have the capacity and whether their decision is voluntary and free from coercion. Health practitioners make those assessments all day, every day.
The Chair
Order. I remind colleagues that it is unacceptable for a Member to interrupt a witness once they have started answering. That brings us to the end of the time allocated for the Committee to ask questions. I thank all witnesses on behalf of the Committee for their evidence.
Ordered, That further consideration be now adjourned. —(Kit Malthouse.)
Terminally Ill Adults (End of Life) Bill (Seventh sitting)
Thursday 30th January 2025
(2 months, 4 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2025 - (30 Jan 2025)
The Chair
We will now hear oral evidence from three witnesses: Dr Amanda Ward, who holds a master’s and a PhD and is the legal adviser to the Scottish Parliament on proposed legislation changes; Professor Gareth Owen, who is a professor of psychological medicine, ethics and law and an honorary consultant psychiatrist at South London and Maudsley NHS foundation trust; and Professor Laura Hoyano, emeritus professor of law at Wadham College, University of Oxford. Before I call the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill. May I ask the panel to introduce themselves?
Dr Ward: I am Dr Amanda Ward. You have already introduced me, but I have been involved with law reform in this space for 13 years. I am also a member of the Law Society of Scotland’s health and medical law committee. I moved to Queensland 18 months ago and took up a research fellowship at the Queensland University of Technology. I am representing myself in an independent capacity today.
Professor Hoyano: Good morning. I am Laura Hoyano; I am a professor of law at the University of Oxford, where I have taught medical law and ethics for many years, as well as human rights. I was a barrister in Canada for a decade, where I practised medical law and human rights law among other things; I am currently a practising barrister at the Bar of England and Wales.
Professor Owen: Hello. I am Gareth Owen; I am professor of psychological medicine, ethics and law at King’s College London and am part of the complex life and death decisions group there. I am a consultant psychiatrist at King’s College London, a general medical hospital at which I am a liaison psychiatrist working with adults over the age of 65.
The Chair
We must stick to the timing of the sittings resolution, as decided by the Committee. We have a long list of people who want to ask questions, so it will be one question with one answer; if Members could indicate who they would like to answer, that would be helpful.
Before we proceed, Dr Tidball has a declaration of interest to make.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
I just want to make sure that it is on the record that I have been taught by Professor Hoyano; indeed, well before I was elected, she was a colleague at work.
Jack Abbott (Ipswich) (Lab/Co-op)
Q
Professor Owen: I am somewhat reminded of the old adage that for every complex problem there is a simple solution that is false. We are dealing with complexity here—I think we have to accept that—but complex law or poor law will not provide good safeguards. If you step back and think about what the Bill is really about, at its simplest, it is about the decisional right to end one’s own life in terminal illness.
Associated with that is the concept of mental capacity. I have had over 20 years of research interest in mental capacity. When I look at the issues relating to mental capacity with the Bill, they are complex, but the other important point to understand is that they are very novel. We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill.
Daniel Francis (Bexleyheath and Crayford) (Lab)
Q
Professor Owen: It is a bit more fundamental than that, actually. If you look at how mental capacity features in the Bill, the test or the concept that clause 1 rightly invites us to consider—rightly, I think—is the capacity to decide to end one’s own life. The Mental Capacity Act comes in at clause 3.
I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that. I can talk about the Mental Capacity Act in detail if you like, but that is the main point that I want to make.
Daniel Francis
The Chair may cut you off, but I am happy for you to continue if she allows it.
Danny Kruger (East Wiltshire) (Con)
Q
Professor Hoyano: I always have a problem when tort liability is ruled out by legislation. I think that the accountability of medical professionals, and indeed all medical practitioners in private practice, lies at the heart of how our national health service works, so I have a difficulty with that. I would have to ask Ms Leadbeater whether this is correct, but perhaps the intention was to ensure that members of the family who, for example, were against assisted dying in principle, would not be able to bring an action that could be vexatious against a doctor who had complied with the legislation and should therefore not be troubled with that type of litigation. It might be that that provision could be refined.
Lewis Atkinson (Sunderland Central) (Lab)
Q
Professor Hoyano: It is interesting that a number of Members of Parliament who are practising physicians pointed out in the debate that they have to evaluate freedom of decision making and absence of coercion in many different medical contexts. I point particularly to the withdrawal of medical treatment at the request of the patient, even if that will inevitably lead to death. It is considered to be a fundamental human right that lies at the heart of medical law that a patient has personal autonomy to decide what to do with their body and whether or not to accept medical treatment, provided that they have the capacity to do so and are acting without coercion from external sources. Doctors have to make those assessments all the time.
I suggest that it is perhaps a convenient fallacy to say that pulling the plug on a respirator or stopping artificial nutrition and hydration is a negative act, whereas giving a patient a syringe to end their own life is a positive act. I realise that with the Tony Bland case it was convenient to say that, but there is no doubt that most people on the street would say that pulling the plug on a respirator is a positive act, and yet doctors and nurses are required to do that every day in the NHS, because that is the patient’s autonomy. If there is any question about either coercion or capacity, the Court of Protection steps in and has the jurisdiction to make those decisions.
The Court of Protection should, I believe, be the court that is supervising this, not the High Court. Three levels of judges sit in the Court of Protection; I suggest that a High Court judge be specified, which would mean a statutory amendment to extend the jurisdiction of the Court of Protection. The Court of Protection makes decisions every day on whether a patient has the mental capacity to make decisions about their own medical treatment. It is accustomed to doing that, and one aspect of that analysis is whether the patient is being coerced externally.
Generally speaking, when a patient says, “I don’t want to be on a respirator any longer; I know I’m going to die,” we do not ask questions. As I understand it, it is not part of the protocol to say, “Are you doing this because you are worried about being a burden on the NHS?”, because their personal autonomy is the overriding principle governing medical decision making in relation to the patient. I hope that that answers your question.
Sojan Joseph (Ashford) (Lab)
Q
“are not confident that consent can act as an adequate safeguard”.
On mental capacity, it says:
“These decisions are opinions with a margin of error and are time specific. A person’s capacity can change”.
What is your view?
Professor Owen: That is important evidence, because it comes from a body of practitioners who are very used to doing mental capacity assessments. I think that the vast majority of that sample were consultant psychiatrists, so the pool, as it were, was one of considerable experience. That conveys questionable confidence in the consent processes, of which mental capacity is part, in relation to the decision to end one’s life. It is significant evidence about the confidence that is out there among experienced practitioners.
It is true that psychiatrists—liaison psychiatrists particularly; I have had experience with this myself, clinically and in relation to Court of Protection matters—will be involved with assessing capacity to make decisions to refuse life-sustaining treatment. Those decisions can be quite vexed and can go to the court, and the court can struggle with them.
An important question for the Committee is the distinction—or the similarity and difference, but I think that there are key differences—between the decision to refuse a treatment that is life-sustaining, of which the Court of Protection does have experience, and the decision to decide to end one’s own life. They are conceptually different decisions. I can outline some of the similarities and the differences now, but it might be helpful to take submissions specifically on that question, because it is very important and I think that there is some confusion about it. If you would find it helpful, the complex life and death decisions group could write a statement to elaborate on some of the issues. In summary, I think that that evidence from the Royal College of Psychiatrists is significant, in terms of the confidence.
Sarah Green (Chesham and Amersham) (LD)
Q
Dr Ward: I was the adviser on the previous Bill in Scotland as well, under Margo MacDonald MSP and Patrick Harvie MSP. That was in session 4 of our Parliament; we then did not have a Bill in session 5, which is when we set up things like the cross-party working group on end-of-life choices and I did the PhD. Luckily, we saw a domino effect internationally in session 5; there were various jurisdictions legislating for it. When we came to draft this legislation in 2021, in session 6 of the Parliament, we had decades of data that we had not had when Margo made her first attempt back in 2010.
With the Assisted Dying for Terminally Ill Adults (Scotland) Bill, we have been working with international experts since 2021, and we have had various consultation processes. It is currently with the Health Committee of the Scottish Parliament. We set up a medical advisory group, chaired by Dr Sandesh Gulhane MSP: a group of almost a dozen practitioners in palliative care, mental health experts, geriatricians and other interested stakeholders. It produced a report for us on the medicinal aspects of the Bill.
That has been a four-year process. I understand that concerns have been voiced in this Committee that things have proceeded at pace, but I would argue that you are not pioneers. There is 20 or 30 years’ worth of data, which we have drawn on in Scotland, and there is four years’ worth of work in Scotland that this Committee and this Parliament could look to.
I would also make the point that the data is peer-reviewed and evidence-based. You really have to trust your international colleagues. The data is from Government bodies, from Health Departments, from independent academic peer-reviewed work and from independent review boards. We are now looking at fact rather than at falsehoods or concerns, as we were back in 2010.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Q
Professor Owen: I think the answer to that is “Probably not,” given the current workforce. Another relevant point is that even if you were to insert into the Bill a very clear requirement for a consultant psychiatrist to be involved if there were concerns about mental health, what would happen in practice would be very different. You can see this in Oregon, whose law has a requirement for, essentially, a psychiatric referral in the case of mental health concern. Those referrals basically occur in less than 5% of cases; I think it is similar in California. Even if you put it in law, there is the question whether it will happen in practice. On the data, it does not. I think that that is a relevant consideration.
Kit Malthouse (North West Hampshire) (Con)
Q
Professor Hoyano: I have to say that I have real concerns, as a practising barrister, about how the provisions as currently drafted could work in terms of judicial oversight. There are a number of unusual functions, if I can express it that way, being attributed to the court. I need first of all to stress that the High Court’s family division, and the Court of Protection, regularly engage with life and death matters, but they are doing so in the context of an adversarial and not an inquisitorial system. However, since the 19th century we have had the invaluable institution of the Official Solicitor, who has investigatory powers or functions and who serves in court as an amicus curiae—a friend of the court—to assist the court in understanding where the issues lie and in calling witnesses. I do not think that it is feasible at all, in our current system, to have the court call witnesses or question them directly until they have been examined and cross-examined, if appropriate; the court can then put in questions and ask for clarification, as would happen normally now.
If we are to have a judicial oversight function as opposed to a panel of experts—to be honest, I think we already have the panel of experts: the doctors who are already involved in the different stages leading up to the final stage—the easiest approach would be for the investigatory function to be assigned to the office of the Official Solicitor, preferably with an individual who has expertise in this field and will be able to get experience by dealing with these cases. I point out that Lord Justice Munby himself—Sir James Munby, as he now is—represented the Official Solicitor in the seminal case on termination of life support, the Tony Bland case. We have a lot of experience in that area, in dealing with end-of-life decision making with the Official Solicitor, but I think that that role needs to be built into the legislation with very specific tasks set out, including an investigatory function.
The other current difficulty is that it is not clear at all what the procedure would be. With great respect to the drafters of the Bill, I have never before seen such a delegation of the most essential procedural structures entirely to rules of court in terms of practice directions or rules of practice; we do not do it in the family division and we do not do it in the Court of Protection. Exactly what has to happen needs to be set out.
It strikes me that the intention may be for the court to, in effect, certify that all the procedures have been correctly followed at the preliminary stages. What is not entirely clear is whether the court itself is required to investigate whether the criteria are satisfied. It reads like that, but I am not sure whether it is supposed to be a review function or a primary decision-making function.
This becomes even more difficult because of the way in which the Court of Appeal’s functions are ascribed. The Court of Appeal does not have power to summon witnesses; the Court of Appeal does not have power to question witnesses. In the criminal division, which is where I am primarily practising now, the court can hear expert evidence de bene esse in order to determine whether it should send a case back for a retrial on the basis of newly discovered evidence that was not originally available, but that evidence will be called by the defence. The defence will be putting the evidence in, the Crown will cross-examine and the court will ask any additional questions it wants to, but to have an original jurisdiction —in effect, what we call a trial de novo: a trial all over again—in the Court of Appeal is wholly inappropriate to an appellate jurisdiction. That needs to be completely rethought.
There is also a difficulty in that the right to appeal is very lopsided: only a patient can appeal a denial, not anyone else. If anyone has concerns about the probity and thoroughness of the preliminary stages, or thinks that the High Court judge sitting in the Court of Protection has made an error of law or has failed to follow the procedures, that needs to be reviewed by the Court of Appeal. We need an even-handed approach.
I can understand the motivation of not wanting busybody people, as happened in one case in Canada in which a wife had a religious objection to assisted dying, and yet there was no doubt that the husband had satisfied all the criteria. She went all the way to the Nova Scotia Court of Appeal because of her religious objections; it turned out that religion was a source of great dissension in the marriage anyway, but her church was egging her on. I know that you do not want that kind of situation, but I believe that this legislation has to be completely even-handed for it to work and for the system to acquire public respect.
Dr Simon Opher (Stroud) (Lab)
Q
Dr Ward: Which clause are we looking at?
Dr Opher
Now you’re asking. Let me check.
Dr Ward: In the interests of time, let me say that I moved to Queensland a year and a half ago, as I mentioned at the beginning, and took up an academic fellowship at the Australian Centre for Health Law Research. That university was tasked by the Government states of Victoria, Western Australia and Queensland with developing the training for assisted dying implementation there. The modules in that training very specifically go through coercion, how you detect coercion, how you discuss it with patients and cultural considerations around it. They cover everything from capacity to the administration of drugs. They are very robust training modules that healthcare practitioners must satisfy at a pass rate of 90%. We rely heavily on the training to make sure that coercion protection is in place.
Dr Opher
It was clause 26, sorry.
Professor Hoyano: Under the Canadian system, the provinces each have a college of physicians and surgeons. However, what has happened is that everyone has worked collaboratively across all 12 jurisdictions, plus the federal Government. We now have the Canadian MAiD—medical assistance in dying—curriculum, which was developed by the Canadian Association of MAiD Assessors and Providers in consultation with experts from across the country. It is providing a comprehensive, bilingual, nationally accredited training programme that is evidence-based and is based on the learning that has happened in Canada since the legislation was first enacted.
There is also a model practice standard for MAiD and a companion document, “Advice to the Profession”, which all the medical colleges have signed up to. It helps practitioners to align their practice with the official guidance and assists health professional regulatory authorities to ensure that the public is protected. Coercion lies at the heart of these documents.
The regulations for the monitoring of medical assistance in dying require—and this is something else that I suggest be changed—that in Canada there has to be an annual report from the federal Government, which is very granular in detail, from right across the country. It happens at least once a year; there was one year in which we had two reports going into all the details. On coercion, we know that in 2023, when they examined the reasons for ineligibility, there were 41 cases across the country in which the physicians determined that the person had not made a voluntary request without external pressure, and it was therefore declined. We need to know is what is happening out there, and I do not think that a report every five years is going to help. We need to enlist all the medical professions involved in signing up to very detailed codes of practice, but we also need the training that Amanda has referred to as essential.
The last point that I would make is that McGill University is launching a national palliative care hub that is available to any practitioner in the country and from which they can receive guidance and support with helping and advising patients who are receiving palliative care. One of the options is, if the patient desires it, how to deal with these requests.
Dr Ward: Now that I have had a look at clause 26, may I answer the Member’s question? I think it is a very well drafted provision, and it is very similar to what we have in Scotland. In particular, I know we are concerned about people being coerced into assisted dying, but internationally it is actually the converse. Some jurisdictions are considering putting provisions in their Bill because family members are trying to put undue pressure on others not to make an assisted dying decision.
On my understanding of the reporting in Kim’s Bill, it is just not a five-year review: the Registrar General, the chief medical officer and the Secretary of State are involved. Again, I commend the Member in charge for the reporting procedures being very robust in the Bill.
Kim Leadbeater (Spen Valley) (Lab)
Q
I notice that you have also spoken a lot about misinformation; how do we tackle that? How do we make sure we are dealing with facts rather than speculation? In particular, how do we provide reassurance to marginalised communities and people with disabilities, who are understandably nervous about this change in the law? When it comes to safeguards and protections, what does best practice look like?
Dr Ward: To take your last point first, we must involve them in the process and have an open dialogue with them. That means not just in the consultation process, when you are considering passing legislation, but when you have your implementation taskforce, on which you must make sure you have representation from across all the stakeholders involved, including people with disabilities and people with terminal illnesses.
I would point to the fact that best practice is about balancing the autonomy, dignity and compassion that the Bill aims to achieve by giving people the option of assisted dying, while also protecting vulnerable people who feel that there are worries and concerns. However, having worked in this area for 13 years and seen people who would really benefit from having this option, and living now in a jurisdiction that has it, I would point out that some of the most vulnerable people I have seen are the terminally ill who want and need this choice. It is about taking a holistic and evidenced-based approach.
You as a Committee will hear from the great and the good across the board, and I am pleased that the Committee is taking account of lived experience, because that is very important to inform the decision-making process. It is about making sure that we are going to the source of evidence and using peer-reviewed data and Government data. Again, as I said earlier, you really need to trust your international colleagues who have gone before you on this. We need to consider what the Bill does versus inaccurate perceptions of or speculations on what it might do. The task here is to consider what is in front of you, not what might happen down the road.
Tom Gordon (Harrogate and Knaresborough) (LD)
Q
Dr Ward: Look: assisted dying is the same as any other healthcare choice. It is always going to be limited. We are not going to reach everyone that we absolutely would want to. There are people who want to have this option and this choice who will not qualify under a terminal illness definition, but we have to draw the line somewhere. We looked at international evidence from Commonwealth countries that are very closely linked to Scotland and the UK. We drew the line with the definition that the person has an advanced progressive illness from which they are unable to recover and that will cause their premature death. For us, that demands the support of Members of Parliament in Scotland and the support of the public.
I really stress the fact that each jurisdiction has to legislate according to its own constitutional, societal, legal and cultural considerations, which is what we have done in Scotland. That is the definition that is working for us now. Previously, there were more liberal attempts that did not gain the support of the House. We believe that we have arrived at a situation that is very similar to the definition of terminal illness here in Westminster, and that is both safe and compassionate but also draws the line so that people who should not be able to access this do not.
Naz Shah (Bradford West) (Lab)
Q
Professor Owen: This is an essential question. I work clinically in the over-65 age group, where there is a lot of terminal illness, some of it in the last six months. You have to understand the population. The population is typically over 65 and frail. There can be a terminal illness, very typically with comorbidity. That comorbidity is often mental health comorbidity. Depression is at rates of 20% or thereabouts. Delirium and cognitive impairment is very common and often not picked up. There is patchy safeguarding, patchy access to social care and, as I know you have been hearing, patchy access to palliative care.
That is the ordinary person in the NHS. I know people who select into assisted dying are not necessarily that mean person, so to speak, but that is just a picture of what it looks like for me when I go to work. That is where one starts. Now think about burden. Well, this is a group that do feel very burdened. You might think some of that is excessive; some of it maybe is natural, given the life stage. So it is a mixed picture.
When it comes to pressure and coercion, I know you have been grappling with this a lot as a Committee, and I know there have been some amendments that address this. We have talked about clause 26 particularly in relation to this. Of course, when it comes back to the training question, you can take evidence on the state of safeguarding and how people are really able to assess coercive control, domestic violence and so on.
I would like to draw attention to something else that I am not sure has come so much to the attention of the Committee, which is not the offences or the criminal side of this; it is the common or garden capacity assessment side of it. This relates really to clause 1. It is the issue of how you deal with interpersonal pressures on somebody in a situation where there may be a mental health problem and there may not even be a diagnosis. You might be talking about a kind of cognitive impairment that has not reached the threshold for a diagnosis of dementia; you might be talking about a kind of mood problem or an anxiety problem that is sub-clinical; or you might be talking about a level of intelligence that is not clinically a learning disability. But it is there and it is interacting with a form of pressure within a family, let us say, which is often not malign in its intentions, but it exists. It is a very overvalued relationship, for example, with a strong sense of loyalty to somebody, or an enmeshment, for example.
What you have are situations where there is an impairment and also an interpersonal pressure. They interact and they amplify each other. That can have an important consequence in terms of the functional ability of mental capacity. Outside of the assisted dying context, when you look at that in the Court of Protection, which has been struggling with quite a lot of cases like this, that phenomenon of interaction that I am talking about between interpersonal pressure and impairment is recognised. It struggles with it. I have been involved in some research to try to structure the understanding of it, but it is not at the point where it is a kind of training manual that you can lift down from the shelf and roll out across the workforce. It is much more in a kind of research and development phase.
So it is important to draw attention to pressure not necessarily as malign in its intention, but which nevertheless operates in these situations and can have a subtle impact on the functional test of decision-making capacity. To bring us back to what the decision-making capacity is that we are talking about, it is the decision to end one’s own life.
Bambos Charalambous (Southgate and Wood Green) (Lab)
Q
Dr Ward: I heard the session yesterday and would agree with the comments that were made there, particularly around proportionality. Article 2 is an absolute right —the right to life—whereas article 8 is a qualified right. Again, it is about that balancing act. The courts have been very clear that we need to protect vulnerable people, and I feel strongly that the Bill straddles that very well by giving choice but in a very limited set of circumstances.
On the Equality Act, there have been some claims made—this happened in Scotland—that the definition of disability in the Equality Act would cover people who are terminally ill. That that is not my reading of it, and that position is widely shared by the people advising us in Scotland on the legal capacity. That is all I have to say.
Professor Hoyano: I would only point out to the Committee that the common law entrenched the human rights of the patient a long time before the Human Rights Act 1998. We must remember that we do not just have to look at the European convention and Strasbourg. The common law has been very active in entrenching fundamental principles of the rights of the patient, particularly their autonomy in decision making regarding their own body, since long before the HRA.
The Chair
Time allows us to ask more questions. Three people have indicated that they wish to come in. I will start with Danny Kruger.
Danny Kruger
Q
Professor Hoyano said that the person in the street would not see the difference between a patient requesting to die by the withdrawal of treatment versus the active administration of fatal drugs, whereas I think you said, Professor Owen, that you did see a profound difference between that decision on the part of the patient and also, presumably, the act on the part of the medical professional, in the case of either the withdrawal of treatment or the administration of fatal medication. You said that you would be happy to draw that out; could you do so?
Professor Owen: Yes. I am happy to try now, but also to do it further with some written submissions if that would be helpful, because it is such an important point. First, for the man on the street, or the person on the bus, one thing to remember—this comes out in the public opinion polling—is that when you ask about assisted dying, some people think that that is access to palliative care. There is a degree of misconceptions that are out there in the public that are important to bear in mind.
On the distinction between the decision around the refusal of life-sustaining treatment and the decision regarding assisted dying, what are the similarities? Well, they are both about life and death. What are the differences? One is a refusal; one is a request. One is traditionally considered to be about bodily integrity—it is the so-called shield of the person, or the patient, against the intervention on the body that is being made by the medical profession. You are giving the patient an important right, which is a shield-like right. That contrasts with a request for assisted dying, which is a request. You are involving other people in an act that is an act of ending one’s life. That is not something that the medical profession has been comfortable with, going back thousands of years.
So you can discern a number of differences. Could you reduce those differences to one thing and one thing only, and be particularly precise about it? Probably not. I think you are talking about differences that cluster and group, and which we overall accept as a difference of kind.
The other issue here that is important is intention. When you are assessing somebody’s decision to refuse a life-sustaining treatment, the doctor there does not have the intention to end a person’s life. That would be a concerning intention were it there—and sometimes it is looked for, actually, if it is disputed. But of course, when a doctor is involved with a process where somebody is seeking assistance in the ending of their life, it is quite difficult to say that the doctor does not have an intention to end life.
One could go on with a discussion of the differences, but the similarity is that we are talking about life and death.
Kim Leadbeater
Q
Let me come back to the content of the Bill, and to some of your points, Professor Owen. In terms of capacity and coercion, I think we are absolutely having these really important conversations. What concerns me a little bit, though, is whether we are saying we are not confident that two doctors, potentially a psychiatrist and an oncologist, and a judge can make assessments of capacity and coercion between them. What does that mean for things that are happening at the moment? We have talked about the withdrawal of end of life treatment and those things; those assessments must be being done now, all the time, but at the moment there is no legal framework around that. Surely, putting a legal framework around that and having all those multidisciplinary people involved has got to be a positive thing. Professor Hoyano, I would appreciate your thoughts on that.
Professor Hoyano: As I say, whereas I completely respect Professor Owen’s expertise in this as a psychiatrist, for me as a lawyer the question of capacity is a yes or no, necessarily. But capacity is always determined by the Court of Protection in respect of the decision that must be made by the person concerned: do they have the capacity to do it?
When we are talking about a determination of capacity, and also about coercion—which of course is part of capacity in a sense, because capacity is the autonomy of decision making—you are going to be having a very focused inquiry. It is not an inquiry into whether a person has capacity to manage their financial affairs. I probably do not have that capacity, but on something like this I would have capacity. It is important to recognise that it is a yes or no question, which the law has to draw and does draw, depending on the expertise of psychiatrists like Professor Owen, but also forming its own judgment from its own experience, which is why I think the Court of Protection really is the place where this should be.
There is one aspect of the Bill that worries me a lot, and that is the number of people who will be excluded by the provision that the medication must be self-administered. This would mean that Tony Nicklinson, who went all the way to the House of Lords to try to get the right to die, could not have it under this Bill, because he was paralysed. He was a tetraplegic, basically—he was paralysed from the neck down, with limited movement of his head, from a stroke. He lived for seven years with that condition and he would not have been able to self-administer. In fact, when he was denied by the House of Lords—anyone who has seen the Channel 4 programme will have watched him wail in despair—he refused all nutrition and hydration from that point until he died. That was the death he did not want, and I think we need to recognise that there are problems like that. In 2023 in Canada, across the entire country, only five patients opted to self-administer the medication—only five. Even when patients were capable of doing it, they wanted the doctor to do it instead, so let us remember that as well, please.
Dr Ward: Can I make a quick point about self-administration? This is something that in Scotland we looked into in great detail. In Scotland, we chose self-administration specifically because it does not just include ingestion or swallowing. There is a range of ways in which you can self-administer the medication, and I am happy to provide that information to the Committee if that would be helpful.
Lewis Atkinson
Q
Professor Owen: Good question. On the point about that interaction issue, it is not just me picking it up; it is the courts and the Court of Protection particularly. If you are interested, it is footnote (11) in the written submission from the Complex Life and Death Decisions group. The point that you make is well taken from my point of view. You have two doctors, essentially, doing the assessment. Some doctors can be very good at assessing social circumstances; some are not so good. I think it would be preferable to try to get a law that gets sight of social circumstances; one way of doing that may be to insert a requirement that a suitably experienced social worker is involved, so that there is some sensitivity to those contextual, relational, interpersonal effects, which, as I know you are aware, can be very subtle. A lot of these things are extremely difficult to pick up. They are easy to miss and, even when you are aware of them, there can be dilemmas about what to do with them.
Professor Hoyano: Might I add a postscript to that? A model that we could consider in this context is CAFCASS—the Children and Family Court Advisory and Support Service—in the family courts. It is a body of experts—civil servants, in effect—but they are independent and they are accustomed to dealing with specific context with social workers, for example. They investigate what should happen to a child in public law or private law proceedings. It occurs to me that something like that—a report from an equivalent body to the solicitor’s office, which I mentioned before—could be a very good way of building that in, because I completely agree that social workers are likely to be more professionally attuned, by virtue of their training and experience, to looking at the wider context.
Dr Opher
Q
Dr Ward: That picks up on the previous question, which my learned colleagues answered. Good legislation sets a baseline and a legal framework. You can take a kitchen sink approach to legislation, and you will end up with something that is completely unworkable in practice. There is an awful lot that guidance needs to pick up and should pick up. I understand that only certain things are appropriate for secondary legislation, but you should not try to legislate for every eventuality in a Bill.
On my reading of the Bill, there is nothing that prevents a multidisciplinary team from being involved with this. The Bill sets the baseline: there must be a minimum of two doctors. What happens in practice—and this should be picked up in guidance and secondary legislation—should be developed in conjunction with professional bodies: clinicians, allied health and social work. They are the appropriate people to develop that guidance, not legislators. I would say, “Be cautious about how much you put on the face of the Bill, because you might end up with something that is unworkable.”
Naz Shah
Q
Professor Owen: There are a lot of gaps. Take that point as I intend it—I do not say it as a downer on this project; I say it because it is true. There are just a lot of gaps. We are going into uncharted territory, so you might think it would be good to have more of a map before we start. This is one area where there are evidentiary gaps. It is not clear how those sorts of interactions should be assessed, what sorts of threshold should be set or what kind of training should be available. There has been a lot of talk about training; training is all very well and good, but you need to know what the point and purpose of the training is. The training has to be valid before you can roll it out. There are lots of gaps here.
That relates to the question of mental capacity assessment. It is often said, “Why are we worried about mental capacity? We have so much experience of doing it in health and social care contexts; we have the Mental Capacity Act, the Court of Protection and all this experience.” We do, and that extremely important work has been done since the parliamentary discussions you had about the Mental Capacity Act all those years ago. In some areas, it is being done reasonably well: in relation to treatment and care residents’ decisions, one can talk about a body of professionals who understand the concepts, can do the assessments and can achieve, at least when trained, good levels of agreement, so you can get the system to work.
But in areas of decision making where the decision itself is unsettled or conceptually much more profound or novel—I would suggest that the decision to end one’s own life has those characteristics—you cannot expect there to be such levels of reliability. That can be shown empirically in other areas where the decision making is unsettled. The question of how well capacity assessment works is actually matter-specific. That should not surprise us, because the whole concept of mental capacity is that it is matter-specific. That is the whole functional idea of mental capacity. The matter here is of the decision making to end one’s own life.
The Chair
That brings us to the end of the allocated time for the Committee to ask questions. I thank the witnesses on behalf of the Committee for their evidence.
Examination of Witnesses
Professor Preston, Dr Richards and Claire Williams gave evidence.
The Chair
Q
Professor Preston: Hello. I am Nancy Preston, professor of supportive and palliative care and co-director of the international observatory on end-of-life care at Lancaster University. I am the co-lead for the European Association for Palliative Care taskforce, where we try to prepare guidelines for clinicians in countries where there is permissive legislation on assisted dying to help people whether they are involved or not involved.
Dr Richards: Hello. I am Dr Naomi Richards. I am a senior lecturer at the University of Glasgow, and director of the end-of-life studies group there, which is a research and teaching group.
Claire Williams: Hello. I am Claire Williams and I am chair of the Greater Manchester research ethics committee. My background is one of nursing, but my focus for many years has been on ethical decision making in clinical research. That work inspired the proposal that I submitted. As you are aware, the proposal outlines a committee-based model for decision making in assisted dying cases, offering an alternative framework to that which places sole responsibility on a High Court judge. I believe that approach is far too narrow for such a complex and sensitive matter, and it is simply too much to expect one person to carry that burden alone. The proposal really shifts responsibility from that one individual judge to a panel of professionals, ensuring that decisions are made collectively with robust safeguards in place.
The Chair
I ask colleagues to ask one question, indicating who you wish to answer. If there is time at the end, I will open the floor for further questions.
Sean Woodcock (Banbury) (Lab)
Q
Claire Williams: I am not familiar per se with the types of drugs that will be used for assisted dying cases. In terms of my experience in research ethics, we make life and death decisions on a daily basis and decide whether we would offer patients the opportunity to take very experimental drugs. That is particularly difficult when dealing with terminally ill patients. What is so beneficial with using a committee-based model is that those decisions can be made collectively—decisions that are very similar and have real parallels in terms of ensuring that patients have fully consented, that they have capacity and that there is no coercion involved in recruiting them to clinical trial. That is how I see those parallels and how I feel assisted dying cases should be considered.
Jack Abbott
Q
Professor Preston: The decision to go into palliative care is often made more by a clinical team, recommending that there be changes in the goals of care and what we are to aiming do. There are two big European studies looking at that at the moment, in chronic obstructive pulmonary disease and cancer. It is about trying to get triggers so that those changes in care can happen, because people cannot make decisions unless they are informed and they are aware.
Equally, when it comes to assisted dying, we have done interviews with bereaved families and healthcare workers in the United States, the Netherlands and Switzerland, and also with British families who access assisted dying through Dignitas. We hear from the family members that it is something they have really thought about for a long time. It might come to a crunch point where they know they are potentially going to lose capacity, they are potentially going to lose the abilities that are important to them—although for someone else, losing them may not be an issue.
That is when people start to seek help. They usually first seek help from one or two family members. There is often secrecy around that, because you do not want everyone talking about it. It is quite exhausting to talk about. It is a decision you have made. Then they seek help from healthcare professionals, and that is where they get a varied response depending on who they access. It is a bit of a lottery, because it only a minority of doctors will be willing to do this. That is where the challenge comes in.
Dr Shastri-Hurst
Q
Professor Preston: The submission was with my colleague, Professor Suzanne Ost, who is a professor of law, and that very much came from Suzanne.
I think the aim is to have that bit of extra concern, so that we do not presume capacity, but instead almost presume that there is not capacity. It would be a bit like if you go to A&E with a child and they have a fracture. The presumption there is to ask, “How did this happen?” and “Do we need to rule anything out?”, rather than just assuming “Well, they have just fallen over” and that things are exactly as said. There is an element of that, where we are not presuming capacity, but are actually going into it and switching it around within the training to ask, “Do they have capacity?”. I think that would be a change within the Mental Capacity Act.
Lewis Atkinson
Q
Dr Richards: There are two things that I would like to say about this. The first is that it is individually specific, which probably will not come as a shock to you. The evidence shows that the people who request assisted dying are people who have a particular preference for control in their life, and they have had this preference across their life, so it is part of their identity. In that sense, it is a personal preference as opposed to a deficit in palliative care, which is what we hear a lot about.
The second thing is that, with regards to autonomy, proponents of assisted dying are very keen to emphasise that this is an autonomous decision, which it is, and would have to be by virtue of the law. However, that does not mean that families, loved ones and close social relations are not really embedded in that decision making. It is important to think of autonomy as relational rather than as an isolated making a decision not in relation to others. It is also important to think about the impacts on the family when you are thinking about the guidelines that would go along with any legislation.
Danny Kruger
Q
What we do know is that there is a combination. In two thirds of deaths in Belgium, I think, and in the United States, where I have visited, the first drug that is used is an anaesthetic, and then there is a paralysing agent. A paralytic drug is introduced, which often gives the impression that the patient is having a peaceful death, but we do not actually know what is going on beneath the surface. I am afraid to say that, from studies into people who have been on death row who have been legally executed, there is often evidence of brain trauma. Can you speak to this at all? We know that in a minority of cases real complications occur—it often takes a very long time for the patient to die, and there is vomiting and all sorts of distress. How can we improve what we know about the actual process of dying, and how can we reduce these terrible complications?
Claire Williams: I can only apologise, because I am here to give evidence about a model for collective decision making rather than about my experience with regard to these drugs. As you say, the potential side effects and prolonged deaths are something we will need to consider for these cases. We need to take evidence from other countries that have had this experiences. Apologies, but I cannot comment on this particular aspect.
Kit Malthouse
Q
Dr Richards: Assisted dying is quite categorically different from the end-of-life scenarios you are talking about there, so you would expect a very different set of safeguards. It is a misunderstanding to think that assisted dying is of a piece with other life-ending decisions. It is really something quite different and requires a different framework.
Dr Tidball
Q
Dr Richards: Quantifying dignity or respect—
Dr Tidball
Or real-life examples?
Dr Richards: So the question is: what is the evidence on trying to find out about this interactional space where you are asking about people’s motivations? Is that right?
Dr Tidball
Q
Dr Richards: By holistic processes, I assume you mean the multidisciplinary team conversations that we talked about in the previous session.
Dr Tidball
Yes.
Dr Richards: Maybe Nancy knows the evidence on that. Talking about gaps in research, I am an anthropologist, so I am interested in the discourse and the conversations that are happening, and I think there is a lack of evidence about that. We have a lot of evidence where it is tick boxes, for example, about motivations and procedure being following. We have less qualitative, in-depth, interactional evidence about that kind of holistic decision making.
Professor Preston: We have done some research where we interviewed doctors and healthcare workers who have had those conversations. The majority decide against it, but they are still having those conversations. We also heard the experience of the bereaved family, and what it was like to have those conversations. On the whole, the conversation is predominantly about palliative care—“Can we do something different? How can we meet and assess your needs?”
In some cases, the doctors in palliative care, particularly in Switzerland, certainly would never suggest assisted dying, but if the patient asks for it, they equally do not advise them how to get an assisted death. In some cases they said they sort of consciously blocked the conversation, so that the person timed out and could not have it. The emphasis is perhaps the other way in places like the Netherlands and Belgium, where it has been around longer and is much more integrated into other services, such as care homes and palliative care, as part of a holistic assessment.
I remember visiting a team in the Netherlands, and when they got a new patient they said, “We assess them for their preferences about whether they want to die, about resuscitation, about advance care planning and about euthanasia.” My jaw dropped; I was British—this was illegal. They do it in such a natural way. They said, “We need to plan that for them, because we need to understand what is right for them.” They are not suggesting it—they are just trying to take it on board. I would say that the predominance of the conversation is about palliative care, but if the patient wants the assisted death, they either might assist—which is rare—or suggest how they go to a right-to-die association. But more likely they will still tell them how palliative care can help.
Naz Shah
Q
“Consider whether there should be a stated exception to the usual presumption of capacity under the Mental Capacity Act 2005 in the Bill.”
What kind of standard do you think Parliament should consider adopting instead of the use of the Mental Capacity Act, and why do you think that?
Professor Preston: Again, this came from my colleague Suzanne Ost, who is a professor of law. As Naomi said, this is something very different from choosing to consent to an operation or even a research study. This is finite—it is a finite decision, so therefore the assessment should be a bit more. What I will say about mental capacity is that we had a PhD student who assessed mental capacity decisions by hospice care staff—particularly doctors, but also a lot of the nursing team who were making the decisions. She was a lawyer, and her conclusion was that it was incredibly well assessed. That was in terms of safeguarding—so, when people were going back to what we might consider unsafe homes—but that is what the person wanted, because their life was that unsafe home. I am talking about social deprivation and things like that. The people in this particular team were very good at assessing that and applying the Mental Capacity Act, according to her research.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Q
Claire Williams: I absolutely agree that a panel/committee approach would have better safeguarding for patients, because the decision is being made collectively with legal expertise and with other healthcare professionals—that might be palliative—or ethicists like myself. It is having that collective view, ensuring that everybody is happy and that that is exactly what the patient wants. I believe it should be a committee/panel-based approach for the final decision. As I said before, expecting a High Court judge—just one individual—to make that decision alone is hugely burdensome and not an approach that we should be taking.
Tom Gordon
Q
Professor Preston: There is a bigger and bigger conversation in a lot of these countries, including the Netherlands and Switzerland, that this is not about healthcare. I know that sounds a really strange thing, but it is about self-determination and a life choice. I remember someone saying to me, “Well, you wouldn’t check who I’m marrying.” They feel it is such a personal choice. I think patients do bring this up. They bring it up all the time now. Studies in Spain have shown that if a patient has a desire for hastened death, the best thing you should do is explore that desire. Why do they have that desire? How can we help you? Are there other needs we can meet? Most people will not want to then go ahead and have an assisted death. This is a minority of people. Could you remind me of the rest of your question?
Tom Gordon
If you have systems where assisted death is offered outside the healthcare setting, as in some of the countries around the world that you have mentioned, how does that limit people’s access to it? Do you think that has an impact?
Professor Preston: I think it almost enhances their access to it. At the moment, they get lost in the system. They are usually trying to find these two magical doctors—in a lot of countries, you still have to find those two doctors. Most doctors, even if they approve of the idea of assisted dying, do not want to be part of it. They might assess, but they might not prescribe. They might prescribe, but they would not administer. Trying to find those doctors to do it is really quite challenging. That is what we get back from the bereaved family interviews. How do you navigate a system where you cannot access the people you need to get to? People go doctor shopping—they are going to multiple doctors until they get the right answer.
If you keep it safer, outside of healthcare, people can talk to their doctor—they will mainly talk to their nurses, because they are the ones who do end-of-life care predominantly—and they can say, “Actually, that is not something we can do, but if you want to see, we have a stand with information about it. This is the service you can go through.” It is the same with the GP—things like that. I think it might actually make it easier for people to navigate. That is where I came to the idea of keeping it outside. It is a supportive way for patients and families because, on top of all this, they are dying. They are having a really difficult time and we are trying to get them to navigate services that are incredibly difficult when you are trying to find two doctors.
Just finally, on top of that, it is quite secret who does this. Doctors do not want to tell people. I have had people who do this—who might just assess and may not prescribe or administer—and they do not want people to know in palliative care because it does not go well for them. They are concerned that people will not like it. I do research in this area, and some people think that means that I am trying to push for assisted dying. I am not; I have a neutral stance. I will say things pro; I will say things against. But it is quite difficult for people involved. There is a bit of a taboo—there is a secrecy. It makes it even harder to say in the Bill, “Recommend another doctor.” It will be a challenge to find that person.
Dr Richards: May I add something? The evidence suggests that one of the implementation challenges with assisted dying is finding doctors willing to participate—consciously participate—in this practice. However, I think what you are asking there is about a more Swiss model of assisted dying. There is a reason that the Swiss model of assisted dying has stayed in Switzerland and gone nowhere else—it has not transferred or translated to other jurisdictions, because of its uniqueness and the practical challenges of disentangling it from a healthcare system.
It is important to recognise that, but we are also talking a little about disentangling assisted dying from palliative care. It is important to recognise that the majority of people who request assisted dying—who receive assisted dying—are within palliative care. They are already in that, as I am sure you have heard already. To disentangle assisted dying from the specialist communication around end of life would seem to be a self-inflicted problem of design, in my view, because it is safest being held there by the experts for those who want to get involved in it. It is safest being held in the healthcare system. As I say, there is a reason why the Swiss model is the only model where that happens outside a healthcare system. That is localised to Switzerland.
Dr Opher
Q
Claire Williams: Again, those safeguards would need to be in place. There would be concerns if they were not actually giving the drug to the patient, and seeing the patient take the medication. Yes, robust safeguards would need to be in place.
The Chair
Could you make it a supplementary? I want to get Kim Leadbeater in, and then we can come back to it.
Kim Leadbeater
Q
Dr Richards: In covid, we did research in care homes, and there was real concern about “do not resuscitate” orders and emergency care plans that were blanketed across the care homes. Care home staff were traumatised by that, so there are real issues. We know that there are real issues day to day in how people are treated within the NHS. I think it is unconscious—I do not think people are intending it—but we know that people are treated differently and that different things are done. That is partly why we think a system outside that would protect them, because then you are not within the healthcare team that is treating you and giving you advice about such things, whereas if you are having to opt into a system where you have to do something more, they will not feel like it. That does not happen in the hospital. It is about trust.
One of the issues in Switzerland—I must just add, the same Swiss system is being adopted in Germany and Austria, which already has a panel—is that they are trying to protect these people by keeping it one step removed, so that people do not feel that they are trying to be persuaded to an assisted death. Most hospitals in Switzerland will not allow assisted dying to occur, because they do not want a lack of trust in their patient group. Instead, they will sometimes allow the right-to-die associations in to do this and there are just a few hospitals that allow their staff to do it. It is all about trust.
Kim Leadbeater
That is really helpful.
Dr Richards: I do not think there is any evidence that there is a loss of trust in doctors post legalisation—I just wanted to add that.
As I said in response to the earlier question, this is a categorically new thing that would be coming into society, which would cause cultural change in how we approach, think about and anticipate dying. It is a big deal—I know you all know that. Accompanying it, therefore, there needs to be really sensitive information delivery that is appropriate across society and that will alert people to this. In particular, if you are going to have a system where doctors are not allowed to raise it with patients, people need to know about it. That is one thing.
Reducing people’s fears is also important. I mean, there are so many misconceptions about assisted dying, even among people who have spent quite a lot of time reading about it and researching it. It is a very simple thing, but the discourse in society has been going on for so long that there is a lot of misunderstanding.
Kim Leadbeater
Q
Dr Richards: Misunderstandings of what it is? Fundamentally, that it is not based on the principle of autonomy and that it is something that can be done to you, without your consent. You would not want the general public to think that. At a very basic level, it is understanding that assisted dying—the very phenomenon that that term encapsulates—is a phenomenon that starts with the patient. It is a request made by the patient because of their subjective assessment of their quality of life as they are dying. At a very fundamental level, you would want to communicate that to the public. It is a huge piece of work to have to create an informational context that is variegated according to the starting position of people’s knowledge base around it, and to bring in something that does not scare the public and so they see it as something that can be positive.
In jurisdictions that have legalised, even post-legalisation there continue to be elements that resist it. However, you start to see positive stories of the kind of ceremonial aspects that can come when you can time death. There is a whole cultural piece around new rites—new rites around dying that are being created when people choose to have an assisted death, and the new dying time or space that is opened up there, as well as the intentional actions that can happen from people’s social groups. Post-legalisation, it is not just fear—I think you get a balance of stories coming through—but it is something that you need to attend to.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Dr Richards: I think you probably know the answer is that it is not patient-centric. In Marie Curie’s “Better End of Life Report 2024”, which was a representational survey with bereaved relatives, a third of people did not think that their relative even knew that they were dying. We still have a long way to go in communicating to people that they are in a terminal phase, so that they can find whatever residual value is in that period of time for themselves and their family. So, no, definitely not, but that is what we are striving for. I am sure that that is what all healthcare professionals are striving for.
In terms of assisted dying, it would be so explicit. It is categorically different from other kinds of conversations that are much more open-ended, like goals of care conversations at end of life. This is really quite specific, to the extent that you can actually give doctors a form of words to use, because their request for this procedure needs to be so categorical and there needs to be no ambiguity around that.
In a way, this conversation about assisted dying is actually different because it is very up front, it has to be very categorical and it has to be documented. In that sense, it is extremely patient-centric, and there would be no using euphemisms, which happens in end-of-life care, when what doctors think they have told their patients they do not hear. They have heard something else, because euphemisms change according to—well, you do not even have to go so far as to talk about different communities or cultural groups; they change from one person to another. I think this would require quite specific language. It would bring things into a much less ambiguous kind of territory.
Juliet Campbell (Broxtowe) (Lab)
Q
Professor Preston: I think it is about having that additional consideration. When additional consideration for, perhaps, social deprivation or about people from minority groups is in the training and is at the forefront of people’s thinking, they can address it.
I will give you an example. We did a study looking at access to palliative care. I know you have heard a lot about there being a postcode lottery and things like that. One of our areas is one of the most deprived coastal communities in the country, and yet it had equal access for people across all areas of society, because they brought in people to target anyone from those socially deprived areas.
Equally, at the beginning of the first wave of the pandemic, at one of the big London hospitals, we analysed the data because we were concerned about access to palliative care services. Were people accessing it during the pandemic? We also looked by ethnicity. What we found was that not only during the pandemic, but pre-pandemic, if you were non-white, it took—I don’t know—three or five days longer to get that referral.
We had an idea that from some of the research we had done on social deprivation, people are making assumptions. It is not about people making horrible decisions, but they are making assumptions: “Oh, they will have a big family—the family will look after them. This will happen or that will happen.”
The nurse consultant, Claude Chidiac, went in and did training for the staff and said, “Don’t assume that just because people come from an Afro-Caribbean family that they have got this big family.” Within a year, when the second wave happened, the difference had gone. It can be at the forefront of training and you can make people really think about it. I would say—I think someone said it yesterday—that there is almost an inverse inequality, because I think those families and those communities will be really trying to protect people from even thinking about going for it.
Daniel Francis
Q
Claire Williams: Again, I can only apologise, as my evidence is about a committee-based, panel approach to decision making rather than what happens at that point of end of life. I do not know whether somebody else is able to come in.
Professor Preston: I can take that if you want.
Daniel Francis
Thank you, Professor Preston. Sorry—if you agree, Mrs Harris.
The Chair
I wondered who was chairing for a moment.
Professor Preston: We raised that concern about doctors staying with people for prolonged periods of time. I think it will come down to what “self-administered” means. In our written evidence, we said that, in Switzerland, that has increasingly meant setting up an intravenous drip and the patient opens the port. In that case, you are talking about different drugs and it would be much speedier. But we have data on oral ingestion from Oregon, and I think 30% of cases took an hour to die. Most of us know that in the NHS, an hour with a doctor will be pretty unlikely, even if they are in another room. Most assisted deaths across the world occur in a home or a nursing home, so you do not have doctors there—we are not talking about GPs being out for prolonged periods of time. The method of administration may change that as well.
The other thing is that doctors are not used to being with patients at the end of life—it is nurses and healthcare assistants. So you are actually bringing in a new role for them to be with someone as they die. I am not saying that they have not had that experience, but they are not the traditional healthcare workers who are at the bedside. Again, that would need to be accounted for in the training so that they are more used to being around people who are at the end of life. They will have had some experience, but it is very much in the realm of healthcare assistants and nurses.
Naz Shah
Q
Dr Richards: It would have to be. Those examples that you have just given would not mean that it was not an explicit conversation.
Danny Kruger
Q
Professor Preston: I think we suggested a panel. I submitted some evidence after the last Select Committee inquiry about a panel that could operate outside. Lots of the reasons I gave were about helping to navigate, helping to identify doctors and helping to support people who feel vulnerable within the NHS.
What increasingly came out from the idea of a judge is the question of what exactly their role is and the fact that there is no right of appeal. However, if you had a panel, that would give a much more thorough understanding of what is happening. The additional safeguard is that the panel could say there needs to be a palliative care consultation. You would have to be sure the doctors who are doing it are, based on their register, qualified to have a palliative care conversation so that all options have been explored.
My fear is about if we do not specify what training is or what these people’s expertise is. Most doctors do not know too much about palliative care or what the options are. You do not need to see a palliative care doctor, as a palliative care nurse can talk you through it, but the additional power of that panel is that it could be answerable to the court or some other sort of assisted dying tribunal.
Lewis Atkinson
Q
Dr Richards: The Bill covers terminal illness only. It includes people with six months left to live, so it would not include the phenomenon of old age rational suicide, which is where you want to end your own life for reasons of the accumulated losses of old age, or because you feel you have lived a completed life. This really relates to people who are in what is called the fourth age of life. It is a social and cultural phenomenon that there are people in the fourth age of life who want to wrap things up on their own terms, but this is a separate phenomenon to people who are in a natural dying phase of life and want to accelerate that. It is different.
After you legalise assisted dying for terminally ill people, you will still get older people taking their own life. The highest demographic for completed suicides is people over the age of 70. It is a phenomenon around the world, but it is a qualitatively different phenomenon to people in a natural dying phase. If we look at the data on who requests assisted dying, it is people who want control and agency, and they may even have thought about it as a mode of dying that they want to access before they even had a terminal illness. They might have always imagined that, but that is in conjunction with various forms of suffering that they will be experiencing. It is not just personal preference; they are also suffering, and suffering is very multi-faceted and multi-dimensional at end of life. It has various different components, not just physical.
The Chair
Before we move to the next panel, is there anyone else who has pressing questions, or would you prefer to have a five-minute comfort break?
Naz Shah
Q
Dr Richards: I do not really understand why the case of terminal anorexia would be different to any other case in terms of the conversation. It would be necessary to have a very explicit conversation with somebody requesting assisted death; it does not matter what their illness is.
On the issue of anorexia, the numbers are really tiny. In the Oregon model, which is what is in the Bill, you are talking about one or two people in the history of assisted dying. It is a very minor issue to get focused on. I have seen so much about this in the press and being discussed here. If you are very concerned about terminal anorexia, I am sure you could do some tinkering with the Bill so that people would not be eligible for assisted dying, but in terms of the empirical data in jurisdictions that have legalised the Oregon model, which is what this is, there are one or two cases.
This should not be given a huge amount of time, because it is a distraction from the fact that really we are talking about a new mode of dying, which is a cultural response. Just as palliative care is a cultural response to suffering at the end of life, so is assisted dying. It is a different track; it is offering something different. Different types of people will want to go for that. It is a response to the protracted dying trajectory that we see now, which is new. In the history of human dying, we have never taken so long to die before. There has never been so much medical intervention at the end of life, and assisted dying is a cultural response to that. To get fixated on the two people with terminal anorexia who have accessed assisted dying in the States is a bit of a red herring.
Kim Leadbeater
Q
Professor Preston: We have heard lots of evidence about training schemes around the world. To be honest, I think they are still developing, but we can look at the good elements of those and at what has and has not been evaluated. We can do it almost like action research, where you are learning as you go, and we can improve the training as we go.
Most people do not die under palliative care. This Bill will affect general care; it will affect specialist care, but not in palliative care. We need to train those people as well, because they will be having a lot of these conversations. We are doing that training now, which is about how we talk to someone in a compassionate way. How do you help people to understand that they can be involved in the decision making? What might the goals of care for you be, and what might a goals-of-care conversation look like?
We have lots of this training already. Palliative care has huge expertise in this with advanced care planning and the rest of it, so it is about getting some of that incorporated. It is not just about saying, “This is what an assisted death would look like. This is how it would process.” It must be more than that, and we need to help people to explore their end-of-life choices. How do you want to die? Do you want to die at home? Do you want the cat on the bed? It is about all those things that are really important to people, but we must have that conversation and explore them, and it is quite hard to get clinicians to have those conversations. There will be a special group of people who can manage this; they will need training and support.
The Chair
I thank the witnesses on behalf of the Committee. We will suspend until 3 pm, which gives us six minutes.
The Chair
Q
Pat Malone: My name is Pat Malone, and three members of my family died in dreadful circumstances, two of them by suicide, and I think the circumstances of their deaths would be useful for the Committee to know before any decisions are made.
Liz Reed: I am Liz Reed. My brother had an assisted death in a hospice in Queensland, Australia. Their law is very similar to the Bill—the assessments, the focus on coercion—so I am here to share how the law works in practice for a dying person and their family.
Kit Malthouse
Q
Pat Malone: I am not familiar with the situation in Australia. The two suicides in my family were outwith the law, and the third death I was going to talk about was a natural death—we would call it a natural death—so I am sorry but I cannot make a comparison.
Liz Reed: The system in Australia is, as I said, quite similar to what is being proposed here. It felt like throughout that process for my brother, Rob, it was really caring and respectful. He was able to change his mind, which he did, in terms of dates and when it would happen. His views and the views of his family were also taken into account and, through the process, he was treated like a person with autonomy whose choices were being respected.
The Chair
Q
Julie Thienpont: I am Julie Thienpont, and my husband and I were living in Spain at the time. My husband was diagnosed with mesothelioma and given three months left to live, so he opted for assisted dying. It was quite a rigorous process in Spain. It only came into law there in 2021, and he was one of the very first people in the south of Spain to take the opportunity of assisted dying.
Tom Gordon
Q
Liz Reed: As I said, my brother died in a hospice in Australia, where the hospices are extremely well funded, and the care he received was sensational. The team and the staff in that hospice made the time he had in there. Obviously, it was not amazing, because he was dying, but for a really difficult situation, it was comfortable for his family, and he had young children. You could not fault the care and access to the medication. We as a family, after he died, went back to the hospice to say, “This was changing for us and for him.”
But it did not change what was happening to my brother. He went from a hospital to a hospice, and he had a date planned for his death. He then actually changed his mind and extended it, because it was better than being in a hospital and the hospice care was great, but he still landed at the same point of saying, “This is not living.” It was not what he wanted, and not what he wanted. From a personal perspective, when he was diagnosed, we said, “You’ve got to come home.” But actually, I think, “Oh my God, what would have happened to him? How long would he have had to go on? How long would his children have had to watch him?” He was only 39 and his children were young, and they did not have to—they still remember their dad. For him, for his wife and for our family, I would not change anything.
Lewis Atkinson
Q
Pat Malone: In all three cases, it would have improved their lives and their deaths. My father died at the age of 85 from pancreatic cancer. He asked me to help him kill himself while he was in hospital in the last three or four weeks of his life. Obviously, I was not able to do so. He suggested that I put poison in his water, which I had no idea how to action. I spoke to his consultant and asked whether he could do anything to hasten his end, and he said, “No, no, no, I can’t.” After that, he lasted another three weeks and he had a horrendous death. It has scarred our family to this day.
My brother contracted the same disease, pancreatic cancer, and having seen my father die, he—having gone to six doctors and asked them whether they could help him end his life; he was under home hospice palliative care at that time—contrived his own suicide. Unfortunately, he asked his wife to sit and hold his hand while he died, as a result of which there was a police investigation into collusion. She and her daughter, who was also in the house at the time, were not cleared for eight months, during which they were interviewed repeatedly about anomalies and what they did or did not know. It was absolutely unconscionable to pile that on top of their grief, at a time when they had just lost their father and husband.
My sister’s death, having seen those two deaths, was much easier. She got motor neurone disease and was not really suffering in the way that my father and brother had been. She knew that her end was going to be as a live brain in a dead body, and that was the horror that she faced. From the beginning, she was fixed on going to Dignitas, which she did. It was not easy because, after the example of my brother’s family, she would not allow anybody in her family to have anything to do with the arrangements that she had to make, which were quite complicated and became ever more difficult for her. First, she could not drive a car any more and was going around on a mobility scooter, gathering endless documents and having all the tests that you need to have. Ultimately, she said, “This is my golden ticket.” When she was accepted by Dignitas, she said that it was the greatest relief of her life. She said, “I know I am not going to get cancer or dementia. I’m going to die painlessly at a time and place of my choosing.”
That is exactly what she did, but she died 1,000 miles from home. She should have died in her house with her family, and her dogs on the bed. She should not have been denied that. Had this Bill been enacted in her time, it would have been a much easier operation. The problem with this legislation mainly is that it is so long overdue. There are people now who are in that position. You may think our family is star crossed because we have had three deaths like that, but I think we are just a normal family. It is happening all the time. Chris Whitty talked on Monday about how we should not rush into this. We are not rushing into it; we are at the back of the queue, really.
Rachel Hopkins
Q
Julie Thienpont: Guido had decided right from the word go, even before he got sick, that that was the way he would want to end his life, if there was a possibility of it. He was from Belgium originally, so he expressed a wish that if ever he needed it, he would like to go back there.
The law in Spain is very similar to the Bill, which I have read through countless times. There are a lot of similarities. There were very rigorous checks. It involved much paperwork, counselling and family liaison. The difference was that it went before a board, so it was a panel that would allow or not allow the decision—it was not decided in a court. That would be the main difference, but the process was rigorous. It was slightly difficult for me, because although I can speak Spanish, the terminology was frequently more difficult, so they very kindly translated for me. They explained everything: what would happen and how it would happen, if it happened. It was a big celebration for Guy when he was actually granted this. They also told us that he could change his mind after he had made the decision, should he wish to. He did once. It was me who asked him to do that, because I did not feel he was sick enough, which sounds a bit silly, I know.
He was an intensely private person. The palliative care in the part of Spain where we were is excellent, but it was quite irrelevant for him because he had already expressed that he wanted to die at home. We lived up a mountain; we were quite remote. Being such a private person, he never wanted to be in a situation where somebody else had to see him in any vulnerable situations, especially with personal hygiene and so on—even me, although I was able to help him in many ways. I had to do a lot of procedures for him, after being trained to do so, but he was more than happy with the situation of having assisted dying once it was granted. He did not need any other sort of care, although we still had a nurse coming every few days and the family doctor came up at least once a week. That does not sound much, but he did not want her any more often than that.
Danny Kruger
Q
Pat Malone: She would not qualify, because there was no telling how long she would live as a live brain in a dead body, as she said. It could have been months or even years, so she would not qualify in any case under this Bill. However, you have moved mountains to get to this point, so the last thing in the world I want to do is pile more requirements on the Bill. I would like to see some stuff stripped out of it, actually, to make it easier, but I am not going to ask for that because we desperately need to get away from the status quo. This Bill gets us away from the status quo.
Naz Shah
Q
Julie Thienpont: Maybe I said “counselling”, but it was not a session of counselling. It was somebody asking my opinion to check that I was 100% behind Guy. His son also did that by proxy—via us—because he was in a different part of Spain. They wanted to ensure that he had talked it over with family members. It was not hastened along, because he had been given a short life span, so it did not take terribly long. He had to wait about three weeks before the initial ball started rolling, and then two weeks later a family doctor and nurses from the hospital came round for form filling, reading through, translating and signatures, and again another two weeks after that. Each time, I believe it went before a panel. We did not, but the paperwork had to go before a panel. They were left in no uncertain terms that that was the way he wanted to end his life.
It was a very peaceful, serene and beautiful death, as opposed to what it would have been like. He was able to speak to his relatives in Australia, his brothers in Belgium and other family members, and I was able to hold his hand. Guy had always been a bit of an old cowboy, and he always said that he wanted to die with his boots on. I am proud to say that that is what he did. At the end, we were holding hands, and I said to him, “Don’t be afraid.” He said, “I’m not afraid,” and he winked at me just before he closed his eyes.
On the process, perhaps I should have said that it was intravenous, so he had a drip in each arm. It was quite a quick process—maybe 10 to 15 minutes, which I thought was quite quick—but we had had lots of time that morning, you know. It was a beautiful end—the wink especially. I am left with very good memories of such a peaceful death, which was going to happen regardless. He was at peace with it, so that helped me.
Naz Shah
Q
Liz Reed: I understand the big focus on coercion. It is very similar in Australia. The difference between the Queensland Bill, specifically, and the Bill proposed here is that, in the Queensland Bill, coercion is punishable both ways: you can be punished for trying to coerce someone into an assisted death but also for trying to change their mind the other way. Those safeguards are in place because you hear anecdotally from practitioners that, broadly, people are being coerced out of this.
In our experience, the day before my brother died our mum said to him, “Are you sure?” She was not trying to coerce him, but was she trying to make him go on longer? Absolutely. That is her son, and that is completely natural and normal. She did not want to see him die. His response was, “This isn’t living.”
Naz Shah
Thank you very much.
Pat Malone: As far as my brother and sister were concerned, there was no check for coercion. There needs to be, as in the Bill, but there are many more safeguards in the Bill than there are now. The people who are contemplating suicide now have no safeguards at all.
Dr Opher
And he was having excellent palliative care, so what was in his mind, do you think? Why did he decide on that option?
Liz Reed: He knew he was dying. He was diagnosed in October 2022. Just to be clear, in the period before his health started to really deteriorate, he had a great time. He went fishing, he went to the beach—it was like an advert for Australia, how great his time was. He quit his job, he was with his young sons, and he had a lovely time. But his treatment stopped working. He had had every treatment and, even though he was on the pathway and had started the voluntary assisted dying process, he was still having immunotherapy. He wanted to live. His family wanted him to live. But he got to the point where he knew he was absolutely not going to live, and that it was a matter of time. He said that he was afraid not of dying, but of dying in an awful way. He was worried his lungs were filling up with fluid. He thought he might have a heart attack. He was afraid of that happening; he was not afraid of dying. He was not depressed but he knew what was coming. He felt, in his own words, “I’m just sitting here waiting to die.”
He had had experience of a friend whose wife had died, and she got so bad that her young son could not visit her any more because it was too frightening for him. My brother’s children will remember who he was: this big, 6-foot-6, rugby-playing, fun dad. He got to choose: “Actually, I’m ill enough, I’m frightened of what might come down, which I know is going to happen anyway, and I choose now.”
Kim Leadbeater
Q
Liz and Julie, I am interested to know whether you think any aspects of the processes that you went through in Australia and in Spain could have been done better or improved. Is there anything from your experiences that we could learn from to enhance what we are trying to do here?
I also have a question for all three of you—and Pat, goodness me, to come here and tell your story after everything you have been through is unbelievably brave, so thank you. What impact did these different types of death have on your grief and on bereavement? We are talking about different types of death, so I think it will be helpful to think what that looks like for people.
Julie Thienpont: It is a very good question, because I think it did impact my grief. There is not anything that I would change, for definite, about that, but I think I mentioned that I had not tried to talk Guy out of it the first time around, but I did say, “Don’t be so hasty, because you’re not as sick as you could be.” He was still getting up and dressed every day and managing pain, so we had that discussion. On the only day that I ever knew him to stay in bed a little bit longer, I knew he was thinking about phoning to say that he was ready, and he called me to him and said, “Come and sit with me. I want to ask you two things.” The main one relevant to this is: “Don’t try and talk me out of it this time. I’ve made the decision. Don’t try and talk me out of it, because I don’t want you to be impacted in that way.” The second one was to “be strong”.
Both those things have impacted my grief, because I was so strong for 12 whole months and I just thought, “Yes, we’ve gone through that. It’s been great, and”—not “great”. Sorry, I am using the wrong terminology, but for me, it was so good to know that he died so peacefully and he was at peace with himself. That happened and I thought, “Right, now I’ve got to do the ‘be strong’ bit,” so I did that. I did want to talk him out of it again, but I did not, and I was very strong, and then all of a sudden, one day, grief did start to creep in, obviously. Suddenly I thought, “Hang on, he’s not coming back.” That is a normal grieving process, but it held off a little while.
The pathway that the grief I experienced took was that every day I had a different memory of us sitting somewhere, being somewhere or doing something. During the last months that we had together, knowing that he was going to die—sorry to sound like a bit of a romantic—our love intensified so much. You know that everything you do, it is probably going to be the last time you do it. It is almost like an unbreakable bond between you: you are both in this situation together and you are going to get through it, you are going to be strong, and you are going to be there for each other. I think that carried me so far, because those four months that he lived were the best four months, in the sense of our closeness and how supportive and caring we were for each other. It makes me smile now. When I think of his passing, I smile. Yes, I do get upset and I miss him a big lot, but I smile because everything worked out the way he wanted it to.
Kim Leadbeater
Thank you so much.
Pat Malone: My experience with my father was entirely different. My daughter, who was seven at the time, reminded me recently, when I was putting my thoughts together for this, that in his last weeks she had visited him, and I had taken her into a side room and told her not to expect to see the grandpa that she knew, because he was very, very ill and he did not look anything like she would expect. She said she was very thankful that I did that, because she was stunned and shocked when she saw him. He was like a 1,000-year-old corpse, he was moving, and his eyes were yellow, and that is how she remembers him—she does not remember any of the good times. My sister, who lived close by, was with him most of the time, and she just sat by his bed and prayed for his heart to stop.
We were all shell-shocked when he did finally die. As I say, that informed the decisions that were made about suicide by my sister and brother. Had he been a farm animal, we would have been prosecuted for causing unnecessary suffering, but he was a man so he was not entitled to that sort of consideration. I remember him in that horrible ward breathing his last. The only time he moved in the last days was to cough up blood. For a man who had asked to be relieved of that burden, who had asked for an act of mercy, a week before, and it had been denied him—I cannot understand how anybody would deny a dying man a deliverance.
When my brother died, he and my sister-in-law had been together since they were 11 years old. He was only 53, so they had already known each other for 40 years. She had shared his suffering while he was being driven around the country looking for diagnoses and, ultimately, looking for doctors who would help him commit suicide. His weight had gone from 18 stone to 8 stone, and he was bright yellow as well. He was suffering all the time and she was suffering with him. She was relieved as well as grieving when he actually died—and then the police were at the door. The investigation went on until his inquest eight months later. The police were as helpful and sensitive as they could possibly be. Vicky got the impression that they wanted her to give the wrong answer—when they said, “Did you know what he was going to do?” she said, “Yes, I did”; to “Could you have stopped him?” she said, “Yes, he was weak as a kitten”; and to “Could you have resuscitated him?” she said “Yes,” because she had had some nursing training, and so on—and with every answer they just collapsed a little bit more.
Ultimately, at the inquest there was an anomaly in his suicide note. It was written in two different colours of ink, and the police investigated whether it could have been written at different times, possibly by different people. Giving evidence at his inquest, the police said that they thought his pen had run out—there was a squiggle at the top where it changed from black to blue—and they said that they were not proceeding with any idea that there had been positive involvement in his suicide.
I have a note of the transcript of what the coroner said, which reads: “I don’t want to make any more of this than I absolutely have to. I simply record therefore that Michael Malone took his own life. He did so quite deliberately and having made appropriate preparations, and so it’s not a case of my saying that he did so while the balance of his mind was disturbed, because it clearly was not. It was a decision that he took and I have every sympathy with that decision in so far as a coroner is allowed to say that.”
The police were very sympathetic. The coroner was very sympathetic. Danny Kruger is very sympathetic. But sympathy only goes so far, and I am glad that this Committee is now looking at exactly the people who matter first in this issue, who cannot be here to talk for themselves.
Liz Reed: In answer to the first point, about anything we would change or do differently, I think actually my brother’s case was dealt with really well and there were checks and balances along the whole way: “Does he meet the eligibility criteria?”—obviously—“but also, does he want to?” His wife was involved in the process with him, and he was checked constantly. A doctor administered for him, and he had met him already. He knew him and had a rapport with him. He had a few jokes with him at the end. So from that perspective, I do not think so. It is slightly different in Australia, in that it does not have to have a High Court judge, so the process feels a bit more streamlined than it is here, and maybe the access would be slightly different because of that.
In terms of the grief, I think anyone that knows someone who has been through a terminal illness knows that there is a level of anticipatory grief that comes with that—the waking up every morning thinking, “Has it been tonight? What happens next? What’s today?” Because when someone is in the final stages of their life, which my brother was, there is always something every day: “Oh, he’s got to have fluid drained from his heart today,” or, “Oh, this has happened.” There is always something, so that grief starts coming on before the person has even died.
The day my brother died we sat outside in the courtyard and had a glass of champagne. He chose a Bob Dylan song that he wanted to die to. It was extremely peaceful. It was seconds. And he got to say all the things, have all the conversations, speak to our parents—that sort of real American “closure”. That is what he got, and we were not sitting around thinking, “I wish I’d said this. I missed it,” or, “I was off doing something with the kids.” We were all there: my mum, my dad, me, his wife. We sat there and held his hand—and what a gift.
Sarah Olney (Richmond Park) (LD)
Q
Liz Reed: I do not think so, no. I do not think it would have changed his mind. I am someone who is real squeamish, so I probably would not want to, because of how I feel about all that kind of stuff, but it would not have changed anything for him—no, absolutely not. But I think there is a comfort in having a doctor there administering that, “This is going to go as it should,” and there is a calm that comes with that.
Julie Thienpont: Guy being intensely private, as I mentioned before, he would have preferred less people around him at the time. There were two nurses, the family doctor and the administering doctor. They prepared the scene and put the drips in—they had to put one in each arm—and they had to be there in order to witness the whole thing. He would have preferred to have been able to do it himself, but I do not think the fact that it was administered by somebody else impacted in a negative way for him.
The Chair
Pat, I think you wanted to say something.
Pat Malone: Yes. My sister died under the Swiss method, which meant self-administering a cup. She had motor neurone disease, and she was slowly losing the use of her limbs. She went earlier than she needed to because she wanted to be sure that she would be able to swallow and lift her arm. She could probably have put it off for some months—an indeterminate period—but she died before she needed to in order to be sure that she could self-administer.
Sarah Olney
Q
Pat Malone: I cannot speak for her, but there were many, many problems. Bizarrely, the last package of documents that she sent to Dignitas got caught up in the postal strike, and they were all irreplaceable original documents. I do not know if you remember, but around that time—this was the winter of 2022-23—there was a postal strike, and it particularly affected international mail. For nine weeks, the documents were held up in a sorting office, and they could not find them. She was getting more and more concerned, because her horror was that she would miss that deadline. In actual fact, Dignitas agreed that in the final analysis she could hand carry the last of the documents she needed when she came to Switzerland, and she was still able, but her horror when she thought she was going to miss the bus was quite palpable. Yes, if a doctor had been able to do it, she might well have chosen that option.
Dr Opher
Q
Pat Malone: As I mentioned to Mr Kruger, I am loath to meddle in any way with the Bill. I think that as it is the Bill is the best we can do at this time.
The Chair
Order. I am going to let you continue, but that question is out of scope. Is there anything else you want to say, Mr Malone?
Pat Malone: I have said that as far as meddling with the Bill is concerned, I would like to see it pass as it is without too much delay.
Lewis Atkinson
Q
Pat Malone: I think that both my sister and brother had more than adequate palliative care. My sister, particularly—she was taken under the wing of the Macmillan nurses, even though she did not have cancer, and they were absolutely marvellous. Her GP was brilliant as well: behind her all the way for the whole year. She could not really have done it without her.
The NHS was excellent. In fact, my sister was used as a diagnostic tool, or diagnostic test, by NHS surgeons who were teaching medical students. She would be put in front of medical students and they would be asked what was wrong with her. Given that MND is normally associated with young men with brain trauma and so forth, it encouraged them to widen their appreciation of these diseases. It meant that she met NHS specialists at a particular level. She really wanted for nothing. She had a stairlift put in her house in short order. She had the mobility scooters and all the gimcracks that you have in your bathroom to help you get out of the bath and so forth. Above all, from the Macmillan nurses in Blyth, she had moral support. These are no-nonsense people who will walk through a wall if there is something that you need, and that is wonderful to have.
So there was no palliative care issue with my sister. She never needed any pain control. She had everything she needed. It did not change her mind one bit. I would like to see palliative care divorced from the idea of assisted dying. What she needed was assistance to die. What my brother needed was assistance to die. Palliative care was a side issue. It obviously comes into it, but if you could look at assisted dying on its own, I think that would be useful.
The Chair
Are there any more questions?
Julie Thienpont: Would it be okay if I said something?
The Chair
Of course. Please do.
Julie Thienpont: This is hearsay, of course. I live in Guernsey now. It is a small island, so we know a lot of people. A lot of people know each other. I had something published in the Guernsey press fairly recently. A friend of mine had a relative in the local hospice, which is excellent—it is absolutely beautiful and the palliative care and the teams are second to none. However, her relative who was in there saw the newspaper and said, “Oh, my goodness! I wish this Bill would come to pass here. I wish it would have been in time for me.” He said, “I am getting excellent treatment, but I am sitting here waiting to die. My family are coming every day to watch me wait to die.” He lived for five more days and he actually expressed that even though his care was excellent, he really wanted to die sooner on his own terms.
Kit Malthouse
Q
Liz Reed: Rob’s experience was that this law only came in in Queensland in January 2023, post his diagnosis. But it was an issue that had been in the press; he knew it was coming in and from diagnosis he thought it was something he might consider, and so he approached his doctor with that.
In terms of my view on whether doctors should bring this up—we are coming from a position of privilege where we have access to media; he knew this was going on, and I am sure there will be plenty of people who do not know. I do not really know, to be honest, where I sit on that. For our family and for my brother, it was absolutely the right thing to do. I cannot really answer.
Pat Malone: Some regulation and some guidance would not go amiss. My sister had fantastic support from her GP. She did a lot of extra work to meet the requirements of Dignitas, and my brother had exactly the opposite. When he went to his GP, for a long time he was told, “Oh, it’s just indigestion. Try Gaviscon.” Even when he went to his GP, in the light of his understanding of my father’s death, to say, “I think I’ve got pancreatic cancer,” his GP said, “No, it’s not—it’s just indigestion,” and so forth. It would not have mattered; an early diagnosis would have made no difference at all. But the GP was not very helpful and did not want to get involved.
When my brother died, my sister-in-law called the GP and the GP called the police. Before my brother was cold, the investigation started. If there was some way you could say to doctors, “This is what you can do, and this is what you can’t do. If you do not want to get involved, leave it to somebody who does because there are plenty of people who will”, and if that could be quantified somehow by a code of conduct—perhaps among the doctors, rather than in the Bill—that would be very useful.
Kit Malthouse
Q
Julie Thienpont: No. He made up his mind long before he was even sick. He felt that his mother had quite a traumatic passing, and said that she expressed a view that, had it been an option, she would have taken it. He had said from then, “That is the way I want to die. I want to die that way. I don’t want to be lingering in a bed, whether I am in pain or not. I don’t want that to happen.” That may not be something that I would choose, but that was his absolute choice—I have no doubt whatsoever. He said that to the team who had been looking after him when he first broached the subject, and I think they first of all thought he was not terribly serious. Then, when they realised he was, he said, “It’s my life, it’s my death—I want to choose.” I think that is what it is all about: allowing people that option to choose.
Kim Leadbeater
Q
Prior to your personal experience, you might have had a different view or friends and family who had different views. For me, speaking to people who have had the experiences you have had, it becomes very clear that we have problems with the law as it stands, or the lack of the law as it stands. Would anybody like to share their own journey about that?
Pat Malone: From my standpoint, I did not give it a lot of thought until it started impacting on the family. But I understood exactly why my sister and my brother committed suicide. I would hope that this Bill could be enacted when my time comes.
Liz Reed: I had not given it a huge amount of thought; I am relatively young. I suppose if I was asked at the time I would have said, “Yes, sounds fine,” but I think I had also grossly misunderstood what it would mean for someone to go to Dignitas. There is a flippant comment that goes around—I can remember my dad saying it: “Oh, I’ll just go to Switzerland.” It is just not that easy. People I know and have met, like Pat, have had family members go to Dignitas, and it is actually a deeply traumatising experience. People’s lives are cut much shorter, they cannot enjoy their time and so on. I absolutely agree that I had not given it much thought.
I remember, on the day my brother died, getting back to where we were staying; I sat there and thought, “What would have happened to him?” I wrote to my MP, to say, “Hello, I am just wondering what would have happened, out of interest.” That is how I got involved. Had he been here, what would have happened to him and how long would he have had to limp on? You hear enough stories of people begging to die at the end of their lives, and I am really thankful that he did not have to.
The Chair
May I offer all three of you the collective condolences of everybody on the Committee? I thank you for your bravery in attending today and for speaking to us. Thank you very much.
Hon. Members
Hear, hear.
Examination of Witnesses
Dan Scorer, Professor Lewis, Dr Mulholland and Dr Price gave evidence.
The Chair
We will now hear oral evidence from Professor Emyr Lewis, emeritus professor at the department of law and criminology at Aberystwyth University; Dr Michael Mulholland, honorary secretary at the Royal College of General Practitioners; Dr Annabel Price, from the Royal College of Psychiatrists; and Dan Scorer, head of policy, public affairs, information and advice at Mencap. Could you please introduce yourselves, so that we know who you are before you start giving evidence?
Dan Scorer: Hi. I am Dan Scorer from Mencap, the learning disability charity. We work across England, Wales and Northern Ireland. We support 4,000 people with a learning disability with their care and support needs, as well as providing information and advice services across the three countries. We also campaign for better support for people with a learning disability, and their families, across health, social care, employment, social security and cost of living.
Dr Mulholland: Hi. I am Michael Mulholland. I am a GP in Buckinghamshire and the honorary secretary of the Royal College of General Practitioners, the professional membership body for general practitioners. We have 54,000 members across the UK.
Our current position as a college is that we oppose a change in the law regarding terminally ill adults; that was ratified by our council in 2020 when we last had a survey of the membership. Seeing that there were changes in the legislative landscape across the UK in 2023, our council asked for a group to be convened to look at where our college should be going. We created a committee that looked at that and created a list of principles, which I will be referring to in any evidence I give today. In our council, we are currently undergoing a review of what our position should be. We have a membership survey that is live at present, and we will be bringing that to our council in March this year to decide the college’s position.
Professor Lewis: Hello, I am Emyr Lewis. I am a lawyer from Aberystwyth University, and I am here to talk about the legal and constitutional aspects relating to Wales that arise from the Bill.
Dr Price: Good afternoon. My name is Dr Annabel Price. I am here representing the Royal College of Psychiatrists, a professional medical body responsible for supporting psychiatrists through their careers, from training through to retirement, and I represent 21,000 members.
I am an old-age liaison psychiatrist, working in a general hospital setting. I also provide psychiatry input to my local hospice, and I teach palliative care at the University of Cambridge. I have a research background in mental health at the end of life, and particularly mental capacity for terminally ill adults requesting assisted dying.
The Chair
Thank you. Liz Saville Roberts, Danny Kruger has kindly forfeited a question in order for you to have two, so I will call you first.
Liz Saville Roberts
Q
Professor Lewis, I am glad to say that the Committee appreciates that scrutiny is necessary for Wales-related aspects of this private Member’s Bill. What are the risks of insufficient scrutiny?
Professor Lewis: Because this is a private Member’s Bill, it will not have gone through the process, which a Government Bill would have done, of having discussion between Governments as to how this might be sorted out. That impacts on Wales. So it is really important to have a session that focuses, albeit briefly, on Wales. I am grateful to the Committee.
This is an England and Wales Bill because certain criminal offences are matters on which the Senedd in Cardiff cannot legislate, and that includes offences that relate to suicide. However, apart from that, the impact of the Bill on devolved matters, if it became law, would be substantial—on the health service in Wales, on social services in Wales and on Welsh society generally. It is important that you take account of that. Indeed, certain aspects of the Bill seem to me to require a legislative consent motion to respect the Sewel convention.
Liz Saville Roberts
Q
Professor Lewis: As I am sure you are aware, the Parliament here in London can legislate about anything at all—absolutely anything. However, where the power to legislate is given to the devolved legislatures, the Sewel convention states—in the Government of Wales Act, in section 176, I think—that the Parliament in London will
“not normally legislate with regard to devolved matters”.
That is what is said. Therefore, there are certain aspects of this Bill—I will give you brief detail on that—that, in my opinion, relate to devolved matters. The first is clause 32. This is a very broad clause that would give the Secretary of State very broad powers for the implementation of the Bill within the NHS, including within the NHS in Wales. It seems to me unarguable that that is a matter both on which the Welsh Government ought to be consulted and which would require legislative consent from the Senedd.
The second is a cluster of clauses that impose specific functions on Welsh Ministers and on the chief medical officer for Wales. They are clauses 31, 33 and 34. Once more, from a formal perspective, they seem to require a legislative consent motion, so it seems to me that some thought needs to be given as to how that might happen in the context of a private Member’s Bill.
Sarah Green
Q
Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.
I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?
Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.
I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.
Sarah Olney
Q
“is not sufficient for the purposes of this Bill.”
Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?
Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.
We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.
As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.
One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.
Dr Tidball
Q
Dan Scorer: There are two key concerns I will touch on. One was covered just at the end of the last session, with the question about preliminary discussions, and that is certainly a key area that we have concern about, about how that initial conversation is initiated and structured. For us, that really leads into a conversation around rights to advocacy. It would be extremely concerning if people with a learning disability who were terminally ill were not fully prepared and supported for that discussion.
For us, this links into the experiences that we had during the pandemic, which were touched on in yesterday’s evidence session by Dr Griffiths and others. We had people with a learning disability who were being consulted by medical professionals about “do not resuscitate” or “do not treat” decisions, and they were not being properly prepared for or supported in those discussions. Indeed, in one of our own care services, we had someone we support who was called up by a GP and asked whether she would want the kiss of life. The GP was trying to explain it to her excessively and she said, “No, of course not. I would not want to be kissed by someone I do not know.” Potentially, a “do not attempt CPR” notice was put in place. That example just shows the importance of preparing and supporting people for such discussions, so we want to see a right to advocacy included within the Bill to support people considering their end-of-life options.
Also, building on the previous question about the adequacy of the Mental Capacity Act, there is a question about the adequacy of training, awareness and compliance with that Act now. That is a huge issue that has been addressed, for example, through the Oliver McGowan mandatory training on learning disability and autism, which is rolling out across the NHS and social care services at the moment. However, in addition to the MCA, we also need to make sure that clinicians fully understand the Equality Act and the NHS accessible information standard about rights to information and support for disabled patients.
On clause 5, on training, we want to see much more specificity about the level of training that clinicians would have around the Mental Capacity Act and to make sure that they are fully aware of their responsibilities to make reasonable adjustments for patients, and to support them with understanding their choices around end-of-life care, which could include assisted dying.
Sojan Joseph
Q
“Mental disorders, such as depression, are more common in people nearing the end of their life. Delirium is more common… Hopelessness is a common symptom of depression…And people’s capacity and consent can be affected when they are going through this condition.”
In the last few days, we have heard much evidence that expressed concern about capacity assessment and that said, as Dan mentioned, there should be an advocacy service available. Rather than having the current model of two doctors and the court, if we have a panel with experts on it who can consider psychosocial assessment and capacity, would that make the Bill stronger, with more safeguarding being introduced to it?
Dr Mulholland: Sorry—can I check whether that was a question for me at the Royal College of GPs or a question for the Royal College of Psychiatrists, because I think that statement was in their evidence?
Sojan Joseph
The evidence is from the Royal College of Psychiatrists, but anybody can answer the question.
Dr Mulholland: As GPs, we feel that we need a stand-alone service to take people through this process for assisted dying. We do not feel that the GP is in a place to make an assessment of capacity for this process. That is beyond anything that any of us have ever trained in or understood, and it will need people who are trained in assessing capacity at that point. As GPs, we are very used to assessing whether somebody has the capacity to take a course of antibiotics or to be referred for something that we understand, but this is an issue that will require a much deeper level—the Royal College of Psychiatrists has probably thought more on that level about the next steps.
Dr Price: Yes; to refer back to the written evidence, if we think about people with palliative care needs towards the end of life—so the people who would qualify under this Bill—around 20% will have diagnosable depression, around 10% will have a wish to hasten death, and around 4% will have a more persistent wish to hasten death. Those wishes may not be expressed unless they are assessed for. One of the things that I would do in my clinical practice would be to look for treatable mental disorder in people who express a wish to hasten death.
I do not do that alone. You asked about a panel. When I am thinking about the needs of people who are nearing the end of life, and I work with people nearing the end of life most weeks of my working life, I work in a multidisciplinary team. My own small team comprises doctors, nurses and occupational therapists, but I work closely with social workers, the safeguarding lead, chaplains and all my medical and surgical colleagues to make good decisions about my patients in a biological, psychological and social way. Not all difficulties that are psychological can be fixed with a psychiatric intervention.
We would advocate as a college, and I would suggest as a clinician, that good decisions about our patients’ needs are made in a multidisciplinary way. That should be considered in the model of how to meet people’s needs in whatever way they present, but particularly for people who have difficulties and are suffering in a way that makes them feel that they do not want to continue living.
The Chair
In the interests of time, to allow everybody to ask their question, will Members indicate which of the panel members they would like to answer so that only one gives an answer? That allows everybody to get in.
Tom Gordon
Q
Dr Mulholland: That is something we have been thinking about carefully at the RCGP. Part of our normal discussion will often open it up for patients to lead discussions around their end of life. We see there could be potential restrictions for that clinical consultation with a gag order. We very much follow the opinion I heard from Dr Green from the British Medical Association earlier in the week. We go along with that.
We are very protective of our relationship as GPs, and want to give patients the options that they might want to choose for themselves. We are not usually pushing anyone to any decision, but supporting them through their end-of-life journey. We would want to protect that in whatever way, so we therefore feel that a service we can signpost to would be the most appropriate thing as the next step.
Dr Price: As a psychiatrist and as a representative of the psychiatric profession, it is noted in the Bill that mental disorder is a specific exclusion. It is very unlikely that a psychiatrist would suggest or bring up assisted dying in a conversation.
I think a concern allied to that is people with mental disorder who request assisted dying from their psychiatrist. It may be clear to all that they do not meet eligibility criteria for that, but it is not absolutely clear in the Bill, as it is written, to what extent a psychiatrist would have to comply with a wish for that person to progress to that first assessment. There is quite a lot involved in getting to that first official assessment, such as making a declaration and providing identification. A psychiatrist might therefore have to be involved to quite an extent in supporting that person to get there if that is their right and their wish, even though it may be clear to all that they do not meet eligibility criteria if that is the primary reason for their asking to end their life.
Jack Abbott
Q
Dr Price: If I take you to thinking about what an assessment of capacity would normally look like, if we think about clinical practice, a psychiatrist would normally get involved in an assessment of capacity if the decision maker was unclear about whether that person could make a decision. The psychiatrist’s role in that capacity assessment would be to look for the presence of mental disorder, and at whether mental disorder was likely to be impacting on that person’s decision making. They would advise the decision maker, and the decision maker would then have the clinical role of thinking about that information and assessing capacity with that in mind.
Psychiatrists sometimes assess capacity and make the determination, but it is usually about psychiatric intervention and issues that are within their area of clinical expertise, such as care and treatment, capacity assessment around the Mental Health Act 1983 and whether somebody is able to consent to their treatment. In the Bill, I am not absolutely clear whether the psychiatrist is considered to be a primary decision maker on whether somebody should be eligible based on capacity, or whether their role is to advise the decision maker, who would be the primary doctor or one of two doctors.
Should a psychiatrist be involved in every case? If there is a view that psychiatric disorders should be assessed for, and ideally diagnosed or ruled out, in every case, a psychiatrist might have a role. If they are seen as an expert support to the primary decision maker, that decision maker would need to decide whether a psychiatrist was needed in every case. We know from Oregon over the years that psychiatrists were involved very frequently at the beginning of the process, and now they are involved by request in around 3% of completed assisted dying cases. We do not have data on what the involvement is across all requests.
Dr Opher
Q
Dr Mulholland: As GPs, we can assess capacity. In this situation, the college’s position would be that we feel the GP should not be part of the assisted dying service, so we would see a standalone service that we can signpost our patients to. The GP role may go on to a different route afterwards, and it may be part of other things with palliative care and looking after the families. We think that some GPs may want to be involved and take that step, but we know from our membership surveys that we have had at least 40% of members in the past who would absolutely not want to have any part in that.
Similar to other services, such as termination of pregnancy, we think that the best option would probably be that the GP could signpost to an information service, such as something like what the BMA suggested the other day. They would not have to do anything more than that, and they would not withhold any option from the patient. We could discuss that these things exist, but we would not be doing that capacity assessment. Obviously, to give patients information about what they are going to, as you know, we would assess their capacity to take that information in, retain it and do the right thing with it for them. We would be doing that level of capacity assessment, but not further on in the process, where you are assessing whether a patient is able to make a final decision. I think Chris Whitty referred to the various levels of capacity. As the decision gets more difficult and complex, you want a greater understanding with the patient that they really know the implications of what is going on, and we just would not be doing that in general practice.
Daniel Francis
Q
Dan Scorer: The Mental Capacity Act starts from the principle of presuming capacity. The question would be whether, when someone who is terminally ill puts themselves forward for assisted dying, doubts start to emerge about whether they actually have the ability to make that decision in terms of whether they can understand, retain or weigh the information and communicate their intentions.
As I mentioned earlier, our concern is how those discussions around assisted dying are initiated. For many people with a learning disability who are terminally ill and in an incredibly vulnerable position, doctors are very important and influential figures. Having a doctor come to you and say, “What do you think about assisted dying—is that something you might want to consider?” could move them towards or into potentially accepting a course of action that they had never considered before.
That is why I was saying that it is about having advocacy support around that discussion and, as you were saying, about the role of families. Individuals should be able to choose who supports them with those discussions, whether it is friends or family members or an independent advocate—that would probably be our preference—who is specifically trained to support people with a learning disability who are considering their end-of-life options.
There is a lot that could be done in addition to what is in the Bill already to potentially much better support people who are considering end-of-life options and to have other professionals who could input into multidisciplinary discussions, potentially around capacity assessment.
Kim Leadbeater
Q
My question relates to point 15 in your written evidence, around the Human Tissue Authority. This is a model I looked at in terms of the decision making on coercion and capacity around people involved in organ donation. Can you tell me a little about that, and whether you think that there are parallels? It is a very serious decision, so we are in that territory. This is about what that looks like and what the role of psychiatrists is. We have talked a little about this already, but if we were to take this multidisciplinary approach, which I think is really powerful, what should the role of psychiatrists be?
Dr Price: On the role of an oversight group, one of the risks with individual practitioners doing these sorts of assessments is that they may do it once or twice in their career. What we know is likely to happen is that a smaller number of practitioners will do lots of assessments and build up individual expertise. However, it might be that a particular practitioner does this only for a patient who they know, or only a few times. Therefore, in terms of building up through repetition the sort of expertise that somebody such as me might have in the mental healthcare of an older person—thousands of patients over a couple of decades—an external group that understands the standards and the process should be able to scrutinise things at the time.
There are a number of bodies that do that not just for organ donation, but across lots of different services. We have them for liaison psychiatry, and they might have them for electroconvulsive therapy services, for example. They are not extraordinary or unusual, but they ensure that there is some consistency and reliability and that the assessments are of a standard. Scrutinising assessments after somebody has completed the process is useful for everybody who comes afterwards; it may not ensure that the quality was there for that individual. That would be the rationale for that sort of approach. Forgive me, but would you ask me the second part of your question again?
Kim Leadbeater
Q
Dr Price: I do not have lots of individual experience with that group, because I do not work within a specific service. But it is an example of a model that is in operation, and hopefully I have described the sorts of characteristics and why they are there.
Dr Shastri-Hurst
Q
Dr Mulholland: We are aware that we have a range of views in RCGP across general practitioners. Some of them have very strong views for or against based on moral grounds, and some of those are based on religious grounds—traditional conscientious objection grounds. But others do not want to take part in assisted dying just because they do not want to; they do not feel it is part of what being a GP is, or part of what they trained for.
In discussion with colleagues today, someone shared with me that for 35 years they have spent their time trying to extend the life of patients—that has been our role—and to help them towards the end of life. It is a philosophical change if they start to think about whether the patient’s life should end earlier. There are some colleagues who may decide that for those reasons, they do not want to take part in this. There will be others who very definitely do. We have that range, so we feel that a doctor or a health professional should have the right not to take part on any ground, and that should be protected—they should not feel the obligation to do something that they do not feel is within their wishes.
Naz Shah
Q
Dr Price: There is a lot of research evidence around depression in people with palliative care needs and people nearing the end of life. We know that depression is common, and across a number of studies it is at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death, and that if depression is found and treated in that group of patients, there will be significant change in the wish to hasten death.
There are a number of associations other than depression with a wish to hasten death, and they include difficult symptom experience, poor functional status—needing a lot of help with things—and being socially isolated. Those are really key ones. They also include a sense of loss of dignity and feeling like a burden on others. These things can all come together to make life feel very unbearable. We know that there is also an overlap between a wish to hasten death, which is a response to suffering, and feeling that one is better off dead, ending one’s own life or harming oneself. I was involved in a study where we asked people both the wording of “a wish to hasten death” and the suicide question from the PHQ9, which is a depression screening tool. Those who had a wish to hasten death were 18 times more likely to also feel suicidal, according to the psychiatric definition, than people who did not have a wish to hasten death. There is a strong association.
Lewis Atkinson
Q
“the more serious the decision, the greater the level of capacity”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30, Q3.]
and that it is used in tens, if not hundreds, of life and death cases in the NHS every week. The example he gave was someone refusing blood products that they would need to continue their life. In the light of that, I suppose I am a bit confused about your evidence saying that the MCA is not suitable for life or death decisions of this type. Do you think the MCA is not fit for purpose for those current life or death decisions that are being made, or is there something about the life or death decisions that would be made in an assisted dying context that makes that different?
Dr Price: The assumption that the Mental Capacity Act can translate neatly into this specific decision without a really clear sense of what that would look like in clinical practice is something that needs more careful thought.
I was involved in research in this area, and one of the things that I did was to scrutinise the concept of capacity as discussed in a number of forums—for example, the Commission on Assisted Dying, discussions in the House of Lords, and also interviews with doctors in England and Wales and in Oregon. There is a broad sense of what capacity is. For some, it is a very tight, cognitive definition that would mean that in practice, in assisted dying, most people would be found to be capacitous. Those who advocate a much broader sense of what capacity is—these can be contained within the framework of the Mental Capacity Act—would advocate a much broader sense of what that is, thinking about values and the person’s life experience and making more judgments, really, about that person’s life in a general sense.
What I do not think we have really pinned down is what concept of capacity is operating in the thoughts behind this Bill. Is it enough to say that we will essentially refer to the Mental Capacity Act, or do we need to be more specific about what is capacity for this decision? Is it sufficient to say, “We will refer out”, or do we need it on the face of the Bill so that anybody assessing capacity for this decision knows exactly what they should be doing and exactly how they should be having that conversation? Even though you may be operating within a legal framework, I think that the actual conversation —the actual content—will vary across practitioners. Is that good enough? Is that sufficient? Is that a good enough standard? When I do a capacity assessment, I have in mind that it may be appealed against—that is somebody’s right—and it should be available for scrutiny by a court. Essentially, that is the standard we are looking for, so it needs to be clear where the standard lies.
Kit Malthouse
Q
You talked about a percentage who wish to hasten death. The people we are talking about are facing death in any event within a foreseeable period, and they may be contemplating a death that is not pleasant. Some of the characteristics you talked about are presumably to be expected and may not necessarily interfere with their ability to make rational decisions in what they believe is their own best interest. In those circumstances, I do not understand why the Mental Capacity Act would not apply. I understand that you may be coming at it from a practitioner point of view, but if I make a decision to decline treatment to hasten my own death, I am not sure I would necessarily see that as qualitatively different, from the point of view of my own capacity, from saying, “I know I am going to die in three months’ time and I would like you to assist me to die slightly earlier.” Why are the two qualitatively different, from an MCA point of view? At the moment, one would be dealt with through the MCA, but you are saying the second would not necessarily be.
Dr Price: You are equating a refusal of treatment, in capacity terms, to hastening death by assisted dying. If those two things are equated, in terms of the gravity and the quality of the decision, the Mental Capacity Act may well be sufficient, but there are differences. There are differences in the information that the person would need and what they would need to understand. They would need to be able to understand the impact of the substance they are taking and what the likely positives and negatives of that are—all of those things.
The informed consent process is different from a refusal of treatment, and the informed consent process feeds into the capacity assessment. This is an area where we need to think carefully about whether the processes of the Mental Capacity Act, as it stands, map neatly enough on to that decision to make it workable.
Rachel Hopkins
Q
Dr Mulholland: The shape of the service is not set out in the Bill. We would say that GPs need to have a space where they can step away from it: that is the key point that we want to get across. For those who want to take part, it may be that they decide to do it, but it would have to sit outside the core general medical services that we provide at the moment. This is an additional thing; this is not part of our core job. We think that a separate service—it may not just be GPs; there may be lots of different practitioners and health professionals involved —would sit better with that. You could then assess the capacity and assess those other parts that are so important and are in the Bill at the later stages.
The GP may have a role, but that would be very much up to the individual GP to decide. It would not be set out that they should be taking part. They would then probably be part of this additional service to which the others who are not taking part could signpost. We just want to make sure that there is that clear space.
Danny Kruger
Q
Dr Mulholland: Fortunately, that is not the RCGP’s bit, but I think we would be very much concerned. In our principles, we were clear that we thought that there should be no reduction in core services in general practice, nor should there be any reduction, if the Bill goes through, in funding to palliative care services, which we know are often struggling as well. This should therefore be additionally funded. Whether it occurs in the NHS is not our decision, but we would be very concerned about health inequalities creeping into any part of the health service. We are aware of the differential that occurs in lots of things—life expectancy has come out again in recent reports between different parts of the country and people who live with different levels of poverty. If the Bill comes through, we will want to make sure that there is not a differential in who is able to access it. Whether that says that it should be NHS or private I am not sure, but that needs to be considered as part of whatever comes out of this.
Dr Opher
Q
Dr Mulholland: We see a lot of people with mood disorders of different types and of different severities. Many people with depression who are treated with antidepressants carry out full-functioning jobs and lives because of the treatment that they have and because their depression is not of that severity. If someone had very severe depression and we were accessing our psychiatric colleagues, that would be a different decision, and perhaps it is not something that would happen at that point. Most people with depression, anxiety and other mental health problems would have capacity, because we would presume it under the Mental Capacity Act, so it is not necessarily an obstruction to people being referred for anything.
Kim Leadbeater
Q
On capacity, just to reflect on the previous panel, my view is that psychiatric assessment would not be necessary in every case. We have heard from three families this afternoon; we can probably all agree that there was a clear wish from those individuals that this was the choice they wanted to make. I agree with the colleague who said that there will be a percentage of people; that is why I think referral to a psychiatrist is important in those cases. Have you any more thoughts on that, Dr Mulholland?
Dr Mulholland: As GPs, yes, holistic care is what we do—whole-person, biopsychosocial care. If we got into an end-of-life discussion with a patient and they expressed a wish to go through a route of assisted dying, should that be legal, that might still be part of a discussion that we would have with them. It is the active part of the process. The BMA referred to the word “refer”—referring to a colleague, for those who did not want to do it. We agree that signposting is a better process.
We would not want to be out of the patient’s life. It is very difficult to be out of a patient’s life, but it may be that we are not part of that particular aspect of their care. It is the same when we refer to surgeons and hospitals; they have an episode of care elsewhere. This would be another episode that someone might be undertaking for that person. We will still have the families that we are part of; we will still be caring for them as well. We do not see them leaving general practice or general practitioners, but the assisted dying part of their health journey, or death journey, would perhaps be outside some people’s experience or expertise. You would need experts and people trained in it to be doing it, and not necessarily every GP.
Dr Price: No matter what somebody’s reason is for entering the process or what the outcome is, we are very clear that anybody should be able to access really good evidence-based care so that this should not in any way derail, deflect or make people not think about really good care. People should get really thorough assessments, have the right professionals involved in their care and have treatment where they need it and would benefit from it. All the quality that we have and all the guidelines that we work to should still be adhered to. We should still be providing all of the other good-quality care that we can. It is important not to bypass that and not to take shortcuts because they have made that decision.
The Chair
There are three people left who want to ask questions, so can I beg for brevity?
Naz Shah
Q
“The very act of raising assisted dying in that way will make that vulnerable patient think, ‘God, is this doctor telling me that my life is not worth living any more?’”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 75, Q93.]
We heard from Dr Jamilla Hussain yesterday. She talked about mistrust of the NHS, particularly post-covid, where people had DNRs attached to them—disabled people and people of ethnic minority backgrounds in particular. Dan, are you concerned about the potential impact on people with learning disabilities?
Dan Scorer: Yes. One of the first things that I said earlier was about how the initiation of that first conversation is potentially an extremely risky and dangerous moment for people with a learning disability who are terminally ill. Your question is absolutely spot on, from the point of view that it could be highly suggestive and push people on a course that they may not want to go down. That is why I am suggesting that that initial conversation has to be incredibly well supported and structured.
There should, in our view, be an advocate who is supporting the person and preparing them for that discussion. Under the principles of the Mental Capacity Act 2005, the person should have accessible information in advance of that discussion so that they are fully informed about all their rights in terms of treatment options at end of life. That discussion with a clinician should not be taking place until the person has been able to consider that information and have support from an advocate, so when the conversation does happen the person is fully informed and has had time to think about what their wishes might be. That would reduce the risk, which is absolutely there, that people could take the initiation of that discussion as a statement, “This is what you should do.” We absolutely do not want people to be in that position. We want strong safeguards and support in place if the Bill becomes law.
Dr Tidball
Q
Dan Scorer: There are a couple of things that I would like to say in response. One is about clause 31, on guidance from chief medical officers. Immediately, I would say that people with a learning disability should be involved in the development of that guidance from chief medical officers. That guidance will be key to many of the issues that we have discussed.
Clause 35 is about the review of the Act. The lived experience of people is absolutely vital to that. The Bill says that it will be five years until we have that review. Our view is that that is far too long. If the Bill becomes law and if there are really serious issues and discrimination taking place against people, we will want to know that a lot earlier than in five years’ time, and we will want action to be taken. Our suggestion is that review should be earlier. We would want to see strong representation from patient groups across that, as well as from people who have been involved in the process, such as family members, advocates and clinicians, to make sure that if serious issues are being raised, they can be picked up early and addressed.
Lewis Atkinson
Q
Although it is not my area, I absolutely note the concerns and the discussion about respecting the democratic will of the Senedd in these matters. Would you suggest any potential avenues in the Bill to incorporate an element of positive affirmation by the Senedd, or its consent? What do you suggest we look at?
Professor Lewis: Formally, there is a need in any event for a legislative consent motion in relation to the specific bits I mentioned earlier, I have suggested one potential avenue, which is that the Senedd and Welsh Government take on responsibility for whether and when the Act commences in Wales. Another option might be to do a thorough “think once, think twice, think Wales” review to see to what extent other functions of the Secretary of State might be better exercised in Wales by the Welsh Ministers. That is a non-exhaustive list, but I hope it helps.
Naz Shah
Q
Dr Price: The evidence that we have from research—this is in populations who would fulfil the criteria in terms of terminal illness—is that the prevalence of depression is around 20%. That is across a number of populations. It is associated with a wish to hasten death. Depression might impact upon that person’s decision making; I am not saying that it absolutely would, but it might. Also, treatment might change their view. We know that there is a strong association, for example, between pain and a wish to hasten death. Unresolved physical symptoms make people want to die, and when that pain is better, people no longer feel that way.
That is borne out in my clinical practice. We will get urgent referrals to see somebody who wants to die and who they are very concerned about. Then the pain is under control: we see them that day or the next day and they say, “Do you know what? The pain’s better. I don’t feel like that any more.” When we think about symptoms, we need to think carefully about what is treatable and what is remediable. That may be about psychiatric interventions, but it is often about a biological, psychological and social approach.
The Chair
May I thank the panel for giving evidence today? We really appreciate your attendance.
Daniel Francis
On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.
We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.
I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.
I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?
Sarah Sackman
Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.
The Chair
I am going to proceed now. I thank the hon. Member for Bexleyheath and Crayford for notice of his point of order. I am sure that the Member in charge and the Government have heard his points. If he wishes to look at procedural options, he should consult the Clerks in the Public Bill Office.
That brings us to the end of today’s sitting. The Committee will meet at 9.25 am on Tuesday 11 February to begin line-by-line consideration.
Ordered, That further consideration be now adjourned. —(Bambos Charalambous.)
Terminally Ill Adults (End of Life) Bill (Eighth sitting)
Tuesday 11th February 2025
(2 months, 2 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 February 2025 - (11 Feb 2025)
The Chair
Will everyone ensure that all electronic devices are switched off or to silent mode? We now begin line-by-line consideration of the Terminally Ill Adults (End of Life) Bill. The selection list for today’s sitting is available in the room and on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped together for debate.
I remind the Committee that a Member who has put their name to the lead amendment in a group is called first or, in the case of a stand part debate, the Member in charge, Kim Leadbeater, will be called to speak first. Other Members are then free to indicate that they wish to speak in the debate by bobbing. At the end of the debate on a group of amendments and new clauses and schedules, I shall call the Member who moved the lead amendment or new clause again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or the new clause, or to seek a decision. If any Member wishes to press any other amendment—including any of the grouped new clauses and schedules—to a vote, they need to let me know. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debate on relevant amendments.
I hope that explanation is helpful. If any Member wishes to make a declaration of interest, they can do so now.
Daniel Francis (Bexleyheath and Crayford) (Lab)
On a point of order, Ms McVey. Yesterday, members of the Committee received notification that, in the last week, we have received a further 242 pieces of written evidence and 159 pieces of correspondence. Last week, I had read every word of the original 110 pieces of written evidence and 56 pieces of correspondence, as well as studying all the amendments and tabling amendments of my own. As I said, however, more than 400 pieces of evidence and correspondence have been uploaded during the past week, with no deadline by which further such evidence needs to be submitted. Given the large number of evidence submissions every day, Members may well struggle to keep abreast of it and be able to say that they have read every piece of correspondence before the tweaking of the Bill.
I find it difficult to believe that any member of the Committee has been able to read all the evidence submitted since last Tuesday. For instance, the written evidence submitted by the chief executive of my local hospice, which she blind-copied me into on 20 January, was available for members of this Committee to read on 7 February, 17 days after she submitted it. That suggests that, as well as Members struggling to keep up, the Clerks are struggling to keep up. Given the sheer volume of evidence, we will not be able to consider it fully before line-by-line scrutiny.
I therefore seek your advice, Ms McVey, on how we can reasonably expected to begin line-by-line scrutiny when in the last week we have been presented with more than 400 documents, in addition to new amendments.
The Chair
I thank the Member for making that point of order. It is normal practice for evidence to come in, and for it to be submitted as it comes in. However, due to the large amount of evidence and its substance, and to the importance of the Bill and this line-by-line scrutiny, I will seek the advice of the Clerk and will come back to him.
Naz Shah (Bradford West) (Lab)
Further to that point of order, Ms McVey. My concern is about written evidence that has been submitted but not yet read—I have certainly not been through the last batch of evidence that we have had. How do we proceed when, for example, we might have gone through clauses 1 and 2, or even up to clause 4 or 5, and we receive evidence related to those clauses? We will have already discussed them in Committee. We have been told we will only get five hours on Report, while on Second Reading more than 100 MPs, including me, were unable to speak. The evidence could inform amendments. I am struggling to understand how this will be workable. I would value your advice.
The Chair
I am pleased that people feel they are free to make those points. It is for the Committee to decide how fast to move through the Bill.
Sojan Joseph (Ashford) (Lab)
Further to those points of order, Ms McVey. I also assume that we are expecting more written evidence to come through. We Committee members are here for the whole day. I hear you say, Ms McVey, that this is normal practice, but considering the importance of the Bill, I assume there will be a lot more written evidence by the end of today. It would be good to consider how Committee members are able to go through that written evidence before we come back here tomorrow morning.
The Chair
As I expressed before, it is for the Committee to decide. Should Members feel they have not had enough time, it is for the Committee to raise a point on that. Should people wish to have an adjourn, they could move that and the Committee would vote on it.
Danny Kruger (East Wiltshire) (Con)
Further to those points of order, Ms McVey. I am grateful for your guidance, and I acknowledge your point that normal process is being followed in this Committee.
Nevertheless, further to the points made by hon. Members, last night we heard through the media that a very substantial change to the Bill will be introduced. We have not yet seen those amendments proposed by the hon. Member for Spen Valley, but we look forward to doing so. This goes to the same point: we are being asked to start line-by-line scrutiny today of a Bill with a huge amount of evidence that we have not yet been able to digest. Furthermore, substantial changes to the Bill that we voted on at Second Reading are being tabled. I appreciate that the process allows amendments to be tabled at any time through the course of the Bill as long as the clause is still ahead. Nevertheless, I value your guidance on whether it might be appropriate to seek an Adjournment so that we can consider the additional evidence, but also allow the hon. Member for Spen Valley to table her amendments, which change the whole scope of the Bill as voted on at Second Reading.
The Chair
I thank the hon. Member for his point of order. As I said, the Committee would have to move and vote on an Adjournment. These are significant points of concern and alteration for the Bill, but that is for the Committee to decide.
Sean Woodcock (Banbury) (Lab)
Further to those points of order, Ms McVey. My point of concern is similar to the one just raised, and is about the fact that on Second Reading a key plank of this proposed Bill was about the role of the High Court judges. We are aware of an amendment coming via the promoter of the Bill, my hon. Friend the Member for Spen Valley, to remove that completely and replace it with something else. I suggest that a lot of the evidence that we have seen, including the new stuff that has been mentioned by my hon. Friend the Member for Bexleyheath and Crayford, is based on the expectation of there being a High Court judge in that role; not on there being a new amendment. I suggest that we are missing vital perspectives on the way that any new amendment, and the Bill going forward, would work in the light of that. That is my concern.
The Chair
It is important that everybody has got their point on the record, and that they have said and raised their concerns.
Kit Malthouse (North West Hampshire) (Con)
Further to those points of order, Ms McVey. First of all, it is worth saying that the amendments tabled by the Bill’s promoter, the hon. Member for Spen Valley, are in response to evidence that has been heard by this Committee—oral and written. Certainly the Bill Committees that I have been on have had repeated information coming in as the Bill has evolved. That is an actual process.
It is worth also pointing out to Members that the Bill Committee is not the end of the process, and written evidence that will arrive throughout will be pertinent on Report, when the whole House will have that information available. Then members of the Committee can lead the debate and reflect on information or written evidence that has emerged even after Committee stage, once the completed Bill from that process is seen. It is perfectly possible for this to evolve as we get to Report and Third Reading in the light of evidence that arrives. That is the normal process through which all legislation goes.
Kim Leadbeater (Spen Valley) (Lab)
Further to those points of order, Ms McVey. I take on board people’s comments. There’s no two ways about it; this is a considerable amount of work for members of the Bill Committee to undertake. As has been alluded to, there are a wide range of amendments being proposed. The job of the Committee is to take evidence, look at those amendments, discuss and debate them, and then vote accordingly. That is the process that we are all here to undertake.
Kim Leadbeater
I beg to move amendment 178, in clause 1, page 1, line 3, after “person” insert “in England or Wales”.
This amendment provides that only persons in England or Wales may be provided with assistance in accordance with the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 179, in clause 1, page 1, line 13, after “provided” insert “in England or Wales”.
This amendment limits the assistance that may be provided in accordance with the Bill to assistance in England or Wales.
Amendment 180, in clause 1, page 1, line 20, at end insert—
“(3) The steps to be taken under sections 5, 7, 8 and 13 must be taken—
(a) when the terminally ill person is in England or Wales, and
(b) in the case of the steps under sections 7 and 8, by persons in England or Wales.”
This amendment provides that steps under clauses 5, 7, 8 and 13 must be taken by and in respect of persons in England or Wales.
Amendment 182, in clause 4, page 2, line 21, after “person” insert “in England or Wales”.
This amendment limits subsection (3) to cases where the person is in England or Wales.
Amendment 193, in clause 7, page 4, line 8, at end insert—
“(ca) is in England and Wales,”.
This amendment, which is consequential on Amendment 178, provides that the coordinating doctor must ascertain whether, in their opinion, the person who made the first declaration is in England and Wales.
Kim Leadbeater
It is a great pleasure to serve under your chairship, Ms McVey, in this very important stage in the consideration and detailed scrutiny of the Bill.
We are discussing assisted dying for terminally ill adults who have a clear, settled and informed wish to end their own life, and who have not been subjected to coercion or pressure from anybody else to do so. These are very serious matters and deserve serious consideration, which is why I was determined that this Bill should have an unprecedented level of scrutiny. We have heard from a range of over 50 witnesses with differing views on the Bill and have received written evidence from many, many more.
I am grateful to everyone who has contributed in such a thoughtful and constructive way. It has been widely remarked—and I wholeheartedly agree—that the Second Reading debate on 29 November last year, when the House approved the principle of the Bill by a majority of 55, showed Parliament at its best. I hope and believe that this Committee, as it goes through the Bill line by line, will do so in the same considered, respectful and measured manner.
Danny Kruger
I completely endorse that last point made by the hon. Lady. Does she remember how many Members on Second Reading—including, I think, herself—made reference to the judicial stage of the process and specifically to the High Court judge? Over 60 colleagues have stated on the record that they voted for the Bill on Second Reading because of that safeguard. Does she acknowledge that point?
Kim Leadbeater
I do acknowledge that point—absolutely, as I have acknowledged, the role of a High Court judge is really important in this process. That role will remain with the amendment I have tabled. It will also take account of the very clear evidence we received during the oral evidence sessions from psychiatrists, social workers and other professionals who feel that they have an important role to play in this process. Indeed, I heard the hon. Gentleman say he agreed with that on the radio this morning. It is very important that we hear from those experts. There is no point in having witnesses if we do not listen to what they have to say.
The Chair
Order. I remind Members that they should keep to the amendments being debated.
Kim Leadbeater
Thank you, Ms McVey.
I hope and believe that the Committee will take the same considered, respectful approach that we have taken previously. We have been asked by the House to look at where the Bill can be improved and to amend it, so that Parliament can be presented with a piece of legislation that is robust and workable in order to meet the objectives it is designed to achieve. Most—if not all—the amendments tabled in my name, have been drafted with the help of parliamentary counsel and officials in both the Department of Health and Social Care and the Ministry of Justice. The Government are committed to making the Bill workable and operable, while maintaining a position of neutrality.
I am grateful for the tremendous hard work that has gone into this to make a well-drafted Bill even better. I know the Ministers on the Committee, although remaining neutral, will be here to explain, where necessary, why some drafting amendments were needed to meet their duty to the statute book. There is an old adage that says too many cooks spoil the broth. That may not exactly be parliamentary language, but we will have to bear it in mind as we go along. Over 300 amendments have been tabled—most of them with the intention of improving and strengthening the Bill. I thank all MPs, whether members of the Committee or not, for the time and effort they have put in.
We have a responsibility to maintain the integrity and coherence of the Bill as a whole, so it is evident that we will not be able to accept all amendments. Indeed, we may find ourselves rejecting amendments that sound entirely reasonable in themselves and that undoubtedly come from a good place, but that are perhaps better addressed elsewhere in the drafting. Others might have unintended consequences or create a degree of ambiguity or uncertainty that could undermine the legal authority of the legislation. That might be very good for the pockets of lawyers, but it does not make for good law.
The Chair
Order. I remind the Member that although a brief introduction is acceptable, we should be talking to the amendments in this group.
Kim Leadbeater
Absolutely, Ms McVey—thank you for allowing me to make some introductory comments.
Amendments 178 to 180, 182 and 193 simply clarify that only persons in England and Wales may be provided with assistance in accordance with the Act, and only medical practitioners in England and Wales can carry out the required roles at each stage of the process. Hopefully, this is a nice straightforward one to get us started.
The Minister for Care (Stephen Kinnock)
I thank my hon. Friend the Member for Spen Valley for her introductory comments. The Government will continue to remain neutral on the Bill and do not hold a position on assisted dying. I want to make it clear that I, along with the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green, are speaking in Committee not as Members of Parliament, but as Government Ministers responsible for ensuring that the Bill, if passed, is effective, legally robust and workable.
To that end, we have been working closely with the hon. Member for Spen Valley and, where changes have been mutually agreed on by herself and the Government, we will offer a technical, factual explanation for the amendments. Therefore, I will not be offering up a Government view on the merits of any proposed changes put forward by other Members, but I will make brief remarks on an amendment’s legal and practical impact to assist Members in undertaking line-by-line scrutiny.
Rebecca Paul (Reigate) (Con)
May I ask how what the Minister has just said interacts with voting? He set out clearly his involvement in the Committee, so how does that impact any votes that he will take part in during it?
Stephen Kinnock
I am on the Committee as a Member of Parliament and I vote as such. When I speak on the Committee, I speak as a Government Minister in order to provide factual and technical explanations. As the Bill is a matter of conscience, I will be voting with my conscience on all the amendments as they come forward.
The amendments that we are now debating have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. They relate to the location of the person seeking assistance under the Bill and are designed to ensure that the service can only be accessed by an individual present in England and Wales, with a view to preventing medical tourism.
I will take the amendments in turn. Amendments 178 and 193 would ensure that only a terminally ill person in England or Wales may be provided with assistance in accordance with the Bill. Further to that, a requirement is placed on the co-ordinating doctor to ascertain whether, in their opinion, the person who made the first declaration is in England and Wales as part of their first assessment. Amendment 179 would limit the assistance that may be provided in accordance with the Bill to assistance in England or Wales only. Amendment 180 would require the steps taken under clauses 5, 7, 8 and 13 that relate to both declarations and both doctors’ assessments to be taken by persons in England or Wales.
Amendment 182 would limit the provision of clause 4(3), where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life, to cases where the person is physically present in England or Wales. It would prevent people who are outside of England or Wales from accessing assistance in accordance with the Act—for example, by online consultations from abroad.
As I said earlier, the Government will continue to remain neutral on the substantive policy questions relevant to how the law in this area could be changed. That is, as I have made clear, a matter for the Committee and for Parliament as a whole. However, I hope that these observations are helpful to Members in considering the Bill and the amendments tabled by my hon. Friend the Member for Spen Valley.
Amendment 178 agreed to.
Sarah Olney (Richmond Park) (LD)
I beg to move amendment 34, in clause 1, page 1, line 4, leave out “capacity” and insert “ability”.
This replaces the concept of capacity based on the Mental Capacity Act and replaces it with a new concept of ability which is defined in NC1.
The Chair
With this it will be convenient to discuss the following:
Amendment 36, in clause 7, page 4, line 7, leave out “capacity” and insert “the ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 37, in clause 8, page 4, line 34, leave out “capacity” and insert “the ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 38, in clause 9, page 6, line 27, leave out “capacity” and insert “ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 202, in clause 9, page 6, line 31, leave out “capability” and insert “capacity”.
This amendment corrects a typographical error.
Amendment 39, in clause 9, page 6, line 31, leave out “capability” and insert “ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 40, in clause 12, page 8, line 2, leave out “capacity” and insert “the ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 41, in clause 13, page 9, line 31, leave out “capacity” and insert “ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 42, in clause 18, page 12, line 23, leave out “capacity” and insert “the ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 43, in clause 30, page 18, line 16, leave out “capacity” and insert “the ability”.
This amendment is consequential on Amendment 34 and NC1.
Amendment 44, in clause 40, page 23, line 26, leave out from “capacity” and insert “ability”.
This amendment is consequential on Amendment 34 and NC1.
New clause 1—Ability to make decision—
“The person is to be considered as having the ability to make a decision to request assistance to end their life if they can fully understand, use and weigh the relevant information in accordance with regulations made by the Secretary of State under affirmative resolution.”
This new clause defines the concept of ability which is intended to replace the concept of capacity. This new clause is intended to replace clause 3.
Amendment 45, to schedule 2, page 26, line 36, leave out “capacity” and insert “the ability to make a decision”.
Amendment 46, to schedule 3, page 28, line 1, leave out “capacity” and insert “the ability to make a decision”.
Amendment 47, to schedule 5, page 30, line 14, leave out “capacity” and insert “the ability to make a decision”.
Sarah Olney
It is a pleasure to serve under your chairmanship, Ms McVey. I thank the hon. Member for Spen Valley for her opening remarks. I am grateful to be called so early in proceedings, because I believe this is one of the really important issues before us. It is about whether or not somebody
“has the capacity to make a decision to end their own life”
as is stated in clause 1(1)(a). I believe that the word “capacity” in this context is potentially difficult to define. I note that in clause 3, all reference to mental capacity is assumed to refer to the Mental Capacity Act 2005, but I do not believe that that is sufficient for the purposes of the Bill. We heard plenty of voices to support my point of view during the oral evidence, so I want to reflect on that.
I think there are four separate concerns about using the Mental Capacity Act 2005 to judge capacity. The Royal College of Psychiatrists submitted its original written evidence in January, which we have all had sight of, and it said:
“Under the Bill as introduced, a person with a co-occurring mental disorder that is impacting their wish to end their own life would not necessarily be deemed ineligible; only those whose mental disorder was deemed to impair their capacity to make a decision to end their own life would be excluded.”
That means that an individual could have a terminal illness and also separately have a mental illness, such as depression; that would affect their ability to make a decision as to whether that terminal illness was sufficient for them to ask for assistance with dying.
Daniel Francis
The Mental Capacity Act is written to enable people to carry out day-to-day scenarios, such as buying a coffee or doing their banking, so that they are not challenged in every transaction in their life. It is therefore a very low bar to be deemed to have capacity. Does the hon. Member believe that it was written for this kind of scenario?
Sarah Olney
That is an absolutely relevant point. The Mental Capacity Act was not drafted in anticipation of it ever being used for this kind of scenario. Therefore, it is really incumbent upon us to weigh very carefully whether the Mental Capacity Act is the right way of assessing people’s ability to make this decision. As I was saying, it includes the presumption of capacity, and for a decision to end one’s life, an assumption of capacity to make that decision is a low bar, and we have lots of evidence.
Danny Kruger
I am interested in that point about the Mental Capacity Act not having been written with the Bill in mind. That is absolutely true for the minds of its framers and the Parliament that passed it at the time. It is worth noting, however, that we can see from the accounts and records of the Voluntary Euthanasia Society, which became Dignity in Dying a few years later, that it was lobbying at the time covertly—or behind the scenes—for the Mental Capacity Act to be framed in exactly that way. The Voluntary Euthanasia Society was very conscious that, when the time came to pass the law for assisted suicide, it would be very helpful to have a capacity Act on the statute book that had this very low bar. The society was delighted when the Act was passed in the way that it was, and it boasted at the time of the influence it had had on the Act.
Sarah Olney
That is a very interesting intervention. I cannot comment on that because I have no knowledge of how the Mental Capacity Act was drafted or the evidence that was taken.
Dr Simon Opher (Stroud) (Lab)
I do believe that the Mental Capacity Act enables people to make very serious decisions, such as stopping cancer treatment, so I would absolutely dispute the hon. Lady’s interpretation of it.
Sarah Olney
The hon. Gentleman puts his finger on the exact point: it allows people to make a decision about whether or not they want to continue treatment; it has not been used in this way before, and it was not intended to be used for that purpose. I understand the hon. Gentleman’s point: he was trying to say that to stop treatment is akin to making a proactive decision to end one’s life, but I would argue that it is not, and that is why the Mental Capacity Act is unsuitable for this purpose.
It was interesting to reflect on the oral and written evidence we received on this issue. Professor Sir Chris Whitty, the chief medical officer, stated in his oral evidence:
“Issues…around mental capacity…are dealt with every day…every doctor and nurse above a certain level of seniority should be able to do that normally. It may require some slight adjustment.”
He acknowledged that
“the more serious the decision, the greater the level of capacity that someone needs to have.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30, Q13.]
However, the Royal College of Psychiatrists said that
“an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”
Sean Woodcock
During the oral evidence, we heard from three sets of psychiatrists who all cast doubt on the suitability of the Mental Capacity Act for decisions such as assisted dying. Is the hon. Lady’ s amendment an attempt to alleviate those doubts and put that right in the Bill?
Sarah Olney
Yes, that is exactly what I am aiming to do. The hon. Member makes an excellent point. There is a wide variety of views on this, but in actual fact, much as I do not wish to question Professor Sir Chris Whitty, and I acknowledge his seniority as the chief medical officer, he was very much the outlier on this. Everybody else who gave evidence on the sufficiency of the Mental Capacity Act to determine someone’s capability to make this decision for themselves cast doubt on the idea that the Mental Capacity Act was the right way of doing it.
Kim Leadbeater
That is not quite accurate. I think we did have other witnesses who absolutely said that they had confidence in the Mental Capacity Act, and I will speak about them in this debate.
Sarah Olney
I look forward to the hon. Lady’s further comments, but as I said, the psychiatrists were very clear that they did not believe that this was a sufficient safeguard, and we should acknowledge that.
I was unable to put my question to Alex Ruck Keene KC during the oral evidence session, but he kindly agreed to give further evidence in writing in response to a letter I sent to him later that day. That exchange of letters has been published as written evidence. It was his position that, in actual fact, Professor Sir Chris Whitty misinterpreted the Mental Capacity Act when he gave evidence. There is no such requirement in the Mental Capacity Act that states that the more serious the decision, the greater the level of capacity that someone needs to have. Mr Ruck Keene’s view is that that was the common law prior to the Mental Capacity Act coming into force, whereas in actual fact the Mental Capacity Act does not require that the more serious the decision, the more capacity someone needs to be judged to have.
Jake Richards (Rother Valley) (Lab)
I am sympathetic to the problem the hon. Lady has identified of people who have a terminal illness as well as other mental health conditions. Instead of rewriting the Mental Capacity Act for this new context, would it not be better to secure safeguards through clause 9, through which further assessments are potentially going to be mandated, if the amendment from the hon. Member for St Albans (Daisy Cooper) is agreed to, for those cases where there is doubt as to capacity? That would add a further safeguard rather than rewriting the established Mental Capacity Act and case law.
Sarah Olney
I have no intention of rewriting the Mental Capacity Act. It should stand exactly as it is and be used for the purpose for which it is intended. That is not the intention behind my amendment, which merely proposes that we should assess people’s ability to make the decision and not just their capacity. Many of those who provided evidence demonstrated that merely testing somebody’s capacity to make a decision is insufficient in this case.
Dr Opher
We also heard evidence that if we make this more complicated and introduce more terms into the Bill, then there will be less safeguarding for patients. That is why we are all here: we are trying to make this Bill safe for patients seeking assisted dying. Changing it from the Mental Capacity Act will make it less safe.
Sarah Olney
I heard Sir Chris Whitty in particular say that it would be preferable to have a more straightforward Bill that did not have too many bureaucratic hurdles for people to overcome. That was why he was keen for the Mental Capacity Act to be retained. However, I tabled the amendment precisely because, when people are thinking about whether assisted dying is an appropriate decision for them, I do not think that it is safe for them to be judged merely on the basis of their capacity. It is by no means my intention to increase bureaucracy; I am merely proposing that the Act is not sufficient in this case.
Naz Shah
Three psychiatrists gave evidence to the Committee in person: Professor Allan House, Dr Annabel Price, of the Royal College of Psychiatrists, and Professor Gareth Owen. All expressed doubts about the use of the Mental Capacity Act to assess whether a person was in a fit state of mind to undertake assisted dying. Does the hon. Lady agree that we should place great weight on the opinion of psychiatrists when assessing whether the Act should be used to assess applicants for assisted dying? It is a horse before the cart scenario, because the Act was not made for this context; when it was passed, we were not talking about the ability to choose to die.
Sarah Olney
I agree exactly with the hon. Lady’s point. The Act was not designed for this purpose, and it is essential that we carefully scrutinise whether it should be used in this way.
The Chair
Order. I remind hon. Members that interventions are just interventions; there will also be speeches.
Rebecca Paul
I welcome the hon. Member’s attempt to improve safeguarding in the Bill, which I agree is currently not at the right level. Does she agree that the Mental Capacity Act assumes in the first instance that, if there is no evidence to the contrary, a person has capacity, and that whether a person lacks capacity must be decided on the balance of probabilities? Unwise decision making does not indicate a lack of capacity, and supported decision making is considered to be acceptable. We need all to be clear that that is what the Act says.
Sarah Olney
The hon. Member is absolutely right. That would be another weakness of the Mental Capacity Act being used in this context: if someone is judged to have capacity, they are free to make an unwise decision, yet there is nothing in the Bill to provide a safeguard against people who might have capacity and make an unwise decision because their thinking has been obscured by mental illness, depression or something else.
Jake Richards
I have a few questions for the hon. Member. Who does she propose will decide whether a decision by someone who has capacity is wise or unwise? Does she also propose changing the law around patients’ refusing life-saving treatment? Should that be handled under the Mental Capacity Act, as it is at the moment?
Sarah Olney
I am grateful to the hon. Member for his intervention, but I am not proposing to change any legislation other than the Bill before us. All the other legislation to which he refers should remain precisely as it is, and for the purpose for which it was intended. He asks who is to say whether someone is making a wise or unwise decision; that is the job of the people who are instructed to provide assessments under the Mental Capacity Act. As was clear from my response to the hon. Member for Reigate, if someone has been assessed as having capacity, there must not be any further interference in their decision-making process, even if there are distinct concerns that that person may be deciding to end their life not purely because of their terminal illness but because they are suffering from depression. There is no other mechanism in the Bill to enable that further safeguard.
Dr Opher
I use the Mental Capacity Act almost every week in my work. As Chris Whitty said, in the majority of cases, whether someone has capacity is clear and indisputable. For a narrow proportion of people, it is more difficult to decide. The Bill takes account of that by using a panel to decide on those difficult cases of capacity. I would insist that most cases are very straightforward.
Sarah Olney
I have to ask the hon. Gentleman to clarify that. When he says he uses a panel, is he referring to the new amendment that has been proposed? I have not seen it yet and cannot comment on it, and have no idea if it will be adopted.
Dr Opher
If we are not sure about capacity, we must refer to psychiatry, so that a specialist organisation can make a more detailed assessment. However, most people do not fit into that category. Most people clearly have not got capacity or have got capacity, so this is a very narrow cohort.
Sarah Olney
If I may say so, the hon. Gentleman’s intervention precisely illustrates what other hon. Members were raising as points of order earlier. How can we properly scrutinise the legislation when new amendments are being tabled at the last minute that potentially change the entire nature of the legislation that we are attempting to scrutinise? It is very difficult then to speak about the amendments that have already been tabled.
Danny Kruger
Further to that point, the hon. Lady responded to the hon. Member for Stroud, who suggested that a doctor must refer to a psychiatrist in the event of concern over capacity. There is no such obligation in the Bill. There is the opportunity to do so—the second doctor may do so, if they choose—but there is no such obligation. That is something that we could definitely improve.
The hon. Member for Stroud, who is a GP, says that it is always obvious to him when there are issues about capacity. I assume he might think the same about coercion. I wonder if the hon. Lady is aware that one in six older people are subject to abuse—elder abuse. Does she think that the hon. Member for Stroud always spots the one in six of his older patients who are subject to abuse?
The Chair
Order. I remind everybody to stay within the scope of what we are talking about, which is capacity.
Sarah Olney
On that note, I will probably not respond to the hon. Gentleman’s comments about coercion, but I will pick up on what the hon. Member for Stroud said about using the Mental Capacity Act every week. I think that probably makes him unusual among MPs, if not GPs. I personally have no experience of using the Mental Capacity Act, which is precisely what gives rise to my anxiety. We in this room need to properly understand what the Mental Capacity Act means, yet most of us do not have the experience that he has in applying it. However, we are all collectively responsible for ensuring that the legislation is framed properly. I can only go on the oral and written evidence that we have received, and I am paying serious attention to all those who have said that they do not think that the Mental Capacity Act is sufficient. I lack the direct experience that the hon. Member for Stroud has of those matters, and that is the best that I can do.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
We are discussing the balance of autonomy against considerations such as capacity and coercion. The Mental Capacity Act 2005 has been in existence for 20 years, so it has the advantage of being familiar. Would the hon. Lady agree that if we were to bring in clinical views from different professions, such as from doctors, social workers and psychiatrists, we would have different definitions in place, which would address some of the concerns about different applications?
Sarah Olney
That is an extremely wise observation. I regret enormously that there was not more opportunity, before the legislation was drafted, to have those discussions between experts, advisers and others who really know what the Mental Capacity Act means and whether it is sufficient for this purpose. The best that we can do now is reflect on the evidence that we have received. In many ways, that is what I am hoping to address with my amendment: to redefine “capacity” as “ability”, to transfer the responsibility for defining how ability should be assessed under the Act to the Secretary of State for further analysis and consultation, and then for that to be laid out properly.
When assessing people’s ability to make the decision, we want to take into account their ability to understand, retain, use and weigh information, and to communicate the decision. That will still be at the heart of an assessment of whether an individual is making the decision for the right reasons. A whole range of things might affect a person’s ability to make the decision. I have mentioned many times mental disorders such as depression, which is more common in people nearing the end of their life. Delirium, which is common in people with advanced illnesses, needs to be assessed. There is the complexity of people who have a physical terminal illness alongside a mental disorder; I think particularly of people suffering from an eating disorder, which is primarily a mental health condition but clearly has physical health implications. If the mental health condition is not treated or is resistant to treatment, the physical manifestation of the eating disorder can quickly become a terminal illness. That is a really important point that we need to reflect on.
The feelings of hopelessness that may come alongside a diagnosis of terminal illness may affect a person’s ability to weigh information. Anxiety can amplify their fears of future suffering, and types and doses of medication can affect capacity. All sorts of people can suffer vulnerabilities from external factors such as the lack of realistic alternatives like palliative care services; overt or implicit coercion; personal losses including bereavement; poor housing; financial hardship; and loneliness and social isolation. Understanding and responding to those vulnerabilities is at the centre of suicide prevention, but absent from the Bill.
We have to remember that the Bill would apply to people who are said to be within months of death but may not be, to those who may die within months but otherwise have a very good quality of life, and to people whose trajectories to death vary greatly. In his written evidence, Professor Allan House states that
“careful inquiry is justified because a statement about wanting to end one’s life cannot be simply taken as the result of a straightforward rational decision to choose one type of end of life care over others. Simply checking mental capacity and asking about coercion is not adequate.”
Tom Gordon (Harrogate and Knaresborough) (LD)
I understand the concerns my hon. Friend is raising about assessing mental capacity. Does she acknowledge that throughout this process mental capacity will be assessed not once but multiple times? What does she say to that?
Sarah Olney
I say to that what I have been saying throughout: a test of mental capacity is not sufficient for this Bill. For example, the Royal College of Psychiatrists states that the Mental Capacity Act
“is not sufficient for the purposes of this Bill. Extensive consideration needs to be given to what an assessment of mental capacity should consist of”
for decisions relating to assisted dying or assisted suicide—
“and, indeed, whether a determination through such an assessment can be reliably arrived at in this novel context.”
I believe that what the Royal College of Psychiatrists means by “novel context” is that no legislation of this type has been framed before and we do not have any precedent to guide us in terms of what an appropriate determination of capacity might be.
Dr Opher
I apologise to the hon. Lady for my continued interruptions, but I want to put across some important points. In our medical system, the Mental Capacity Act is currently used to test capacity in cases of withdrawing life support. Does the hon. Lady not agree that that is on the same level as assisted dying?
Sarah Olney
I have a suspicion that the hon. Gentleman may have made that point already in one of his many interventions. Withdrawing treatment is not the same as someone making an informed wish to have their death assisted. That is why we need to be very careful about considering whether the Mental Capacity Act is appropriate for that kind of decision. That Act is being used in a way it was not designed for. To use this definition of “capacity” is to accept the premise that this is just like any other treatment option and not qualitatively different, and fails to recognise the complexity and gravity of the decision.
The Bill also fails to consider that there may be a risk of assessor bias—that sometimes it may well be that a doctor who makes an assessment may well have their own views about the suitability of assisted dying as an option for that particular patient. They may be in favour of it, or they may be against it. If that were to sway them towards making an assessment against capacity, that could have lots of serious implications for the patient.
I have proposed amendment 34 because I think it is the best way forward at this stage, given the variety of evidence we have had and the real difficulty for us in this room of making an appropriate determination of the extent to which the Mental Capacity Act’s use may be modified for this purpose, or of coming up with something entirely new. I think the best way forward is to give the power to the Government—to the Secretary of State—to define the term “ability” in relation to this legislation at a later date.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
With respect to the hon. Member for Richmond Park, I do not support her amendments, which seek to replace the references in the Bill to the Mental Capacity Act with the concept of “ability”. First, medical practitioners already know, regularly use and well understand the Mental Capacity Act 2005. As a result, as Professor Chris Whitty said in evidence, where practitioners conduct such an assessment of an individual separately, they are usually in agreement in their decisions about the outcome in relation to that individual. That was also mentioned by my hon. Friend the Member for Stroud.
Secondly, the term “ability”, unlike mental capacity, is not an existing concept in law that we can draw upon in the context of complex medical decision making about consent to medical treatment. I therefore do not accept that it is a low bar.
Dr Tidball
No, I will make some progress.
To replace the established concept of mental capacity with “ability” would create more problems than it seeks to solve, and is not underpinned by a clear statutory basis. Furthermore, the language the hon. Lady uses in her new clause 1 only echoes the wording of the second leg of the two-stage test in the MCA, in its language of fully understanding, using and weighing the relevant information. It does not, however, have the scaffolding and clarity of the five principles set out in the Mental Capacity Act, and it is a pale imitation of the second stage of the test of capacity, which is already in section 3 of the MCA.
Thirdly, the use and application of the Mental Capacity Act has been applied and litigated upon in our court system over the last 20 years, further nuancing its application in complex medical decision making and explicating, for example, the five principles in the MCA and the subsequent two-stage test for capacity. Contrary to what colleagues on the Opposition Benches have said already, it is used in cases where treatment is withdrawn. It is important to understand that in those circumstances, such withdrawal is not seen as an omission; it is seen as a deliberate act. It is therefore analogous to the usage in the Bill as proposed.
Fourthly, I have deep concerns that the use of the term “ability” and the concept expounded in new clause 1 imports an ableist approach, which I do not welcome, as someone who has worked in disability rights and policy for more than a decade and a half.
To return to my first argument, about the familiarity and usage of the Mental Capacity Act by medical practitioners, clinicians and the wider social care profession for two decades, many family members will be familiar with the term and used to using it as part of the wider care of people with learning disabilities, autism and mental health problems. The boundaries of those who are familiar with the concept go well beyond the walls of only medical practitioners.
In oral evidence, chief medical officer Professor Chris Whitty stated that the Mental Capacity Act
“is used up and down the country by doctors and nurses every day; they know it and they understand it. Although…it is a large piece of legislation, it is one that people have worked through in practice multiple times. If you ask six or seven doctors, ‘Does this person have capacity?’, in almost all cases you will get six or seven identical answers, because people are used to using it.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 33, Q7.]
To unleash the tiger of an unknown and untested concept of ability into a Bill that would benefit better from the well understood, measured and principled approach of the Mental Capacity Act 2005 does not best serve the patients that I know the hon. Member for Richmond Park seeks so carefully to protect. It is therefore worth laying out the paradigm that underpins the MCA and the principles it legislates for, and why it is so important to retain this at the heart of the Bill.
The presumption of capacity in the Mental Capacity Act exists because it is considered a fundamental principle of respecting individual autonomy, meaning that every adult is assumed to have the ability to make their own decisions unless there is clear evidence proving otherwise. This protects against unnecessary interference in people’s lives and ensures that they are treated with dignity and respect, even if they may have a disability or medical condition that could potentially impact their decision-making abilities.
I want also to reflect on the robust language in clause 2(3), which states:
“For the avoidance of doubt, a person is not to be considered to be terminally ill by reason only of the person having one or both of—
(a) a mental disorder, within the meaning of the Mental Health Act 1983;
(b) a disability, within the meaning of section 6 of the Equality Act 2010.”
That provision, the tightly drawn limit on the need for the person’s terminal illness to leave them with only six months to live, and the third stage of the test—using the Mental Capacity Act to understand their decision making—mean that we have a strong set of safeguards.
Dr Tidball
I will give way to the hon. Member for Richmond Park, who asked first.
Sarah Olney
The hon. Lady has moved on considerably from the point that I was going to make, so I took it that she was not going to take interventions. Although I would have liked the opportunity to respond to some of her points, I have kept my counsel. Since she has now given way, I want to make something of a point of order. The hon. Lady mentioned that she thought my use of the word “ability” was ableist, and I want to put on the record that I had absolutely no intention of it being interpreted in that way. I meant no offence, and I hope that the word would not have been considered in such a light. If that caused any offence, I apologise. I hope that the general meaning of the word “ability” is well understood in this context.
Dr Tidball
I am grateful to the hon. Lady for making that statement. That is not the assumption. As I will say later, the term “ableism” is very much grounded in a deficit model of disability, which assumes that somebody is not capable of doing something themselves—for instance, making important decisions—whereas the Mental Capacity Act starts from a different perspective: it presumes that the person will have the ability to do something until proven otherwise. That is why I feel that the concept of ability does not align well with what is needed in understanding and providing autonomy to people making very difficult decisions at the end of their lives.
Danny Kruger
The hon. Lady accurately quoted clause 2(3) about a person not being considered to be terminally ill “by reason only” of having a mental disorder or a disability. That word “only” is very important, as she acknowledged. Does she recognise that that explicitly allows for somebody whose judgment might be impaired by a mental disorder still to be eligible for an assisted death, because they would still be judged to have capacity under the terms of the Mental Capacity Act? That term “only” is in fact not a safeguard; it is an access to an assisted death for somebody with impaired judgment.
Dr Tidball
I appreciate the hon. Member’s intervention, but I do not agree. Taken together, the parameters around the six-month limit, clause 2(3) and the requirement for a mental capacity test cumulatively create a safeguard in the Bill.
Importantly, the MCA’s two-stage capacity test is already underpinned by robust safeguards, which address exactly the issue the hon. Gentleman raised. Stage one asks whether there is a disturbance or impairment in the person’s brain or mind, and stage two asks whether the disturbance or impairment is severe enough that the person cannot make a specific decision. That two-stage test already deals with the issue he raised. The references to the Mental Capacity Act in the relevant clauses of the Bill ensure, crucially, that we import that test too.
Elements of the language in the new concept of ability proposed by the hon. Member for Richmond Park appear to attempt to echo the second stage of the Mental Capacity Act test, as just described. That has four elements: understanding information about the decision to be made, retaining that information in the mind, using or weighing that information as part of the decision-making process, and communicating the decision by talking, using sign language or any other means. It is important to say that those core elements are built on the scaffolding of the five principles of the MCA, working in a progressive way.
Opposition Members talked about the unwise decision, but the principles in the Mental Capacity Act work collectively and cumulatively together. That is only one step, then, which is followed by the fact that decisions must be taken in the person’s best interest, and there is well-worn and well-trodden understanding of how we ascertain that. It is important that those things all work together. The issue is already addressed under the MCA; if we do away with the MCA, we lose not only the scaffolding of the five principles, but the important safeguards of the two-stage test.
Naz Shah
My hon. Friend made reference to that already being done, but where is the evidence that the capacity stage she talked about is actually happening? We had evidence from the Royal College of Psychiatrists and, as she said, Professor Chris Whitty. Where is the evidence that it is being done well, as things stand?
Dr Tidball
I do not have a list of the case law in front of me—I am sure it will be possible for that to be found for my hon. Friend—but it is done regularly. The Mental Capacity Act is used regularly in decisions about the withdrawal of life-support treatment. That is the case, and she is welcome to search for the case law.
Sarah Olney
The hon. Lady talks about the four tests and parts of the Mental Capacity Act; the point I was making was that we want to retain elements of the Act, although using it in its entirety is problematic in this context. The four functional tests about whether someone is capable of making a decision absolutely should be retained—as she said, that is well tested, it works well and people understand in a court of law exactly how to apply it—but some of the other elements of the Mental Capacity Act are problematic. That is why I seek to redraft “capacity” to “ability”—I accept that that might be a problematic word, but I hope the hon. Lady will take on board my earlier comments—and that is what is important. The hon. Lady is saying we should not take out those bits of the Mental Capacity Act that are valuable and important, and I agree.
Dr Tidball
I am pleased to hear the hon. Lady’s agreement. As someone who has worked in this space for a long time, I say that if she does not want to have the impact in law of putting in place a concept that would be ableist and take a deficit model of disability, we need those five principles that are already embedded in the Mental Capacity Act. We also need the stringent two-stage test, the second stage of which has the four elements that I set out. Only then can we be certain that we are approaching the paradigm of this complex and important decision making as one where we understand the autonomy and best interests of groups of people we all wish to best protect.
Dr Tidball
I will make some progress.
The concept set out by the hon. Member for Richmond Park is the bare bones of what is needed in the complex decision making required across various stages of the Bill. In such decision making, the MCA has a wide and well-used toolkit to determine capacity. That leads to my third point. The Mental Capacity Act has been applied and litigated in our court system over the past 20 years. The chief medical officer, Professor Sir Chris Whitty, said in his evidence that the Act
“has the advantage of being tested in the courts. That has gone as far as the Supreme Court, and the various ambiguities that were inevitably in the legislation have been clarified by senior judges. Therefore, to practitioners like me, it feels like a piece of robust and predictable legislation.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 33, Q7.]
He continued later:
“If there were no Mental Capacity Act, there would be an argument, which has been used for a long time, that the Bill would have to define what was meant with a fair degree of clarity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 36, Q14.]
I do not see sufficient clarity in the hon. Lady’s concept as set out in the amendment.
At a later evidence session, Yogi Amin, a solicitor and partner at Irwin Mitchell, augmented Sir Chris Whitty’s argument by saying:
“I wholly recommend and support the idea…to defer to the Mental Capacity Act for capacity assessments. I have been working in this area for over 20 years, before and after the Mental Capacity Act came in, and I have done cases all the way up to the Supreme Court, as well as day-to-day different cases around the country. It is well understood how capacity assessments are done, and it is ingrained into the practice of practitioners generally and of legal practitioners in the courts.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 140, Q176.]
He continued:
“It is a well settled and understood approach to the law, and producing a new one would throw up a whole new conundrum, where people would be questioning how to approach it, etc. It is not broken—it works well.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 141, Q177.]
Finally, for further clarity, I will vote against the amendment because of the ableist assumption in both language and concept. Ableist language assumes that disabled people are inferior to non-disabled people and perpetuates deficit discourses about such groups. I believe that this does not take the approach that we see in the paradigm of the Mental Capacity Act, which puts disabled people’s choices, autonomy and control over their choices at the heart of this legislation.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I thank the hon. Member for Richmond Park for tabling the amendments. Fundamentally, I do not agree with them, but I am grateful for her good intentions. I understand the concerns that she has raised, and she makes an eloquent argument, but I fundamentally disagree.
In my view, the amendments would only lead to abandoning the well-established principles codified within the Mental Capacity Act. They would introduce a degree of woolliness and legal uncertainty by introducing of a new term that is, as yet, undefined. That would make the operability of the Bill so much harder and would move us away from the Mental Capacity Act, which has a heritage of some 20 years and is already well established in the use of advance directives around organ transplantation, the withdrawal of treatment and the decision to undergo major operations that can have life-changing or life-limiting consequences.
Danny Kruger
My hon. Friend says that the term “ability” is not yet defined, but it is set out quite clearly in new clause 1, tabled by the hon. Member for Richmond Park. It simply says:
“The person is to be considered as having the ability to make a decision to request assistance to end their life if they can fully understand, use and weigh the relevant information”.
It uses the language of the Mental Capacity Act on understanding and weighing information. The key distinction is that it does not allow for impaired judgment; it requires somebody fully to understand the information in front of them. It is very straightforward, and I do not think that it would be difficult to apply. Does my hon. Friend recognise that the terms are pretty clearly laid out?
Dr Shastri-Hurst
My hon. Friend makes incisive points clearly and concisely, as always, but I cannot agree. This is a short clause that is dealing with a hugely complicated issue that is presently codified within the Mental Capacity Act, which runs to some 183 pages. I do not think that it is as simple as saying that the new clause deals with the issue.
There is also the two-stage test, which determines both the functional ability to make the decision and whether that decision is impaired in any way. It would be an oversimplification to suggest that the provision as drafted would deal with those issues in a satisfactory way that would provide confidence not only—although most importantly—to those who are making a decision around an assisted death, but to the medical practitioners who are part of the process and the courts, which will have to grapple with the issues that will inevitably arise from a new definition.
Sean Woodcock
The Royal College of Psychiatrists highlights that a person’s capacity can change and is decision-specific. It therefore says that the Mental Capacity Act is not suitable for the Bill. What is the hon. Member’s response?
Dr Shastri-Hurst
The hon. Member is absolutely right that capacity can change. It is an evolving piece: someone’s capacity at one point in time will not necessarily be the same as their capacity on a future or a previous date. However, the whole purpose of the Bill is to put a series of mechanisms in place that assess capacity to ensure a robust decision-making process.
I should also mention that the Mental Capacity Act allows the capability of individuals to make an advance directive. Where they have capacity at a point in time to make a decision for a future date, capacity can be inferred at that future date for that decision. That is acknowledged within the 2005 Act.
Kit Malthouse
I have to confess that I am a little confused by the evidence to which my hon. Friend refers. Can he confirm that it is perfectly possible for me to be diagnosed with a terminal disease and make an advance directive, which may apply in three months’ time, that in those circumstances I would decline treatment and would wish to die at that point? The Mental Capacity Act is used to assess me in making that advance directive, having had my terminal diagnosis. If it is good for that decision, I struggle to understand why it would not be good for a similar decision to end my life in similar circumstances.
Dr Shastri-Hurst
As always, my right hon. Friend makes a very good point. The Mental Capacity Act allows for advance directives on a whole variety of choices, including withdrawal of treatment, decisions on care or financial elements, and decisions on having treatment as opposed to not having treatment. It creates that ability and it is deemed robust enough for those purposes. It must therefore follow that it is robust enough for the purposes of the Bill.
Sarah Olney
I just want to probe the hon. Member on the capacity to make a future directive. Is he saying that, under the terms of the Bill as drafted and its reference to the Mental Capacity Act, it would be possible to say, “I may not be eligible now—I may not even be suffering from a terminal illness—but at some future point, because I have capacity today to make this decision, I should like to choose assisted dying”? Would that decision then be honoured at that future date, without any further intervention or assessment?
Dr Shastri-Hurst
The hon. Member makes an interesting point, which I had already considered; in fact, I have tabled a new clause that would address it. It is not grouped with the amendments now before the Committee, but I will touch on it, if I may.
There is an argument that, if an individual with an advance directive has gone through the two-stage test in the Bill and then loses capacity, the advance directive should hold weight. My new clause 6 would deal with that point. Sections 27 to 29 of the Mental Capacity Act deal with exclusions from advance directives, including issues around voting rights, marriage rights and Mental Health Act implications. There may be a mechanism, for example, to exclude an advance directive that deals with assisted death, either through the Bill or through an amendment to the Mental Capacity Act. But I do not disagree with the hon. Lady; she raises an interesting point.
Danny Kruger
Is my hon. Friend suggesting—I think his new clause makes it clear, and I think my right hon. Friend the Member for North West Hampshire is making the same point—that it is inappropriate for an advance directive to authorise an assisted death? The Mental Capacity Act authorises somebody to decline treatment at a future point, so my hon. Friend is acknowledging that there is a difference between the principle of declining treatment and the principle of requesting an assisted death. Given his new clause, I do not imagine that my hon. Friend thinks that we should have advance directives that authorise an assisted death. If he acknowledges that, he must recognise that there is a distinction between declining treatment and requesting an assisted death.
Dr Shastri-Hurst
My hon. Friend makes a valid point. I have concerns about public confidence in the Bill without that additional safeguard, as this is such a consequential decision, but of course any advance directive would be predicated on having gone through those two stages first before capacity is lost. I feel that on this occasion additional tightening is necessary so that the public can be confident that a robust process has been gone through.
The MCA is a tried and tested piece of legislation used by practitioners up and down the country. The hon. Member for Stroud uses it every day in his practice; I have to say that I did not, but I was not consenting patients for surgery every day. Every time I did so, however, I had those conversations. Capacity lies on a spectrum: if I am doing major abdominal surgery, the level of capacity required to make a decision will be much greater than if I am removing a small bump or lump on an arm.
As well as having been tried and tested by medical practitioners, the MCA has been tested in the courts, as the hon. Member for Penistone and Stocksbridge said. It has been right up to the highest court in this land, it has been robustly tested and it has been found to be good legislation. The risk we now face is that it will be replaced not only with a new legal concept, but with an entirely different process for assessing capacity in this setting. Although there may be good intentions to improve the system, that will only add to the folly of it and overcomplicate the issue.
Kim Leadbeater
I am sorry that it has taken me a while to find the relevant provision of the Bill. The discussion on the advance directive is a really interesting one, and I am glad that we are having it. Is the hon. Member reassured that clause 18(4) is very clear that on the day that assistance is provided to a patient, a doctor has to assess once again their capacity to make the decision to end their own life, check again that there is a clear, settled and informed wish to end their own life, and indeed check everything again on the day, including capacity? I believe that that will negate the issue around the advance directive.
Dr Shastri-Hurst
The hon. Member makes a reasonable point. I agree with her on many issues, but on this issue I have some reservations. Clause 18(4) says:
“The coordinating doctor must be satisfied, at the time the approved substance is provided, that the person to whom it is provided…has capacity…has a clear, settled and informed wish to end their own life”.
Of course, under the wording of section 26(1) of the Mental Capacity Act, that decision can be made at an earlier time and deemed to have currency, once capacity has been lost, for its enactment at a later date. I think that there could be a minor tightening of the wording or reassurances from Government to address that, but it is an important point to raise and air.
The Chair
Order. Before we proceed any further, I remind hon. Members that we are discussing capacity and ability.
Naz Shah
I am just trying to understand what the hon. Member is communicating. Under the Bill, if somebody has anorexia, diabetes or kidney failure and has the capacity to make that decision because they meet the criteria for the capacity to refuse treatment, will that mean that they can decide to sign up to this option?
Dr Shastri-Hurst
The Bill is very clear in determining that it is for those who have a progressive illness, disease or medical condition that cannot be reversed by treatment. On my reading of the Bill, it excludes that category of individuals who choose not to engage with treatment that in ordinary circumstances would prevent the progression or deterioration of their condition. I therefore do not see it as analogous with the hon. Member’s scenario of someone who could have a long life expectancy if they had taken their treatment, but who chooses not to. That is not captured within the Bill, in my interpretation.
Naz Shah
I am struggling with this, because it is clear from the evidence from our witnesses that that is the case where somebody has anorexia, for example, and they make that choice. As has been referred to plenty of times in the context of the Bill, the Mental Capacity Act has been used, and is sufficiently used, for people to withdraw treatment. Personally, I think that that is a pretty false equivalence, because when a person’s life support machine is turned off, the decision is made not by the person receiving lifesaving treatment, but by their loved ones.
According to what we have heard this morning, if someone has the mental capacity to use the MCA to withdraw treatment for a condition, that will lead to a diagnosis of terminal illness. It could kill someone. If I refused to take insulin, and I was diabetic, I would have the mental capacity to say, “Actually, I’m not going to take this treatment, so can I make a decision?” I am just trying to check the hon. Gentleman’s understanding.
Dr Shastri-Hurst
With the greatest respect to the hon. Member, I think that she is conflating two issues. Someone can stop treatment under the MCA; over time, that will lead progressively to death, with some conditions—she gave the example of being a diabetic without insulin—but that would not be a terminal illness in reference to this Bill. The Bill is very clear that it is about an inevitable and progressive illness, disease, or medical condition that cannot be reversed by treatment. Diabetes, treated with insulin, is not a progressive condition that becomes a terminal diagnosis; it is terminal only by virtue of somebody refusing treatment, which therefore would not be captured within the Bill.
Rebecca Paul
I would like to understand why my hon. Friend thinks that diabetes could ever be considered reversible. It can be treated and managed, but surely we cannot turn back time.
Dr Shastri-Hurst
My hon. Friend makes a valid point—the Committee can see that I was an orthopaedic surgeon, not an endocrinologist. It is not necessarily a progressive condition; it is a condition that can be managed and maintained. It does not fall within the wording of the Bill. We are not talking about a condition that is inevitably progressive, and for which there is no treatment option available to pause, reverse or prevent its progression. We are talking about a relatively limited group of conditions that will inevitably lead to death when someone, for want of a less blunt phrase, has reached the end of the road in terms of their therapeutic treatment options.
Sarah Olney
I am conscious that the hon. Member for Ipswich sought to intervene before me, but may I press the hon. Member for Solihull West and Shirley slightly on his point? When I asked Professor Sir Chris Whitty during oral evidence whether there could ever be a defined list of conditions that he would define as terminal, he was very clear that there could not be. Someone may suffer from a range of conditions. Most people who develop cancer survive, so cancer is a terminal illness, but not for everybody.
The question of what is and is not a terminal illness is quite contested; it is not clearcut. As the hon. Member for Bradford West says, it is quite possible that diabetes could be a terminal illness if someone refuses treatment for it. I am not entirely clear why the hon. Member for Solihull West and Shirley is saying that it is clear from the legislation what is and is not a terminal illness. As we heard in oral evidence, it is not clear.
The Chair
Order. I remind Members that the Committee will discuss terminal illnesses, and extending the list relating to terminal illnesses, under a later clause. Let us remain in scope this morning and continue the debate on the amendments before the Committee.
Dr Shastri-Hurst
I will keep my answer very brief by saying that I will return to hon. Lady’s point when we come to the clause on terminal illness, when perhaps I can elucidate, improve and work on my responses in a way that is conducive to understanding.
Dr Shastri-Hurst
I am aware that the hon. Member for Ipswich is waiting to intervene.
Jack Abbott
I am grateful to the hon. Member; he has given way a number of times, and I am sure he wants to make some progress. To return to the scope of the debate—I am sure you will be delighted to hear that, Ms McVey—part of the rationale cited for making this change from “capacity” to “ability” is depression, and given what we are talking about, there is a very real possibility that someone will become depressed after diagnosis. In the hon. Member’s experience, are patients with a clinical diagnosis of depression currently deemed capable under the Mental Capacity Act of making potentially life-changing decisions about treatment or whatever it might be? Are there any scenarios in which he would offer or remove certain treatment because of their depressed state? What I am getting at is that there are a huge number of scales and considerations to factor in with depression, but does the Act allow us to look at those when it comes to depression?
Dr Shastri-Hurst
The hon. Member is right: there is a huge spectrum of patients when dealing with these complex issues, and it would be absolute nonsense to arbitrarily say that anybody with depression is unable to make an informed decision on any issue. There are individuals who have mild depression—indeed, I suspect that most people with a terminal diagnosis would have some form of depression or reactive disorder, whether formally diagnosed or not, because of their circumstances. That does not mean that they are unable to make a rational, informed decision; we have to look at each patient individually. The Act is a tried and tested piece of legislation that doctors up and down the country use every day. Doctors over the road in St Tommy’s will be using it at this very moment, and they are adept at knowing and sensing when they need to escalate, whether by getting the opinion of a psychologist or a psychiatrist, because they have concerns about underlying issues. The Act is a robust piece of legislation, and we should be using it to enhance this Bill, not introducing further complexity, which will only put us into a quagmire of uncertainty.
Danny Kruger
My hon. Friend does not want uncertainty, so perhaps he could answer this question very directly: would he be content to see somebody who is depressed, and indeed suicidal, successfully apply for an assisted death?
Dr Shastri-Hurst
My hon. Friend puts it with his usual candour. He asked a straight question, so I will give him a straight answer: I think there is a difference between somebody who is depressed and somebody who is depressed and suicidal. I have no personal moral objections if someone who has a terminal illness, who suffers from depression and who has capacity as set out through the two-stage test in the Mental Capacity Act, ultimately wishes to end their life because of their terminal diagnosis. If they are doing it because they are suicidal as a consequence of their depression, that is a different and distinct issue. We are talking about individuals who want to end their life because of their terminal diagnosis, not because of their mental disorder.
Jake Richards
I keep making the point that clause 9 adds a different element to this process. It says that, when undertaking the assessment, one of the two doctors
“may, if they have doubt as to…capacity…refer the person for assessment”
of their capacity by a psychiatrist. Does that reassure the hon. Member that there is a further layer of safeguards in this area?
Dr Shastri-Hurst
That is one of the additional safeguards in the Bill. This Bill has more in-built safeguards than any similar piece of legislation across the world. I think the hon. Gentleman makes a valid point: when a doctor has concerns about somebody’s mental state, they can escalate the case and seek further, specialist opinion.
Dr Shastri-Hurst
I will make some progress, if I may, because I think I have indulged your patience for far too long, Ms McVey.
I am cautious about introducing this new test. I may not have persuaded everyone, but I have set out my reasons. We risk making the system overcomplicated. We would move away from the well-established mechanism under the Mental Capacity Act and into tiger country, with untried and untested systems that the courts have not considered, which will inevitably lead to challenge. There is no need to do that, because we already have robust mechanisms in place and doing so will merely lead to ambiguity and potential complications.
This is not me reaching this conclusion in isolation. Of course, there will always be voices on different sides of the debate, and we can frame the evidence we have heard to favour one set of arguments over another. However, I am significantly persuaded by the chief medical officer, given his wide experience as not just a clinician but a public policymaker. In his evidence to the Committee on 28 January, he said:
“It is not clear to me what problem people are trying to solve by doing that,”
—he means moving away from the Mental Capacity Act—
“given that the Mental Capacity Act clearly makes the point that the more severe the decision, the greater the degree of capacity that has to be assumed before people can actually take that decision.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 37, Q14.]
It is that foundation that we are building on, and it is central to how these things operate in practice.
Although I understand the position of the hon. Member for Richmond Park, and I have a degree of sympathy with those who support the amendments, I invite them to reflect, in the time we have left for this debate, on whether the amendments achieve their stated aim. Do they make the Bill better or do they make it more complicated and convoluted? I say that they make it more convoluted and that, despite the best of intentions, they should not be supported.
Daniel Francis
My hon. Friend the Member for Penistone and Stocksbridge knows I am an ally on many of these issues, but I will humbly disagree with her on some matters. I am not a lawyer or a doctor, but like many people here I speak from lived experience. I speak as the parent of a learning-disabled child, so I see the kinds of decisions that have to be made day to day, and the kinds of arguments and conversations that have to be had with people who presume that my child has more or less capacity than she has. Believe me, that is a constant, daily battle for me and my wife.
My daughter has 12 words and a severe sight impairment, which makes it very difficult for her to make some of her decisions, as well as other complexities—predominantly her cerebral palsy, which caused a brain injury at birth. Therefore, in my own way, although I am not a lawyer or a doctor, I have become a bit of an expert on some of the capacity issues that people encounter day by day. This morning, as I do most mornings, I read to her the three choices for her breakfast. I give her a bit of time to think about them and then I repeat them. We get yes or no to those three choices, and that is the choice she makes. Because of her severe sight impairment, when I put those three options in front of her, I have to lift them up in front of my face so that she can see them; if I put them much lower down, she would not be able to see them and make a choice. She would be able to make the choice through pointing if it was within a certain range.
I have doctors calling my wife and me all the time, asking to have a conversation with my daughter, despite their having read the notes saying that she is an 11-year-old with 12 words and a severe sight impairment. I therefore query—I will refer to some of the oral evidence in a moment—how well some aspects of the Mental Capacity Act are currently being carried out. Equally, I deal with people who suggest that she has a greater level of capacity than she does.
I accept—I have had this conversation with the hon. Member for Spen Valley on a number of occasions—that this legislation would not be applicable to my daughter. However, we heard in evidence from Mencap that the vast majority of people with learning disabilities in this country are not in the same position. They are living their day-to-day lives, living in supported accommodation and making the kinds of decision we have discussed in this debate, such as buying coffee and going to the bank.
As a result of my 20 years as a councillor, and in the last 11 years since our children were born, I have become involved with a number of local disability charities, and I know the decisions that people make when their child is at that transition age. They are trying to understand the complexity of taking a power of attorney for a child, as well as other decision-making issues. I spend a lot of time with parents who do not put those measures in place, because they do not understand the complexity in terms of age. We could therefore have a young adult relying on doctors who do not know them and on a judge—I have not seen an amendment on that issue, so I am still talking about a judge—to make a decision about capacity.
Kim Leadbeater
I do not particularly have a question to ask my hon. Friend, but I want to pay tribute to him for engaging so positively with the scrutiny of the Bill and for the very personal experience he has shared with the Committee. I reassure him that I will do everything I can to work with him, as I have so far through this process, because his fears are real, and I hear them. We have a job to do through the Bill to solve the problems that exist for people who are dying, but we do not want to create other problems. I am happy to continue to work with him to ensure that we address as much of that as we can through the Committee.
Daniel Francis
I thank the Member in charge for her comments. That is the conversation we had when she invited me to join the Committee, and we will continue to have conversations as amendments come forward.
My concern is about some aspects of the Mental Capacity Act, which was not written for these scenarios, and the hon. Member for Richmond Park talked in particular about the statutory principles in it. I am not an expert on these issues, and my hon. Friend the Member for Stroud behind me is more of an expert on some of them. However, there is no obligation in the code of practice under the Act to consult carers involved in a person’s life. The code says:
“if it is practical and appropriate to do so, consult other people for their views about the person’s best interests”.
Therefore, given the way the Act and the code of practice are worded, there is no obligation in the scenarios I am discussing.
There is another issue I was going to raise before I took that intervention. Mencap does considerable hard work. At my local branch, there are many people whose parents are in their 70s and 80s and have cared for their child all their life. I am not being rude, but their child, who is in their 40s or 50s, does feel like a burden to their parents. They know the obligation their parents have to care for them for their whole life. I ask Members to consider what the Mental Capacity Act says: those adults are at a level of capacity to make decisions, but they have been supported in those decisions all their lives and do not—
Jack Abbott
We have spoken a lot today about further safeguards and provisions, beyond the Mental Capacity Act. However, I note that my hon. Friend has tabled amendment 339, which states that if a
“person has a learning disability or is autistic”
they
“must be provided with accessible information and given sufficient time to consider it”
and that, additionally, there must be a “supporter” or “advocate” with them. If that amendment was passed, would that satisfy some of my hon. Friend’s concerns about the Act?
Daniel Francis
I am hearing that that amendment will need some rewording, but it would address some of my concerns. I am working with Mencap, and further amendments will be tabled to later clauses of the Bill. I understand that one of our colleagues has also tabled amendments, which I welcome. However, I would still have concerns about the interpretation—and there are different interpretations—of the current code of practice when it comes to the involvement of carers and loved ones. Those concerns brought me to the place I came to on Second Reading. I did not seek to be the person standing here; indeed, a year ago, not only did I not believe that I would be a Member of Parliament, but I did not believe that I would be on this side of this argument. It is this particular point that has driven me to this position.
I will talk a little about evidence. The Law Society has a neutral position on the Bill, but it has said that, before the provisions become law, a comprehensive consultation should be undertaken to allow resident experts to share views on the appropriate definition of capacity for the purposes of the Bill. That is the position of the Law Society.
Kim Leadbeater
My hon. Friend cites some interesting observations from the oral evidence, and I welcome his doing so. I draw his attention to my amendments 186 and 198, which look at the training. This is something I feel passionately about. If the Bill were to pass, having gold standard training would be vital, as I said during that sitting. I will do whatever I can to embed that in the Bill, and I will certainly consider what that will look like in the instances that we are discussing.
Daniel Francis
I welcome that commitment and look forward to that discussion in due course.
Dr Hussain went on to say:
“Ultimately, I do not think the Mental Capacity Act and safeguarding training are fit for purpose.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q260.]
Professor Owen said:
“That conveys questionable confidence in the consent processes, of which mental capacity is part, in relation to the decision to end one’s life. It is significant evidence about the confidence that is out there among experienced practitioners.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 228, Q290.]
Dr Price said:
“I…refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 268, Q349.]
Danny Kruger
I note the point about training, and of course we would all welcome the strongest possible training. As the hon. Gentleman implies, nobody has yet used the Mental Capacity Act to assess somebody for an assisted death; it would be completely uncharted territory for the whole system, including anybody providing training. How does he imagine that training might be designed to allow for the Mental Capacity Act to be applied in this case, when it would be completely novel?
Daniel Francis
As I say, I am not an expert on this matter from a legal or medical background, but those are the concerns that have driven me to the place that I am in.
Dan Scorer, from Mencap—as my hon. Friend the Member for Spen Valley knows, I was adamant that Mencap would give evidence to us—said:
“building on the previous question about the adequacy of the Mental Capacity Act, there is a question about the adequacy of training, awareness and compliance with that Act now.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 269, Q350.]
He clearly cited what many people know occurred during covid, with “do not resuscitate” orders and decisions being made on people’s behalf. That is what has driven me to this place, and that is why I will support the amendment. I also have further amendments on this issue later on down the line.
I completely understand what my hon. Friend the Member for Spen Valley said about training in relation to these decisions and scenarios. At the end of life, people should have autonomy and choice, but if that comes at the price of one person, in a borderline capacity decision that is made on their behalf, it will be one death too many.
Danny Kruger
It is a great pleasure to follow the hon. Member for Bexleyheath and Crayford, and I pay tribute to his powerful speech. I wish more people on our side of the debate and on the Committee had medical backgrounds, but I am glad that we have someone who has such direct personal experience of supporting people with learning disabilities. I am grateful to the hon. Gentleman for everything he said and I entirely agree with it.
I want to speak in support of new clause 1, tabled by the hon. Member for Richmond Park, to replace the use of the Mental Capacity Act with a new ability test. This goes to the heart of the Bill: it is absolutely crucial. Clause 3, which her new clause would replace, is in a sense the essence of the Bill. It is the shortest clause, but perhaps the most important one, because it determines the means by which somebody will be assessed to be capable of making this decision. It is a very important protection—and, at its simplest, this is a very confusing and complicated area. I will no doubt confuse myself in the course of my speech, but I have a simple observation to make, which the hon. Lady also made very well. We are dealing with the issue of impaired judgment; currently, under the Mental Capacity Act, it will be possible, through the terms of this Bill, for somebody whose judgment is impaired by virtue of a mental disability or mental illness to successfully apply for an assisted death. I do not think that is what the public want and I do not think it is what the House of Commons voted for. I think it is a misunderstanding of the principle of the Bill, which did win support on Second Reading.
The simple fact is that somebody’s judgment can be impaired under the Mental Capacity Act, but they could still have capacity. We have repeatedly heard points made about how the Mental Capacity Act applies in the normal conduct of life for disabled people—for people with mental disabilities. For instance, people can be anorexic, depressed or suicidal, and of course they can still consent to all sorts of decisions that affect their life, including medical treatments. A person can consent to have surgery on a broken leg while depressed; there is no difficulty whatever with that and of course that is appropriate. That is rightly the basis on which we currently judge capacity.
New clause 1 would build on the terms of the Mental Capacity Act. It would add to the principles of autonomy and of people being able to understand, use and weigh the relevant information. As I said in an intervention, the key point is that using this new test of ability would ensure that the person was fully able to do those things—fully able to understand, use and weigh the relevant information. In the case of impaired ability, they would not be considered to pass the test.
We hear a lot that this is the toughest Bill in the world, with the highest safeguards. It is worth pointing out that in Oregon, which this Bill is largely inspired by, there is an impaired judgment test. There is a capacity test similar to that in the Mental Capacity Act, but people are also required to demonstrate that there is no impaired judgment, and that is exactly what the hon. Lady is seeking to achieve. Her new clause would build on the terms of the Mental Capacity Act with these key principles about understanding information, but would ensure that it was a full understanding, with no impairment. It would strengthen the Bill without complicating it. In fact, it would significantly simplify it, because at the moment—this is the substantial issue with the application of the Mental Capacity Act—a huge complication is involved when we go into the forest of the MCA and try to apply it in these terms. When we try to navigate our way through the MCA in pursuit of an assisted dying application, there is a whole series of complications.
I will cite some of the evidence that we received. The Royal College of Psychiatrists, which we heard from, stated in its written evidence:
“It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.”
We also had evidence from King’s College London’s Complex Life and Death Decisions group, which is a group of world-leading professionals working on issues relating to the end of life. They say that use of the MCA for assisted suicide would be “an entirely novel test”. I note that the hon. Member for Penistone and Stocksbridge—and I think my hon. Friend the Member for Solihull West and Shirley—made the point that an “ability” test would be a novel term. I acknowledge that the term “ability” is not currently set out or recognised in law in the same way that capacity is, but as I said, it is clearly defined in new clause 1, as tabled by the hon. Member for Richmond Park. Of course it is going to be novel—we are talking about something that is entirely novel. Assisted suicide is a new measure that is being introduced, so of course we have to have a new measure by which we define who is appropriate.
Bambos Charalambous (Southgate and Wood Green) (Lab)
I am reading the text of new clause 1, and it is remarkably similar to the text of section 3(1) of the Mental Capacity Act, which says,
“For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision”.
It is not a novel concept—that wording is virtually the same as in new clause 1. I do not see why we need to have the new clause or the new definition, as it is already present in the Mental Capacity Act.
Danny Kruger
The hon. Gentleman’s intervention helps me to explain my point more clearly, which is that the new clause tabled by the hon. Member for Richmond Park builds on the terms of the Mental Capacity Act. It recognises the value of the terms, which have been well established in case law through the MCA—the ability to understand, use and weigh the relevant information.
The key difference is the word “fully”. The case law around the MCA allows for somebody to be deemed capacitous even though their judgment might be impaired. What is proposed in the new clause is the closing of that lacuna, so that it would not be possible for someone to get an assisted death if their judgment was impaired. That is the key difference.
It is also important to exclude the MCA because of the thicket of complications that it would entail. We have heard about the importance of simplification. A much simpler and better way to do the entirely novel thing that we are proposing, which is to authorise assisted suicide by the state, is to have a new definition.
Kim Leadbeater
I do struggle with that terminology. This is not assisted suicide by the state. The state is not involved. It is the person making an autonomous decision based on their choice at the end of life. I will say on the record that the term “suicide” is not accurate for the cases we are talking about. The people we are dealing with are not suicidal. They very much want to live; they do not want to die, but they are dying. It is important that we have that on the record.
Danny Kruger
I think it is totally valid for us to have this argument about terminology periodically. I will repeat the point that we have made before, which is that we are actually amending the Suicide Act 1961—or rather, we are disapplying that Act—in the process set out in the hon. Lady’s Bill. There is no getting away from the fact that we are talking about assisting suicide. I am afraid that I will continue to use the term, and I hope the hon. Lady will forgive me for that.
I am arguing that the MCA is a complicating factor in the process that is being proposed for the Bill; it makes things much more difficult and complicated. The point has already been made—the hon. Member for Richmond Park put it very well—that, in the case for the MCA, a lot of weight is being put on the evidence from Sir Chris Whitty, suggesting that the MCA works very well. I point out that Sir Chris made a significant mistake in his evidence, when he said that
“the more serious the decision, the greater the level of capacity that someone needs to have.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30, Q3.]
There is no such requirement in the Mental Capacity Act. Of course, we would hope that doctors would take a serious decision more seriously than a trivial one, but there is no such requirement. I cite Alex Ruck Keene KC, who wrote to the hon. Member for Richmond Park after his evidence session; with the greatest of respect to Chris Whitty, the fact that he got that wrong does not inspire confidence in his comments that the Mental Capacity Act is well understood by doctors throughout the country. I very much echo that. We have had so much evidence on how the Mental Capacity Act does not work well in practice that I think it was regrettable for the chief medical to have made the Panglossian observation that every doctor interprets it in exactly the same way and it works perfectly everywhere.
The Mental Capacity Act does not detect coercion. We will discuss coercion more in subsequent debates, but that Act is certainly not the safeguard against it. Professor House made some comments to us about Down’s syndrome and about diagnostic overshadowing. That is a very important concept. I am afraid to say that it is frequently the case, regarding people with severe disabilities, that capacity—or, indeed, incapacity—is not correctly observed because the medical professional will not see beyond the more presenting of their conditions. Observing capacity in someone who does have disabilities is often mistaken; it is harder than it is regarding other people.
Lewis Atkinson (Sunderland Central) (Lab)
Can I clarify what the hon. Member is proposing by introducing a separate test for people accessing assisted dying? Say an individual is on a respirator at the end of their life. Under what the hon. Member is proposing, if they said, “Please turn this respirator off; I want to die”, he thinks that it is appropriate for capacity to be assessed under the Mental Capacity Act 2005, but somehow he thinks that that person should have a different legal test if they said, “I want to take a drug to end my life,” knowing full well that they would have exactly the same result.
Danny Kruger
The simple answer is yes, I do. I think it is a causatively different decision. In fact, this whole Bill entails causative differences between those decisions. I will come to that point more in a moment.
Professor Owen made an important point to us regarding capacity. He said:
“You might be talking about a kind of cognitive impairment that has not reached the threshold for a diagnosis of dementia; you might be talking about a kind of mood problem or an anxiety problem that is sub-clinical; or you might be talking about a level of intelligence that is not clinically a learning disability.”
He talked about
“pressure within a family, let us say, which is often not malign in its intentions, but it exists.”
and about situations
“where there is an impairment and also an interpersonal pressure”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 234, Q297.]
Although we are not talking at this point explicitly about coercion and family pressure, the issues around capacity and coercion are nevertheless intertwined, and it is often very difficult for doctors to determine what is really going on. Again, the challenges around capacity are intense.
The point has been made by hon. Members that under clause 9(3)(b), if the second doctor in the process is in doubt about capacity, they “may” refer the person to a psychiatrist, but the clause in fact refers to “a registered medical practitioner” who “has experience of” the assessment of capacity—so not a psychiatrist, but just someone who has experience, whatever that means, of the assessment of capacity. It is not totally obvious what that means. Amendment 365 has been tabled overnight by the hon. Member for Bath (Wera Hobhouse) which would mean that both the first and second doctor, and indeed the court, if we are allowed to have a court process, “must”—not “may”— refer the person to a psychiatrist. That is not just if they are concerned about capacity, by the way. The court, or whoever it is, must conclude that there is no
“impairment of judgment arising from a mental disorder or other condition”.
I very much welcome that amendment and I hope that we will pass that in due course.
Kim Leadbeater
On that point about clause 9(3)(b), as I think was mentioned earlier, an amendment has been tabled by the hon. Member for St Albans (Daisy Cooper)—an amendment that I would support and I hope the Committee will—that would indeed turn the “may” to a “must”, so that there has to be a referral to a psychiatrist if there is any doubt from either of those doctors.
Danny Kruger
That is excellent news. For the first time so far in the course of this debate, we have a strengthening of the Bill from the hon. Member. That is great news—we can chalk that up as a victory, and as good sense breaking out. I am grateful for that. Let’s see what more we can achieve.
The point that I want to make is that we are in the foothills of understanding the effects of depression, cognitive impairment and social pressure on the decision to end life. That is a point made strongly by a series of witnesses to us in both oral and written evidence: we are still very much in the early stages of understanding how capacity interacts with mental illness, disability and coercion. Then, into the mists of vagueness, we are proposing to insert this single clunking, clumsy question: “Is there evidence of incapacity?” I strongly suggest that the abuse of the Mental Capacity Act that we are seeing here is not a way of simplifying the process of ensuring that there are a small number of strong safeguards; it is a great complication of the process and introduces more complexity, as we see from the many additional things that clinicians should consider. That is in direct contradiction to the principle of the Mental Capacity Act, which simply asks the question: “Is there capacity?”
The point has been made that there is more to the Mental Capacity Act than simply the question of capacity. There are concepts of best interests and supporting decision making. As the hon. Member for Penistone and Stocksbridge suggested, it is a cumulative process. The Mental Capacity Act entails not only the question of capacity but the consideration of best interests and whether we are supporting the decision making of an individual. I am not sure how those terms apply in a situation of assisted dying. It is not similar or comparable to the sorts of decisions that the MCA is intended to apply to.
Lewis Atkinson
This touches on some of the evidence given by Mr Ruck Keene, particularly around the best interests decision. From my reading of this legislation, it is very clear that there is no possibility for someone to make a decision on behalf of or in the best interests of anyone else. As the hon. Member for Solihull West and Shirley mentioned earlier, there are a number of exclusions in the Mental Capacity Act. For example, someone is not able to make a best interests decision on someone getting married or adopting. Does the hon. Member agree that in order to have a guarantee, without any doubt, on the best interests point, an amendment could be included to clarify that nothing in the MCA would allow a best interests decision under this legislation?
Danny Kruger
That is absolutely right. I do not think best interests can apply in this case. That is why the Mental Capacity Act is being abused. As the hon. Member for Penistone and Stocksbridge said, it is supposed to be cumulative. We are supposed to consider all aspects of the Mental Capacity Act, and best interests should be part of a consideration—but how on earth does one make a best interests decision about somebody deciding to commit suicide? The hon. Gentleman is right that best interests are excluded in the Bill, so the Mental Capacity Act is not being used, except for this most basic, low-level bar to cross, which is the capacity decision.
Dr Tidball
For clarity, I agree with my hon. Friend the Member for Sunderland Central on what would strengthen the Bill. The exceptions only apply where the right and proper Mental Capacity Act process has been gone through and the person doing that assessment has arrived at the point that that person does not have capacity. It is only in that very narrow set of circumstances where they have determined that the person before them does not have capacity to make the decision at hand that they then go to the second look at whether making such a decision would be in the individual’s best interest. The specific exclusions listed in the MCA only apply in that stage.
What my hon. Friend the Member for Sunderland Central is suggesting is that we table an amendment that would add to the list of specific exclusions; that would further strengthen the two stages. First, there would be the full Mental Capacity Act tests that may determine that the person does not have capacity. Such an amendment would give us belt and braces in circumstances where the person does not have capacity. Under the Bill currently, the person would fall out of scope and not be able to seek assistance if it had been determined that they did not have capacity. A belt-and-braces approach would make sure that there is no circumstance in which it could be determined by a medical practitioner or any other that it was in their best interests to follow this course of action.
Under the Bill as currently drafted, those people who have not got capacity as a result of the Mental Capacity Act would not be able to have access to the provisions in the Bill. My hon. Friend the Member for Sunderland Central suggests that we augment that even further so that there can be no doubt that, where it has been determined that the person does not have capacity, following the Mental Capacity Act, we should also add a very clear exception—
Terminally Ill Adults (End of Life) Bill (Tenth sitting)
Wednesday 12th February 2025
(2 months, 2 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 February 2025 - (12 Feb 2025)
The Chair
Will everyone please ensure that all electronic devices are turned off or switched to silent? I like to maintain the flow of debate, so I remind everybody not to say “you” and “your”, as Members should speak through the Chair, and not to go out of scope. I will stop Members if that happens again today.
Clause 1
Assisted dying
Rebecca Paul (Reigate) (Con)
I beg to move amendment 23, in clause 1, page 1, line 19, after “coerced” insert “, unduly influenced”.
This amendment would include the absence of undue influence for the making of a person’s decision. This reflects the changes proposed in Amendments 24 to 33.
The Chair
With this it will be convenient to discuss the following:
Amendment 82, in clause 1, page 1, line 19, after “coerced” insert “, encouraged”.
This would add a lack of encouragement to the list of requirements for a person to make a decision to request assistance. This reflects the changes proposed in Amendments 83 to 92.
Amendment 113, in clause 1, page 1, line 19, after “coerced” insert “, manipulated”.
This amendment reflects the changes in Amendments 114 to 115 which require steps to be taken to establish that the person seeking assistance has not been manipulated by any other person.
Amendment 24, in clause 7, page 4, line 14, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 83, in clause 7, page 4, line 14, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 114, in clause 7, page 4, line 14, after “coerced” insert “, manipulated”.
This amendment requires the coordinating doctor to ascertain whether, in their opinion, the person has manipulated.
Amendment 25, in clause 8, page 4, line 37, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 84, in clause 8, page 4, line 37, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 115, in clause 8, page 4, line 37, after “coerced” insert “, manipulated”.
This amendment requires the independent doctor to ascertain whether, in their opinion, the person has manipulated.
Amendment 26, in clause 12, page 8, line 13, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 85, in clause 12, page 8, line 13, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 27, in clause 13, page 9, line 33, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 86, in clause 13, page 9, line 33, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 28, in clause 18, page 12, line 26, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 87, in clause 18, page 12, line 26, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
New clause 5—Encouragement—
“(1) For the purposes of this Act, ‘encouraged’ means an act capable of encouraging suicide which would constitute an offence under section 2 (Criminal liability for complicity in another’s suicide) of the Suicide Act 1961.
(2) A person is not rendered ineligible to request assistance to end their own life on the basis of—
(a) an act of encouragement that they were unaware of when requesting and going through assisted dying, or
(b) an act of encouragement which was not specifically directed at that person.”
This amendment provides a definition of encouragement is consequential on Amendments 82 to 92.
Amendment 29, in schedule 1, page 25, line 22, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 88, in schedule 1, page 25, line 22, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 118, in schedule 1, page 25, line 22, after “coerced” insert “, manipulated”.
This amendment adds a requirement to the first declaration for the person to declare they have not been manipulated. It is linked to Amendment 113.
Amendment 30, in schedule 2, page 27, line 11, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 89, in schedule 2, page 27, line 11, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 119, in schedule 2, page 27, line 11, after “coerced” insert “, manipulated”.
This amendment requires the coordinating doctor to sign a declaration that to the best of their knowledge they believe that the person has not been manipulated. It is linked to Amendment 113.
Amendment 31, in schedule 3, page 28, line 9, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 90, in schedule 3, page 28, line 9, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 120, in schedule 3, page 28, line 9, after “coerced” insert “, manipulated”.
This amendment adds a requirement to the declaration that independent doctor has to sign, that they to the best of their knowledge they believe that the person not been manipulated. It is linked to Amendment 113.
Amendment 32, in schedule 4, page 29, line 5, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 91, in schedule 4, page 29, line 5, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 121, in schedule 4, page 29, line 5, after “coerced” insert “, manipulated”.
This amendment adds a requirement to the second declaration for the person to declare they have not been manipulated. It is linked to Amendment 113.
Amendment 33, in schedule 5, page 30, line 22, after “coerced” insert “, unduly influenced”.
This amendment is consequential on Amendment 23.
Amendment 92, in schedule 5, page 30, line 22, after “coerced” insert “, encouraged”.
This amendment is consequential on Amendment 82.
Amendment 122, in schedule 5, page 30, line 22, after “coerced” insert “manipulated”.
This amendment adds a requirement to the declaration that coordinating doctor has to sign, that they to the best of their knowledge they believe that the person not been manipulated. It is linked to Amendment 113.
Rebecca Paul
One of the major concerns that we have heard from members of the public and MPs relates to the importance of ensuring that appropriate safeguards are in place, so that people make genuine choices and do not request an assisted death because somebody else has pushed them towards it. For that reason, it is vital that subsection (2)(b) is as comprehensive as it can be. It currently refers specifically to a person having been “coerced” or “pressured”, which covers only the more direct kinds of influence, not more subtle ones. It seems clear to me that amendments are required to ensure that more subtle kinds of influence are covered adequately, and that clinicians do not just look for obvious signs of coercion or pressure when considering eligibility.
In her oral evidence on 29 January, Dr Mullock said:
“In terms of the Bill that we are discussing, one possible weakness here is that it identifies, only very obviously, problematic conduct in terms of coercion or pressure exerted by another person, and actually the kind of undue influence that might occur might be very subtle. More needs to be done to recognise that and the subtle encouragement that might take place, where a relative might frame their support for the person seeking to die in terms of, ‘This will be better for you,’ and, ‘Have you considered this?’ That is not necessarily an example of clear abuse, so when the person seeking to die then consults the doctor, they are not going to characterise what has happened to them as coercion or abuse. More needs to be done to discuss with the person whether or not they have been encouraged by the people around them.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 162, Q204.]
Amendment 23 would add the term “unduly influenced” to the clause. It is an important addition, as it is a recognised term in law. It is designed to ensure that relationships of dependence are considered. In some cases, there is no bad intent, but there is a power differential, subtle as it may be, and it is important that we recognise how strong it can be. A child not wanting to disappoint their parent; a wife not wanting to go against her husband’s wishes—there may well be no threats or explicit pressure, and there may be a lot of love shrouding it, but the influence is there and it is strong. That is why the concept is applied in probate cases to test whether someone has faced influence, domination or pressure that prevents them from exercising free and independent volition with regard to the act. It has also been applied in medical decisions, including over a refusal of treatment that can lead to death. For example, there was a case of a Jehovah’s Witness who refused a lifesaving blood transfusion under undue influence from her mother. It is therefore a natural addition to the Bill.
In important judgments, the courts have said that undue influence will have more impact on people who are very tired, in pain or depressed, and that
“a patient in a weakened condition may be unduly influenced in circumstances in which if he had been fit, he would have resisted the influence sought to be exercised over him.”
This legal concept could have been designed for the context of assisted dying. That is why it is important that the amendment is made. In her oral evidence on 28 January, Dr Cox said,
“I would say that you cannot always identify coercion. You can identify it when it is very obvious and extreme, but when it is very subtle, we cannot always identify it. After the event, there is nobody to tell us about coercion, so it is very difficult to monitor.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 73, Q90.]
I would also like to point out that California’s law prohibits coercion or undue influence, so there is established precedent in using this phrase in the safeguards of assisted dying law. If we have the ambition for our law—if it is to pass—to be the safest in the world, we need to add the term “undue influence” as a minimum.
Even with that additional safeguard, however, Dr Spielvogel rather worryingly said in his oral evidence,
“I have seen assisted dying laws go into practice across numerous states and have helped many, many people through this process, and I have never seen a case where I even suspected coercion.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 101, Q139.]
Richard Robinson of Hourglass, in his oral evidence, said,
“I think that coercion is underplayed significantly in cases of abuse of older people…One of the biggest issues we face is the fact that we have no idea of the levels of training that healthcare professionals and the judiciary receive to understand and recognise coercion. That leaves us in a situation where medical professionals say that coercion in these circumstances is minimal, but people need to understand what coercion is and how to recognise the signs of it in the first place, especially bearing in mind that the vast majority of cases that we see take place in the home and by family, rather than by professionals.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 158, Q196.]
Additionally, psychiatric and legal experts have said that undue influence is relevant in this context. In written evidence, Professor Allan House refers to undue influence as
“coercion in its less overt or threatening forms”.
He also draws attention to the great risk of undue influence in the case of couples seeking assisted suicide at the same time. The probate lawyer Tamasin Perkins, in an article on the Bill, says,
“Undue influence or coercion is depressingly common in the arena of contested wills and gifts.”
She suggests that the current law on undue influence could be usefully incorporated into the Bill. To those who worry that adding undue influence could make things more difficult for clinicians when assessing, I would say that it is absolutely right on something of this gravity that rigorous consideration is given to the possibility of undue influence.
I turn to amendment 82, which adds the term “encouraged” to coercion and pressure. This amendment is in line with Dr Mullock’s advice in both her written and oral evidence. It is important to note that encouraging suicide is currently a crime under section 2 of the Suicide Act 1961. It is also important to note that the Bill does not decriminalise encouragement, only assistance. Clause 24 decriminalises only the assistance component, not the encouragement component. Thus, if the Bill were to pass, encouragement of assisted dying would still be a crime. That is absolutely right and something that I fully support.
As encouragement of suicide is clearly recognised as a heinous crime, it surely must follow that when considering whether someone is eligible for such assistance to end their life, consideration is given to whether they have been a victim of such a crime. This feels like a rather basic safeguard that is missing from the Bill and must be rectified. As former Attorney General, Victoria Prentis, has written,
“maintaining the prohibition on encouraging suicide is key to protecting vulnerable people”.
She says it is a problem, though, that
“doctors and judges under the bill are not required to check whether the person’s decision is their own or whether they have been encouraged by others.”
She goes on to say that she hopes the Committee will support my amendment, and David Hughes—formerly of the Law Commission—says that keeping the offence of “encouragement” would help to prevent “insidious pressure”.
Tom Gordon (Harrogate and Knaresborough) (LD)
The hon. Lady uses the term “encouragement”. If I were in a situation where a loved one wanted to access assisted dying, and I said I supported their wishes, would that fall under the scope of encouragement? We do not want to end up in a situation where people who support their loved ones end up dragged through a legal process, when it is actually the case that they are there to enable their wishes, rather than pushing them to it. How would she differentiate between those?
Rebecca Paul
That is an important point. Obviously, case law becomes quite important in this. Supporting someone’s decision is very different from encouraging someone who was not in the place of wanting to go through with assisted dying. Again, these things do sometimes end up in the courts, because sometimes it can be a grey line. It is important that we have this protection. Right now, it is an offence to encourage someone to commit suicide, and we need to recognise that. That is the law right now.
Kim Leadbeater (Spen Valley) (Lab)
The hon. Lady makes an important point. The idea is that the Bill makes an exception to the Suicide Act. I fully support her point about the supportive nature of the conversations that would take place with families. If we use the word “encourage”, we are in danger of lacking clarity. Where is the line between encouragement and support? I would like her to expand on that, if she could.
Rebecca Paul
I do not think that we are trying to exempt something from the Suicide Act through the Bill; we are decriminalising something that is currently a criminal offence. Right now, it is a criminal offence to assist someone to commit suicide, and clause 24 decriminalises that. I totally support what you have done here, but your Bill does not decriminalise encouragement. I imagine that you have done that for very good reasons, which I support; we do not want people to be able to go round encouraging people to commit suicide. It is vital that there is protection for the vulnerable people we have talked about. You are absolutely right that what constitutes encouragement can be subjective and difficult to determine, but encouragement is already in the law, so we have to deal with it. It is already a criminal offence to encourage a suicide, so it does not make sense not to deal with it in this Bill.
Sean Woodcock (Banbury) (Lab)
I will do my best to abide by that, Ms McVey. My recollection of the oral evidence is that the practitioners from California made it very clear that there was not a great deal of coercion, but they had seen families put undue pressure on people to prevent them from pursuing assisted dying. Given human nature, I find it incredible that the pressure would go only in that way and not in the other. I see the proposals as ensuring that and safeguarding people who are at a very vulnerable stage of their lives. Will the hon. Lady speak to that?
Rebecca Paul
I completely agree. It is important to recognise that different people will have different views on levels of coercion. I have already quoted some of the witnesses; I found it quite jarring that certain witnesses who had facilitated assisted dying for hundreds—perhaps thousands—of people said that there were no cases of coercion. I find that difficult to believe, although I do not doubt for a second that they believe it.
Kim Leadbeater
The witnesses gave evidence in good faith, and I would be uncomfortable if we started to question the validity or truth behind their testimony.
Rebecca Paul
Just to clarify, I am not questioning that they were not telling their truth. I completely believe that, from their perspective, they honestly believe they have never seen a case of coercion. Maybe I am more of a glass-half-empty kind of girl than some other people, but I question whether that is really the case. In my 45 years on this planet, I have learned enough about humankind to know that these things do happen, but different people will take different views when it comes to detecting them.
Naz Shah (Bradford West) (Lab)
The hon. Lady has made some important points. I repeat something I said yesterday in response to another Member: the word “coercion” and the idea of encouragement were not even in the vocabulary in this place until very recently—only 10 years ago. I do not want to dismiss people’s expertise, but for me it is quite a leap of faith—I wonder whether she shares that idea—to believe that in that jurisdiction, zero people were coerced, when every other jurisdiction records people being coerced and people saying they feel a burden.
Rebecca Paul
I completely agree. The hon. Member has made some powerful points over the course of this Committee. The reality of the matter is, like the hon. Lady said, this has not really been considered fully until recent times. I think we are now all much more aware of the coercion and pressure that goes on. It is only right, when we are making this decision now, to be fully aware of that and have our eyes wide open to the realities.
At the end of the day, we are not legislating for when it works perfectly for that ideal candidate who absolutely wants to do this for all the right reasons and they are in pain, which is exactly what the Bill is designed for. We are legislating for that big group of people who are vulnerable, and who it may not work for. That is a much bigger group. We heard compelling evidence from Dr Jamilla Hussain, which really impacted me, about this big group of vulnerable people who could be detrimentally impacted. We must make legislation for the group that could be negatively impacted. They should be our focus.
Danny Kruger (East Wiltshire) (Con)
I am very struck by that last point. Does my hon. Friend agree that the purposes of these amendments build on the principle of the Bill? The Bill recognises the existence of vulnerable groups and attempts to introduce safeguards. It is not a free-for-all. The absolute purpose of the Bill is to ensure that vulnerable groups are protected.
My hon. Friend’s amendments support the principle of the Bill, which says that encouraging suicide remains illegal. By implication of the Bill, to encourage people to take an assisted suicide should be illegal too. My hon. Friend is actually building on the principle of the hon. Member for Spen Valley’s Bill, and I hope the Committee will not regard these amendments as in any way harmful to its purpose or as an attempt to make it more impractical in operation. They would make the Bill clearer. To the point made by the hon. Member for Spen Valley about overcomplicating things—I think the complications exist in the current text of the Bill, whereas my hon. Friend the Member for Reigate would be clarifying its purpose.
Rebecca Paul
My hon. Friend makes the point powerfully. I say to everyone in this Committee—we had this discussion yesterday—that I am not opposed in principle to the concept of assisted dying, but I see my role here as to protect the vulnerable. That is what I am trying to do, and I know everyone here wants to do exactly that. I cannot really see any downside to these amendments. Why would the Committee not want them included, if we want to protect the most vulnerable? Yes, it may put a bit more onus on clinicians, because they would need to look for a lower level of coercion. But that is absolutely right—of course they should have to do that. We are talking about assisted death. It is really important that we have a higher level of consideration.
Kit Malthouse (North West Hampshire) (Con)
I understand that much of the difference between us on this may founder on our perception of what is actually happening. She speaks of suicide, and to some of us—certainly to me—suicide is a healthy person taking their life, but what we are talking about is somebody who is seeking to take control of their inevitable death in these circumstances. For me, those two are qualitatively different.
I am concerned about my hon. Friend the Member for Reigate injecting an element of jeopardy into what should ordinarily be normal conversations with one’s family. For example, I could see a point at which, if I were in those circumstances and was thinking about seeking assistance to end my life, I would discuss that with my wife: “Darling, am I doing the right thing? Is it the best thing for the kids? I think I’m going to have a horrible death, and I’m trying to decide.” We heard from families—and have done over the last 10 years—who, very often in anguish support their loved one, even to the extent that they are willing to break the law. As my hon. Friend the Member for Harrogate and Knaresborough said, the line between support and encouragement is quite fine. If somebody were to come forward and say, “Well, I’ve spoken to my family. They all think I am doing the right thing”, could that not be interpreted as encouragement? I am conscious that we should not try to police what should be open and natural discussions between families in a way that injects jeopardy for them and the person to the extent that they might start to modify what they say to the doctor to ensure that they get the outcome they want.
Rebecca Paul
I thank my right hon. Friend for that very useful contribution. First, I am saying “suicide” because we are talking about the Suicide Act, and I cannot perform this role without naming the actual bit of legislation that we are talking about. I know people here are a little bit squeamish about the word “suicide”, but it has a clear legal meaning.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Will the hon. Member give way?
Rebecca Paul
Not yet; I am finishing my point. It has a clear legal meaning, and we must not put the blinkers on. I would suggest to Members that if they have an issue with the word “suicide”, they remember that this will actually result in the end of someone’s life. We must not be squeamish about using correct and accurate terminology in what we describe.
The second point made by my right hon. Friend the Member for North West Hampshire is a really good point: it is a fine line and it is really difficult. I have proposed this amendment not because I want “encouragement” specifically to be in the Bill, but because the encouragement of suicide is already a crime. I am being logical and taking what is already a criminal offence under the Suicide Act. If we do not include it in the Bill, it means that someone can commit a criminal offence against a victim, and that does not preclude the victim from being eligible for assisted dying, so I am suggesting a very logical amendment. My right hon. Friend makes a great point, but if we have an issue with the word “encouragement”, we need to take that up with the drafters of the Suicide Act, which was long before my time in 1961.
Sarah Olney (Richmond Park) (LD)
Does the hon. Lady agree on the value of her amendment, and the value of introducing the word “encouraged” into the Bill? Reflecting on what has been said about the “fine line” argument by the right hon. Member for North West Hampshire and the hon. Member for Harrogate and Knaresborough, the value of inserting this amendment is that, where it can be proven beyond doubt that someone has encouraged or actively sought to influence someone else to choose assisted death, that is a crime encoded in the law.
To the point made by the right hon. Member for North West Hampshire, in discussions among families about this possibility, and where spouses are supporting each other in this decision, it will never be demonstrated beyond reasonable doubt that a crime of encouragement has taken place. By putting it in law, where encouragement can be proven—and it must be proven—it can be prosecuted as the criminal offence that it would be.
Rebecca Paul
As ever, the hon. Lady so eloquently makes her point and I completely agree. I am not a lawyer but, given that the Suicide Act made the encouragement of suicide a criminal offence back in 1961, I imagine there is quite a lot of case law that would help define where that line is drawn on encouragement, but I would refer to better qualified people than myself.
Rachel Hopkins
I reassure the hon. Lady that her sweeping statement about us all being squeamish when talking about suicide may not be accurate. I would put it back to her: how squeamish is she when talking about assisted death, because we are actually talking about two separate things here? I reiterate the point made by the right hon. Member for North West Hampshire: a healthy person taking their own life by suicide is different from a terminally ill person, who is facing their death, ending their life by shortening their death. Would she accept that point?
Rebecca Paul
I am talking in legal terms, because we must use the right language. Under the law, I think what the hon. Lady said is not correct. I stand to be corrected by someone who is a lawyer, but given that we are amending the Suicide Act, I think technically an assisted death is the assistance of a suicide. I understand that the hon. Lady would like to reframe that and use different words to describe it. Maybe that could be done, but right now, under the law, it would be suicide.
Rachel Hopkins
If the Bill becomes law it would be a different situation, which is exactly what we are scrutinising.
Danny Kruger
What the hon. Member for Luton South and South Bedfordshire said is not the case at all. What the Bill would do is to exempt people who go under this new procedure from the operation of the Suicide Act. It would not create some new category of person; the law would just operate in a different way. I recognise that she is saying that, in her mind, there is a difference between somebody who is dying who has an assisted death and somebody who is healthy who commits suicide, but that is a completely arbitrary distinction in reality. Many people who have terrible diagnoses kill themselves, even though one might say that they are not actually dying and they could be treated. Should that person qualify?
Entering into the mind of someone who wants to take their own life is an absolute impossibility, and that is the whole problem with this Bill: we are trying to create distinctions that are impossible to police properly. It goes to the point of my right hon. Friend the Member for North West Hampshire about trying to police private conversations. That is what this Bill entails. We are inviting the state to intrude, in an absolutely impossible way, on what is going on in people’s minds. To go back to the point made by the hon. Member for Luton South and South Bedfordshire, there is no clear distinction between somebody who would choose assisted dying through a doctor’s prescription and one who would choose to take their own life without assistance. It is not possible to draw that distinction. In fact, we have seen so many times that people who might want to kill themselves one month change their mind a month later. I am afraid that this is the challenge with the whole Bill.
Rebecca Paul
I support my hon. Friend’s comments. Outside of this place, I speak about this topic in a manner that is as sensitive as possible. When we are talking about the legislative changes that are needed to this Bill and how it interacts with other legislation, I will use the correct legal terminology, because I think it is really important that we do that.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
I appreciate the hon. Lady raising the need to use accurate legal language. Does she agree, therefore, that introducing “undue influence”, which is used regularly in the law of equity but not in the criminal law, would unhelpfully complicate matters, considering that coercive behaviour is defined in section 76 of the Serious Crime Act 2015 where it provides for an offence of controlling or coercive behaviour in that context? We have 10 years of case law. The hon. Lady rightly pointed to the importance of looking at case law and at how courts have dealt with this; the understanding of coercion in the criminal law offences is well known and well rehearsed, whereas the use of undue influence in the context of criminal law offences, which is what we are dealing with in clause 26, is not.
Rebecca Paul
I thank the hon. Lady for that point, but I do not think we are talking about criminal law here. This debate is not relevant to clause 24—it is relevant to eligibility. We are simply saying, through this amendment, that if a clinician thinks someone has been unduly influenced, they would not be eligible. I think the hon. Lady is crossing over to the encouragement point, but these are separate points.
Rebecca Paul
I am sorry, but I am going to give way to the hon. Member for Bexleyheath and Crayford, if he still wishes to intervene, as I am aware that he has been waiting.
Daniel Francis (Bexleyheath and Crayford) (Lab)
I want to bring us back to the points raised by the right hon. Member for North West Hampshire. I may have misread this, but I understand that, under the current law and under the law as it would stand if this legislation were introduced, it would remain an offence to encourage somebody to commit suicide with a 12-month diagnosis—perhaps someone with motor neurone disease or Parkinson’s disease, who may still be a loved one. I do not understand the counter-argument about not using the word “encouraged”: it would remain a criminal offence, unless I am mistaken, to encourage someone to take that decision if they had a diagnosis of longer than six months left to live.
Rebecca Paul
That is exactly right. As I have mentioned, I am not bringing in the concept of encouragement; it is already in the law and currently an offence. I am putting forward this logical amendment in order for the Bill to deal with that. If we do not do that, we have not circled the wagons.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I have no doubt that my hon. Friend speaks to the amendment with very good intentions due to genuine concerns about the safeguards. We have talked a lot about coercion. Clause 1(2)(b) sets out a requirement that the person,
“has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it.”
“Pressured” is an important word. If we look at the case law, there are the comments of Lord Nicholls in the case of Royal Bank of Scotland plc v. Etridge (No. 2) in 2002. He looked at two components of the concept of undue influence. There are acts of improper pressure or coercion, such as unlawful threats, which fit with the coercion element of the Bill as drafted. There are also relationships where one has acquired over another a measure of influence or ascendency, of which the ascendent person takes unfair advantage without any specific acts of coercion. Could my hon. Friend set out why she thinks “unduly influence” would add something beyond what “pressured” already does in the Bill?
Rebecca Paul
My hon. Friend is very knowledgeable about these things and is well qualified on the legal side. I value his contributions on this matter. The reason I want to include “unduly influence” is because it deals with those more subtle forms of coercion. Arguably, it could be included in “coerced or pressured”, but by including “unduly influence” in the Bill it becomes more explicit that a clinician has to be looking for it. In the absence of the language, clinicians will not be required to look for those more subtle forms of influence.
The provision is something that is included in the assisted dying laws of other jurisdictions. We have the opportunity here to learn and benefit from jurisdictions that have already implemented it. We heard various witnesses give us very useful evidence during the sessions. For example, California includes “undue influence” in the law. We should recognise that there is value in including it here. It is a well-established legal term that is used in myriad situations, so it is relevant that we include it.
Naz Shah
May I take the hon. Member back to the point of clause 24, and the issue of suicide and the terminology there? Perhaps the Minister could respond as well, although I am not sure how that would work in this Committee. What I think we are doing in clause 24 is to decriminalise encouraging suicide. That is my understanding. So can we have some clarity? Are we trying to decriminalise encouraging suicide? That is what clause 24 says, so in that case it would be absolutely right to talk about the word “encouragement”.
Rebecca Paul
Clause 24 decriminalises assistance to commit suicide, in order that assisted dying becomes lawful. It does not specifically decriminalise encouragement, which means that the Suicide Act 1961 still applies if someone were to encourage someone to commit suicide. It would therefore be a crime and have a sentence associated with it. However, the hon. Lady makes a really good point: it would be of great value at the relevant time to hear from the Minister on the legal point I am making. I hope everything I am saying is coherent and sound, but it would be useful to hear from the Minister.
Kim Leadbeater
The hon. Lady is doing an amazing job—and taking lots of interventions. As I have always said, I am very open-minded to whatever we need to do to make the Bill more robust. I am not a lawyer, like the hon. Lady—we have lawyers in the room, fortunately, who can provide guidance and assistance in that regard—but what has been made clear to me is that the law needs clarity.
The hon. Lady has already mentioned a couple of times that this change could be described as a lower level of coercion, or it could be argued that there is a lack of clarity there. I think the sentiment is absolutely right, and I really support that, but we need the law to be clear. And if legal colleagues are assuring us that the concept of undue influence would be covered under “coercion”—and I am kind of hearing that—then I think it would be covered. I think that point about the law being clear is really important. Does the hon. Lady agree with that?
Rebecca Paul
I thank the hon. Lady for that intervention. I know that she is wholeheartedly seeking to make sure that the safeguards in the Bill are as good as they can be, so I very much appreciate her recognising the positive intent behind my amendments.
It would be useful to understand whether those who are legally qualified believe that undue influence is already covered by “coercion”. I am not qualified to give a view on that, but if that were the case, that would provide some reassurance, and that could then maybe be included in guidance. However, I would want to see a legal opinion on that.
In the absence of such a legal opinion, putting that on the face of the Bill is the safest—and the right—thing to do at this point in time. I suspect that we will be voting on this shortly, before we can get a legal opinion, and given that we are talking about safety here, I would rather go for belt and braces and include “undue influence” on the face of the Bill.
Lewis Atkinson (Sunderland Central) (Lab)
Can I just clarify something? As my hon. Friend the Member for Penistone and Stocksbridge said, I understand that “undue influence” has an existing meaning, but only in equity law. The hon. Lady herself mentioned wills, for example, being challenged in probate. There, as I understand it, the burden of proof rests fully on the person challenging the will; there is not an active test that someone has not been unduly influenced. If the hon. Lady is to use undue influence as an existing legal concept, would she favour reversing the presumption on the burden of evidence? In addition, I think there is a distinction between actual undue influence and presumed undue influence in the case law. I wonder which of those she thinks we should be using when considering this amendment.
Rebecca Paul
I thank the hon. Member for that intervention. I think the point on probate is right; it is commonly used there, but it is not just used in that situation. My understanding is that, when it comes to decisions by clinicians with regard to withdrawing life-sustaining treatment, undue influence is one of the considerations.
Danny Kruger
Just to amplify that point, my hon. Friend is absolutely right. In the “Re T” case, the Court of Appeal judged that undue influence should be taken into account in medical decisions, so that is an existing principle in law. It feels totally appropriate to bring that in here, seeing as, as we have discussed, the principle already exists that it is wrong to encourage suicide, and that it is possible to have undue influence without coercion or pressure being present. To address the point made by the hon. Member for Spen Valley, I do not think those terms are adequate to include undue influence; undue influence can exist even when there is no evidence of coercion.
Rebecca Paul
I thank my hon. Friend for that intervention. The point that I would make is about an example that we talked about a lot yesterday, so I know that it resonates for many on the Committee. If someone is making a decision and a treatment is being withdrawn, or life support is being turned off, undue influence is already one of the things they consider, so when we are considering assisted death, surely, in order to be consistent, we would apply undue influence to that as well, rather than having a lower level. Why would we have a lower threshold for assisted dying compared with withdrawal of treatment?
Sarah Olney
The hon. Members for Sunderland Central and for Penistone and Stocksbridge said of existing concepts in law, “This is how they have always been used.” It was reminiscent of the conversation we had yesterday about the Mental Capacity Act 2005, and mental capacity being an established concept in law, and “This is the way that it is always applied.” Does the hon. Lady agree that although precedent and established usage are extremely important, the Bill is quite a novel piece of legislation, and it is really incumbent on us as a Committee to ask ourselves whether we need to approach this piece of legislation in a different way, compared with other pieces of legislation that have gone before; and whether, just because something has always been used in a particular way, it is still appropriate for it to be used in that way for this legislation, as a general principle?
Rebecca Paul
I completely agree. If we do not incorporate undue influence, we are at a lower threshold compared with withdrawal of life-sustaining treatment. That does not feel to me like the right position, but equally, this is a novel bit of legislation and we need to increase the safeguards further. Obviously, we shall be debating numerous amendments whose purpose is to raise that threshold. It is always very hard—how long is a piece of string?—to know exactly where to set a threshold. Different people have different views. My personal view is that in this Bill the threshold is too low, so we need to raise it by agreeing some of these amendments. So far, none of the amendments that have been suggested has been accepted. I really hope that during this Committee stage we will increase the safeguards.
Kim Leadbeater
Hopefully this will be my final point on this subject. I believe there is consensus in the room; no one is saying that undue influence is acceptable. The question is, where does it sit within the Bill in terms of definitions? That is where I would appreciate, along with the hon. Lady, advice from legal experts—and indeed the Minister—around whether we are confident that with the concept of coercion we are including undue influence. Does she agree that that clarity would be helpful?
Rebecca Paul
I absolutely agree that such clarity would be very useful. The hon. Member and I both want to ensure that undue influence is captured somewhere; I am less picky about where. As long as it gets covered somewhere in the Bill, that would be an improvement to the Bill, and I hope that everyone would really welcome that. I think everyone recognises the issue. I am not hearing that people are opposed to this; they recognise that there can be more subtle forms of coercion. If we can work together to find the best place for that to go in the Bill, I am very open to that.
The Minister of State, Ministry of Justice (Sarah Sackman)
It might help if I offer—with the usual caveat that of course the Government are neutral—the Government’s position with respect to what the hon. Lady has been discussing. It is important to point out that the terms “coercion” and “coercive behaviour” and “pressure” that are used on the face of the Bill appear in existing legislation without statutory definition. In other words, they are given their ordinary meaning and they operate effectively in that manner in the criminal law. The hon. Lady is absolutely right that clause 26, which we shall come to in due course, is a separate matter, but of course it will be important to review the Bill as a whole and to understand the interaction between the different provisions in clause 1, as we trace it through to the criminal offences.
It is the Government’s view that manipulative behaviour or undue influence—the terms that the hon. Lady is using—would come within the normal meaning as understood in case law by the judiciary of the terms “pressure” and “coercion”. In terms of the integrity of the statute book, there is a concern that by adding additional terms, we run the risk of creating confusion, because when it comes to the interpretation of those provisions, judges will be looking to understand and ascertain what Parliament meant by “undue influence” that was not currently covered by coercion. Given that those terms are commonly broadly interpreted, it is the Government’s view that the sorts of behaviours that the hon. Lady is describing—“undue influence”—would be covered by the terms used on the face of the Bill. For simplicity, given that our existing body of law interprets those provisions widely, and to ensure consistent application of the law in this context and other contexts where coercion arises, it is important from the Government’s point of view to retain the Bill’s current wording.
Rebecca Paul
It is helpful to understand the Government’s position. If the amendment is not made, I hope that the Minister is right, but one thing that I have learned in my time is that different judges will have different views on these things. Personally, I would prefer to see this provision in the Bill, as it would absolutely ensure that the protection is in place. We all know that decisions in the courts can sometimes go a different way from what we expect.
Naz Shah
I have a concern about what the Minister says. As one psychiatrist put it, the Bill is very novel and untested. The MCA has not been tested. Now the Government say that this will work, without consultation or any impact assessment. I struggle to understand that. Does the hon. Lady share my concern that this does not feel right?
Rebecca Paul
It is reassuring to hear that I am not the only one worried about this, so I thank the hon. Lady for that.
Danny Kruger
I understood the Minister to say that the judge needs clarity when they come to adjudicate on a case. We have heard through the media, although an amendment has not yet been tabled, that a judge will not oversee the process. Does my hon. Friend share my concern that we are setting up a legal system that will not provide proper legal oversight of the proposed measures?
Rebecca Paul
My hon. Friend’s point goes to the heart of the case, and to the point that I made earlier: it is extremely difficult when the Bill is a moving feast. We are tabling amendments to the Bill as drafted, but if substantial changes are made, that will impact some of what we did earlier.
Kim Leadbeater
We are looking at different amendments as the Bill progresses, but a judge would always be involved in criminal offences, which is what we are talking about now.
Danny Kruger
This is a very helpful conversation, and I am grateful to my hon. Friend for allowing all these interventions. It is right that there would be a judge in the event of a criminal offence. We are trying to ensure that we do not get to that point by insisting that in the early stages of the process, when a doctor makes their assessment—indeed, when a judge makes their assessment, if there is still that judicial stage, as we hope there will be—they are required to ensure that there has not been undue influence. It is important that, at that early stage, they are asked to check not just whether there has been coercion. I hear what the Minister says about the concept of undue influence hopefully somehow being incorporated in the definition of coercion or pressure, but we need to ensure that that test is applied at a very early stage. The first people who discuss the matter with the patient should ensure that there has been no undue influence, which by the way is about much more than outright coercion; it is about an imbalance of power in the relational dynamics within families, which as we all know can be very complicated. That is what necessitates the amendment.
Rebecca Paul
I completely agree with my hon. Friend. As always, he makes the point powerfully.
Naz Shah
Does the hon. Lady share my concern? My understanding is that, in normal parliamentary business, if the Government announce any changes to the law in the press first, they are usually rebuked by Mr Speaker in the Chamber. I appreciate that this is a private Member’s Bill, but a Guardian piece yesterday outlined how we will now scrap the involvement of a High Court judge and have a panel instead, with an amendment to be tabled to that effect. I am happy for my hon. Friend the Member for Spen Valley to clarify how the system is going to change.
Once we have debated the amendments on undue influence and coercion, we have debated them. We cannot then come back to them, because of the nature of private Members’ Bills. Does the hon. Lady share my concern that, as we said yesterday, the horse has bolted? We are having to go over things and we might not be able to revisit this issue, which is why it is even more important to have probing conversations on the record so that, if nothing else, we can refer to them on Third Reading, for which we have only five hours.
Rebecca Paul
I completely agree with the hon. Lady. We should not make the mistake of assuming that certain amendments will be accepted. Until there is a Division, we do not know what the Bill is going to look like. It is incredibly difficult to table amendments early on when we do not know whether other fundamental things are going to change. That is why it is important that we are really thorough and improve the safeguards as much as we can, clause by clause. I do not want to get to the end of this process without our having accepted any of the improved safeguards, only for the Bill to be turned on its head at the end when there is a Division on something fundamental. As the hon. Lady rightly says, we do not get the opportunity to come back and review the decisions we have made on the back of that.
Sarah Olney
Further to the point made by the hon. Member for Bradford West, is it not a further complication that if a question is put in Committee and considered settled, it cannot be revisited on Report by any other Member outside the Committee? It may well be the case that amendments that are accepted further down the line fundamentally change the nature of the Bill, and Members who are not on this Committee will be prevented from revisiting questions in respect of the early clauses because the matter has been discussed in Committee, is considered settled and cannot be revisited on Report.
Rebecca Paul
As a new MP—there are many in the room today—I am still very much learning the process; we have to contend with not quite understanding how the full process works. In two years’ time, I think that I and many other new colleagues would be in a different position and would fully understand all the interactions and the subtleties of the legislative process. But it is a challenge I have, which is why, right now, I will always table the most robust amendments that I think will safeguard the most vulnerable in our society.
Dr Simon Opher (Stroud) (Lab)
I would like to bring the Committee back to a certain amount of reality. What we are talking about is how we can assist clinicians to assess coercion and pressure. I like the way we have discussed this in a very good way, trying to make the Bill safe, but would the hon. Lady’s amendment make that any easier for the clinician? I do not think it would. The Bill is very clear as it is. I do not think there will be any implications if there are further amendments, because the Bill provides a statement of what we do; as a clinician, I would understand and be able to apply that.
Rebecca Paul
The hon. Member is absolutely right that the amendment would not make it easier for the clinician. My job is not to make it easier for the clinician to determine that someone is eligible for assisted death. It should be a robust, rigorous and well-considered process.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I find the hon. Lady’s point about the mechanism by which we are making this legislation to be very pertinent. I have been here for almost 10 years. As somebody from a small party, I suspect we are all experiencing how Bill Committees work from the outside, if you like. We need a note of humility. On the one hand, we are all here trying to make this Bill a piece of legislation that is as watertight as possible. That very much then comes over to the Government; I know we are here on a private Member’s Bill because of the nature of the ethical question with this Bill, and I am very comfortable with that, but none the less there is an immense responsibility in the next stages with the questions we raise. Perhaps it might be an idea not to push this question to a vote—although I leave that entirely to the hon. Lady—because that keeps the matter alive. There is an immense responsibility on the Government to listen to the issues that we can only touch upon here and to ensure they are all sewn together.
Rebecca Paul
I thank the right hon. Lady for that really helpful intervention. That is exactly the kind of advice that is extremely useful to us new MPs undertaking this process. I will have to make the decision on that question in a matter of minutes, and it is very difficult, but I will do my best to make the right decision.
New clause 5 seeks to define encouragement for the purposes of the Bill and includes some exclusions. We have already talked about some of the challenges with exactly what encouragement means, and clearly there are certain acts that we do not want to be captured by it. The aim of the clause is just to ensure that it is only intentional, targeted and effective encouragement that is covered. I am very open to working with the Government to ensure that the drafting reflects the intent; it may well be that some other things go in there to address some of the concerns raised by my right hon. Friend the Member for North West Hampshire around support being given by families. No one wants to see that included in this definition—I think we all agree on that.
In summary, I hope hon. Members will view these amendments, incorporating undue influence and encouragement into clause 1, favourably, in order to bolster the safeguards in this Bill. It is vital that subtler forms of influence are addressed, to protect patients and to ensure that it is not just the obvious signs of coercion that are looked for. I also welcome amendment 113, tabled by the hon. Member for Broxtowe, which is very much in the same spirit as amendments 23 and 82 and would insert the word “manipulated”. I hope we will debate it because, if accepted, it would certainly improve the safeguards in the Bill.
Naz Shah
It is a pleasure to follow the hon. Lady. Just to put it out there, to begin with on amendment 23, the Court of Appeal, in the case of “Re T (Adult: Refusal of Medical Treatment)”, held that undue influence was relevant to medical decisions and said that doctors must check for it. Undue influence is about power imbalance, rather than outright coercion.
That brings me nicely on to the points we discussed in some detail yesterday. The right hon. Member for North West Hampshire talked about having a conversation with his family, with his wife and children and so on. I will give another example. Say there is a woman who has been the victim of domestic violence—we know this happens; we know two women a week are killed in this country, to this day—and she is subtly encouraged: “Sweetheart, you’ve got a diagnosis and the option is to have this.” There is a fine line, and the fine line conversation has been mentioned quite often as well, but I would rather stay on the side of caution with that fine line conversation when it comes to domestic abuse, coercion and the power imbalance in a relationship.
Let me come back to that woman or elderly person whose loved ones have the conversation—and they indeed have the conversation; it happens every day. Ask any victim of domestic violence. On average, it takes a woman 40 attempts to leave an abusive partner—that is the fact—because we do not even recognise it.
I know somebody who recently left an abusive partner—that took three years of encouragement because she did not recognise that what was happening to her was about power and control. It is when power is juxtaposed with vulnerability that there is the potential for abuse. That happens—it happens every single day. Victims of domestic abuse are not just younger people; according to Age Concern, over 375,000 older people are at risk of domestic abuse.
The abuse of people is a cancer in our society, and that very subtle power imbalance is where the fine line is crossed. Given that the Court of Appeal has ruled and is already saying that medics have to look out for undue influence, I would argue that amendment 23 actually strengthens the Bill. My hon. Friend the Member for Spen Valley has repeatedly insisted that this Bill needs to be the tightest in the world. How does the amendment not complement her view? How does it not strengthen the Bill, to protect victims?
Sojan Joseph (Ashford) (Lab)
My hon. Friend mentioned domestic violence and vulnerable people. Do we not also need to think about the many people in hospital beds and nursing homes who may not have any relatives? They might get influenced or encouraged to choose this route by professionals because of the pressure on the NHS and hospices. Amendment 23 would strengthen the Bill in that respect as well.
Naz Shah
I would like to hope that that would never happen; I have a huge love of the NHS and of the people I know in it who make decisions every day, particularly given all the cuts—even more so, post covid. But there is that risk; I would like to hope that it is very small.
When it comes to mental health, the debate is similar to the one about capacity: it is the same conversation about whether something is fit for purpose. Just because something already exists does not mean that it will necessarily suit what we are doing here.
On International Women’s Day, the Minister for Safeguarding and Violence against Women and Girls, my hon. Friend the Member for Birmingham Yardley (Jess Phillips), eloquently reads out a list of victims of domestic violence who have been murdered. There are two a week—I make no apologies for keeping coming back to this. Only yesterday, there was an article about women’s charities that support victims of domestic abuse citing their concerns. The amendment speaks to those concerns. How could it not be supportive?
I am not convinced by the idea that the amendment would introduce an element of jeopardy. People make decisions with their families every day. We sit and have conversations. I speak from a position of privilege—as we all do in this place, frankly. We speak from positions of privilege about how we could have these conversations with our families. But we know that inequalities exist and that some people do not have those privileges. We know that society is unequal. We know that domestic abuse, elder abuse and mental health issues exist.
In my constituency, it takes 14 months just to get a child and adolescent mental health services referral for a young person; I appreciate that we are not talking about young people. My point is that there is a real backlog in the NHS—in terms of waiting times and pain medication, for example. Palliative care is not equal, as I said yesterday. I am genuinely asking Committee members: which bit of the amendment can we not support?
Sarah Olney
The hon. Lady is making a powerful speech. She referred to an article she read yesterday about domestic violence in relation to the Bill; it may have been the article by Sarah Ditum in the New Statesman, which I also read yesterday. It cited two cases in which people had been on trial for murder and had pleaded mercy killing, or said that they had carried out the killing of their spouse or partner on the basis that that person was suffering greatly at the end of their life. In both cases, when the evidence was examined, the men were found guilty of murder, because it was very clear that that was what had actually happened.
The article had a profound impact on me, because it demonstrated the risk that we are running: that people will be able to use the Bill in instances of domestic violence. We have to take that very seriously and consider the implications.
Kim Leadbeater
My hon. Friend is making some powerful and important points about, sadly, a lot of the ills in society, which we all deal with.
Let us take the example of a woman who has a terminal illness and is coerced and pressured by a loved one to end her own life. At the moment, we have no idea whether that has happened, because there is no legal framework around that dreadful situation. The Bill would create a legal framework, so that conversations would be had with that woman prior to that point and, hopefully, that point would never come. She would speak to two doctors, potentially a psychiatrist, and other experts to ensure that that did not happen. At the moment, there is no legal framework around that. The Bill also includes a criminal offence of coercion, for which someone could go to prison for 14 years. At the moment, that just is not there.
Naz Shah
I thank my hon. Friend, but I feel that the point is being missed. It is true that there is no framework, but for somebody to get to this point in the first instance they need to have a terminal illness. There is a framework around domestic violence, and domestic violence laws exist for everybody. Frameworks already exist for women fleeing domestic violence, and there is no shortage of attempts to try to get those legal frameworks right across society. That is why we had the Domestic Abuse Act 2021, why we have committed to halving violence against women and girls, and why the Prime Minister made a personal commitment in that regard—and rightly so.
There has already been a test case in which a judge said that medics have an obligation in this context. An hon. Member referred yesterday to assisted dying being a treatment, although I disagree, and we had that conversation later.
The Minister for Care (Stephen Kinnock)
That was a misunderstanding; I was talking about “treatment” as a legal term.
Daniel Francis
From what I understand from the promoter of the Bill, the argument is that we should put these measures in place to protect from coercion people who have less than six months to live, but we would not put those protections in place for people who have nine or 12 months to live. If we are putting the measures in place for someone with six months to live, why are we not doing so for someone with nine or 12 months to live?
Naz Shah
My hon. Friend makes a valid point. There has already been a test case, and the Court of Appeal has ruled that undue influence is relevant to medical decisions and that doctors must look at it. If that is already a ruling, I struggle to understand the resistance to adding the words “undue influence” to a Bill that, in the promoter’s own words, should be the safest in the world. A judge has already ruled on it. We already know that we are not going to get to a judge. I struggle to understand this.
Kit Malthouse
As the Minister pointed out, the concepts that the hon. Lady is trying to embed in the Bill are already covered by what is a settled legal interpretation and a framework that, over the last 10 years, has become used to dealing with those issues. Do not forget that families who are going through such situations will be advised and will examine the legislation quite carefully. I am nervous about injecting yet another level of consideration for them that might mean that conversations are interpreted—by them, but not necessarily in a legal sense—in a way that is not beneficial to the patient.
I understand the group that the hon. Lady is seeking to protect—that is what we are all trying to do. But what about the majority of people in such circumstances, who might say, for example, “Darling, I am thinking about taking an assisted death because of my horrible disease. If you were me, what would you do?” If I then say, “Well, painful though it is for me, I would do exactly the same thing,” how would families interpret that?
I also want to respond to the hon. Member for Bexleyheath and Crayford. He made a strong point, but I am not sure he is exactly right. I think that if at nine months I have a disease that is progressing, and somebody in my family says to me, “When it comes to it, Kit, you have absolutely got to take an assisted death. We really want you to,” and then when I get into the six-month period I do, and I tell the doctor, my interpretation is that would be covered under the Bill.
I think what the Minister was eloquently trying to establish was that we have to be careful about the clarity of the legal language, and not make it embroidered in a way that makes interpretation by laypeople as well as by lawyers more difficult and complicated. I will come on to this in the next grouping, but we must not use language in a way that skews behaviour, or that makes what should be healthy and fulsome discussions within families guarded and nervous.
Naz Shah
I have to respectfully disagree with the right hon. Member that this is a settled position. I also challenge, on the record, what the Minister said. I struggle to understand how the Minister and the Government can say that this is a settled position without having gone to consultation on the Bill and without having an impact assessment. That does not satisfy me. My role when I agreed to be on the Committee was to come in to scrutinise and help strengthen the legislation. In doing so, these are the things that I am pointing out, because the safeguards are not strong enough for me.
I come back to the Court of Appeal. This would be a medical intervention, albeit to end somebody’s life. It would be administering a lethal drug to end somebody’s life, and it would be done by medics. Medics are involved in every stage. If there is case law that has already established that doctors have to look at undue influence in medical decisions, then I say to every single person on the Committee: what are we resisting? When the Court of Appeal has already said so, why is the Committee debating keeping this language out because it makes things complicated?
Let us go back to the words of Dr Jamilla Hussain, who gave evidence to the Committee. She is a clinician, and she absolutely accepts that there are some people who would really benefit from this law. As a clinician, she wants to get there. Indeed, I spoke to Professor John Wright, and he said, “Naz, absolutely—this is where we need to be.”
Sean Woodcock
My hon. Friend is making a very powerful argument. She is absolutely right to focus on protecting the vulnerable people who this law might apply to. She has touched on medics. I also want to mention the state and its role in what we are talking about. For example, I am opposed to capital punishment, and I link this discussion to that because we are talking about the state providing an individual with a method by which they can end their own life, such as by handing them a pill. I am concerned that, if we are not taking these safeguards seriously, we are abandoning vulnerable people by allowing the state to aid and abet the misuse of the Bill against them. Does my hon. Friend share my concerns?
Naz Shah
I share my hon. Friend’s concerns about the Bill not being tightened and fit for purpose. We cannot afford for those people to slip through the net. One woman’s death is one too many. One older person’s death is one too many. That is the bar we have to set.
I come back to the words of Dr Jamilla: she said, “Yes, absolutely.” Every single Committee member, and anyone familiar with this debate, found it heartbreaking to listen to those who came in to give testimony about how members of their families died. Those stories will stay with us forever, and rightly so. That is why, in principle, I am supportive of where we need to get to with the Bill. However, as Dr Jamilla said, we cannot get there by ignoring this big lot of people with vulnerabilities and inequalities, who would absolutely need this legislation. We need to fix the inequalities first.
Let us be honest: as legislators, we know that we will not fix every ill in society, otherwise we would not need a police force. We would not need laws if everybody behaved as they should and supported each other. However, it is incumbent upon us, as legislators in this place, to try our best.
Nobody came to this Bill Committee thinking it was going to be a walk in the park. We certainly did not know that we were going to get evidence throughout it, and plenty of challenges are popping up. We came to this Committee—I came new to the subject—because it is of such importance. I sat in the Chamber for five hours on Second Reading, bobbing, but I did not get the chance to speak—and that happened to another 100 colleagues, who also did not get to speak. However, those who made contributions—whether they were for the Bill, concerned about the Bill or were clearly not going to support the Bill—did so because they feel very strongly about it. That is our responsibility.
I come back to amendment 23, which was tabled by the hon. Member for Reigate: we should really consider adding it to the Bill, because that would strengthen it. The amendment does not dilute the Bill, and it does not add another hurdle given that the Court of Appeal has already said that there is a responsibility to look for undue influence. I do not understand the resistance to the amendment, which I will support.
Jake Richards (Rother Valley) (Lab)
This debate has been very interesting and has reminded me of my life before being elected. When I was a barrister in court, I was often junior counsel and, by the time I stood up, all the best points had been taken. I feel a bit like that this morning.
I have some observations, the first of which is on what is in the Bill currently. My central submission is that the Bill does more than enough in this area, and that simplicity is what is required, especially when dealing with very complex and difficult subjects, which coercion is. There are two sides to the coin of coercion: one is about acts by third parties, such as family members or society at large, and the other is the individual making the decision.
Clause 1 is clear that, as part of the assessment made by the doctor, judge or panel, the person must have
“a clear, settled and informed wish to end their own life”
voluntarily. That precisely echoes words from the Crown Prosecution Service guidance on whether to prosecute that is currently in operation. That guidance has been in use for some time, and it seems perfectly rational and logical to continue that.
The focus of the assessment should be on the individual and whether they make the choice freely. Clause 1 makes that clear, and I presume purposefully echoes the language from the CPS guidance. It then says it must be established that the person has
“made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it.”
That must of course be read with clause 26, which introduces a new offence:
“A person who, by dishonesty, coercion or pressure, induces another person to make a first or second declaration, or not to cancel such a declaration, commits an offence.”
That carries a sentence of up to 14 years in prison.
Jake Richards
I am very happy to share my CV afterwards. I practised as a barrister mainly in family law and Court of Protection law, but back in the day I also practised criminal law as a very junior barrister in the magistrates courts up and down the land.
I do not want to delve into the criminal element too much, because we are on clause 1, but it appears to me that the criminal offence set out in clause 26 is far stronger than the Suicide Act 1961, which talks of an act of encouragement. That is not included in clause 26, which talks about inducement—a much more holistic and wider concept than that of an Act probably drafted back in the late 1950s. In my submission, that brings the law far more up to date with modern concepts of coercion and pressure.
Rebecca Paul
The hon. Gentleman is making interesting points. This is probably more a question for the Minister. I have been focused on clause 24, in terms of encouragement, but clause 26 obviously makes coercion and pressure a criminal offence. The hon. Gentleman says he thinks coercion includes undue influence; does it include encouragement?
I seek clarification of whether undue influence and encouragement are captured in clause 26. When I tabled the amendments, I assumed not. If it is the case, how does that interact with the Suicide Act, which already makes the encouragement of suicide a criminal offence, and is probably not—I have not checked, so I would have to look—consistent with this? That needs to be looked at. It is easy to say that undue influence is included in coercion, but it has a knock-on impact on a lot of other things. We need to be really clear on that point.
Jake Richards
My answer to the hon. Lady’s first question is yes. In my view, clause 26 covers undue influence and encouragement—I could go on to state why.
My reading of the Bill is that clause 24(3) essentially removes from the Suicide Act persons who are by all the other criteria eligible for assistance in death under the Bill. The Act that will be created is, in my view, stronger in any event. That is why—I genuinely mean this respectfully, because the hon. Lady made good points in an impassioned speech—this argument about encouragement in the Suicide Act does not follow through. What we have here is a much safer and more modern piece of legislation, which is reflective of what we all think of when we think of coercion and pressure.
Rebecca Paul
Forgive me—I hope the hon. Gentleman will bear with me as I seek to understand this; he is obviously very learned in these matters. My understanding is that clause 24 takes out only the assistance piece, not the encouragement piece. I think the hon. Gentleman just said, if I am right, that encouragement now falls under clause 26, but encouragement is also captured in the Suicide Act 1961. That is my non-lawyer interpretation of reading the Bill. I am not saying that is absolutely right, but I would appreciate it if he could clarify that.
Jake Richards
My reading of the Bill—we are dealing with clause 1, but we will get to clause 24—is that clause 24(3) says:
“In the Suicide Act 1961, after section 2A (acts capable of encouraging or assisting suicide) insert”,
followed by the provisions in new section 2AA.
Juliet Campbell (Broxtowe) (Lab)
I have a question for the promoter of the Bill, my hon. Friend the Member for Spen Valley. We are having a lengthy conversation about coercion and pressure, and whether those two words are a catch-all for things that can be much more subtle and nuanced. That is the point of the amendment, and it is the point that I will make when I speak to the amendment I have tabled. Clause 26 suddenly introduces new language, with the word “dishonesty”, which brings in another type of coercion and pressure. Could we rethink the wording of clause 1(2)(b), which refers to a person who
“has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured”?
The words “coerced” and “pressured” are insufficient to cover the safeguards that we are asking for. They are not a catch-all. We are asking for something much more nuanced, and for other words to be added, just as the word “dishonesty” appears in clause 26.
Jake Richards
I did not draft the legislation, but my understanding is that the reason why the word “dishonesty” appears in clause 26—I do not know whether the Minister wants to comment on this—is that when there is a criminal offence, there needs to be a mens rea. The person who has committed the offence needs to have been intentional or reckless in doing so. As I say, I was a criminal barrister only very briefly; I am sure my law tutors are shaking their heads.
Naz Shah
The principle of statutory interpretation means that by mentioning one thing, we exclude others, so it is my understanding that having the terms coercion and pressure in the Bill excludes undue influence. Will my hon. Friend, who has clearly gone through this in detail, also comment on the fact that section 2A of the Suicide Act says that encouragement includes pressure?
Jake Richards
With respect, I think my hon. Friend is wrong: it is certainly not an exhaustive list of factors to be taken into account. The courts—this is why we have a common law system—interpret the language used in legislation.
Naz Shah
To build on that, I referred to the Court of the Appeal earlier, but when it comes to someone giving their organs, I think from the age of 12 or 13—I will try to find the reference—the words “undue influence” are used in the legislation. It comes back to the crux of my argument; I would like to understand why my hon. Friend is so concerned, from a legal perspective, about putting in the words “undue influence”, when they already appear in legislation.
Jake Richards
The issue I have is that if we open the door to all different types of terminology, it will never end. The law is best served when it is clear, simple and straightforward.
Jake Richards
Let me just make this key point. Members have raised the case of Re T. I must admit that I do not know that case, but I believe it is a 1992 Court of Appeal case about a refusal of treatment, so it is 33 years old. The law has moved on. As the Minister said earlier, the terminology of coercion and pressure is much more modern, and is used in legislation that has been drafted in the last decade, rather than the Suicide Act drafted in the 1950s and that Court of Appeal case from the early 1990s.
Last night, I briefly went back to my law books—I sound like I am really missing my old job—and looked into where the concept of coercion is used across different jurisdictions and areas. This is what I read: “Coercion is a phenomenon the courts have experience of handling. Generally, coercion as a concept in our law involves applying pressure, whether physical, psychological or moral, to force someone to act against their free will or better judgment. This pressure can manifest in various forms, such as threats of intimidation and undue influence, and is recognised across criminal, family, consumer and contract law.” It is used in forced marriage legislation. It is used in criminal legislation. Case law has made it very clear that coercion is used interchangeably with duress, defined as a constraint on a person’s choice.
I feel that we are dancing on the head of a pin. The law has been drafted by one of the most senior parliamentary draftspeople. The Government Minister has confirmed that the Ministry of Justice deems this to be a sensible course of action if this legislation is to proceed.
Dr Tidball
Does my hon. Friend agree, as Max Hill did in oral evidence, that it would be helpful to have definitions of the three concepts in clause 26? Although we are discussing an earlier clause, it is important to thread the needle with this statute and ensure that we are looking ahead, as the hon. Gentleman has rightly pointed out.
Jake Richards
That sounds very sensible—I think my hon. Friend is talking about her amendment.
Rebecca Paul
I am so glad that the hon. Member has spoken, because this is a really important conversation. I appreciate that we are getting a little ahead of ourselves, so I will be quick before the Chair tells me off. Section 2A of the Suicide Act includes pressure when it talks about encouragement. That is why it is so useful to have this conversation—because that could mean that encouragement is captured by clause 26. There is some work to be done. I stand by the amendments—it is really important that we have them on the face of the Bill—but, when we get to the relevant point in Committee, we need to think about the interactions of clauses 24 and 26 with the Suicide Act. I am sure that the Ministers will want to look at that, but we may need to be very clear what is included in what, which may require some things in the Bill so that there is no ambiguity. Does the hon. Gentleman agree?
Jake Richards
Yes. As I say, the amendments are perfectly reasonable; it is sensible to raise them and it is good that we are having this conversation. I have looked into this carefully and I take it seriously. I feel that the square is squared—or the circle goes all the way round, to mix my metaphors—but that does not mean that we should not look into this further when we get to the relevant clauses.
Danny Kruger
I am worried about the constant suggestion that we look at these issues later. The fact is that we do not know what the Bill will look like later. We do not know what amendments will be tabled or what will be agreed. It is always possible to revisit amendments that have been passed in the earlier stages if subsequent amendments make them otiose. The point is that we should not pass this opportunity to strengthen the Bill if we can.
On the point that the hon. Member for Rother Valley was discussing with my hon. Friend the Member for Reigate about the Suicide Act explicitly referring to pressure as a subset, as it were, of encouragement, that Act specifies that encouragement is the general, catch-all term and includes pressure. I think the hon. Gentleman is suggesting, and other hon. Members have suggested, that it is the other way round: that coercion or pressure somehow include encouragement. Surely encouragement is the broader term—it exists in the current law on suicide. What is the problem with using that term in addition to coercion and pressure, consistent with existing law? It is a broader and more sufficient term.
Jake Richards
On the first point, in fairness, the hon. Member for Reigate was talking about a clause that we are going to consider and the link between two different criminal offences in the 1961 Act and clause 26 of the Bill.
On the second point, the Bill—to coin a political phrase—needs to be fit for the future. The language used in legislation over the last decade when we are considering coercion—I use that word automatically because that is the language we use now—is much more appropriate than “encouragement”, which is slightly archaic, to be honest. Perhaps we need to look at the Suicide Act as well—although not in this parliamentary term; that is for the second term. [Laughter.] I have nothing further to add.
Juliet Campbell
I rise to speak to amendments 113 to 115 and 118 to 121, which would require steps to be taken to establish that a person seeking assistance has not been manipulated by another person.
The amendments would require the co-ordinating doctor to ascertain whether, in their opinion, the person has been manipulated, and would account for additional ways that a person can be influenced by another person into choosing an assisted death. Pressure and coercion may leave an individual feeling that they have no choice but to take that path; however, manipulation can make the person think that they made the choice themselves. Coercion is an overt and clear means of controlling someone, whereas manipulation is a hidden, psychological and deceptive means of control.
Dr Opher
We are all in this together. We all want the safest Bill possible, so we should defer to the legal side to form the safest language. I am not a specialist on this legal subject but we all want the same thing and we are arguing about words on which we perhaps just need to take advice, to make the safest possible Bill.
Naz Shah
In response to the intervention of my hon. Friend, we are here to make the Bill as safe as possible, but this is a new thing. When the Bill returns to the House, I have to make a decision on whether to support a new Bill that is of such huge magnitude to our communities and the whole country. This Committee is the only process available to us, and words matter.
I support the amendment tabled by my hon. Friend the Member for Broxtowe. The concept of manipulation, as she set out, is very important. I come back to the issue of abuse, particularly in respect of women. I have never heard the phrase “Fifty Shades of Manipulation”—that is an interesting one—but this happens every day, across society. I encourage people to talk about these words. We, as parliamentarians, benefit from that: we are better people for understanding other experiences, because different people bring different experiences to this conversation. I have certainly learned a lot, and it strengthens the House itself when we speak from positions that we have debated. That is the whole purpose of us being here. I am not concerned by talking about adding language—I hope my hon. Friend the Member for Broxtowe shares my view—because that is point of us being here in the first place.
Juliet Campbell
To reply to my hon. Friend the Member for Stroud, I understand that the writers, promoter and sponsors of the Bill want it to be as simple as possible. The thought is that if we make it as simple as possible, there is less room for confusion and misinterpretation, but there are times when we can make things so simple that we allow far too much interpretation. Words such as those that the hon. Member for Reigate wants to be put into the Bill are really important. Manipulation is really important. Coercion and pressure are not measures of every type of controlling behaviour that happens to individuals.
Kim Leadbeater
I am very supportive of the sentiment behind my hon. Friend’s amendments, and she is making some really good points. Again, the question is about the simplicity of the language that goes in the Bill. The CPS guidelines on coercion and coercive control includes behaviour that is
“highly manipulative such as: ‘love bombing’ where the suspect will intermittently do what appears to be loving acts, seeking to present these as interrupting or negating the course of conduct”,
so there is language in there about manipulation. I hope that provides some reassurance that manipulation is seen to be part of the broader concepts of coercion and coercive control in the eyes of the law.
Juliet Campbell
I thank my hon. Friend for looking that up so swiftly. I still think that those additional words need to be included in the Bill. “Coercion” and “pressure” are used as a catch-all for manipulation, but the Bill does not allow people who are using it in their everyday life—doctors, clinicians, nurses and social workers—to understand that.
Naz Shah
I thank my hon. Friend for being so generous with her time. To come back to the CPS’s terminology, does she agree that, in an ideal situation, the Bill would be so safe that we would not need to look at that CPS definition? The Bill would be so tightly defined that nobody could be prosecuted for coercing somebody into taking the option of assisted death.
Juliet Campbell
I absolutely agree that we do not want people not to understand what the Bill allows them to do or not do. We spoke earlier about making the Bill simple enough for professionals to understand so that they know how to deal with particular instances, but it is not here to make life easy for professionals; it is here to ensure that anyone who is vulnerable—anyone who has six months to live, or for whatever other reason—is protected.
A continuous theme of our debates and all our conversations is that we must make safeguarding as tight as possible so that people are protected. I believe it is not too much to ask to include those additional words to ensure that the wording is as tight as possible and protects the people who need our protection every single day.
Danny Kruger
It is a pleasure to follow the hon. Lady. May I say how much I agree with what she has been saying and the purpose of her amendments, which I will be supporting if we get the chance, as I will the amendments in the name of my hon. Friend the Member for Reigate?
I do not want to repeat what I said yesterday, but my general point is that we make decisions in a context. We are directly influenced by the people around us. I want to highlight the very powerful phrase that my hon. Friend used. She said that love can shroud decision making, and the influence and pressure that is applied to us can be shrouded in love.
Professor House, who gave evidence to us, talked about the enmeshment of people’s decision making with the influence of their loved ones and people around them. The fact is—hon. Members have made this point—that power dynamics in families are complicated, and where there is an imbalance of power, there is risk. The Bill implicitly acknowledges that through the safeguards that it attempts to create, but I do not think they are strong enough.
I know that my right hon. Friend the Member for North West Hampshire is concerned that strengthening the Bill in this way will create an opposite risk, which is that a family member who was behaving perfectly properly could somehow be dragged into a prosecution, or that the application would be denied on the basis of a reasonable conversation that had taken place between loved ones—“My darling, do you think I should do this?” It is a lovely fictional conversation, a sweet exchange between a loving couple, but saying to somebody that you agree with the decision they have made and that you would support it, or that you are content with it or understand it, is not the same as undue influence—it is not even the same as encouragement. It is similar to the debate we will be having in due course about the role of the doctor making an overt suggestion of an assisted death, rather than consenting to a suggestion that has been made by the patient.
Kit Malthouse
My hon. Friend is asserting that those two things are different, but obviously, those assertions would be tested in court. If a person were to appear in front of the co-ordinating doctor and say, “Doctor, I want an assisted death and my husband thinks I should do it,” is that interpreted as encouragement? Is it support? Under the current legal framework, that would be interpretable and inquirable. However, as I said to my hon. Friend, I am not necessarily nervous that families would be dragged into some kind of legal conflict. I am concerned that they would seek to not get there at all, because the insertion of those words would make them so nervous about the conversation that they would become guarded.
We know from other jurisdictions that over time, people will come to understand this process. As I will refer to during our debate on the next grouping, they will also start to understand what they should not say, if we put into the Bill that there are things that will play negatively if they are revealed to the relevant authorities. My concern is that unless we keep the Bill simple and clear, and leave families and medics the space to have free, frank and open conversations that—from the medical point of view—cover the full range of options, we will start to restrict and police the conversation, and therefore make it that much more difficult.
Danny Kruger
The risk of gaming—of patients playing the game, and doctors seeking out words to say or not say—is an issue throughout the Bill. That is a general problem with the Bill; thankfully, it is not just a free-for-all. However, in the scenario that my right hon. Friend suggests, that is exactly my concern: if the patient says that their spouse agrees with them or encourages them, that should be a red flag. Under the current Bill, it is not clear that it would be. There is no obligation on the doctor to record that there has been undue influence or to push back, because at the moment, the doctor is looking only for evidence of coercion. As I will come to later, that bar is too low to use, so if the doctor hears those words, I would like him or her to start asking questions, to push back, and to satisfy himself or herself that there has been no overt encouragement or undue influence. That is the point of what we are trying to do.
Naz Shah
To come back to an earlier point—I want to make these points, simply because it is really important that we get them on the record—my hon. Friend the Member for Rother Valley talked about undue influence and encouragement perhaps being archaic terminology. However, just last year, the Digital Markets, Competition and Consumers Act 2024 cited undue influence, as did the Anatomy Act 1984. Acts passed by Parliament in the last few years have used that terminology, so does the hon. Member for East Wiltshire share my concern about the resistance to having those words added to this Bill?
Danny Kruger
The hon. Member is absolutely right—undue influence does exist in law, including in laws that have been passed very recently. I recognise that the hon. Member for Rother Valley is not impressed by laws that are more than 10 years old, but I hope he might be satisfied that a law passed last year is sufficiently up to date and modern for him to regard as morally valid. Undue influence is an existing term, and we should apply it in this case.
Kim Leadbeater
On that point, and in response to the comment made by my hon. Friend the Member for Bradford West, although I stand to be corrected by my hon. Friend the Member for Rother Valley, I do not think that he said that undue influence was an archaic term. I think it was the word “encouraged”.
Danny Kruger
If we are going to rule out the word “encouraged” on the basis of archaism, I do not know what we are going to do with the language. It is a perfectly acceptable term. We are still governed by the Suicide Act, to which the Bill refers and in which context it is framed, so it is appropriate to remember that the Act specifically prohibits encouragement and includes pressure within that concept. The two terms co-exist in the same section of the Suicide Act, so the idea that we cannot have more than one word, and that that is somehow confusing, is wrong.
Rebecca Paul
In the light of my hon. Friend’s points, I have an interesting fact that he might enjoy: “encourage” was added to the Suicide Act by the last Labour Government in 2009, and replaced “aids” and “abets”, so it is not that archaic.
Danny Kruger
My goodness, 2009 might be in the mists of history for the hon. Member for Rother Valley, but it was the last Labour Government. That is very good to know, and I am grateful to my hon. Friend.
The hon. Member for Spen Valley made the point, which is quite often made in defence of the Bill, that there is currently no framework to spot coercion, therefore the Bill creates greater protections for people. The fact is that, as the hon. Member for Bradford West said, there is no law that currently allows assisted dying, so no framework is necessary to prohibit encouragement or inducement to an assisted death—the opportunity does not exist. I think everyone must acknowledge that, if we pass the Bill, we may open up a new avenue for abuse, and it is necessary that the Bill close it off. That is right and appropriate.
Coercion and abuse no doubt go on and are tragically common, but the answer to that problem is not to legalise assisted suicide and put a regulatory framework around it with limited protections against coercion and influence. We have to deal with the terrible cancer of abuse and coercion that exists in our society, as the hon. Member for Bradford West said. If we are concerned about undue pressure in families, that should be our social mission. If we are to have an assisted dying law, let us make it as strong as possible. As I say, we are potentially opening up a new avenue for abuse within families.
Kim Leadbeater
For me, the law needs to change for a number of reasons, and we will talk about some of them as Committee proceedings continue: autonomy, dignity, personal choice and bodily autonomy. In terms of this issue, we heard from families who faced police investigations as a result of a loved one taking their own life. Not only were they dealing with the trauma, grief and loss of their bereavement, but they faced often months and months of police investigation. In the oral evidence sessions, we heard from Pat Malone, who was in that situation after his brother took his own life. Surely the hon. Member has to acknowledge that that is a problem. It is not the only problem, and it is not the only reason for the Bill, but he has to acknowledge that we as legislators have a duty to correct it.
Danny Kruger
I am sure that the hon. Lady will acknowledge that those investigations will still happen, because not everybody who commits suicide will be subject to the Bill; not everybody who is terminally ill and wants to take their life with the assistance of their loved ones will be caught under it. I am sure she acknowledges that it is therefore still appropriate to have safeguards against assisted suicide outside the law—in fact, the Bill strengthens those safeguards. Those will still continue. I also regard it as appropriate and necessary to have a law against assisted suicide, for all the reasons that we have been discussing.
The hon. Lady is right that it is appropriate for Parliament or the authorities in general to ensure that cases such as those we have discussed, and that have been powerfully testified to us, are handled sensitively. In an overwhelming number of cases, the police do handle them well and sensitively. It might be that we need to improve the guidance around prosecution, and that is an important question. I certainly do not want the families of people who have taken their own lives to be harassed and chased through the courts, and I think we would all agree on that. In that respect, the guidance for the CPS and the police will always evolve.
Naz Shah
The hon. Member may recall that we heard from the former head of the CPS in the oral evidence sessions, and I asked him whether the Bill would address concerns about such prosecutions. I absolutely agree with my hon. Friend the Member for Spen Valley that we want to address that. However, this Bill is not the route to address those issues unless they fall into that six-month bracket.
Danny Kruger
I think that is right. I do not accept the claim that this Bill is somehow a response to the problem of abuse, coercion or the pressure to end life in families. Tragically, in jurisdictions that have an assisted dying law, the number of unassisted suicides—suicides that happen outside of the law—go up, because no law can catch all the people who might want to take their own lives. Thankfully, there is no blanket support for any assisted suicide; all the jurisdictions have some restrictions.
More significantly, if the state said that some people’s lives are not worth living and that it is an acceptable choice for them to end their own life—which is not what the current law says; we have legalised suicide, not actually endorsed it—by passing a law that endorsed the choice of some people to take their own life, we would be sending a signal that we agree that some people’s lives are not worth living. The social consequence of that is clear in the evidence from other jurisdictions: suicide in the general population goes up as a result of an assisted dying law.
Kim Leadbeater
On that point, the evidence does not clearly show that there is a direct relationship between those two things; there are other factors and no way of knowing that. On the concept of ending one’s own life and giving people the choice under the provisions of the Bill, what would the hon. Gentleman say to people who frame that concept very differently—as a way to shorten their death? Those terminally ill people, in my experience—I have met many of them now—do not view this as a way of ending their life, because they want to live, but the reality is that they are dying and want to take control of what their death looks like. How would he respond to that?
Danny Kruger
First, there might not be a causal link between assisted suicide laws and the increase in unassisted suicides in those places, but there is such a clear correlation that it is difficult to understand what else might be going on—unless there is something in the water in Canada, Australia, New Zealand and the Netherlands that is not there in other countries. It might be that those countries have such a disrespect for the frail, elderly and ill that they are taking their lives. However, I think there would be a direct social impact from the signal that this law would send into our culture, which is very concerning.
I hear the hon. Lady use that phrase quite often about people wanting to shorten their death rather than their life, but I am afraid to say that it is absolutely meaningless. We are here to make law. Death happens: you are either alive or you are dead. People might want to shorten their death, and might use that phrase, but what they are doing is shortening their life. There is no conceptual difference and certainly no legal difference between those two things. Trying to say that some people’s motivation for suicide is legitimate and some people’s is not makes no sense. This law will allow them to shorten their life and have assistance in committing suicide, and there is no other way to describe it in any terms that make sense. I do not regard the distinction that the hon. Lady makes as valid.
Our obligation to ensure that the Bill sets out what it is claimed that we all want it to do, which is to ensure that people are not pressured unduly into taking an assisted death, means that we should put that in black and white. The hon. Member for Rother Valley said that the current term is more than enough, and we had a bit of an exchange about that. I emphasise that it is a clear principle of the statutory interpretation of law that courts will look at not just the words that are in the Bill, but the words that are not. The decision to include some words and not others is regarded as significant by courts. If the term coercion is there but not influence, it is appropriate for the courts to conclude that influence was not intended by Parliament. It might be the case that the term coercion is interpreted to include influence, but if so, let us make that clear.
Sean Woodcock
I am grateful to the hon. Gentleman for giving way while he is in full flow. One of the areas that I have been confused about in this debate is that the Minister said—I have no reason to dispute it—that coercion is a clear term, so the courts know where they are with it, because they are already dealing with it. However, we have also heard from proponents of the Bill that it is about making life easier for the professionals who are involved. I mention that because, overhanging all of this is the fact that the Bill as it stands—as it passed Second Reading—has a High Court judge intervention. We are told that an amendment is coming that will remove that for a potential panel of professionals—
Terminally Ill Adults (End of Life) Bill (Twelfth sitting)
Tuesday 25th February 2025
(2 months ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 February 2025 - (25 Feb 2025)
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Chair
Electronic devices should be turned off or switched to silent. The only cups that I should see are those filled with the water provided in the room—no tea or coffee. Let us continue our line-by-line consideration of the Bill.
Clause 1
Assisted dying
Naz Shah (Bradford West) (Lab)
I beg to move amendment 281, in clause 1, page 1, line 20, at end insert—
“(c) has met with a palliative care specialist for the purposes of being informed about the medical and care support options.”
This amendment would mean that illness, disease or medical condition etc, the progress of which can be managed or controlled by treatment are not characterised as terminal illness.
The Chair
With this it will be convenient to discuss the following:
Amendment 299, in clause 7, page 4, line 17, after “(g)” insert
“and the condition in subsection (4) has been met”.
This amendment is consequential on Amendment 298.
Amendment 298, in clause 7, page 4, line 26, at end insert—
“(4) The coordinating doctor may not take the steps set out in subsection (3) unless they receive confirmation from a palliative care specialist that the person has had a consultation with that specialist about the palliative care options available to them.”
This will require the coordinating doctor to be of the opinion that the person has had a consultation with a specialist in palliative medicine.
Amendment 304, in clause 9, page 5, line 41, leave out “any available” and insert
“the person’s experience of specialist”.
This amendment would require the assessing doctor to discuss the person’s experience of specialist palliative, hospice or other care.
Amendment 311, in clause 12, page 8, line 14, at end insert
“and
(i) the person has had a consultation with a consultant who is a specialist in palliative medicine.”
This amendment would require that a person has had a consultation with a specialist in palliative medicine before the High Court could issue a declaration.
Naz Shah
Amendment 281 would ensure that the patient receives advice on palliative care options from a specialist in the field. Medicine is fast-paced, with innovative and new medicines becoming available in quick succession. Although those in the profession try to keep abreast of developments, it is hard to maintain the depth of knowledge necessary in all specialties. A co-ordinating doctor may or may not have specialist knowledge in palliative medicine. Some courses may provide the opportunity to learn more, but others only touch on palliative medicine—covering it in less than a day of a five-year medical degree. Specialists who are leading in this field of medicine, innovating advances and working to palliate a patient’s symptoms at the end of life will have far greater knowledge of the specialism. Even in this wider debate, many who work in a different field of medicine or in general practice have simply got their facts wrong when speaking about palliative medicine—not through intent but because they have drawn on their own, perhaps out-of-date, experience or simply do not have the competencies to understand all that palliative care can provide.
Pain and symptom control techniques are advancing; in our debates on this Bill, people have articulated instances of poor care rather than what clinical experts are able to achieve. It is therefore essential that a patient has a consultation with an expert in the field of palliative medicine, who can alleviate a patient’s fear, support them with a plan for the end of their life, and discuss how pain and symptoms can be managed. Hearing an alternative approach to the end of life can be life-affirming, help people discuss their fears and concerns about dying, and provide a patient with what they are seeking physically, psychologically, emotionally, socially and perhaps spiritually. Specialists in palliative medicine are trained to home in on the challenges that people naturally have on receiving a diagnosis of terminal illness and are skilled at supporting a patient to explore what end of life could look like for them.
If the Committee does not pass this amendment, it would be placing itself above palliative care specialists when talking about such matters. It would undermine the need for such a specialty in medicine, like a GP who may not know the breadth of palliative medicine options for their patients. The Committee must not assume that it knows those options. Rather, it should enable those with a specialist understanding of palliative medicine to deploy their skills in this process by working through palliative care options with patients before the consideration of a path that will end with an assisted suicide.
Amendment 299 is consequential on amendment 298, which would ensure that a person has a consultation or consultations with a palliative care specialist. Amendment 298 would further embed this into the practice of managing the end-of-life process to provide the patient real choice over their options at the end of life, as what can be achieved through the practice of high-quality palliative care is often significantly different from people’s perceptions—even those of clinicians. Palliative care, like so many fields of medicine, continues to advance in its application and in the steps that can be made available to palliate a person’s pain and symptoms. When pain is difficult to control using oral or intravenous pharmacology, other interventions, such as a nerve block, can result in the absence of pain. A specialist is required to provide such a procedure, but for most people who are in receipt of palliative care, this option is rarely made available. Palliative care is about not just pain and symptom control, but the holistic journey of a patient at the end of life.
Danny Kruger (East Wiltshire) (Con)
The hon. Member mentions the principle that palliative care is a holistic service. Does she agree that, given that the Bill’s advocates—including the promoter, the hon. Lady for Spen Valley—emphasise the need for a holistic range of opportunities for end-of-life care, palliative care needs to be central to that? Rather than suggesting that there is an either/or between palliative care and assisted dying, the advocates of the Bill have often stressed the importance of having both options. Does the hon. Member for Bradford West agree that it is strange that the Bill does not require palliative care consultation as part of the range of services that are offered to patients when they are having their consultation?
Naz Shah
I completely agree, which is why the amendment tabled by my hon. Friend the Member for York Central (Rachael Maskell) is very important. I urge the Committee to accept it, as it would ensure the provision of a palliative care consultation. As my hon. Friend the Member for Spen Valley has always said, it is about having a holistic approach—we need to get back to that.
In the evidence sessions, we heard that palliative care social workers can play a pivotal role in supporting patients. Those from other professions—psychological services, chaplaincy services, physiotherapists, occupational therapists and speech therapists—along with specialist nurses and medics can all contribute to the care of a patient at the end of life. In discussions with palliative care specialists who listened to the debate on 29 November, they were perplexed by the symptoms that were graphically described in the case studies, and cited poor care as the reason for them. Many such symptoms can be controlled, and they were shocked that such examples of poor care were presented as a reason for assisted death, rather than for making good quality palliative care available to all patients.
We further heard evidence, especially from Dr Jamilla Hussain, that access to palliative care is inequitable. We know that those from minoritised communities and from low socioeconomic backgrounds have poorer access to good palliative care, and that people can have poor access depending on where they live, and on the day of the week or the hour of the day. Through this amendment, we want to ensure that everyone who is seeking an assisted death, or who has it suggested to them, as this Bill allows, is able to access a consultation or consultations with a palliative care specialist, who can dispel the myths while supporting them with their end-of-life plan.
Kim Leadbeater (Spen Valley) (Lab)
My hon. Friend talked about the stories that we heard on Second Reading. Does she acknowledge, as Dr Sarah Cox from the Association for Palliative Medicine said, that there are cases where palliative care cannot meet a patient’s needs? We have a lady in the Public Gallery this morning whose mother had a horrible death, having had ovarian cancer and mouth cancer; she had to have her tongue removed, so she could not eat and drink, and she essentially starved to death. We have to be careful not to dismiss those cases, because they are real stories of real human beings, and we have to acknowledge the limitations of palliative care.
Naz Shah
I absolutely agree. Nobody in this Committee, from what I have heard over the weeks of evidence that we have taken, is suggesting in any way that we are dismissive of people who actually need an assisted death and would benefit from the Bill. As I have said previously, and as Dr Jamilla said very clearly, there are some patients who clinically would benefit from an intervention such as an assisted death. I came on to this Bill Committee to ensure we have the best legislation and safeguards in place. The Bill currently does not ensure that people are aware of the options. This amendment would ensure that people have considered all options and can make an informed choice. If there is no requirement to speak to a specialist, I am afraid the Bill would do a disservice to those who might want to use it to seek an assisted death by not presenting them with those options.
In evidence from the representative of the Royal College of Psychiatrists, we heard an example of somebody who was in lots of pain and decided to seek an assisted death, but changed their mind once they understood that their pain could be alleviated. That is what this amendment is about. I urge the Committee to vote for it, because it is fundamental that we enable people to make an informed choice and to understand the services and options available to them.
Sojan Joseph (Ashford) (Lab)
Does my hon. Friend think that giving everyone access to palliative care would resolve some of the concerns about coercion and consent?
Naz Shah
My hon. Friend comes from a mental health background, and I appreciate his expertise. We have talked a great deal about coercion—we have debated it for hours and hours—and I agree palliative care specialists, who deal with such issues as their day job, can provide that intervention and support the patient by establishing a much stronger relationship with them. I added my name to this amendment because I feel very strongly that palliative care must be a central part of the Bill if it is to provide patients a real choice at end of life. There should not be an assumption, as there is in the Bill as drafted, that assisted death is the predominant option once a person embarks on this pathway.
Let me return to the matter of minoritised voices. Dr Jamilla submitted written evidence, and spoke passionately, about the options available to people from black and minority ethnic communities. She said that they feel very much ignored. As I have said previously, palliative care is not fit for purpose because there is postcode lottery: provision depends on where a person lives, whether they have a hospice nearby, what the hospital options are and so on. There is a fear among ethnic minority communities of being pushed towards assisted death.
Sarah Olney (Richmond Park) (LD)
Does the hon. Lady agree that the purpose of this amendment is to ensure the Bill delivers for the people for whom it is intended, such as the person the hon. Member for Spen Valley spoke about? It would put in place protections for the people for whom there is a choice, and that where those choices exits, they are laid out in full and properly examined before a final decision is made.
Naz Shah
I completely agree. It is imperative that those options—pain options and care options, including with the family—are explored in detail. The last time that I spent time in a hospice was when my brother-in-law was dying of cancer, and I remember that, as a family, we were very much involved in those conversations. Having such expertise empowers not just the patient but the family. Losing somebody who has a life-threatening condition is a difficult time for families and loved ones. When the wraparound model of palliative care, with specialist nurses and doctors, is good, it can be amazing. I have heard plenty of stories about when it is good. Last week, I mentioned a friend of mine who lost her husband last year, and she said that the palliative care nurses and doctors could not do enough. That gives the family confidence to explore the options. In that instance, that person would have benefited from this Bill—she encouraged me to support it.
As Dr Jamilla said, some people would absolutely benefit from the Bill, and they cannot be dismissed, but how do we legislate to cover people who do not have equal access to palliative care or to healthcare? There is discrimination. The covid experience that we went through recently showed the impact of inequalities. Disabled people, people with mental health conditions, elderly people, and people from black and minority ethnic communities, say that they were DNR-ed—subject to “do not resuscitate” orders. There is already a lack of trust in services, so we need to strengthen palliative care.
There is a fear among these communities that they will be pushed towards assisted dying. A consultation with participants from Pakistani, Roma, Nigerian, black Caribbean and Indian backgrounds revealed overwhelming mistrust, which is deeply rooted in the experience of discrimination and the disproportionate impact of covid-19. As one participant put it,
“They are doing this to save money…to kill us off.”
To get confidence among communities back, we need specialists people can rely on. That is what the amendment speaks to, and I hope that the Committee will support it.
Danny Kruger
I rise to briefly speak in support of amendment 281, moved by the hon. Lady and tabled by the hon. Member for York Central (Rachael Maskell).
At the moment that somebody seeks assisted death through a consultation with a doctor, they stand at a fork in the road: they can either proceed towards the assisted death about which they are inquiring, or turn towards other treatment options. On Second Reading, almost every Member on both sides of this debate stated that we need more palliative care, and everybody emphasised the value of providing good palliative care to all who need it. The amendments in this group would simply give force and power to the clear call of the House of Commons for a strong, realistic palliative care option as an alternative to assisted death, and I would be astonished if members of this Committee chose to vote them down. They give clear expression to the will of the House: that palliative care should be offered, and that it should be apparent that a patient has clearly understood their palliative care options.
I implore members of the Committee to consider what they would be communicating if they rejected the amendments. They would be saying that this is not a fork in the road, but a one-way street: there is only one way that someone is likely to go, and that is onwards to an assisted death. If that is the will of the Committee, it should vote the amendment down. If it thinks, as so many people said on Second Reading, that there should be real choice, and that palliative care should be explained and properly available, then I implore the Committee to support the amendment.
Dr Simon Opher (Stroud) (Lab)
I thank my hon. Friend the Member for Bradford West and the hon. Member for East Wiltshire for their speeches. I also thank my hon. Friend the Member for York Central (Rachael Maskell), who is a fantastic campaigner for excellent palliative care, for tabling the amendment.
I cannot disagree with almost everything that has been said: people need to be given real choice, and they certainly need to be given the choice of palliative care. As the hon. Member for East Wiltshire said, people need to be offered palliative care. That is absolutely crucial to the Bill. However, the amendment would make it a requirement that a patient has met someone in palliative care. What would happen to a patient’s autonomy if they did not wish to see a palliative care doctor? Would they be excluded from the process? It is incredibly important that people have real choices with respect to palliative care in this process.
I note to the Committee the fact that clause 4(4) states:
“If a registered medical practitioner conducts…a preliminary discussion”
with a person, they have to also discuss with that person
“any available palliative, hospice or other care, including symptom management and psychological support.”
That is in the Bill. It needs to be offered.
I have had patients who have not wished to see a palliative care consultant. It is their autonomy to make that choice. I do not think that it is a wise choice—I think almost every doctor would try to push them towards palliative care—but we must not exclude those patients from accessing an assisted death if that is what they want. That does not mean that people should face a fork in the road, as the hon. Member for East Wiltshire just mentioned. This is not an either/or: sometimes people can receive excellent palliative care and still request an assisted death, as my hon. Friend the Member for Spen Valley said.
I absolutely agree with many of the things you have been saying. I totally agree that we need better palliative care—although, actually, we have pretty good palliative care. In 2017, palliative care in this country was the best in the world, and we need to rebuild back to that again. But having a requirement that someone has to have seen a palliative care consultant will weaken the Bill. I urge the Committee to reject the amendment.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Mr Efford. I start by gently pushing back on what my hon. Friend the Member for East Wiltshire said about this being a fork in the road. I do not see the Bill giving patients that ultimate option. They have the choice to opt for an assisted death while continuing with their palliative care all the way along; in fact, they could then decide that they did not wish to have an assisted death, although that opportunity would be open to them. I do not think that the choice is the binary one that has been presented; I am sure that was not the intention, but I just wanted to gently push back.
Rebecca Paul (Reigate) (Con)
I appreciate your giving way. The point that we are trying to make is that it is important to provide the information about palliative care. I understand the reservations of the hon. Member for Stroud about forcing someone to see a palliative specialist, but wording can be tweaked or changed to allow that choice. The key thing is that the opportunity to meet a palliative care specialist is provided so that the patient has the option, if they so wish, to seek that information.
At the end of the day, I think we can all agree that information allows people to make the right decision for themselves. Rather than getting too hung up on the exact wording of the amendment, I suggest that—this applies to quite a lot of the amendments—we think about the spirit of what we are trying to do.
The Chair
Before the hon. Member for Solihull West and Shirley continues, I should point out that when Members say “you” or “your” they are referring to me in the Chair. It has happened a couple of times. We all do it—we all make mistakes—but please make the effort not to use “you”.
Dr Shastri-Hurst
I am grateful to you, Chair, and to my hon. Friend the Member for Reigate for her intervention. She is right: it is absolutely critical that patients are given the full information in order to make an informed choice. I do not think any of us would disagree with that. But actually that goes entirely with the wording of the Bill as it stands. The hon. Member for Stroud has already highlighted the relevant provision—clause (4)(4)(c), which states that the initial discussion must explain and discuss with the patient
“any available palliative, hospice or other care, including symptom management and psychological support.”
Therefore a requirement to have those discussions is already stipulated in the Bill.
My hon. Friend the Member for Reigate makes an interesting point about who has that discussion. But are we saying that only a palliative care specialist is capable of having those discussions? Of course, those who work in the field are highly trained individuals, but we must not be unfair or do a huge disservice to other healthcare practitioners who provide excellent palliative care in this country.
My father was a general practitioner for more than 40 years. He provided a huge amount of palliative care throughout his career, both in the community and in hospices. Look at Marie Curie’s own website, which talks about the provision of palliative care in this country and very much about primary care provision and secondary care provision. Within secondary care, of course, are the specialists—clinical nurse specialists, occupational therapists, physiotherapists; I could go on. But of course, as the hon. Member for Stroud will know particularly well given his former profession, there is another body of general practitioners, community nurses, district nurses, advanced nurse practitioners, pharmacists and social workers, who are all involved in this process.
I think the amendment comes from a good place; at first blush, I can see absolutely where it is coming from. But despite that, it leads us down the bureaucratic thicket that Chris Whitty spoke about.
Naz Shah
Professor Sleeman’s evidence to me around palliative care says:
“‘Essential’ services are not provided: A good example is that our study of community services that are provided to people with advanced illness found that just 1 in 3 areas consistently provides a 24/7 palliative care telephone advice line—even though this has been a NICE recommendation since 2011…Another example is that the most recent NACEL audit (National audit) found just 60% of hospitals provide a 7 day face to face palliative care service— even though this is also a NICE recommendation, and was a recommendation in the One Chance to Get it Right report (that came out of the Neuberger review—around 2015.)”
I appreciate the hon. Gentleman’s important point, but does he agree that not every GP is able to keep abreast of all the palliative care advances being made, which palliative care consultants would know about?
Dr Shastri-Hurst
I am grateful for the hon. Member’s intervention, which leads on to the point I was going to make. We are getting bogged down in nomenclature about what speciality is involved when this is actually about training. It is about whether the individual having the conversation has the requisite skills to have a meaningful conversation. Clauses 5(3)(a) and 8(6)(a) stipulate that the co-ordinating doctor or independent doctor
“has such training, qualifications and experience as the Secretary of State may specify by regulations”.
That is the key part. This is about ensuring that people having incredibly sensitive, challenging and difficult conversations with patients about choices available to them at the end of life have the requisite skills and knowledge to do so. That may not be applicable to each and every general practitioner, but those having those conversations should have that knowledge.
Danny Kruger
My hon. Friend is making a thoughtful speech, but I am concerned that he suggests that the skills required are simply the skills of conversation. The skills required are the skills to understand the patient’s condition and lay out very clearly to them their prognosis and the treatment options available to them.
With all respect to my hon. Friend’s father and other GPs, I cannot accept that every GP is fully qualified to understand the dying trajectory of the patient before them—perhaps my hon. Friend will confirm his belief that that is so. If that is true, what is the point of the palliative care profession? We have GPs already and are now introducing psychiatrists and social workers into the mix; I do not understand why on earth it should be regarded as unnecessary to include professionals in palliative care—the key skill that we all recognise as so important in this space. Why not?
Dr Shastri-Hurst
I fear that my hon. Friend may be oversimplifying what I was saying. Perhaps I was not clear enough, so I will elucidate. I was certainly not suggesting that the required skills were merely those of being able to have a consultation and a conversation. I was talking about having the skills to have the information that needs to be imparted and the knowledge that underpins that and being able to articulate that within a consultation. It is a much wider picture than just having the communication skills—it is having the knowledge that underpins that. I am saying that that is not necessarily the domain only of someone who works in palliative care. There are a number of specialists who work within this field—it is a multidisciplinary field—and they all bring their expertise. The issue is about ensuring that anybody having these conversations has the knowledge base to conduct them properly.
Dr Shastri-Hurst
I will try to make some progress. I want to move on to the other point I want to address, which is around bogging down the whole process with layer upon layer of bureaucracy. We are talking about a relatively small group of patients who are in the last six months of life and are then battling against the system that is meant to be helping them. If we put in layer upon layer and hurdle upon hurdle, it will become a much more difficult system for people to navigate. That does not mean that it would be a less robust system, but it would be a more difficult system. We are trying to make life easier, not harder, for those patients. This comes back to the central point that Professor Whitty made in his evidence about overcomplicating Bills: we overcomplicate Bills out of good intentions, but rarely make the safeguards more robust—in truth, we make them less safe.
Juliet Campbell
I want to go back to the point about making the Bill more complicated by putting layer upon layer on it. My hon. Friend the Member for Bradford West spoke about health inequalities and how not everyone is given the same advice to the same level. If we were to introduce a palliative care specialist we would guarantee that everybody was given the same advice and information. We could therefore help reduce the health inequalities and inequalities of access to information that we know exist in our healthcare system.
Dr Shastri-Hurst
The hon. Member makes a valid point. The reality is that, regardless of specialty title, there will be individuals who are better placed to have certain conversations and discuss certain issues than others. I look back at my own clinical practice: some colleagues would have had a better bedside manner than others, for example. I do not think this comes down to the name of the specialty; it comes down to the underpinning skills and knowledge. That is the point I am trying to make.
We can get bogged down by saying, “Everybody has to see a palliative care specialist”. Of course, that is open to people: if they wish to have a referral to a palliative care specialist, they can see one. However, as the hon. Member for Stroud said, some people may not want that. We cannot be removing the autonomy of patients when their decision-making process is that they choose not to engage with that. They may want to speak to their GP because they have had a relationship with them over 30 or 40 years and have the patient-doctor relationship that is so important when dealing with these important discussions. Perhaps they would feel less comfortable having that discussion with a clinician they had just met for the very first time.
Dr Shastri-Hurst
I will give way because the hon. Lady has been very patient.
Naz Shah
I am grateful to the hon. Gentleman, who is being generous with his time. I want to bring in something that is very real for me at the moment. As a result of a hit and run, I have nerve pain for which I receive steroid treatment. I had treatment a couple of weeks ago and suffer from pain at the moment. My doctor is not a specialist in nerve pain; he has to refer me to a musculoskeletal service and I have been waiting for over a year for surgery.
I mention that because we already have care pathways for specialisms such as nerve pain. My hon. Friend the Member for Spen Valley referred earlier to somebody who had cancer and it was a horrible experience. I would like to have thought that in that instance they would have been offered tube feeding. However, to go back to the point, the GP does not necessarily have the skillset. My GP, and there are lots of them in that practice—it is a brilliant practice at Kensington Street—has to refer me on. That is the point of the Bill. The amendment speaks to developing an established care pathway. If we are to pass this legislation into law, we must ensure that there is a care pathway to explore palliative care.
At the moment clause 4(4), which my hon. Friend the Member for Stroud referred to earlier, says this has to be explored in the wider term. However, what that looks like is not a specialty. For some people with cancer and palliative care needs and six months to live, their trajectories could be—
Dr Shastri-Hurst
I am grateful to the hon. Lady for her intervention. She makes a number of points. First, may I say that I am sorry about her own health issues? I think she hit the nail on the head when she said that the GP may not be able to offer that service. For instance, take shoulder injections. Some GPs can do a shoulder injection with steroids; some will refer to the hospital for it. My father was a GP who could do them, but others would have referred to me when I was an orthopaedic surgeon and I would have done them in clinic.
This will not be right for every single general practitioner; the issue is about having a cohort of general practitioners who have the skill and ability, and about having a flexible system that works for patients. It all circles back to the training point. The individuals who do this have to have the requisite skills. That, of course, will be set down in regulation.
The other point that the hon. Member for Bradford West made is that clause 4(4)(c) says that any clinician having that discussion must be able to explain
“any available palliative, hospice or other care.”
It therefore follows that if the clinician is unable to do that because of a lack of skill or knowledge, they should refer on to somebody who can do it. That is the fundamental principle of having informed consent and discussion with patients. If a clinician cannot provide that information, they ask for somebody who can. That was not uncommon in my practice: if I had something that was outside of my area of knowledge or specialist interest, I would refer it to a colleague. That is how those conversations take place.
The Bill as it stands allows that flexibility for patients without confining them. But it gives them the very welcome option of a palliative care referral; that is entirely open to them—it is not closed off from them. Of course, they will be fed into the palliative care route anyway, following the trigger of their terminal diagnosis. They will be going on the journey, and having further conversations around their end of life care. Those are the points that I wish to make.
Rebecca Paul
A thought has suddenly been triggered: we are talking as if the provision of this service is undertaken by the NHS, but what are my hon. Friend’s thoughts if the service were being delivered privately? How does that interact with his automatic assumption that there would be a referral to a palliative care specialist?
Dr Shastri-Hurst
I do not think that offends the principle at all. Whether I was working within the NHS or the private sector, if a patient requested an onward referral to a different specialist, I would action that. If I did not have the requisite skills or knowledge, or felt that they would be better served by a different speciality, I would refer on to another clinician. I do not see how it would be treated any differently in the NHS than it would be privately. I am afraid that I do not follow that argument.
Kim Leadbeater
It is a pleasure to serve under your chairship, Mr Efford. I will address the amendments in two different ways. I will start by looking at the technical issues around amendment 281, and then I will look at why I believe, as other colleagues have said, that the amendments are not necessary given what already exists both in the Bill and in terms of good practice in our health service.
First, I worry that amendment 281 will not have the effect that my hon. Friend the Member for York Central (Rachael Maskell) intends. Clause 1(2), to which the amendment relates, provides an overview of the other clauses in the Bill, and therefore cross-refers to sections 5 to 22. Clause 1(2) does not impose duties on persons in and of itself. The duties are set out in the later clauses to which it refers. Adding an additional subsection to clause 1, as proposed by the amendment, would not result in a requirement that the person must meet a palliative care specialist. That is a technical detail to reflect on.
In addition, the term “palliative care specialist” is not a defined term. Palliative medicine is a designated speciality of the General Medical Council, and a doctor can apply to be entered on to the GMC specialist register for the speciality provided that they have the specialist medical qualification, training or experience. However, the current wording of the amendment means that it is not clear whether it is seeking to require the person concerned to meet with one of those specialist doctors, or whether a meeting with another medical professional specialising in palliative care—for example, a specialist palliative care nurse—would suffice. There is no equivalent specialist register for specialist palliative care nurses. It is a technical issue, but an important one.
I also point out that my hon. Friend the Member for York Central has put an incorrect explanatory note with the amendment, which refers to terminal illness. That might just be an error, but I wanted to point that out.
Coming on to the broader grouping of the provisions: as has been said by colleagues, the amendments are tabled with really good intentions by someone who cares passionately about the palliative care sector. But they are not necessary given the process that is already set out by the Bill. Both doctors already have to discuss all treatment options, and must make a referral if they have any doubt about the diagnosis. It is very clear from clauses 4 and 9 that both the co-ordinating doctor and the independent doctor must discuss all treatment options with the patient, so they will have all the options laid out before them. That is really important because we have to think about what happens in reality. This initial discussion, in many cases, may actually take place with a palliative care doctor, and in many cases it will be highly likely, given the nature of the conditions we are talking about, that the patient may already be receiving treatment or advice from a palliative care team.
We seem to have created a narrative where this conversation is happening in isolation. Actually, as other colleagues have alluded to, we have a patient-centred approach in our healthcare. This person does not just suddenly arrive and have this one random conversation. I am sure medical colleagues will correct me if I am wrong, but if a doctor is dealing with a condition of which they have very limited knowledge, one of the first things they would do would be to refer to a specialist.
As is covered in clause 9(3)(a), if the doctor has any
“doubt as to whether the person being assessed is terminally ill,”
they must
“refer the person for assessment by a registered medical practitioner who holds qualifications in or has experience of the diagnosis and management of the illness, disease or condition in question;”
Clause 9(2)(a) also states that both doctors must assess the patient’s
“medical records and make such other enquiries as the assessing doctor considers appropriate;”
They can speak to anyone they want to, and they would in reality—of course that is what they would do. They would not sit there and think, “Oh, I don’t know enough about this condition so I will just keep going.” They would refer to specialists.
It is also really important to acknowledge what goes on at the moment. I was looking at some research last night: NHS England also has comprehensive guidance on personalised palliative and end-of-life care through a comprehensive personalised care model. None of this stops with the introduction of assisted dying as a choice for people. It would continue to happen. Patients are already getting that really good level of care.
Danny Kruger
The hon. Lady is making a very good speech about how things should work and how things do work, in many cases, when the NHS does its job brilliantly. First, I want to correct the hon. Lady: subsequent amendments do impose the duty that is consequent to these amendments to clause 1, so it would be an obligation. Surely that is the point to make: what if the doctors are not as brilliant as she suggests? What if there is not an expectation that they should definitely seek expertise that they do not have themselves? To the point made by my hon. Friend the Member for Reigate, what if this service is provided outside the NHS by an independent charity or private provider set up explicitly to facilitate people’s assisted death requests, and has no intention of referring people to palliative care if they do not ask for it themselves? Would she be content for a private provider to refer somebody for an assisted death without a palliative care referral?
Kim Leadbeater
I do worry about the lack of faith in our professionals. We have medical practitioners on the Committee and we have heard stories of the very good practice that happens, so it concerns me that we are so cynical about our system. Ultimately, we have to put faith in our professionals to do their job and to take that patient-centred approach, as I firmly believe they do. Dr Sarah Cox from the Association for Palliative Medicine said in her evidence to the Committee:
“In clinical practice, we make all these decisions in multi-professional teams…shared decisions are much better quality, much more robust and much safer.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 74, Q90.]
I absolutely agree with her, and that would continue to be the case.
Kim Leadbeater
But it does not say that at all. It actually says that they have to refer, and that they have to consult with other people. That is part of the process. That is exactly what happens now. Professor Aneez Esmail, who is the emeritus professor of general practice at the University of Manchester and who has been a practising GP for over 30 years, told us in his evidence to the Committee:
“In terms of holistic care, currently when I look after dying people I never do it on my own; I am with district nurses, Macmillan nurses, or on call to a palliative care consultant. There is already a team of people looking after dying people…palliative care…works very well and it works in a multidisciplinary way. I think that this legislation will allow a much more open discussion and proper monitoring. It will improve training, guidance and everything else. People say that it will enhance palliative care, and that is what I think will happen.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 171, Q219.]
Indeed, as was referred to by the hon. Member for Solihull West and Shirley, if we consider the training included in the Bill, which doctors will undergo as part of the introduction of assisted dying, evidence from other jurisdictions shows that these are very detailed conversations where health professionals work together in the same way as they do at the moment in end of life care and decision making. As I have said repeatedly, the training is fundamental. I agree absolutely with Dr Rachel Clarke, who told us:
“If there is one thing that I would say to the Committee regarding making the Bill as robust, strong and safe as possible, it is: please consider seriously the matter of education and training”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 71, Q85.]
I agree 100% and I have embedded that in the Bill.
Sean Woodcock (Banbury) (Lab)
My hon. Friend quotes Dr Rachel Clarke. I was profoundly moved by her evidence. She was very clear that she wanted to talk about the NHS as it is, not as we would like it to be. Despite the efforts the Government are putting into bringing down waiting lists, there is still extreme time pressure on doctors. There are extreme waiting lists for people to access specialist care, which may impinge on the ability of doctors to carry out what my hon. Friend is asking. Does she accept that?
Kim Leadbeater
That brings me on very nicely to my next point, so I thank my hon. Friend for his intervention. At the moment, the Bill accommodates a two-year implementation period, which is really important because it will take time to put the procedures in place: it will take time to train people and it will take time to work holistically with the overall healthcare system. It could end up being longer than two years. If that is the case to put all the robust systems in place—to improve things, and to work holistically with palliative care and other aspects of the NHS—then that is the right thing to do, and I would be open-minded to a conversation about that.
To finish, I also note that the General Medical Council’s “Good medical practice” guide, which is the framework of professional standards, already provides that in providing clinical care a doctor
“must refer a patient to another suitably qualified practitioner when this serves their needs”.
This is what doctors do: they refer if they need extra advice; they take a holistic approach.
Kit Malthouse (North West Hampshire) (Con)
I just want to quickly point out that we have a check on the conversations that happen in the first stages. In clause 8, which covers the second doctor’s assessment, that second doctor must be satisfied that the individual has a “clear, settled” and, critically, “informed” wish to end their own life. So, there will be a doctor who is verifying that the person is informed properly about their options. My concern about the amendments is that, as the hon. Lady says, we are inserting now a third doctor into a system which, with regard to the panel, will already have three, four or five specialists involved in the assessment of the care.
Kim Leadbeater
The right hon. Gentleman is absolutely right. It feeds into comments that have already been made about how difficult we are making the process. I agree that this should be a difficult process—it should be a robust process, with thorough checks, safeguards and balances throughout—but we are in danger of forgetting the dying person at the heart of the process.
Kim Leadbeater
I am going to finish, if I may.
We need to be really careful that we take a person-centred approach, as happens now. Doctors, medical practitioners and healthcare professionals quite rightly take a holistic patient-centred approach. That approach will be further enhanced by the robust training the Bill incorporates, and by adding the extra layers of safeguards and protection. Really importantly, it would open up conversations about death and dying.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairmanship, Mr Efford.
As previously stated, my role, and that of the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green, is not to give a Government view, given that the Government remain neutral on the Bill, but to outline the legal and practical impacts of amendments tabled.
The amendments are intended to add a new step in the process set out in the Bill, requiring consultation with a palliative care specialist. The purpose of amendment 281 is to require a person to have met a palliative care specialist before completing the required steps and assessments to end their life. The purpose of the amendment is to ensure that the person has understood the full range of end of life options available to them. Our assessment suggests that the present drafting, adding a subsection to clause 1(2), would not achieve that effect without further amendments to other clauses in the Bill. The amendment would increase demand on palliative care specialists and, should Members decide to amend the Bill in this way, we would need to work with the NHS and other provider organisations to assess how to operationalise it.
Amendments 298 and 299 would require the co-ordinating doctor to have received confirmation that the person seeking an assisted death has had a consultation with a specialist in palliative medicine about palliative care options before they are able to make a first statement under clause 7(3)(a). That would mean that a co-ordinating doctor would not be able to make a statement following a first assessment, and therefore refer a person to the independent doctor for a second assessment, unless the person had had a consultation about palliative care options with a palliative care specialist. As with previous amendments, the amendment would increase demand for palliative care specialists, and we would need to work with the NHS and other provider organisations to assess how to operationalise it, should hon. Members decide to pass amendments in that area.
Naz Shah
I have a few concerns about what we have just heard in relation to the amendment. One of them is in relation to Dr Cox’s evidence. What Dr Cox actually said was:
“The second difference, I would say, is that you are absolutely right that we do make those decisions with patients—with their families, if they wish—but in a multi-professional team. I would almost never make those decisions as an individual doctor without the support of my colleagues, for several reasons. First, as I have said already, that makes for much better decisions”. ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 74, Q91.]
Danny Kruger
To pick up on that point about Dr Cox, I think it is critical that the hon. Member for Spen Valley cited Dr Cox in support of the hon. Lady’s contention that the Bill is adequate. Dr Cox, in her evidence, was saying that there is a problem with the Bill because it does not require the multidisciplinary consultation that we all think needs to happen. Dr Cox was suggesting that the Bill should be amended in order to ensure that the NHS does its job properly, and that multidisciplinary consultations are held. Her evidence was not in support of the Bill as it stands.
Kim Leadbeater
On the point made by the hon. Member for East Wiltshire, the Bill does not replace what already happens, and what Dr Cox was saying was that those conversations are already happening in a multidisciplinary way. We do not take that away.
Naz Shah
One of my concerns is that although the Government position in relation to the Bill, as they have said, is neutrality, the Government, in my opinion, have taken a position without an impact assessment, which might suggest that there is some ambiguity. Would the Minister therefore support redrafting potential amendments to include that? If it did specify a doctor or nurse, would the Government then, in their tidying-up, be prepared to accept that amendment?
Daniel Francis (Bexleyheath and Crayford) (Lab)
Referring back to Dr Cox, she said:
“We need to make sure that the 75% to 90% of people who are dying and need palliative care are getting it. We need to make sure that there is not inequity in palliative care, so that you do not have to be white and rich and have cancer to get good palliative care. We need to make sure that hospitals have seven-day services. Seven-day-a-week cover is unavailable at 40% of hospitals.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 78, Q101.]
Does my hon. Friend agree that we need an inequality impact assessment to understand the current position and to get that right, in line with the Bill?
Naz Shah
My hon. Friend is absolutely right. Without the impact assessment, how do we know what we are dealing with? That would be a normal way of progressing a Bill and dealing with amendments such as these. It feels as though we have just talked about something when the Government have already had a position on it, or have supported a particular position on an amendment.
To conclude, I will press the amendment to a vote, simply because it is important that we explore every option. We are already specifying what doctors have to do. I maintain again that there are 100,000 people in this country who do not access palliative care as it is. Palliative care is crucial when we are talking about end of life and people who have had a diagnosis of less than six months to live.
We will talk about illness and diagnosis in the next round of amendments, but on this amendment, I do not think that ensuring that somebody has at least explored that option is, as the hon. Member for Solihull West and Shirley repeated at least three or four times, “bogged down”. For me, it is not bogging down when we are talking about providing assisted death. The Bill is the biggest legislation on a conscience vote since 1967 in this House, and I do not care how long it takes. I feel very strongly that if we are to deliver a Bill that my hon. Friend the Member for Spen Valley said has the tightest safeguards in the world, then this debate has to happen. These conversations must happen and be explored not just for us here as parliamentarians, but in order for us to go away and say that we have done the best we can.
Question put, That the amendment be made.
The Chair
I point out that this is an opportunity to discuss clause stand part, not to cover the ground of amendments that have already been debated.
Danny Kruger
I will be quick, Mr Efford. I appreciate that we have been exhaustively over the detail of the amendments. I deeply regret that none of the amendments that were tabled to introduce stronger safeguards has been accepted. I want to take this opportunity to explain briefly what the Committee has done by rejecting those amendments and what we will be doing by agreeing to the clause without the amendments. I will not seek to divide the Committee on the clause, because I recognise that it enables the whole Bill to proceed, as the House wished on Second Reading, so I recognise that the principle of the Bill is represented in the clause. We wanted to tighten it, but have failed to do so.
Jack Abbott (Ipswich) (Lab/Co-op)
I say gently to the hon. Member that—particularly on the previous clause—I have been very sympathetic to several of the amendments. Candidly, however, with due respect to all the hon. Members across the House who submitted this, I do not think that they have been particularly well written. I think that they leave quite a lot of ambiguity in a lot of areas. We had a discussion in the week before the recess, on a number of areas, about the word “only”. I heard it suggested earlier that the principle is about the spirit in which things are taken.
The reality is that I am very sympathetic to a lot of what is proposed, but a number of the amendments leave quite a lot of open ends. That has been a particular issue. I have been very open and have said that in principle I am supportive of assisted dying, but that I could not support it because the Bill was not strong enough in its current state. I do not think that the amendments tabled so far will strengthen the Bill; in fact, they might leave a lot of open ends, despite the very good intentions behind a lot of them.
Danny Kruger
I am grateful to the hon. Gentleman for explaining why, having opposed the Bill on Second Reading, he now seems to be supporting it. I wish I had heard, during our debates in the past two weeks, his specific objections to the amendments. If he felt, as he says, that the Bill is not strong enough, we would have welcomed his own amendments to strengthen the Bill in a form of words that he would find adequate. Perhaps that is what we will hear from him.
Jack Abbott
I did articulate a number of times where I felt that some of the amendments were not tight enough in those areas.
Danny Kruger
The hon. Gentleman has been on his feet; I appreciate that and am very grateful for his contribution to the debates that we have had.
I simply want to make the point that what the House voted for on Second Reading was the principle of assisted dying. What many members of the public who support the Bill think they are getting is a Bill that is safe—a Bill that is restricted explicitly to people at the very end of their life, who face extreme pain and suffering as they die; who are fully informed of what they are doing; who face no questions of external or indeed internal coercion; who have the absolute ability to understand what they are doing. Those are the things that people want to see in the Bill; those are the things that we have sought to effect through the amendments that we have tabled, and which the Committee has rejected.
Very explicitly, as a result of the rejection of these, I believe, very plainly written amendments, the fact is that under this Bill you can be depressed and suicidal and still regarded as having capacity to have an assisted death. You can be very marginalised—you can be a prisoner, you can be homeless—and still be regarded as eligible. You can have been influenced or encouraged by others and still be eligible. You can do it because you feel a burden. You do not need to be in any kind of pain. You do not need to be in the tiny proportion of cases that palliative care cannot help. As the hon. Member for Spen Valley accepted in the previous sitting, you can seek an assisted death for the sole reason of saving your family money, and you would be granted an assisted death on those grounds. The fact is that in rejecting these amendments, the Committee has decided and has demonstrated that the Bill is much wider than the campaigners portray.
I want to end with this point. I think there are two ways of approaching assisted dying—two essential framings of a Bill to legalise it. One is an autonomy Bill, which simply says that if people seek help to commit suicide, within certain broad parameters they should be able to do so, and there is no question of other people interfering with that choice; if they sign the requisite paperwork, they should be able to have an assisted death. The alternative is what we might call a safeguarding Bill—one where eligibility for the procedure is strictly limited and there are very strong, robust safeguards in place to protect the most vulnerable people.
The hon. Lady, and Members speaking in support of the Bill, have repeatedly emphasised that this is a safeguarding Bill. They want this Bill to be built around safeguards for the vulnerable. They respect the arguments that we make about the dangers that an open-ended assisted dying Bill would create. But the fact is that, as we have seen in the course of the debates on this clause, this is not a safeguarding Bill; it is an autonomy Bill. It is one that allows people to proceed to an assisted death because they want one, if they meet certain very loosely drawn criteria.
Kim Leadbeater
The reality is that this Bill is both. Of course it is about personal autonomy, choice and dignity for people who are coming towards the end of their life, but it has to be safeguarded as well. It is both. If I may say so, I think that the hon. Member makes quite an unfair characterisation of the robust, powerful debate that has taken place in Committee during the time that we have spent together. I think it has been extremely well informed. People have listened intently to other points of view and opinions, and it does the Committee a disservice to suggest otherwise.
Danny Kruger
We are all being very courteous, and it is absolutely right that we should be. I have absolute respect for the good faith of every Member here, but let us not use cotton wool in these debates. I am sorry to say that I do not accept that the Committee has listened—well, it might have listened closely, but it has not accepted a single amendment, including amendment 281, which would have put into law the principle in which the hon. Member for Bradford West believes, which is that palliative care should be an option. Why was that not accepted? The Committee has decided that it will proceed with the Bill as it is.
The fact is that the Bill will give maximum autotomy, within very broad parameters, to patients, many of whom will be very vulnerable. It is an autonomy Bill masquerading as a safeguarding Bill. When we attempt to strengthen the safeguards, they are described as bureaucratic hurdles. If the Bill becomes law, I worry about what will happen to the very limited safeguards that do exist. What we see elsewhere will happen, which is that the safeguards that do exist are treated as bureaucratic hurdles. They are in fact treated, and explicitly described, as we heard from the Australian witnesses, as barriers to a human right. What were safeguards become discrimination. I am afraid that that is the road we are going down.
The point about autonomy is often made. As I say, I think that this Bill actually has autonomy at its heart. The hon. Member for Spen Valley is right to make that point. That is really what is going on here. She wants people to be able to request help to commit suicide—to end their lives. The fact is that for the most vulnerable people, creating this option, especially when we have now switched off the obligation to seek a palliative care pathway and directed people straight down the road towards an assisted death—
Danny Kruger
I am sorry if it offends Members, but the fact is that the Bill in its present form, with the amendments rejected, will place no obligation on doctors to refer people to palliative care or to seek a palliative care consultation. Many will do so, of course—many good doctors will do exactly that—but they will not be obliged to. If we are imagining that every doctor will be as brilliant as the best doctors, I am afraid that I will have to talk about the Liverpool care pathway and the many tragic scandals that we are constantly dealing with. It is simply not the case that the option of a palliative care consultation equates to the absolute expectation that it will happen.
Danny Kruger
We have debated that issue; I apologise.
My concern is that the Bill, which is masquerading as a safeguarding Bill but is actually an autonomy Bill, will end in less autonomy for the most vulnerable patients, who will find themselves on this conveyor belt, internally pressured and encouraged to seek an assisted death when it is not in their interests. I invite the Committee to reflect on what we have done, but as I have said, I do not propose to divide the Committee on clause 1 stand part.
Rebecca Paul
Under our current law, assisting someone to commit suicide is a criminal act. Clause 1 of this Bill is where we cross the Rubicon, moving away from well-established principles into a new era in which the state is empowered to help individuals to die.
This monumental decision is one for Parliament in the coming months. However, what we must do on this Committee is bolster the safeguards so that the Bill is truly as safe as it can be. Our priority must always be the vulnerable: those who could be coerced into something that is not in their best interests, and those with no one to advocate for them or protect them, who could end upbeing pushed into a process because that is the easiest and cheapest option for everyone. This law must work for everyone, not just the privileged few.
That is why I am so disappointed that at the end of nearly three days of debate, there has been not one improvement to the safeguards—not one. We asked for amendments to exclude people with impaired judgment and the depressed and suicidal; this Committee said no. We asked to protect those who are unduly influenced or encouraged by others to seek assisted dying—
The Chair
Order. We are not discussing the amendments again now. This debate is about clause 1 standing part of the Bill.
Rebecca Paul
Thank you, Mr Efford. I am perplexed as to why some of the straightforward improvements to the safeguards have not been accepted. That should give us all pause for thought. If everyone here wants this to be the safest assisted dying service in the world, we must learn from other territories and improve the safeguards. Our priority should not be to make the service as accessible as possible, with as few barriers as possible, or to make it as easy as possible for medical practitioners to sign off. Time and again, throughout our proceedings, the importance of autonomy has been given as the reason why amendments cannot be accepted, but surely that must be balanced against what is in someone’s best interests.
It is clear that in other areas of medicine a best interests approach is taken, for example under section 63 of the Mental Health Act 1983, which states:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering”.
A patient can thus be deemed to have capacity, and yet still receive treatment that they have refused, for example in the force-feeding of a young girl with anorexia. Those who argue for full autonomy would no doubt rail against this best interests approach. However, I suggest that it is always worth considering what we would want to happen if it were our daughter.
This is not an easy balance to get right—I completely concede that—but right now the Bill has no best interests component. That means that if anyone inadvertently qualifies for assisted dying but should not, for example an anorexic girl who has refused treatment, there is no safety mechanism to take her out of scope. The amendment tabled by my right hon. Friend the Member for Braintree (Mr Cleverly) would have gone some way to addressing that.
Clause 1 will profoundly change how society views suicide. Data from overseas territories indicates that introducing assisted dying can actually increase the number of unassisted suicides. In Oregon, whose system this Bill is specifically based on, non-assisted suicide has increased by a statistically significant amount. That demonstrates the seismic shift in attitudes that accompanies this, so when we tell our young people that suicide is not the answer and to seek help, we must do so knowing full well that the key message will be undermined by the availability of an assisted dying service, which may be plastered across billboards and advertised on daytime TV.
Rebecca Paul
I thank the hon. Member for his intervention, but I respectfully suggest that that is not the case and there is data. Professor David Paton found a 6% increase overall, and interestingly it was 13% for women.
Kim Leadbeater
I would be interested to know whether that data shows a link or a direct causation effect.
Rebecca Paul
I thank the hon. Lady for raising that point. I think that what has been looked at is the number of unassisted suicides. The hon. Lady makes the good point that obviously we need to look at all the different factors that could be part of that, but I am just making the point that when we look at territories that have introduced assisted dying, we find that at the point at which it is introduced, we generally see, in most territories, an increase in unassisted suicide. I do not think that we should rush to disregard that. We need to recognise that in helping a small group of people at the end of their life, which undoubtedly this Bill will do, there will be a price to be paid. That price will be paid by our young people and other vulnerable groups.
I will not vote in favour of clause 1—I do not think that there will be a Division on it anyway—but I will not oppose it either, for the reasons that my hon. Friend the Member for East Wiltshire set out. I understand that it is the key clause in order for us to progress and continue the debate, which is what Parliament wishes us to do, but I hope that the Committee will be more receptive to improving the safeguards as we progress through the Bill. The amendments really were tabled in good faith. We did our best to write them in a clear way, but obviously the private Member’s Bill process makes that more difficult. This is not a Government Bill, but we are all doing the best we can to table amendments that would improve the safety of the Bill.
Naz Shah
I just have some concluding remarks. None of the amendments was voted for. I feel that in the clause 1 stand part debate, huge opportunities have been missed. I have talked a lot, throughout the debates, about the issues of people from ethnic minority communities. Opportunities were missed to safeguard disabled people and people from ethnic minority backgrounds.
My hon. Friend the Member for Ipswich made a point about amendments being clear, and about ambiguity. The truth is that if the amendments were supported in principle, they could have been tidied up by Government. There are some good amendments that could have been clarified by the Government. In principle, they were good options. I struggle with the whole narrative throughout the debate on clause 1: “Yes, we accept the principle, but we are not going to do it because it is ambiguous or the wording is incorrect.” There is lots of wording that we will debate throughout the rest of the Bill that is not quite clear, and that is the whole point of going through this exercise. Going forward, I encourage us, as the hon. Member for Reigate did before me, to do as we have been doing, with sincerity, in trying to make this Bill the best in the world it can be, as my hon. Friend the Member for Spen Valley intends.
Stephen Kinnock
I will make some brief remarks on the legal and practical effect of clause 1, as amended, to assist hon. Members in making their own assessment. Clause 1 sets out the eligibility criteria that a person must meet in order to request to be provided with lawful assistance to end their own life under the provisions of this Bill. A person must be terminally ill; this term is defined in more detail in clause 2.
Clause 1(1) sets out a further four requirements, which require that a person must also have the necessary capacity to make the decision, which is to be read in accordance with the Mental Capacity Act 2005; be aged 18 or over; be ordinarily resident in England and Wales and have been resident for at least 12 months; and be registered as a patient with a GP practice in England or Wales. This clause provides that, in particular, clauses 5 to 22 of the Bill require steps to be taken to establish that the person has a clear, settled and informed wish to end their own life and has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person in making that decision.
The clause, as amended by the insertion of new subsection (3), will ensure that the service can be accessed only by an individual ordinarily resident in England and Wales. That amendment, amendment 180, has been drafted to give effect to the policy intent of my hon. Friend the Member for Spen Valley for this legislation: that it is to apply only to those in England or Wales and is not to be accessed via medical tourism.
As I have said, the Government remain neutral on the substantive policy questions relevant to how the law in this area would be changed. The clause is a matter for the Committee and Parliament to consider, but the Government’s assessment is that the clause, as amended, is workable, effective and enforceable.
Question put and agreed to.
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2
Terminal illness
Danny Kruger
I beg to move amendment 399, in clause 2, page 1, line 22, leave out “, disease or medical condition” and insert “or disease”.
This amendment ensures that a terminal illness under the Bill can only be an illness or a disease and not a medical condition.
The Chair
With this it will be convenient to discuss the following:
Amendment 400, in clause 2, page 2, line 1, leave out “, disease or medical condition” and insert “or disease”.
This amendment is consequential on Amendment 399.
Amendment 401, in clause 2, page 2, line 5, leave out “, disease or medical condition” and insert “or disease”.
This amendment is consequential on Amendment 399.
Amendment 11, in clause 2, page 2, line 7, leave out from beginning to first “of” in line 8 and insert—
“(3) A person is not to be considered to be terminally ill by reason”.
This amendment amends clause 2 to say that a person cannot be considered terminally ill by reason of having mental illness or a disability.
Amendment 181, in clause 2, page 2, line 8, leave out from “ill” to end of line 10 and insert—
“only because they are a person with a disability or mental disorder (or both).
Nothing in this subsection results in a person not being regarded as terminally ill for the purposes of this Act if (disregarding this subsection) the person meets the conditions in paragraphs (a) and (b) of subsection (1).”
This amendment clarifies that the purpose of subsection (3) is to emphasise that only having a disability or mental order does not make a person “terminally ill” and therefore eligible for assistance.
Amendment 283, in clause 2, page 2, line 10, at end insert—
“or one or more comorbidities alongside a mental disorder within the meaning of the Mental Health Act 1983”.
This amendment would set out that a person who has a co-morbidity with one or both of a mental disorder or a disability is not considered terminally ill by virtue of those comorbidities alone.
Danny Kruger
I said in the last debate that this is either a safeguarding Bill or an autonomy Bill. [Interruption.] Or that it is both, but the claim has been that it is a safeguarding Bill and that there are very strong safeguards. If so, and if we are going to stress the safeguards, as I think we should, that means being very clear about who is eligible. It means having proper, meaningful guardrails showing who is inside and who is outside the scope of the Bill. I suggest that the Bill’s guardrails are not strong, safe or impermeable; they are broken fences. We need to mend those fences in this Committee in order to make the Bill safe.
This group of amendments includes a set in my name that would restrict eligibility to people with terminal diseases or illnesses, and another set that would build stronger safeguards explicitly for disabled people and people with mental disorders. The purpose of the two sets of amendments is the same, but they approach the challenge from opposite ends. I will speak first to the amendments in my name.
Quite simply, I want to remove the words “medical condition” from the definition of terminal illness. The reason for that is straightforward: some medical conditions are likely to also amount to a disability. As Fazilet Hadi, the head of policy at Disability Rights UK, told the Committee in evidence, there is a “huge overlap” between disability and terminal illness. The distinction between the two is notoriously blurred, and there is a reason why no disability rights organisation backs this Bill: it is here in this innocuous phrase “medical condition”. Removing that phrase will provide an additional degree of protection for some disabled people, which I think is a good enough reason to do it.
There is another group of people whom we do not hear from much in these discussions, but about whom we should perhaps be most concerned, because there are so many of them—they are almost all of us. I am talking about the frail. Frailty is an important word in this debate. I refer hon. Members to the briefing submitted in recent days by the British Geriatrics Society; it is a powerful document that highlights an essential challenge for this Bill. What is frailty? Is it a disability? Is it a terminal illness? Is it both? Is it neither? It can be noted on a death certificate as a cause of death and, even if it is not listed as a cause of death—this is a crucial point—it is the most common dying trajectory for people in the UK. More people are frail as they approach the end of life than are not.
Kim Leadbeater
I am interested to know where the hon. Member has got the idea that someone is going to scrap the six-month prognosis from.
Danny Kruger
Well, if the hon. Lady will say that she will never, at any stage, support a proposal to extend it beyond six months, I will be very glad to hear it. My concern is that we already have amendments tabled to do exactly that, which we will be debating shortly. I hope they will be rejected, but my confident expectation, on the basis of other countries, including the Australians who gave evidence to this Committee, is that the six-month safeguard will soon be seen as a barrier to a human right, because there is indeed no logical basis for such an arbitrary date.
The people who currently deal with the six-month prognosis, in the context of benefits and pensions, campaign that it is arbitrary and unworkable—rightly, I think—so I am afraid that I confidently expect the six-month barrier to be challenged in due course. If the hon. Lady is prepared to say that she would never do that, however, I would be very reassured.
Kim Leadbeater
Would the hon. Member agree that the purpose of the Committee is to look at the Bill before us? That is why we are here. I understand his concerns, his reservations and his nervousness about what might happen in future, and that is an important conversation to have, but the purpose of the Committee is to look at the Bill as it stands today; that should be the focus of our deliberations.
Danny Kruger
Yes, but I simply state on the record that I believe that this is not the end, but the beginning of a wider Bill that would follow if we passed this one. I am encouraged by what the hon. Lady says, or implies: that she does not want to go further than this Bill.
My plea to the Committee is straightforward. Let us confine eligibility to the people who the campaigners talk about: those with diseases or illnesses that are genuinely terminal. We can do more to strengthen that definition with later amendments, but, first, we have to remove the gaping hole in the fence that is this term “medical condition”. Let us remove that term.
Tom Gordon (Harrogate and Knaresborough) (LD)
Marie Curie’s definition of a terminal illness is
“an illness or condition which cannot be cured and is likely to lead to someone’s death”.
It is obviously one of the best-known end of life charities, so how does the hon. Member reconcile the differences he has with its professional expertise?
Danny Kruger
I am very happy to use the word “condition”—we all use it quite casually, including me—but we are concerned about legislation here. As I explained, if we include the term “medical condition”, courts could interpret that as a development—an addition—to the existing law on terminal illness, which refers only to illness and disease. The courts would be right to conclude that Parliament meant more than illness or disease, which is why it is important to be explicit about what we are talking about: illness or disease.
I think we should remove that term, but if other Members do not, I would like to understand why. The hon. Members for Harrogate and Knaresborough or for Spen Valley might have some suggestions, but I would be grateful if somebody could clarify, explicitly, what is meant by “medical condition” that is not caught by the terms “illness” or “disease”. What are the meanings of the three terms, and why do we have to have “medical condition”? It might well be that there are conditions that would not be captured by “illness” or “disease” that would be appropriate.
Lewis Atkinson (Sunderland Central) (Lab)
On that point, I will quote directly from Chris Whitty’s evidence to the Committee:
“there are people who may not have a single disease that is going to lead to the path to death, but they have multiple diseases interacting, so they are highly frail; it is therefore not the one disease that is the cause, but the constellation that is clearly leading them on a path inexorably to…death”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 32, Q5.]
From my perspective, it is about that “constellation” where death is clearly going to happen as a result of a combination of different conditions, illnesses or diseases. That it is where that is very clear, and, because of the six-month eligibility in the Bill, we have that nailed down. That is the importance of including the term, because it is not one disease that leads to death; it is the constellation of diseases and illnesses that will inexorably lead to death.
Danny Kruger
I am grateful to the hon. Gentleman. I thought that might be the case too, and I was wondering about that, but I am very concerned about some of the evidence that Professor Whitty gave. I regret that the hon. Member for Spen Valley has removed the role of the chief medical officer from the process that she is designing by introducing the new commissioner, but I will not be sorry to see that particular chief medical officer excluded from the process. He has made significant mistakes; he had to write to the Committee to explain that he had misrepresented the Mental Capacity Act, and, on his evidence, the Committee voted to reject certain amendments.
I am concerned about what Professor Whitty said, but if the reason for including “medical condition” is to reflect the fact that there might be multiple diseases or illnesses that, together, mean that somebody is terminally ill, that is what should be stated in the Bill. It could very well include “a combination of illnesses or diseases that amount to terminal illness”. My concern is about this new concept of a medical condition, which, as I have said, implies something different from a disease or illness.
The Bill would say “the person’s death in consequence of illness or disease”—if we remove “medical condition” —so that would be the qualification or eligibility. If there is a number of illnesses or diseases that amount to a fatal prognosis, that would be captured in the clause, even once we have excluded medical condition, because the singular “illness” or “disease” would, as I understand it from our guidance on statutory interpretation, include the plural. If it is about there being a number of illnesses or diseases that add up to a fatality, the Bill as I propose to amend it would be adequate to the scenario that the hon. Member for Sunderland Central described and that Professor Whitty accounted for. The question is, what is additional illness or disease, or illnesses or diseases, that are captured by the term “medical condition”?
Kit Malthouse
Let me give a quick example. Amyotrophic lateral sclerosis is described as a condition rather than a disease or an illness. ALS is not dissimilar to motor neurone disease, but nevertheless people regard themselves as having a condition rather than a disease.
Danny Kruger
Again, I am interested in that, because I would be surprised if that condition were not adequately captured by the term “illness” or “disease”. If not, we should seek further clarification, because we need to be very specific. Illness or disease has been adequate; it is adequate in the current law on terminal illness for eligibility for benefits and pensions. I await clarification on what is added by the term “medical condition”, because my concern is that it opens the door to frailty. Going back to Chris Whitty’s evidence, I am concerned at his suggestion that frailty should be an eligible condition for an assisted death.
I will wrap up shortly so that hon. Members have time to speak to other amendments, but I will quickly refer to amendment 181 tabled by the hon. Member for Spen Valley and amendment 11 tabled by my hon. Friend the Member for South Northamptonshire (Sarah Bool), which attempt to do the same thing as my amendments. They seek to protect disabled or mentally ill people, but they do so explicitly by disapplying the provisions of the Bill for those groups, or they attempt to do so. Only amendment 11 actually does, while amendment 181 fails to do so, in my view.
Let us look at subsection (3), which attempts to protect disabled people and those with mental disorders, but which, on closer inspection, is ineffective or even meaningless. In statutory interpretation, the first phrase,
“For the avoidance of doubt.”
indicates that the subsection does not add anything to the Bill except clarity. It is intended not to change the law that is being enacted by the Bill, but to clarify the meaning of the Bill. My point is that it does not add anything—in fact, it signals that the clause can be disregarded. It is like an explanatory note and not actually relevant to the Bill. Its effect therefore negates the point that it tries to make. In including it, the hon. Lady protests too much and exposes the weakness that the clause fails to overcome. It invites a court to disregard the protection it pretends to offer by stating that that protection has no force except what is elsewhere in the Bill.
Kim Leadbeater
I agree with the hon. Member to some degree in terms of the legal drafting. I have been advised that the expression “for the avoidance of doubt” is not generally used in a Bill if the Bill is already clear, which this is—I have been reassured by parliamentary counsel about that—but I was keen, having met disabled people and disability rights activists, to have it very clearly in the Bill that by virtue of having a disability, a mental health condition or a mental disorder, someone would not be in scope of the Bill. It was a very clear drafting decision and I stand by that decision; I think it is the right thing to do so that we are clear who is not covered by the Bill.
Danny Kruger
I am grateful to the hon. Lady; it is helpful to understand her thinking. Her amendment is an attempt to further clarify her purpose, which is to communicate that we cannot have an assisted death only because of a mental disorder or a disability. I know that other colleagues will speak to that point more explicitly.
My point is that
“For the avoidance of doubt”
is a massive signal to the courts that the subsection is meaningless. The advice was right that it is not usual to include that phrase, as it signals that nothing is being added. My concern is that it does not add anything, and the inclusion of the word “only” further demonstrates the hollowness of the protection that it purports to offer. The fact is that someone will still be able to get an assisted death because of a physical illness that derives from a mental disorder or disability. That is my concern with the later parts of the clause, but I will leave other Members to make that point.
Dr Opher
There is a lot to talk about in this group and I thank you, Mr Efford, for calling me to speak. I would also like some confirmation about the term “medical condition”, and I agree with the hon. Member for East Wiltshire that we need to absolutely nail that. I am still to be convinced on the question of a condition that does not come under illness or disease but would come under “medical condition”, so I agree that we need to be very clear about what that means.
Frailty is very often diagnosed in older people and I fear that “medical condition” could be equated with that, which would open up the Bill. We need to decide whether we want to do that. Personally, I would not support that in any way. If this is an opening for that, we need to close it, so I agree with the hon. Member in that respect.
Some of the other amendments do not materially add anything to the Bill. On changing “an inevitably” to “a typically”, I do not think that would change the Bill—in fact, I think it would weaken it slightly, so I would not support amendment 123.
Both amendment 11 and amendment 181 talk about how we can exclude mental health issues as a cause for seeking assisted dying. My personal feeling is that the Bill is strong enough as introduced to exclude that. I point people to clause 2(3):
“For the avoidance of doubt, a person is not to be considered to be terminally ill by reason only of the person having one or both of—
(a) a mental disorder, within the meaning of the Mental Health Act 1983;
(b) a disability, within the meaning of section 6 of the Equality Act 2010.”
I think that is pretty tight; I do not think that people with anorexia could be given an assisted death under this legislation. That is my personal view, and I am happy to be persuaded otherwise if the whole Committee thinks we need to tighten up the measure significantly. It is important to make that very clear so that the Bill cannot be amended away from what we wish it to be. I think all of us would say that we do not want patients with anorexia to be able to access assisted dying—I have not spoken to anyone who does not agree—so the question is how we nail it down in the Bill.
Sarah Green (Chesham and Amersham) (LD)
I have great sympathy with amendment 11 in particular, which is clearly motivated by a desire to ensure that having a mental illness or disability alone does not qualify someone for an assisted death under the Bill. It is worth saying that clause 2(3) already does that and, therefore, the amendment is not necessary. However, the hon. Member for Spen Valley has tabled amendment 181, which further tightens that language. In my view, amendment 181 strengthens the Bill by simplifying the language to make it absolutely clear that a person is not considered to be terminally ill if they have a mental disorder or a disability alone. The chief medical officer, Professor Whitty, encouraged us to keep this simple, and that is precisely what amendment 181 does. Therefore, I support the amendment.
Rebecca Paul
I rise to speak to amendment 11, which stands in the name of my hon. Friend the Member for South Northamptonshire. This is one of the areas of the Bill where we all agree on what we are trying to achieve, so it comes down to making sure that the drafting does exactly what we all intend in order to protect people.
The definition of “terminal illness” in the Bill has two components. The first is that the person has an inevitably progressive and irreversible condition; the second is that their prognosis is less than six months. An issue raised in our evidence sessions is that there is a risk that a person with a mental disorder or disability will meet that definition if they are suffering physical symptoms that mean that they satisfy both parts of the test; a possible example could be a young woman suffering with severe malnutrition as a consequence of anorexia. With respect to the point that the hon. Member for Stroud made, I agree that anorexia on its own would not qualify, but the issue arises when there is a physical manifestation from that disorder such as severe malnutrition or even diabetes, which can co-occur, as we heard in the evidence sessions.
It is clear that that is not the intention of the hon. Member for Spen Valley or anyone on the Committee, as evidenced by the inclusion of subsection (3). I thank the hon. Member for making that point; it is much welcomed. However, in oral evidence, Chelsea Roff said that
“we have case law in the UK where people with anorexia are being found to be terminal. We have to take that reality into account.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 153, Q194.]
Before I get into amendment 11, which aims to address the issue, it is important to understand what clause 2(3) is trying to do. It reads as follows:
“For the avoidance of doubt, a person is not to be considered to be terminally ill by reason only of the person having one or both”
of a mental disorder or a disability; it refers to the relevant bits of law. As my hon. Friend the Member for East Wiltshire has set out, the words “for the avoidance of doubt” make it clear that this is a clarifying subsection that does not make any change to the rest of clause 2. It appears to be clarifying that mental disorders and disabilities alone will never qualify someone for assisted dying—I think we all concur with that—unless they also have a physical condition that meets the terminal illness test, namely that it is inevitably progressive and irreversible and that the person has a prognosis of less than six months.
This is where the problem lies. If someone has a physical condition arising from their mental illness, such as severe malnutrition resulting from anorexia, and if the physical condition meets the definition of a terminal illness, they will qualify. As the Royal College of Psychiatrists said in its position statement:
“The wording of the Bill could also be interpreted to include those whose sole underlying medical condition is a mental disorder. While anorexia nervosa, for example, does not itself meet the criteria for terminal illness as it is not an ‘inevitably progressive illness, disease or medical condition which cannot be reversed by treatment,’ its physical effects (for example, malnutrition) in severe cases could be deemed by some as a terminal physical illness, even though eating disorders are treatable conditions and recovery is possible even after decades of illness.”
To remedy the issue, amendment 11 would remove the words “For the avoidance of doubt”, to make this a legally effective clause, rather than just a clarifying one. That means that it is providing an additional safeguard to those with mental disorders and/or disabilities. It would also remove the word “only”, to ensure that a physical condition resulting from a mental disorder or a disability will not make a person eligible for assisted dying. The amendment is further bolstered by amendment 283, tabled by the hon. Member for York Central, which would make it clear that comorbidities arising from a mental disorder do not qualify a patient for an assisted death.
I thank the hon. Member for Spen Valley for tabling amendment 181 to try to address the issue, but I do not believe that would quite solve the problem, which is quite a tricky one. “For the avoidance of doubt” would still be there, as would “only”. The sentence beginning with “Nothing in this subsection” makes it crystal clear that if a condition meets the six-month condition and the rest of the definition, it will be considered a terminal illness. There is therefore no exclusion for physical symptoms manifesting from mental illness or disability, which I think is what we are all trying to get to.
In my view, the only amendment that would address the issue is amendment 11, tabled by my hon. Friend the Member for South Northamptonshire. It would remove both “For the avoidance of doubt” and “only”, and would therefore better ensure that a physical condition resulting from mental illness or a disability does not make a person eligible for assisted dying.
Naz Shah
Sorry, I mean amendment 11. Thank you, Mr Efford.
I think it will be helpful to spell out what the Bill currently says, and what it would say if amendment 11 were adopted. I will also set why the amendment would provide a much stronger safeguard than amendment 181, which was tabled by my hon. Friend the Member for Spen Valley.
Clause 2(3) states:
“For the avoidance of doubt, a person is not to be considered to be terminally ill by reason only”
—I stress the word “only”—
“of the person having one or both of—
(a) a mental disorder, within the meaning of the Mental Health 1983;
(b) a disability, within the meaning of section 6 of the Equality Act 2010.”
If amendment 11 is agreed to, clause 2(3) will read:
“A person is not to be considered to be terminally ill by reason of the person having one or both of—
(a) a mental disorder, within the meaning of the Mental Health 1983;
(b) a disability, within the meaning of section 6 of the Equality Act 2010.”
That may seem a very small change, but it is an extremely important one.
The Bill, as presented to Parliament on Second Reading, would allow someone to qualify for assisted dying if they had a mental health condition such as anorexia nervosa and a physical condition such as malnutrition. To put it with absolute bluntness, that means that somebody with anorexia nervosa could stop eating until they suffered so badly from malnutrition that two doctors prognose that the patient is likely to die within six months. That person, under the Bill, would then qualify for assisted dying.
Kim Leadbeater
This is a really important discussion and I am so glad that we are having it—some brilliant points have been made. As someone who has worked with people with anorexia, I am very aware of the sensitivities of the condition and the issues around it. Would my hon. Friend agree that, as part of this discussion, we have to consider the capacity assessment of people with eating disorders? It is a very serious mental health condition; it would require a lot for somebody with anorexia to pass the capacity threshold for making a decision of this magnitude. It is certainly the sort of instance where I would be very surprised if a doctor did not refer to an eating disorder specialist. Does my hon. Friend agree that we have to look at the condition and how the patient should be cared for holistically?
The Chair
Order. I remind hon. Members that there are a set of amendments in the next group about anorexia. Let us not go too far down this road.
Naz Shah
I absolutely agree with my hon. Friend that there need to be specialists—we will come to that debate later. Let me bring our debate back to the amendment we are discussing. I understand that the Bill is drafted so that people who suffer mental disorders, such as anorexia nervosa, cannot qualify for assisted death—when my hon. Friend the Member for Spen Valley sets that out, I have absolutely no reason to doubt it—but that is not enough to safeguard people with such disorders. As we know, people with anorexia can and have stopped eating until they suffer advanced malnutrition, which is a physical disorder. In some cases, that malnutrition becomes so advanced that doctors will prognose death within six months.
If we wish to protect people with anorexia and other eating disorders, we must rewrite the Bill. We must ensure that people who have those disorders, and who also have a physical disorder, cannot qualify for assisted dying. I must underline that this is not a hypothetical point or some clever objection that has been dreamed up without reference to the real world. It has actually happened—not once, but dozens of times in countries that have assisted dying.
Kim Leadbeater
My hon. Friend is making a powerful point. Does she agree that the reporting and data around assisted dying are fundamental? That is why it is important that, if the law is to change in this country, we get that absolutely right. What we propose in the Bill is closest to the laws in Australia, and in my understanding there have been no assisted deaths of people with anorexia in Australia. However, my hon. Friend makes a valid point about the accuracy of reporting; we do not know whether those examples were people with anorexia who happened to have cancer as well. We just do not know, and that is not good enough.
Naz Shah
I absolutely agree that if the Bill is to get through Parliament, it has to have those mechanisms and safeguards in place, but I am sure we will come to those later. If we do not know with any reasonable degree of accuracy how many cases there have been worldwide, we cannot say where the majority of such cases have occurred. When we are told that there have been zero assisted deaths of people with anorexia in Australia, I would err on the side of caution—another witness said that there were zero deaths involving coercion.
I understand that my hon. Friend’s amendment 181 also attempts to change clause 2, but the change would still allow people to qualify for an assisted death if they had a mental disorder alongside a physical disorder. I have no doubt that this stems from a compassionate desire not to exclude—for example, someone who has mild depression and a major physical illness—but its effect is to create a major risk for people suffering from both a mental health disorder that affects their eating and a physical disorder caused by not eating. To avoid that risk, the Bill must be much more tightly worded than it was when presented to the House on Second Reading, and it must be much more tightly worded than amendment 181 would make it.
We must make it much harder in the Bill for people to qualify for assisted death by way of having malnutrition caused by an eating disorder. It is a complex problem, and I believe no one amendment will solve it completely. I have submitted two amendments with the aim of making a contribution. Amendment 11 would also make a significant contribution to solving the problem, and I urge all Members to support it.
I turn to amendment 181, tabled by my hon. Friend the Member for Spen Valley. Although the Acts mentioned in clause 2 define mental illness and disability as being taken from the clear medical model, it is not clear if she is further suggesting that a new definition should be used—for instance, the social model. Someone could have a significant impairment under a social model of disability, and for the purposes of the Bill, not consider themselves to be a disabled person. Therefore, they could qualify for an assisted death, thus rendering the provision of no worth.
It is therefore unclear what my hon. Friend is similarly proposing with regard to mental illness. Amendment 11 is needed to provide assurance that if someone does have a mental illness, then it is tightly defined and would preclude them from being able to access an assisted suicide, in case the reason they are seeking it is the mental illness and not the terminal diagnosis. I will speak further on that later.
If amendment 181 was agreed to, the clause would read that a person is not to be considered terminally ill
“only because they are a person with a disability”.
There are two obvious problems with the amendment. First, the amendment removes references to the Equality Act 2010 and the Mental Health Act, which previously defined who did and did not have a disability or a mental health disorder, but having removed those definitions, it does not then define disability or mental disorder in the Bill. What definition will medical practitioners, and indeed applicants, use to determine who does or does not have a disability or mental disorder?
Kim Leadbeater
In terms of the removal of references to the Equality Act, I was not aware when the Bill was initially drafted that cancer is actually classed as a disability. Given the fact that in some countries 70% of assisted deaths are for cancer patients, it would seem ridiculous to exclude cancer patients from having the option of assisted death. I hope that goes some way towards explaining that point.
Kim Leadbeater
The concepts of a mental disorder and a disability are well understood, and those terms are well used. In the eyes of the law, we would not need to provide a definition of those in the Bill, but the removal of the reference that would include people with cancer is an important thing to do.
Danny Kruger
The fact that cancer is included in the Equality Act definition does expose a concern about the Bill. It suggests that there is a real connection there, which is of concern. I think the solution is to accept the amendment 11 and ensure that disabled people and those with mental health conditions would not be eligible for assisted dying, and then to introduce a further amendment—either now, as a manuscript amendment, or later—to exclude cancer from the definition. That is a tidying-up exercise that could be done in light of the point that the hon. Member for Spen Valley made about the reference in the Equality Act. The most important thing is that we tighten the clause to protect disabled people.
Terminally Ill Adults (End of Life) Bill (Thirteenth sitting)
Tuesday 25th February 2025
(2 months ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 February 2025 - (25 Feb 2025)
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 15 - Question accordingly negatived.
The Chair
Before we start, I remind colleagues about the use of the second person—that is, the word “you”. Can you please refrain from using “you” unless you are actually directly addressing me? As for interventions, they should be a vignette, not a disquisition—in other words, a sketch, not an oil painting. I will remind Members if their sketch becomes an oil painting.
Clause 2
Terminal illness
Amendment proposed (this day): 399, in clause 2, page 1, line 22, leave out “, disease or medical condition” and insert “or disease”.—(Danny Kruger.)
This amendment ensures that a terminal illness under the Bill can only be an illness or a disease and not a medical condition.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 400, in clause 2, page 2, line 1, leave out “, disease or medical condition” and insert “or disease”
This amendment is consequential on Amendment 399.
Amendment 401, in clause 2, page 2, line 5, leave out “, disease or medical condition” and insert “or disease”
This amendment is consequential on Amendment 399.
Amendment 11, in clause 2, page 2, line 7, leave out from beginning to first “of” in line 8 and insert—
“(3) A person is not to be considered to be terminally ill by reason”
This amendment amends clause 2 to say that a person cannot be considered terminally ill by reason of having mental illness or a disability.
Amendment 181, in clause 2, page 2, line 8, leave out from “ill” to end of line 10 and insert
“only because they are a person with a disability or mental disorder (or both).
Nothing in this subsection results in a person not being regarded as terminally ill for the purposes of this Act if (disregarding this subsection) the person meets the conditions in paragraphs (a) and (b) of subsection (1).”
This amendment clarifies that the purpose of subsection (3) is to emphasise that only having a disability or mental order does not make a person “terminally ill” and therefore eligible for assistance.
Amendment 283, in clause 2, page 2, line 10, at end insert
“or one or more comorbidities alongside a mental disorder within the meaning of the Mental Health Act 1983”.
This amendment would set out that a person who has a co-morbidity with one or both of a mental disorder or a disability is not considered terminally ill by virtue of those comorbidities alone.
Naz Shah (Bradford West) (Lab)
Before we adjourned, I was talking about the two obvious problems with amendment 181. The first is that it would remove references to the Equality Act 2010 and the Mental Health Act 1983, which previously defined who did or did not have a disability or mental disorder. The amendment would remove those definitions, and the Bill would not define disability or mental disorder. What definition would medical practitioners, and indeed applicants, use to determine who does and does not have a disability or mental health disorder?
I appreciate that, as my hon. Friend the Member for Spen Valley explained, that was done on the basis of advice she took to remove the references to the Equality Act because people with cancer could also declare themselves to be disabled people. However, that leaves a real opening, which weakens the clause even further. I cannot understand why we would remove one clear definition but not provide a replacement. That is a serious concern.
However, there is a bigger problem with the clause as it would be changed by my hon. Friend’s amendment. In referring to someone who could not be disqualified from assisted dying, the clause would still use the word “only”—again, I emphasise the word “only”. That leaves the door open for individuals with mental health disorders or disabled people to qualify for an assisted death based on the physical consequences of their condition. If the goal is to prevent people with mental illness or disabled people from qualifying, this amendment fails to do that. It weakens, rather than strengthens, the Bill’s safeguards.
As we heard in oral evidence, there are now 60 documented cases of individuals with eating disorders who have died by assisted death internationally.
Lewis Atkinson (Sunderland Central) (Lab)
Does my hon. Friend accept that nearly all those cases were in jurisdictions whose schemes bear no resemblance to the one proposed in the Bill?
Naz Shah
I accept that the majority of those 60 cases are in such jurisdictions, but to me it does not matter whether it is the majority or one—one death is too many, as I am sure my hon. Friend will agree. In Oregon, the evidence was that it was two, but it is also important to reflect on the fact that Oregon does not record these things. There is no record of the people who had anorexia—by and large, it is women—and who felt that they fit the criteria for assisted death, or that they were on a trajectory to fit it, because they had decided not to eat. So we cannot exactly rely on the two cases that have been found—and those were found only because of the research that was carried out. That does not quite satisfy the question.
Sarah Olney (Richmond Park) (LD)
Does the hon. Lady agree that it really does not matter what happens in other jurisdictions? The question is, does this legislation prevent people who are currently suffering from anorexia from seeking an assisted death or not?
Naz Shah
I completely agree with the hon. Member.
Coming back to the physicians who justified eligibility by citing the physical complications of anorexia, not just the mental disorder itself, we know that in all 60 of the cases that have been cited, the person did not have a terminal illness other than the one that was caused by anorexia, because that then fit the definition. Under the Bill, the same could happen here. I say in response to the hon. Member for Richmond Park that eating disorders or substance use disorders could still qualify if a doctor determines that the resulting physical deterioration meets the criteria for terminal illness. I will speak to anorexia in much more detail when we debate a further amendment that I have tabled.
Amendment 181 would also remove references to the Equality Act and the Mental Health Act, and the Bill would not define disability or mental disorder. That raises serious concerns, so I will not support the amendment. I encourage Committee members to strengthen the Bill in this regard and not weaken it. The Acts define mental illness and disability as taking a clear medical model, and again it is not clear whether my hon. Friend the Member for Spen Valley is further suggesting that a new definition should be used—but I am going over ground that I have already been over.
Daniel Francis (Bexleyheath and Crayford) (Lab)
The amendments before us have left me in a significant quandary, as some Members are aware. I am concerned that while their proposers are genuinely seeking to improve the Bill, legal loopholes may remain.
Prior to Second Reading, the Equality and Human Rights Commission produced a briefing note on the Bill. It included a section relating specifically to discrimination and equality considerations, which stated:
“It may also particularly impact disabled people. We recognise that this bill is focused on assisted dying for adults who are terminally ill, and does not propose access to assisted dying on the basis of disability or chronic conditions. However, there is not always a clear line between terminal illness and disability. Disabled people can also suffer from terminal illness, and illness may itself amount to a disability. Parliament should note that the exclusion of disability as a standalone criterion for accessing assisted dying does not mean that the rights of, and protections for, disabled people do not need to be considered in relation to this bill.”
I note that amendment 181, tabled by my hon. Friend the Member for Spen Valley, seeks to clarify these matters, but I remain concerned that, with its reference to
“only because they are a person with a disability”,
it would retain the ambiguity that she is seeking to remove. I understand the legal advice that she has received on this matter. My view is that although the amendment would remove the reference to the Equality Act, that Act still sets out that disability is one of the specified protected characteristics. Paragraph A9 of the Government’s guidance on the Equality Act reads:
“The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person. This means that the person is protected by the Act effectively from the point of diagnosis.”
I remain concerned about this point. I have previously raised my concerns about the language used on Second Reading and, if I had spoken then, I would have raised this point. We have heard throughout the Bill’s passage that being a disabled person does not make someone eligible for assisted dying, but I have just diagnosed three disabilities in the Equality Act that may or may not be eligible under this Bill.
Danny Kruger (East Wiltshire) (Con)
The hon. Gentleman is making a very important point, and he picks up the observation by the hon. Member for Bradford West that there is a link, through the Equality Act, with disability. It is absolutely right that we address that. Does he agree that the way to do so is not to accept amendment 181 tabled by the hon. Member for Spen Valley, which would retain the dangerous words “only” and “for the avoidance of doubt”, but to accept amendment 11, which would exclude those words and ensure that someone could not get an assisted death by reason of disability or mental illness? Because of that concern, perhaps we need to table a further amendment to exclude the Equality Act from the operation of this clause, and I await the Chair’s ruling on whether that is possible at this stage. Amendment 181 does not refer to the Equality Act, although the Bill does, so we should follow that point. Rather than accepting that amendment, which would not move us forward, we should accept amendment 11. I hope that that is clear and that it might satisfy the hon. Gentleman’s concern.
Daniel Francis
I will return to that. I understand what amendment 11 seeks to do, but I think we should have a hybrid, because I do not think either amendment would completely achieve what we want. I will seek the Minister’s advice in due course. I understand the legal advice to my hon. Friend the Member for Spen Valley on this matter, and I understand that all the amendments have been tabled in good faith, but I am concerned about the loopholes that could remain.
We heard on Second Reading that assisted dying will not be available to disabled people, but let us imagine an individual who does not consider themselves to be disabled. If they were diagnosed with cancer tomorrow, our current legislation states that they would be disabled from the point of diagnosis. They could live with that cancer and receive treatment for a considerable time, while continuing to have no other disability. When they receive a six-month prognosis, they would be eligible for assisted dying due to the same disability they have had for a very considerable time, and it would remain the only disability they have had in their entire life. I remain concerned that my hon. Friend’s amendment still talks about disability, potentially leaving that loophole.
Kim Leadbeater (Spen Valley) (Lab)
My hon. Friend makes an interesting point, but the purpose of the Bill is that a person with a terminal cancer diagnosis and six months left to live would have the choice of assisted death. As we have heard, they might have seen the suffering of relatives with a similar cancer, and they might have seen what their death looked like. I understand that people might disagree, but that is the purpose of the Bill.
Daniel Francis
I hear that point but, looking at my postbag, the people who berate me for not supporting the Bill often talk about their loved ones with motor neurone disease or Parkinson’s, which I understand from oral evidence will be exempt. We need to make it clear which disabilities and conditions will be eligible, and I am not sure that the amendments before the Committee nail it down. I am concerned that the wording would lead to potential loopholes and legal challenges.
We should still be concerned about legal review of the Bill, based on indirect disability discrimination. The Equality Act says that indirect discrimination happens when a rule, a policy or even a practice that applies to everyone disadvantages people with a particular disability, compared with people who do not have that disability, where that cannot be shown to be justified as being intended to meet a legitimate objective in a fair, balanced and reasonable way.
If we accepted this amendment to allow the inclusion of cancer and some other disabilities set out in the Equality Act, I believe it would be argued in due course that other disabilities meet the criteria for assisted dying and, despite the promises made to this Committee and to the House in good faith, the loopholes would allow the criteria to be widened.
Other amendments in this group retain the reference to the Equality Act 2010, which could equally result in legal challenges down the line, for the reasons my hon. Friend the Member for Spen Valley outlined this morning. I am not deliberately being difficult, but I am not sure that any of the amendments would completely achieve what they seek to achieve.
I await the Minister’s view on the matter but, as things stand, I am concerned that we will take the clause back to the House without completely satisfying Members’ aims. By allowing those with cancer to seek assisted dying, there could be a loosening of the rules for other disabilities. I fear there could be manuscript amendments on this matter, but I await the Government’s view on the robustness of these amendments if they were to be accepted.
Lewis Atkinson
I want to come back to the Bill as drafted. The key factor in clause 2, for me, is the focus on terminality. That is what determines eligibility: that death is reasonably expected within six months. The clauses that we are discussing, subject to amendment, merely clarify—rightly, because this is important, and I too will wait to hear the Government’s guidance—that solely having a disability or a mental disorder does not in itself provoke eligibility. I fear that we are overcomplicating matters; the focus on terminality is in the name of the Bill. It is the Terminally Ill Adults (End of Life) Bill, and that is what we are focusing on today. I urge Members to think about that point when they consider the amendments, including amendment 181 from my hon. Friend the Member for Spen Valley.
Dr Simon Opher (Stroud) (Lab)
I would like to make a short comment. It is very important that the Committee does not get too hung up on anorexia, because the Bill is very clear about what is excluded. Deprivation of nutrition is always reversible. Someone who is anorexic and about to die would go into multi-organ failure and be unconscious and unable to give any sort of consent. Before that, the nutritional deprivation is reversible and therefore not covered under the Bill.
Danny Kruger
I just wanted the hon. Gentleman to comment on the reality in our NHS at the moment that people are described as terminally ill with anorexia. They are given the label of being terminally ill and put on palliative care pathways because it is assumed that their condition is not reversible. Doctors today, in this country, are concluding that people with eating disorders are going to die and are treating them accordingly. Is he aware of that, and how does it affect his comments?
Dr Opher
I am not aware of that. I believe that this is always reversible until a person goes into the absolute terminal stage of multi-organ failure. Before that, we can reverse nutritional deprivation. I do not accept that point, and I think it is important that we look at the Bill in all its detail. I think it has enough safeguards to exclude someone with anorexia.
The Chair
I have received a manuscript amendment from the hon. Member for East Wiltshire that he wishes to move. As the hon. Gentleman knows, a manuscript amendment requires a very high bar and exceptional circumstances. I do not believe that exceptional circumstances are present, and he will be aware that further amendments can be proposed to the clause for consideration on Report. That is my decision on the matter.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd. Although it is for Parliament to progress any Bill, the Government have a responsibility to make sure that legislation on the statute book is effective and enforceable. For that reason, the Government have worked with my hon. Friend the Member for Spen Valley; where changes have been agreed mutually between her and the Government, I will offer a technical, factual explanation of the rationale for those amendments. That applies to amendment 181 in this group.
This group of amendments is linked to how the Bill’s definition of a terminal illness applies to those with a mental disorder or disability. Amendments 399 to 401 would remove the term “medical condition” from the Bill’s definition of a terminal illness, so that only those with an inevitably progressive illness or disease would be able to request to end their life, rather than, as under the current drafting, those with a “disease or medical condition”.
The amendments could narrow the scope of those who may access assisted dying services. However, clinical advice suggests that the use of the terms has changed over time, may not be used consistently and remains debated in both medical and lay circumstances. Removing the term “medical condition” may lead to disputes or protracted debates about whether a particular condition is or is not a defined disease or illness, despite there being medical consensus around whether it will lead to death within six months.
Danny Kruger
I am grateful for that clarification, but it rather concerns me. Can the Minister elucidate exactly which conditions might fall into the category of medical condition that would not be captured by “illness” or “disease”? Does he accept the point that I made in my speech—that the interpretation of the law by the court will be that the phrase expands the definition of a terminal illness beyond illness or disease, as it is in the current law? What are the new conditions that will be captured by the term?
Stephen Kinnock
What the hon. Member will have picked up throughout this debate, on every day that we have met, is that the Government are concerned about adding or taking away terminology that delivers clarity, stability and familiarity.
I have to say that I am quite torn on the hon. Member’s amendment 399, because I absolutely see where he is coming from. It is one of those situations in which my position as a Government Minister is made somewhat more complex by my personal view that his amendment is perfectly reasonable. My instinct—speaking personally as a Member of Parliament, rather than as a Government Minister—is that the remaining terms in the Bill, if we removed “medical condition”, would continue to cover the waterfront or spectrum of conditions. It is possible that this is a case in which there has been an overabundance of caution on the part of the Government. I am delivering the Government’s position, but I want the hon. Member to know that that will not necessarily determine how I vote if this amendment does go to a vote.
Danny Kruger
I was going to remind the Minister that he is, in his strange Jekyll and Hyde personality, speaking as a Minister but voting as a Member of Parliament, so if he has given the Government’s view that my amendment is not acceptable, but he personally thinks that it is, I hope that he will vote for it.
Stephen Kinnock
It is a well-made case; I am still reflecting on it, because of the somewhat complex nature of my role on this Committee, but I am inclined to support the hon. Member’s amendment.
Amendment 11 also seeks to amend clause 2(3). Our assessment of the effect of this amendment is that a person who has a mental disorder and/or a disability may not qualify under the Bill as terminally ill, even if they have an inevitably progressive illness and can be reasonably expected to die within six months. There might be concerns from the point of view of the European convention on human rights and the Equality Act if the amendment were passed as currently drafted, because its effect would be to exclude people from the provisions of the Bill if they had a disability or a mental disorder. That may not be the intention of the hon. Members who tabled the amendment.
I turn to amendment 181. In executing our duty to ensure that the legislation, if passed, is legally robust and workable, the Government have advised my hon. Friend the Member for Spen Valley in relation to the amendment. It clarifies that a person who seeks assistance to end their own life based only on a mental disorder or a disability, or both, would not be considered terminally ill for the purposes of the Bill. Such a person would therefore not be eligible to be provided with assistance to end their own life under the Bill. Someone who has a disability or a mental disorder, or both, and who also already meets all the criteria for terminal illness set out in the Bill would not be excluded by the amendment, as drafted. The amendment therefore brings important legal clarity to the Bill.
Amendment 283 sets out that a person who has one or more comorbidities, alongside a mental disorder within the meaning of the Mental Health Act 1983, would not be considered terminally ill by virtue of those comorbidities alone. The reality of modern healthcare is that many patients, not least those towards the end of life, will be dealing with several conditions or comorbidities. The term “comorbidity” in a clinical context can sometimes be used to distinguish the main problem that someone has experienced experiencing from additional but less serious problems, but it can also be used by those specialising in one or more other aspects of a patient’s care to distinguish their area of focus from other issues.
In the context of the Bill, the essential test is whether any morbidity, comorbidity or otherwise, meets the requirements in the Bill. Although it is unlikely that a terminal morbidity would be thought of as a comorbidity, it is not inconceivable that it might be, for the reasons that I have set out. The phrasing of the amendment, notably the term “alongside”, potentially increases that possibility. The effect might be that a condition that would otherwise be considered terminal would instead be considered a comorbidity alongside a mental disorder. The amendment would prevent a person with a mental disorder who would, but for the amendment, have been considered terminally ill from accessing assisted dying services under the Bill.
As I have said, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed. However, to ensure that the legislation works as intended, we have advised the sponsor in relation to amendment 181, to further clarify the Bill such that only having a disability and/or mental disorder does not make a person terminally ill and eligible for assistance in accordance with the Bill.
Jack Abbott (Ipswich) (Lab/Co-op)
Most of the discussion on amendment 181 has centred on the word “only”. Just to get clarification on this point, would someone with an eating disorder who was later diagnosed with a terminal illness still be able to access an assisted death, if that were required under the amendment?
Stephen Kinnock
My answer to that question is yes. My understanding is that so long as the terminally ill, six-month criteria are met, that person would qualify for assistance under the Bill.
Jack Abbott
Just to be absolutely clear for everyone in the room, and in case I was not specific enough, if that terminal illness is a result of the eating disorder, rather than, say, of that person also being diagnosed with a terminal illness such as cancer, would they be covered under amendment 181?
Stephen Kinnock
My understanding is that amendment 181 is clear that the qualification for accessing assisted dying has to be based on the definitions in the main body of the Bill. If passed by the Committee, the amendment will make it clear that an eating disorder does not qualify for access to that service. There has to be another, clear definition that does qualify under the terms set out in the main body of the Bill.
Kit Malthouse (North West Hampshire) (Con)
I just want to illustrate to the Committee that people with eating disorders, certainly as they come towards the end of their life, are already subject to quite assertive action by the state. For example, over the past few years, generally, where hospitals have detected that an individual is effectively trying to starve themselves to death, they have applied to the Court of Protection and got orders for forcible treatment. In that application, it is determined that that person does not have the mental capacity to make decisions about their own medical care.
I do not want the Committee to labour under the illusion that people with anorexia or other eating disorders are going to wander up and suddenly ask for an assisted death. If there has been a detection that they are trying to get themselves eligible by effectively causing organ failure by starvation, the system would have intervened well before then, effectively to force them to be treated.
Stephen Kinnock
The right hon. Member makes an excellent point. I think it goes back to our basic view that there are some amazing health professionals in our healthcare system who do fantastic work. Eating disorders are a truly tragic condition and, of course, there is all sorts of support in place. It is not always perfect or exactly how we would want it to be, but I think it would be a false move for the Committee to think that this is an either/or situation. This is a both/and situation. Of course it is not always perfect, but I think we should pay tribute to our amazing health professionals, who look after all sorts of people with all sorts of conditions, including eating disorders.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Does the Minister agree that the language of clause 2(1)(a)—
“cannot be reversed by treatment”—
is reassuring? Indeed, the written evidence from Professor Emily Jackson notes:
“Someone with a condition that is not inevitably progressive, or which could be reversed by treatment, would be ineligible under the Act.”
That covers the case raised by my hon. Friend the Member for Ipswich.
Stephen Kinnock
My hon. Friend makes an excellent point. She brings us back to the fundamental point made in the Bill, which is that it has to be “an inevitably progressive illness”. Eating disorders do not fall under that definition: that is very clear. I hope that that explanation and the observation that I have made on the other amendments are helpful to members of the Committee in their consideration.
Kim Leadbeater
I will keep my comments brief, because we have had a very thorough discussion today. I will first speak briefly to amendment 123, tabled by my hon. Friend the Member for Broxtowe. Amendment 123 would change “an inevitably” progressive disease to “a typically” progressive disease. [Interruption.] Is that the next grouping? Oh, I am peaking too soon—my apologies, Mr Dowd.
I will come back to my hon. Friend the Member for Broxtowe, but let me turn to amendments 399, 400 and 401, on the exclusion of “medical condition”, which the hon. Member for East Wiltshire submitted a few days ago, before the end of the recess. I looked at them over the weekend and was very interested to hear his reasoning for them today. This is the purpose of the Committee; I have listened carefully to what the hon. Gentleman has said, and he has made some valuable points. All along, I have taken the view that this legislation must not only be the strongest anywhere in the world, but be very clear in its intentions and leave no room for ambiguity regarding who is entitled to request assistance under its provisions.
I am very comfortable with the definition of terminal illness in the Bill, but across the world—I have done lots of research into this, as I know other colleagues have—some jurisdictions use the term “medical condition” or, actually, just the term “condition”, and others do not. Many in Australia do, but in New Zealand, for example, which has a similar law to what is being proposed here, “medical conditions” do not feature, nor do they in a number of states in America.
While I do not necessarily think that it would definitely be problematic to include the term “medical condition”, I appreciate the argument that the hon. Gentleman has made. We have to be as cautious as possible to ensure that the Bill achieves its purpose but does not create a lack of clarity. That point has been very well made.
The advice that I have received from officials is that, as the hon. Gentleman suggested, “medical condition” does not have a clear legal definition and could therefore be seen as imprecise. That does worry me. The purpose of the Bill is clear—it is in the title. It is to give choice to terminally ill adults at the end of life. They must have a clear, settled and informed wish, and be expected to die within six months, in circumstances that are inevitably progressive and cannot be reversed by treatment. The hon. Gentleman has, I believe, helped to make that even clearer, and I am grateful to him for doing so.
Naz Shah
My hon. Friend is making her points very clearly. The last words of amendment 181 are:
“Nothing in this subsection results in a person not being regarded as terminally ill for the purposes of this Act if (disregarding this subsection) the person meets the conditions in paragraphs (a) and (b) of subsection (1).”
Does that not demonstrate that the amendment does not change the test for terminal illness?
Kim Leadbeater
My apologies; I am speaking to amendments 399, 400 and 401. I will be happy to come back to that point at the appropriate time, but I first want to finish my comments on those amendments.
As I have said, the hon. Member for East Wiltshire has done a good job this morning of improving the clarity of the issue. That shows that the Committee is doing its job and working effectively. I am therefore open to supporting those amendments.
Danny Kruger
I am delighted to hear it. I am grateful to the hon. Lady and to other hon. Members who have indicated their sympathy for the amendment. I look forward to the Division and to the Minister’s decision.
May I follow up on a point made by the hon. Member for Bradford West? I do not know whether the hon. Member for Spen Valley would like to intervene to help me understand the point. Amendment 181 would redraft clause 3(2) to make it clear that a person does not qualify as terminally ill
“only because they are a person with a disability or mental disorder”.
It would add to clause 3(2) the following additional sentence:
“Nothing in this subsection results in a person not being regarded as terminally ill for the purposes of this Act if…the person meets the conditions in paragraphs (a) and (b)”.
Does the hon. Member for Spen Valley agree that that will essentially mean that the clause does nothing? It confirms the terms of eligibility set out earlier in the Bill, and confirms that a person would still be eligible to receive an assisted death if they had conditions that were a consequence of a mental disorder or a disability. If she feels like intervening on me, I would like her to help me understand what that additional sentence adds. To my mind, it negates the purpose of the clause.
Dr Tidball
I stand here as a disabled woman. Under the Bill, as a disabled woman, I would not —by reason only of being a disabled woman—be eligible to have access to assisted dying. The amendment clarifies that I would not be eligible only through being a woman who has a disability. However, if I develop a condition that means that I have a terminal illness, leaving me with only six months left to live, I would be permitted to have that choice. It is right, I think, that I should have that choice. As I said in my Second Reading speech, this is about giving people access to a good death and living a good death. This is about giving that choice, where they choose to make it, to disabled people, while building in sufficient safeguards so that this is not something pressed upon them—
The Chair
Order. I do not like to intervene when a debate is going on, but as I indicated earlier, Members’ interventions have to be just that: interventions, not mini-speeches or disquisitions. Can we please keep interventions short and precise?
Danny Kruger
I am grateful, Mr Dowd. I recognise the force of what the hon. Member for Penistone and Stocksbridge is saying. To be clear, the amendments that I am supporting would not deny disabled people any of the other rights that are being awarded in the Bill. She is absolutely right that a disabled person with a terminal illness would qualify just as much as someone who was not disabled. That is absolutely right.
The purpose of the amendment is to ensure that people whose illness is a direct consequence of a mental disorder in particular would not be eligible. The reference to disability is because of the confusion, which I expect the hon. Member for Spen Valley recognises in current law and guidance, about where the distinction between disability and terminal illness lies. That is our concern. The purpose of the amendment is to ensure that people would not be deemed as eligible for an assisted death in consequence of disability or mental illness. I know that is what the hon. Lady is trying to do with the amendment, and with the clause that it amends, so we are on the same page. Our concern is that, by including the words “For the avoidance of doubt” and the word “only”, we will be leaving quite a large loophole, through which, I am afraid to say, some vulnerable people might fall.
I look forward to the Division on the amendments. We have not been able to discuss them all in close detail, but I am grateful to Members for the debate that we have had.
Amendment 399 agreed to.
Juliet Campbell (Broxtowe) (Lab)
I beg to move amendment 123, in clause 2, page 1, line 23, leave out “an inevitably” and insert “a typically”.
This amendment changes the definition of what it is to be terminally ill from having an “inevitably” to a “typically” progressive illness, disease or medical condition that cannot be reversed by treatment.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 2, page 1, line 24, after “reversed” insert
“or the progress controlled or substantially slowed”.
This amendment would mean that illness, disease or medical condition etc, the progress of which can be managed or controlled by treatment are not characterised as terminal illness.
Amendment 48, in clause 2, page 2, line 2, leave out
“can reasonably be expected within 6 months”
and insert
“is expected with reasonable certainty within 6 months, even if the person were to undergo all recommended treatment”.
Amendment 282, in clause 2, page 2, line 2, leave out
“reasonably be expected within 6 months”
and insert
“be expected with reasonable certainty within one month, even if the person were to undergo all recommended treatment.”
This amendment would restrict the scope of assisted dying to people who, with reasonable certainty, would die within one month, even if they were to undergo all recommended treatment.
Amendment 51, in clause 2, page 2, line 2, leave out from “expected” to end.
This amendment would remove the six-month time requirement for a person to be eligible to request assistance under the Act.
Amendment 234, in clause 2, page 2, line 2, leave out “within 6 months” and insert—
“(i) in the case of a neurodegenerative illness, disease, or medical condition, within 12 months; or
(ii) in the case of any other illness, disease, or medical condition, within 6 months.”
This amendment changes the definition of a terminal illness for the purposes of the Act to include neurodegenerative illnesses, diseases or medical conditions where a person’s death in consequence of such an illness can reasonably be expected within 12 months.
Amendment 10, in clause 2, page 2, line 6, at end insert
“, providing the treatment does not alter the overall prognosis of the condition.”
This amendment, which is linked to Amendment 9, would mean that illness, disease or medical condition etc, the progress of which can be managed or controlled by treatment are not characterised as terminal illness.
Amendment 402, in clause 2, page 2, line 6, at end insert—
“(2) A person who would not otherwise meet the requirements of subsection (1), shall not be considered to meet those requirements as a result of stopping eating or drinking.”
This amendment means that someone who is not terminally ill within the meaning of subsection (1) cannot bring themselves within that definition by stopping eating or drinking or both.
Juliet Campbell
The amendment would change the definition of what it is to be terminally ill, from having an “inevitably” to a “typically” progressive illness, disease or medical condition that cannot be reversed by treatment.
The limits of medicine, and where they manifest in our healthcare system, have been repeatedly discussed and have come up in oral and written evidence. The Bill’s supporters have frequently used the argument that our current medical care is limited to highlight the benefits of assisted dying, by stating that even with the best care available, not everyone can be prevented from experiencing significant suffering as their life comes to an end. However, such an understanding of the limits of medicine is not consistently applied in the Bill. The truth, as is repeatedly corroborated in the written evidence, is that in many cases we simply cannot reasonably know how long a person could survive.
Witnesses have explained that predicting whether someone is inevitably terminal is often not a certainty. Even when a disease is considered advanced or at the end stage, there are variables—such as an individual’s response to a treatment, access to care, new clinical trials, medical intervention, or a person’s overall resistance —that can influence the outcome. When practising medicine, doctors often use terms like prognosis, life expectancy, or expectation, rather than definitive statements on the degree of someone’s terminal prognosis. The variables in prognosis make the amendment necessary.
The term “typically” better acknowledges the limitations of the knowledge of medical practitioners. In written evidence, Dr Chris Paxton, a retired GP of 38 years, says:
“No doctor can accurately predict if a terminally ill patient has six months or more to live. I have seen many patients being told they have only months to live, continuing living many years after their ‘terminal’ diagnosis.”
The concept of a condition being “typically” terminal acknowledges that although a disease usually leads to death, there may be exceptions where individuals survive longer than expected, or even achieve remission.
The process of assisted dying must maintain honesty and transparency with patients who are seeking assisted death. A declaration of certainty is implied by using the word “inevitably”. In her written evidence, Dr Ariel Dempsey, who is currently studying end of life care, says:
“Physician prognostic estimates are variable, optimistic/pessimistic, uncertain, and more often than not, inaccurate. For example, a prognosis of 6 months is required for hospice eligibility in the U.S., yet it is not uncommon for hospice patients to live beyond six months, even without life-prolonging treatment.”
For individuals seeking assisted death, the use of the word “inevitably” can lead to an over-reliance and overconfidence in the judgment of their doctors. If someone believes without question that they will inevitably die within six months, an assisted death may seem like an obvious and minimally life-limiting choice. The problem is that a claim that someone’s death is imminent and inevitable within six months simply may not be true.
Not only does the use of the word “inevitable” risk embedding dishonesty in our law, but it risks doctors who agree to engage in assisted dying and end of life care becoming overburdened with the responsibility of proclaiming an individual’s prognosis. Having considered the circumstances that surround a person’s illness, a doctor can only give a prognosis that is typical and give a typical indication of their life expectancy.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Will the hon. Lady give way?
Juliet Campbell
I have almost finished, so I will carry on.
If we give doctors the essentially impossible task of proving that death will inevitability occur in six months, there is a risk of an individual being advised to stop treatment, to accelerate them artificially into a serious or terminal state or speed it up to ensure their eligibility. As medical intervention is so key in the prognosis of a seriously ill patient, it makes no sense to me to use language that is not consistent with real-life medical experiences or reasonably within the scope of medical diagnosis.
Tom Gordon (Harrogate and Knaresborough) (LD)
It is an honour to serve under your chairmanship, Mr Dowd. I speak in support of amendment 234, which is tabled in my name and seeks to ensure that people suffering from neurodegenerative conditions are not excluded from the dignity and autonomy that the Bill seeks to provide. The amendment would extend the eligibility period for those with neurodegenerative conditions from six months to 12 months—a simple yet crucial change that could alleviate needless suffering and ensure fairness in our approach to end of life care.
The intention of the amendment is to change the law to match that in five of the six Australian states. The wording mirrors that found in those jurisdictions. Conditions that would be affected by the change include motor neurone disease, Huntington’s disease, multiple system atrophy, progressive supranuclear palsy, Parkinson’s and many others. Although Alzheimer’s is a neuro-degenerative condition, those with Alzheimer’s would not be eligible for an assisted death should the amendment pass because they would not have the mental capacity.
Daniel Francis
Does the hon. Gentleman agree that those with early-stage dementia or Alzheimer’s could pass the mental capacity test in the Mental Capacity Act 2005?
Tom Gordon
They would need to come within the definition of a terminal illness. I will come that later in my speech.
We must recognise the reality of neurodegenerative diseases. There are other conditions where prognosis follows a clear trajectory. People with conditions such as MND and Parkinson’s experience a slow but relentless decline. Their suffering can be profound long before they meet the six-month prognosis requirement that is currently in the Bill.
Let us look at some real-life stories. Mary Kelly is a bright and sharp-witted woman from Middlesbrough. Diagnosed with Parkinson’s last year, Mary knows that she faces many years of deterioration. She said:
“It would make the world of difference to know that assisted dying was legal and available. I’d know if I’m not finding joy, I can end it peacefully. It would make the intervening years so much more peaceful, loving, and relaxed.”
Parkinson’s-related dementia affects a third of those with the condition. If Mary loses capacity before a doctor confirms her eligibility, she will be denied the very right that the Bill aims to uphold. If we do not amend the Bill, people like Mary will lose their autonomy precisely when they need it most.
We must also consider the experience of people like Phil Newby, who was diagnosed with MND a decade ago. Phil fought to challenge the UK’s ban on assisted dying, taking a case to the High Court in 2019. He is the last living person who took one of the court cases involving assisted dying. Phil knows that the uncertainty of prognosis leaves too many in limbo. He said:
“People with neurodegenerative diseases often suffer a cognitive decline in the later stages. Twelve months would give a much greater chance for a civilised death to those suffering from the most devastating illnesses.”
We must ensure that those voices are not ignored in this conversation.
Imagine a scenario in which someone with MND applies for an assisted death. They tell their friends, family and loved ones. They begin to make preparations, including signing the written declaration, but they cannot get approval until a doctor says they have six months left. They wait. Their condition gets worse. They suffer choking fits, have feeding tubes fitted, and experience a slow and cruel deterioration. Finally, they receive approval from the first doctor, but before they can get to a second doctor, they begin to lose capacity. They are still suffering. Their family know their clear and settled wish, but they have no chance of a second approval, and especially no chance of approval from a panel. They will be potentially consigned to a death of agony and pain, despite everyone knowing that it is not how they would like to die. Their family must watch on, helpless.
The loss of competency is one of the greatest fears for those with neurodegenerative conditions. The Bill currently states that a person must have full mental capacity at the time of their assisted death, which is an important safeguard. However, people who develop MND can have their decision making impaired, and around 50% experience some form of cognitive decline. In New Zealand, where there is a six-month limit, many people lose their decision-making capacity before they can proceed. By contrast, in Victoria in Australia, where there is a 12-month limit for neurodegenerative conditions, only 7% lose competency. If we do not amend the Bill, we risk condemning those people to a fate they fought to avoid.
We must also recognise the difficulty in predicting life expectancy for those with neurodegenerative conditions. Prognosis is not an exact science. I am fairly sure that everyone agrees on that—people have made those points repeatedly. The Court of Appeal has acknowledged that a six-month prognosis cannot be made with certainty for many terminal illnesses. That is one of the most difficult things that I have had to grasp as part of the Committee. To impose what could seem like an arbitrary threshold on those with unpredictable conditions is unfair and unnecessary.
Moreover, let us look at international examples. Many UK residents who have to travel to Switzerland for an assisted death do not have six months or less to live. If we end up with a six-month limit, we will still see people having to travel to Switzerland or other jurisdictions to ensure that they have access to an assisted death. I worry how people in this country would feel about that —particularly those families who might wish to accompany their loved ones on that journey, with the legal consequences that could follow.
Recent polling shows that two thirds of Brits support an amendment that would allow people with neuro-degenerative diseases access to an assisted death. We know that 85% of people living with multiple system atrophy who gave their views in an MSA Trust survey support such a change in the law. This is not a minor or niche concern. Every year, motor neurone disease alone kills 2,200 people in the UK, which is six people per day. Some 45% of people living with MND say they would consider an assisted death if the law changed. It is not a hypothetical scenario: these are real people, making real choices about how they wish to live and die.
My amendment would not overload the system. Experience from overseas tells us that jurisdictions such as Victoria and other Australian states already have a 12-month system for neurodegenerative conditions, and it works. New Zealand, which maintains a six-month limit, has seen people unable to qualify, and is looking at what it can do to ensure greater access. We must also listen to the written and oral evidence from expert witnesses. Professor Meredith Blake and Chloe Furst testified to the importance of a 12-month eligibility period, not just for fairness but for the practicality of allowing patients to navigate the process in time.
Everyone wants to see a Bill that is about dignity. If it is truly about that, we must ensure that it works for those who need it most. It is not about opening the floodgates or trying to expand the criteria. It is about ensuring equal access. From speaking to colleagues across the Committee, I know that a lot of thought and consideration has gone into this issue. With that in mind, I will not push the amendment to a vote, but it is important that the voices of people with neurodegenerative diseases are considered as part of the process.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
It is a pleasure to speak under your chairship, Mr Dowd.
I rise in support of amendment 234. I acknowledge the point made by the hon. Member for Harrogate and Knaresborough about not pushing it to a Division, but it is important to hear why it would benefit the Bill if it was agreed to. It would allow a terminally ill person with a neurodegenerative illness, disease or condition who has fewer than 12 months left to live—rather than six—the right to choose an assisted death. I speak as a humanist, because I am very alive to many members of the public, and some MPs, wanting a wider scope of eligibility to cover intolerable suffering. In fact, some want no timescales, and an amendment has been tabled for that. I believe that my hon. Friend the Member for Spen Valley, who introduced the Bill, has had people speak to her and say the Bill needs to go further.
Like all of us, I want to make this a good Act that will have strong safeguards while allowing people choice at the end of life, and I want it to command the support of the House. I reflected on whether we need to have such a wide definition to cover intolerable suffering, and I thought that a change to 12 months for those with neurodegenerative diseases would be a good way to reflect the breadth of voices we have heard in debates on the Bill. It is an appropriate compromise. One of the things we have seen over the course of our Committee debates is the real pulling apart and consideration of what this legislation will mean in practice.
As the hon. Member for Harrogate and Knaresborough set out so well, a 12-month timescale for those with neurodegenerative diseases would mean that people could make decisions while they still have mental capacity. As he rightly said, their condition would so often see a cognitive decline before six months. The Motor Neurone Disease Association—another organisation that supports people living with terminal neurodegenerative diseases—highlighted problems with the six-month criteria and the inequity that arises.
Again, I reference the testimony of medical practitioners from Australia, where some states have eligibility criteria for assisted dying that includes an illness, disease or condition that is expected to cause death within 12 months. It is out there in practice, so it is not a new concept. Professor Meredith Blake said in oral evidence:
“Queensland legislation is different: it sets a 12-month period of expected death, and the reason for that approach was in response to feedback from people living with neurodegenerative disease that they felt that they were being put in a different position to people suffering from, or experiencing, other terminal illnesses.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 211, Q270.]
I will draw my remarks to a close, but there is a personal reason why it is important to me that we reflect on 12-month eligibility: the case of Diane Pretty. Diane Pretty was from Luton, albeit she lived in the neighbouring constituency, and some 25 years ago she was diagnosed with motor neurone disease. She tried to change the law then so that she could access assisted dying, such was the pain and suffering that she endured because of her terminal illness. What she said is fundamental and at the heart of what we are trying to do here, 25 years later:
“I want to have a quick death, without suffering, at home and surrounded by my family.”
In the end, Diane Pretty was not successful, and she died aged 43 on 11 May 2002. She did not have a choice. She could not choose the death she wanted. Much has been said about rushing the Bill, but that was over 20 years ago, so the debate has been going on for many years. That is why I speak in support of amendment 234, so that those with neurodegenerative terminal illnesses, whose death is reasonably expected within 12 months, can access assisted death.
Rebecca Paul (Reigate) (Con)
I will speak to amendments 9 and 10, which were tabled by my hon. Friend the Member for South Northamptonshire (Sarah Bool). Members will spot the trend: I have been speaking in favour of a lot of her amendments.
Amendments 9 and 10 would make sure the Bill does what it aims to do: ensure that assisted death is available only to those who are genuinely at the end of life. Under clause 2, a person is terminally ill if they have a prognosis of less than six months and if they have
“an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment”.
That wording gives rise to a risk of unintended cases meeting eligibility criteria.
In Oregon, conditions such as anorexia, diabetes, arthritis, HIV/AIDS and hernias have all qualified for assisted death. That is partly because the Oregon law uses the language of “irreversible”, just as the Bill says
“cannot be reversed by treatment”.
Conditions like diabetes arguably cannot ever be “reversed”, which suggests something more akin to “cured”; they can only be managed. The definition of terminal illness is now broader than it was ever intended to be.
Tom Gordon
Prior to being elected to Parliament, I worked for a type 1 diabetes charity—I feel like I have been saying that a lot recently. When we talk about diabetes, we often do not consider the fact that there are different types, including type 1, type 2 and gestational. They are not all akin, or the same. Furthermore, the NHS in its own language has referred to it as “a lifelong condition”, rather than a disease or anything that is terminal. How would the hon. Lady reflect on that?
Rebecca Paul
I thank the hon. Member for that thoughtful intervention, and I completely concede that it is not entirely clear, and there are different sources that describe it differently, which, for a non-medical person like myself, makes it difficult. There are certain websites, including NHS England, that may reference it as “progressive”, but equally I am sure that there are other sources that do not describe it in the same way. The hon. Member for Harrogate and Knaresborough makes a really good point, and he will see that I quite often talk about things arguably being the case; I am not saying that it definitely is—I am just highlighting that there is a risk, because if people disagree on whether it is progressive, that is when we have an issue. I see this as an opportunity to tighten up any of that potential risk.
I would say the ordinary person on the street would not expect diabetes to ever fall within the definition of a terminal illness, yet there is a risk that it could do, for the reasons I have explained. That means that the drafting of clause 2 is not quite tight enough in my view.
Kim Leadbeater
Just before the hon. Lady moves on, we may actually have come to a very sensible position based on the other amendments we have been discussing—amendments 399 to 401. I have done a little bit of googling, and diabetes generally is referred to as a “condition”. It might be referred to in other ways as well, but maybe that would be another reason for us all to support amendments 399 to 401.
Rebecca Paul
I thank the hon. Lady for that extremely good news. That would definitely be helpful and provide some reassurance.
Amendments 9 and 10 are essential to ensure that those people who are never intended to eligible for assisted dying under this Bill are kept outside of it. Amendment 9 seeks to ensure that it is not just illnesses that can be reversed by treatment, but illnesses where the progress can be controlled or substantially slowed by treatment, that are ineligible—diabetes being the classic case, which can be slowed and controlled by treatment. Amendment 10 further bolsters that by ensuring that treatments that improve prognosis are not disregarded under clause 2(1)(a).
The problem that we have with clause 2 in its current form is that it fails to distinguish between those who are truly at the end of their life and those who only become terminal if they do not access treatment. There is no requirement for a person to be receiving medical care when their prognosis is assessed, which means that many manageable but irreversible conditions—like diabetes, potentially, and chronic kidney disease—could qualify as terminal if treatment is stopped. Let us take the example of someone with type 1 diabetes, like my hon. Friend the Member for South Northamptonshire (Sarah Bool), who tabled these amendments. If she were to stop taking her insulin, she might meet the criteria for terminal illness under the Bill and qualify for an assisted death—I mean, I certainly hope she would not. Without treatment, type 1 diabetes could arguably be an inevitably progressive and irreversible condition that would result in death within weeks or months.
Dr Opher
There is nothing inevitable about a diabetic getting worse; they just need to take the right treatment, so I would say that “inevitable” is a key word. I respect what the hon. Lady is saying about the amendments, and they do have some value, but I do think it is covered by the current language—
“inevitably progressive…disease…which cannot be reversed.”
I think “inevitable” and “cannot be reversed” are enough of a safeguard to make this a good clause.
Rebecca Paul
I know the hon. Member has a huge amount of experience on this matter given his career, so I thank him for that contribution.
It must not be forgotten that it is the nature of such illnesses for there to be periods of unwellness, when people are at their lowest ebb, and it is our job to protect them from something that could sound appealing at that moment in time. The crux of this issue is that—subject to the point that the hon. Member for Spen Valley made about the improvements that we may now see following the amendments that we have just discussed—the Bill makes no distinction between a condition that is inevitably fatal and one that could be substantially slowed with treatment.
Dr Shastri-Hurst
My hon. Friend is making a valid argument, but I want to pick up the point made by the hon. Member for Stroud. He talked about illnesses that are inevitably progressive and cannot be reversed by treatment. For type 1 diabetes—I think that is what my hon. Friend the Member for South Northamptonshire (Sarah Bool) is addressing, as opposed to other forms of diabetes—a person either has insulin or does not.
The Chair
Order. Interventions should be pretty short, and Members really should be asking a question of the Member who has the floor, not making a mini-statement. Will they stick to that, please?
Dr Shastri-Hurst
Forgive me, Chair. I will come to the point. If the person does not have insulin, the diabetes could be treated by administering it. Does my hon. Friend accept that, in those circumstances, it would fall within this clause?
Rebecca Paul
I thank my hon. Friend—another doctor. I would suggest that diabetes cannot be reversed, but can be managed with treatment. All I am trying to do is make sure that that piece is picked up. I think we all agree that we would not expect diabetes to fall within the terminal illness diagnosis.
No fewer than 15 clinicians and medical researchers mentioned diabetes in written evidence. Other conditions are mentioned too. Two consultant physicians—Rosemarie Anthony-Pillai and DP Whitehouse—say that those on medication for heart failure could qualify if they stopped taking their medication. Dr David Randall, a consultant nephrologist at the Royal London Hospital, sets out in written evidence the example of a young man who has benefited from a kidney transplant but stopped his immunosuppression medication. That would lead to transplant rejection and, likely, death within a few months. Would he qualify as terminally ill if we were not to agree to these amendments?
Lewis Atkinson
The examples that the hon. Lady gives of the refusal of life-preserving treatment—for example, stopping insulin—would inevitably lead to death, so why does she believe that anyone in such a situation would need to seek voluntary assisted dying?
Rebecca Paul
I am sharing the content of written evidence. People working in this arena—medical professionals and clinicians—have taken the time to submit written evidence, which suggests that they see a risk, so this is something that we need to think about. The hon. Gentleman could be right when he asks why someone would seek assisted death in that situation, but it is more about if someone technically qualifies. Obviously, we are still yet to get through the Bill, and there is lots for us to debate, but we want to ensure that people are not put on that pathway if they are not actually terminally ill and their condition can be managed. People could be in a low place, and we need to provide support. This comes back to my point about the balance of best interests. It is really difficult to set the right level, but we need to think about best interests and protect people at their lowest point.
In Oregon, conditions such as anorexia, diabetes, arthritis and hernias have qualified for assisted death, not because they are inherently fatal but because treatment was refused or was unaffordable. We also need to think about situations such as supply chain issues with certain treatments. Situations that we do not want to happen could arise, and we need to think about what that means for this Bill.
Some lawyers and doctors in the US have advised patients on how to bypass the terminal illness criteria by refusing food and water until they become terminal—we have talked about that quite a lot today. There is some evidence of that happening. Cody Sontag, an Oregon woman with early-stage dementia, had few symptoms and was not eligible for assisted death, but after she refused food and water for a few days, her doctor ruled that she met the six-month prognosis requirement.
It is important that we carefully consider young women suffering with eating disorders, but I appreciate we have spoken about that group a lot today, so I will be brief. In Chelsea Roff’s evidence, she set out that at least 60 people around the world have been euthanised or assisted in suicide where anorexia nervosa has been listed by name as a terminal condition. In 100% of the cases, the people were women, a third were between the ages of 18 and 30, and two thirds were under the age of 40. Roff said,
“I have to emphasise that these were young women who did not have failing organs and did not have comorbid terminal conditions…they had decades of life ahead of them.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 139, Q175.]
UK courts have already ruled that treatment can be withdrawn from young women with anorexia, acknowledging that the likely result will be their death, after doctors framed their condition as terminal or untreatable. These examples powerfully demonstrate why it is vital these amendments are accepted, so that these conditions do not lead to a person qualifying for assisted death, if they can be managed sufficiently with treatment. In oral evidence, Dr Miro Griffiths asked us,
“What constitutes six months left to live, particularly if you are engaging with technological devices, medical assistance and so on? For example, I have a progressive condition that continuously makes me weaker and has respiratory complications and so on. If I remove the ventilator that I use at night, if I remove my other medical devices and if I stop my engagement with therapeutic services, does that constitute me having a terminal illness, because my rapid acceleration towards death becomes more evident?”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 142-143, Q179.]
In written evidence, Pathfinders Neuromuscular Alliance warned that for those with conditions like muscular dystrophy, access to treatment is essential. It said,
“It would not be unreasonable therefore to suggest an individual with neuromuscular respiratory failure could die within six months—and yet they might also live 20 to 30 additional years in this state.”
In written evidence, a group of leading physicians and researchers, including experts from John Hopkins University and the Royal College of Psychiatrists said,
“The Bill’s definition of terminal may not adequately distinguish between a condition that is inevitably fatal and one that only becomes terminal without adequate care.”
They added,
“Under this Bill, patients with incurable but treatable conditions could become terminal if they are unable to access timely treatment or choose to forego life-sustaining care.”
It is therefore vital that the definition of terminal illness is tightened to avoid unintended consequences. These amendments would ensure that the Bill applies only to those who are generally at the end of life, without prospect of recovery. I urge the Committee to give consideration to accepting them.
Naz Shah
First, I will speak to amendments 9 and 10, then to amendment 234, and then to my own amendments 48 and 402. I hope it is in order to note that the hon. Member for South Northamptonshire (Sarah Bool), as the hon. Member for Reigate already mentioned, is a type 1 diabetes sufferer. Amendments 9 and 10 both concern matters of which she has a personal understanding.
Amendment 9 would mean that an illness, disease or medical condition, the progress of which can be managed or controlled by treatment, would not be characterised as a terminal illness. The amendment provides that instead of saying that the illness cannot be “reversed” by treatment, the Bill should say that its progress cannot be “controlled or substantially slowed”. The amendment is clearly a most important one. It seeks to prevent illnesses that can, in fact, be treated effectively from being classified as terminal illnesses.
The amendment would work to mitigate two very serious risks posed by the Bill. First, it would make it more difficult for someone who, for whatever reason, wished for an assisted death to qualify for that process by failing to follow a reasonable course of treatment. I do not say that the amendment would make it impossible for anyone not to do so, but it is an important safeguard. It would also provide a safeguard against the expansion of those conditions that would qualify people for assisted death.
My hon. Friend the Member for Spen Valley and members of the Committee have repeatedly praised the Oregon law, but we surely do not want to follow that example in every way, since we know that in Oregon, sufferers of anorexia have been able to access assisted dying. Again, I do not say that the amendment would make it impossible to expand the list of conditions, but it would make it harder. My hon. Friend has said repeatedly that she wants the Bill to have the strongest safeguards of any assisted dying law in the world, so I hope that she will join me in voting for amendment 9.
Naz Shah
I agree very strongly with the sentiments expressed by my hon. Friends the Members for Spen Valley and for Penistone and Stocksbridge, and I hope that the Committee can later return to the state of palliative care in this country.
I underline that the matter of the six-month prognosis was not some minor detail on Second Reading; rather, it was a central plank of the arguments made by those who said that we should pass the Bill because its safeguards were the toughest of any assisted dying law in the world. It is less than three months since my hon. Friends spoke those words, and yet we are already discussing an amendment that would remove the six-month prognosis.
Kim Leadbeater
We need to be fair to the hon. Member for Harrogate and Knaresborough, who has said that he will not press the amendment to a Division. Indeed, it would not be something that I would support if he did do so, for the reasons that my hon. Friend has stated. I also think that we need to give him credit for ensuring that the voices of people with neurodegenerative conditions, such as MND, Parkinson’s and Huntingdon’s, are heard. They are an important part of this debate, whatever our views might be on the tightness that is needed in the Bill.
Naz Shah
I thank my hon. Friend, and my hon. Friend the Member for Penistone and Stocksbridge, for making it clear that they would not vote for the amendment. I also thank the hon. Member for Harrogate and Knaresborough for bringing forward an amendment that discusses those issues. However, whether it is withdrawn or not, it is an amendment that we are debating and talking to.
The hon. Member for Harrogate and Knaresborough, who tabled the amendment, no doubt feels very strongly that the conditions of patients with neurodegenerative diseases make a case for relaxing the six-month prognosis to 12. There may well be a good case for doing so, but we can only consider the case for extending the prognosis to 12 months because of the challenges created by neurodegenerative diseases if we have first considered that extremely complex subject.
We cannot say that the Committee has studied the difficult subject of neurodegenerative diseases and how they would affect the administration of the Bill. We have not heard from witnesses on the subject, and we have not been able to ask them questions. We did solicit evidence on whether neurodegenerative diseases would affect the ability to self-administer lethal drugs, but we have not had time to study the written evidence.
I appreciate that the hon. Member for Harrogate and Knaresborough is not going to press the amendment to a Division, which leaves some of what I wrote earlier obsolete. I appreciate the hon. Member’s efforts. We are sent here by our constituents to represent them to the best of our ability. I certainly try to do that, and I know my hon. Friend the Member for Spen Valley always tries to do that—I have no doubt that the hon. Member for Harrogate and Knaresborough and all others are trying to do that. We vow to represent our constituents, and had the amendment gone to a Division I would not have been able to support it, simply because we cannot make those difficult decisions without being properly informed. We cannot make up our minds to change the Bill because of a complex set of diseases.
Jack Abbott
Just as a point of clarification, I remember asking one of the witnesses at our oral evidence sessions about this very issue—Sir Nicholas Mostyn, an esteemed judge who has written and spoken about the issue extensively. We asked his views about neurodegenerative diseases and extending the time to 12 months, so it was something that we were aware of and discussed as a Committee. In fairness to the hon. Member for Harrogate and Knaresborough, it has not come completely out of the blue.
Naz Shah
I agree that we did hear that, but we did not hear from experts in the Bill, and at that point it was not discussed. While I acknowledge my hon. Friend’s point that we did speak to Sir Nicholas Mostyn, we did not have further evidence, and this measure was not in the Bill when we took evidence from those witnesses.
Tom Gordon
I find this a little bit baffling, because we had a comprehensive list of witnesses that we were able to circulate in advance. The format in which those oral evidence sessions were held was really helpful and informative. We were able to ask questions, and as the hon. Member for Ipswich mentioned, we were interacting with people and families. We heard from Pat, who gave oral evidence about his sister who had to go to Dignitas. Again, it was not just a small figure; a number of people brought this issue up. Could the hon. Member reflect on that?
Naz Shah
The crux for me is that at Second Reading, when the Bill was voted on, many Members cited that one of the central planks to that debate at the time was the six-month prognosis. The amendment would increase that to 12 months. As I have said, my concerns are that we are only three months on from that conversation and we are already trying to expand the Bill, which is why I would not support the amendment. I have said quite a bit on amendment 234, so I will leave it.
I will now speak to amendment 48, which I tabled. Under the current wording of the Bill, a person is terminally ill if their death
“can reasonably be expected within 6 months.”
My amendment would change that so that for a person to be considered terminally ill their death would have to be
“expected with reasonable certainty within 6 months, even if the person were to undergo all recommended treatment”.
One of the risks that confronts the Bill is that of misdiagnosis. That is not some remote possibility. Let me go into detail. As hon. Members know from the evidence brought before the Committee, prognosis is not a precise science. Even with physical illnesses, determining life expectancy is highly unreliable. Government data from the Department for Work and Pensions reveals that one in five people given six months to live are still alive after three years. A study spanning 16 years found that doctors wrongly predict how long terminally ill patients will survive in half of cases. Out of 6,495 patients who were predicted to die within six to 12 months, more than half—3,516, to be precise—lived longer than expected. If the Government themselves cannot accurately determine terminal illness for benefits, how can we rely on such predictions to justify ending lives?
Studies cited in written evidence submitted to the Committee have found that clinicians are routinely inconsistent and inaccurate in their prognostic assessments, often underestimating survival. Professor Katherine Sleeman, a palliative care specialist, underlined that point in her evidence to the Committee. Doctors face considerable difficulty in prognosing whether somebody is in the last six months of their life. Professor Sleeman cites studies based on large samples of patients for whom doctors prognosed life expectancy. The studies found that 47% of the patients whom they predicted to have six months to live in fact lived for longer than that—in some cases considerably longer.
I would argue that there is a danger in using the standard of prognosis currently in the Bill. The current research into doctors’ prognoses indicates that almost half of their estimates that a patient has six months to live are incorrect. We do not want people to choose assisted dying on the basis that they have only six months to live when a very high proportion of them will in fact live longer if they are not given assistance to die by taking a lethal drug or drugs.
My amendment would hold doctors to a higher standard of certainty. Under that measure, they would be explicitly held to prognosing that death would occur with “reasonable certainty” within six months, and that that would be true even if the patient underwent all recommended treatment.
Sean Woodcock (Banbury) (Lab)
I think we all accept that prognosis is quite difficult, but one reason why I think this is fundamentally important is that a member of my constituency Labour party was given a prognosis of 12 months in 2012. Last year, they were out delivering leaflets for me in the general election. That is why it is so important that we make sure we get this right. I am sure that my hon. Friend has examples of her own. Is that what is guiding her to press this amendment?
Naz Shah
It is absolutely what is guiding me. I am sure we all know people who were told that they had six months to live and have lived a lot longer. We have heard stories of people who were told that they had six months to live and lived beyond 20 years more. We have heard lots of tragic cases, for example in the world of Dr Jamilla Hussain, that would really benefit from the Bill’s being available to them. But equally, there are other families whose loved ones have survived—and not just survived, but thrived for years and years. In fact, a close friend of mine, who happens to be a constituent of my hon. Friend the Member for Spen Valley, was diagnosed not to live very long. It was an emotional time for her daughters. Eighteen and a half years later, she is still alive, well and thriving.
Naz Shah
I thank my hon. Friend for his intervention. Actually, there is nothing in the Bill that suggests that. We can only imagine and try to empathise as much as we possibly can with any person who has been given a diagnosis of six months to live. In that six-month process, they might not wait; as my hon. Friend, who is a doctor himself, has said, this is about autonomy. They might not wait until they get to a position where there is a lot of suffering; they might not wait to see those six months out. They might decide they do not want to take that risk, when actually they might have lived another 15 years, another year or another two years. That is the point of this amendment.
Kim Leadbeater
My hon. Friend is making a powerful speech and it is good to have this debate. May I ask her opinion on two things? One is that, as my hon. Friend the Member for Stroud has alluded to, the research around the world shows that between 30% and 40% of people who sign up for assisted death never actually do it, because they do get better or because the treatment makes their condition manageable—or because they have a death in a different way. What are her thoughts on that? The other thing to point out is the number of people who we know, sadly, are taking their own lives because they are terminally ill at the moment. I go back to the point that I make quite regularly: no one is monitoring that—
The Chair
Order. As I said before, these are interventions seeking clarification. They are not mini-speeches.
Kim Leadbeater
Just to clarify, my understanding is that it is between 600 and 700 people who take their own lives; it is suicide.
Naz Shah
If we take that number, then that 30% or 40% who do not take that decision is maybe a few hundred people. However, the truth from Professor Sleeman’s evidence is that we are talking about thousands of people who are misdiagnosed every single year. She was talking about 3,516 who lived longer than expected. Yes, I recognise and value my hon. Friend’s comment that 30% or 40% of people do not take up assisted dying, but—perhaps I will talk about this when I move on to the next amendment—there is also a risk. If we go back to the Bill promoter’s intention to make the wording tighter, then surely this is a safeguard that she would support, just to ensure that we are making it as tight as we possibly can.
Jake Richards (Rother Valley) (Lab)
Can my hon. Friend clarify for me what she means by “reasonable certainty”, and how that differs from the clause as drafted? Can she also explain why, in her amendments, normal language around the burden of proof, such as “on the balance of probabilities” or “beyond reasonable doubt” is not used?
Naz Shah
First, this is not an issue for a tribunal, where it would be on the balance of probabilities; it is not an issue for a court of law or a criminal court, where we would be using proof beyond reasonable doubt. What I am trying to demonstrate is that doctors, in those diagnoses where they do get it right, have much more certainty. It might be that people have six months to live because they have different types of cancer. I am certainly not a clinician or an oncologist, but I know from the evidence we have had and from speaking to people that some people’s diseases—the specialists know better—have a trajectory of plateauing out and then dropping right at the end and some have a jagged kind of decline. Some of those diseases can be predicted with much more clarity than others. On the surface of it, in September, it might be the case for somebody that that is within the time—as for one lady who was told that she would not have more than six months to live. She is the founder of the Music of Black Origin awards and I was with her last week. She was absolutely fighting; she was not supposed to make it to that day. It is for the medics to decide—it is not for me to decide—but I would like medics to have much more certainty than they currently do, so that we would not have 47% of cases being misdiagnosed. That is what I am trying to get to, but I thank my hon. Friend for his intervention.
I argue that there is still a danger of using the standard prognosis that is currently in the Bill. The current research into doctors’ prognoses indicates that about half of their estimates are incorrect. My amendment would hold doctors to a higher standard of certainty. Under the measure, they would be explicitly held to a prognosis that death would occur with reasonable certainty within six months, and that that would have to be true even if the patient underwent all recommended treatment.
To go back to my hon. Friend’s intervention, this amendment is about raising the bar for how our medics make decisions. I submit that it would be a stronger test than the one currently included in the Bill. My hon. Friend the Member for Spen Valley has frequently stated that she wishes to create a Bill with the toughest safeguards in the world. I keep coming back to that, because the whole purpose of speaking to all these amendments is to put in opportunities to try to strengthen the Bill. By their nature, all these amendments reflect hon. Members’ concerns. This amendment would tighten the prognostic standard required of doctors and would therefore contribute towards tightening the Bill’s safeguards. I hope that hon. Members support it.
Finally, I turn to amendment 402. I will repeat a lot about anorexia, but it is an important amendment. I have tabled it for a simple but extremely important purpose: to prevent people from qualifying for assisted dying by stopping eating and drinking to the degree that they develop severe malnutrition, such that a doctor would give them a prognosis of six months to live. It specifically aims to protect people with severe eating disorders, including anorexia nervosa, and would also protect people with a severe wish, as one of the psychiatrists who testified before the Committee put it, to “hasten death”. I hope that my hon. Friend the Member for Spen Valley, and all other Committee members, will support this amendment.
Let us make no mistake: the Bill, as currently drafted, has a horrible loophole that all of us should seek to close. We know that anorexia sufferers and other people with eating disorders can and do stop eating to the point where they are dying of malnutrition. We should not allow such people to qualify for assisted death. Unfortunately, that is not a hypothetical danger; it is happening.
We know from the evidence that the Committee has received that that has happened in other countries. A group of eight experts on eating disorders submitted written evidence TIAB54 to the Committee some weeks ago. The experts included Chelsea Roff, who has been referred to many times in this Committee, and who gave clear testimony before the Committee, as well as seven medical doctors from hospitals in the UK, the US and Canada.
I hope that all Committee members have read the evidence, but I would understand if they had not, because we have had nearly 400 pieces of evidence to go through and very little time to read it. It seems to me, however, that if we are trying to write the best possible Bill, with the strongest possible safeguards, we have to pay the written evidence of experts the attention that it deserves. In their written evidence, that group of experts said:
“Patients with severe eating disorders frequently experience profound psychological distress and may express a desire to die. While this may appear to reflect a clear and informed wish, it is often a symptom of their psychiatric condition, which is remediable with appropriate treatment.”
The experts found that at least 60 patients with eating disorders received assisted death in several jurisdictions worldwide, including the US, Canada, the Netherlands and Belgium. I stress the phrase “at least 60” because we cannot be entirely sure that that is the full total. It is sadly the case that some jurisdictions are much more painstaking and transparent in the data they publish on assisted death than others.
In itself, it is tragic that people died in that way, but two things surely make the fact even worse. There are certainly men with eating disorders, but this is a problem that disproportionately affects women and girls. We know that the incidence of anorexia nervosa is much higher among women than among men in every age group. That is tragic. In every case we know of where a person with an eating disorder received an assisted death, that person has been a woman. I say it again: we cannot allow the Bill, as currently written, to stand. The Labour Government was elected with a mandate to reduce violence against women and girls. We surely cannot pursue that goal while at the same time increasing the vulnerability of women and girls who have eating disorders. There is nothing in the Bill as it currently stands that would stop doctors signing off on assisted death for someone who had starved themselves into malnutrition.
The courts in England and Wales have already begun accepting that some people with anorexia have reached a terminal stage. In the Court of Protection case, The NHS Trust v. L & Others, which took place in 2012, a 29-year-old with severe anorexia was described in the ruling as follows:
“The prospects of her recovery overall approach zero…given that it is extremely unlikely that Ms L will recover from her anorexia…in best interests to move to palliative care if L…in terminal stage of her illness.”
The right hon. Member for North West Hampshire raised the Court of Protection. There are 10 cases where the Court of Protection has made rulings. Of them, only one case, in 2012, ruled that the young lady could be force-fed.
Kit Malthouse
My understanding is that it is the other way around. In all but one case, force-feeding was decided by the courts. In the case the hon. Lady is referring to, L, the court did wrestle over that particular issue and realised that, such was the advanced stage of the patient’s condition and the complexities of force-feeding, it could not quite bring itself to authorise it. My understanding is that in all bar one case force-feeding has been authorised.
Naz Shah
Actually, it was the other way around and I am happy to provide a reference to the right hon. Gentleman. Nine cases found lack of capacity, but still not in the best interest. One of the girls was 19 years old. The judge found that they lacked capacity to make decisions about their treatment. The question of whether they had the capacity to decide to end their life is completely different and not something we have asked judges to rule on before. The judge’s ruling clearly implied the capacity to refuse force-feeding even if it resulted in their death. I am happy to provide the references for that. It was against their best interest to force-feed them. Tragically, in nine of the 10 cases the judges accepted that that would inevitably lead to the deaths of those young girls.
My hon. Friend the Member for Spen Valley has repeatedly stressed that her Bill is modelled on the Death with Dignity law in Oregon.
The Chair
Order. With the greatest respect to Members, this is not a dialogue; this is a debate. This is not chit-chat. It is a very serious issue and interventions of that nature are not helpful.
Kim Leadbeater
On a point of order, Mr Dowd. If something is said that we know not to be correct, what should we do?
The Chair
That is ultimately a matter of opinion. If the hon. Lady wishes to ask the hon. Member for Bradford West a question and get clarity from her, that is fine, but this is becoming a dialogue. People cannot hear what is being said. I want the Committee to be run in an appropriate fashion. We have rules of debate in the House and I am trying to apply them. Otherwise, there lies perdition and chaos.
Naz Shah
I am happy to withdraw that comment, given the welcome intervention of my hon. Friend the Member for Spen Valley. When intervening on me in a previous sitting of the Committee, she stressed that most of the assisted deaths of people with eating disorders took place in the Netherlands and Belgium. The survey that Ms Roff and her colleagues carried out did find that the Netherlands and Belgium had more assisted deaths of people with eating disorders than Oregon, but it also found that Oregon itself had more than one such case. California and Colorado have also accepted people with eating disorders as subjects for assisted death. I remind hon. Members that, as I noted earlier, Oregon has a considerably smaller population than England and Wales. In 2023, the last year for which we have full data, Oregon had a population of just 4.25 million. By contrast, England and Wales had a population of 60.85 million—more than 14 times higher.
Perhaps it is the case that Oregon has had two assisted deaths for anorexia sufferers, as one witness told the Committee. In England and Wales, we have 14 times the population of Oregon. If it became legal for sufferers of advanced-stage anorexia to take their lives by assisted dying, we would almost certainly have more cases than Oregon.
Dr Opher
Does my hon. Friend not believe that an eating disorder is reversible? Under the Bill’s provisions, if someone has a condition that can be reversed by treatment, they would not be appropriate for assisted dying. Is she saying that eating disorders are not reversible?
Naz Shah
Absolutely not. That is not the point that I am making. Eating disorders are reversible, but it has been found that where this kind of legislation has been enacted, across the globe, somebody who has anorexia and decides not to eat then falls within the scope of assisted dying because it becomes a terminal illness.
Danny Kruger
I do not want to cut off the hon. Lady in full flow, but I want to echo her points. The hon. Member for Stroud has made his point before and we have had an exchange on it. There is quite a lot of research, to which I refer him, that shows how people in the UK, being treated by the NHS, are having diagnoses of terminal anorexia. It is happening. I refer him to Professor Agnes Ayton, the campaigner Hope Virgo and the eating disorders all-party parliamentary group in this place, which is looking at that. It seems bizarre to us, because of course someone can resume eating, but the fact is that anorexia is treated as a terminal illness in parts of the NHS today.
Dr Opher
Actually, there is a lot of debate about whether terminal states of eating disorders actually exist or not, so they cannot be said to be a real thing in that way. Some people in the profession think they certainly do not exist, so I would contest the point made by the hon. Member for East Wiltshire.
Naz Shah
I thank my hon. Friend for his intervention, but the truth of the matter is we have 10 cases that have gone to the Court of Protection. In nine of those 10 cases, judges ruled that the young people—women and girls, one was only 19—did have the capacity not to take treatment.
Kit Malthouse
Just to clarify, what I said earlier was slightly incorrect—I misread my briefing. While the hon. Lady may be right that the court decided not to proceed with force-feeding, a number of those applications were by the individual to stop the force-feeding. While the court decided that, on balance, that was the right thing to do, in all those cases since 2012 the individual was not found to have capacity to make decisions about their own condition; the decision was made by the court for them. That means that, under the terms of the Bill, they would not qualify. Some of those cases were quite complicated. A number of them, as I read it—
The Chair
To some extent, there is an issue here of repetition. Standing Order No. 42 gives me the power to stop potential repetition. I do not want to use it—I do not want to interfere with the debate—but I am afraid we are getting to the point of repetition. If I need to invoke Standing Order No. 42, I will.
Naz Shah
I thank the right hon. Member for his intervention, but my understanding is that the judge found that those individuals lacked capacity to make decisions about their treatment; whether they had the capacity to decide to end their life is a completely different test. I apologise in advance for repeating this, but it is not something that we have tested. They had the capacity to refuse. The judge ruled that they could not be force-fed. Tragically, in nine cases, while not force-feeding those young women would lead to their death, the judge insisted that force-feeding would not be in their best interests. That is what happened in those cases.
Kit Malthouse
I stand to be corrected, but my understanding is that in the seminal case that the hon. Lady is talking about, the case of The NHS Trust vs. L, the court decided not to force-feed L because the prognosis was that force-feeding would precipitate her death.
Naz Shah
I thank the right hon. Member for his intervention. I have talked about that case, and the court concluded:
“The prospects of her recovery overall approach zero… Given that it is extremely unlikely that Ms L will recover from her anorexia it is…in her best interests to”
move to palliative care, as it was considered a terminal illness. In some ways, that makes my point for me: she was diagnosed as terminally ill. The purpose of the amendment is to close that loophole. The majority of these cases are young girls and young women. I do not want them to get to a stage where they qualify under the Bill because they have a terminal illness due to refusing food, because that can be treated. That is the point that I am trying to make.
Let us say that only one or two people with anorexia have an assisted death if the Bill becomes law without my amendment. I hope that every member of the Committee would agree that even one such death would be unacceptable. Some might say, “Oh, but we must not make the perfect the enemy of the good.” That has been said in the debate, or sentiments have been expressed that reflect that sentence.
That is a good argument to make when we are trying to persuade our teenagers to finish their homework for school and so on. It does not wash for me when we are trying to create a Bill with the strongest possible safeguards for vulnerable adults, and it is too close to the arguments made in favour of brutal actions across the globe. We say things like, “To make an omelette, you’ve got to crack a few eggs.” If we want to make the Bill the best it can be, we cannot use such arguments. Perfection is not the enemy of the good—perfection is absolutely what we should be pursuing in this Committee.
Reference was made to one of the witnesses who gave oral evidence. I remember being aghast at the idea that these two people who died in Oregon were somehow a red herring and that there had been only two. It was really disappointing, and I was extremely angry at that comment. That is not something we should be doing or the standard we should be setting. We cannot be saying that.
There is nothing good about letting people who have sadly reached an advanced state of malnutrition be given assisted dying. Surely we can agree on that. If this Bill does not include my safeguard, it will do two things. First, it will increase the dangers of anorexia. People already develop anorexia to such a degree that they perish of malnutrition. Allowing such people to apply for assisted dying will mean that more severe anorexics die. If we do not adopt my safeguard, we run the further risk that those who are not anorexic, but wish to hasten death, stop eating in order to qualify for an assisted death. Both of those would be truly malign. I would hope all Members of the Committee will accept my amendment to protect those who would otherwise be at risk of starving themselves to an assisted death.
I also want to bring to the Committee’s attention a public letter that has been released this afternoon by nearly 40 individuals who work in the field of eating disorders. They have said, on the amendment to which I am speaking:
“This amendment states that mental illness alone does not qualify as a terminal illness, but as the legal text (“Nothing in this subsection…”) makes clear it has no effect beyond restating that the condition must meet the requirements of clause 2(1). If a doctor holds that a mental illness meets the test in clause 2(1) for terminal illness, this amendment will do nothing to prevent that.”
They further say:
“Eating disorders are treatable. They are life-threatening when left untreated or poorly treated, but this risk is preventable, and deaths from eating disorders are not inevitable. As campaigners, clinicians, charities, and organisations working with those affected, we urge the committee to take these concerns seriously and ensure this bill does not put people with eating disorders at risk of premature death under the guise of assisted dying.”
On my amendment 402, they say:
“Amendment 402: Explicitly states that a person cannot be deemed terminally ill because they have stopped eating or drinking.”
On amendment 48, they say:
“Amendment 48: Clarifies that a person is only considered terminally ill if their death is reasonably certain within six months, even with all recommended treatment.”
They are supporting those amendments, 9, 10, 48, 402 and 11. On that note, I will finish.
Sarah Olney
I rise briefly to speak against amendment 234 in the name of my good and hon. Friend the Member for Harrogate and Knaresborough. I will keep it brief as I know he is not going to press to a vote.
First, the Bill that was voted on on Second Reading was a Bill for terminally ill adults in the last six months of their lives. I do not believe attempting to amend the scope of the Bill in Committee is what the House has asked us to do. I think the House voted for a Bill that was specifically for people within the last six months of their lives and that to be amending it—although I accept he is not putting it to a vote—is not in order.
Secondly, I want to reflect on Professor Sir Chris Whitty’s oral evidence to the Committee about how difficult it is to determine when somebody is within six months of the end of their life and how much more difficult it would be to determine whether someone is within the last 12 months of their life, notwithstanding that we are talking about a very specific category of people. For me, that really does give rise to the fear that we would not be able to make a specific determination on whether somebody was in the last 12 months of their life. There would be a risk that people actually have many years left to live. In the case of motor neurone disease, for example, we have seen prognoses of between two and five years, so we risk shortening people’s lives unduly. Furthermore, people might not want to make the prognosis, and therefore people who would like to have the right to end their life in their final 12 months because they have a neurodegenerative disorder might be denied that right, because it is impossible to come to such a determination.
Danny Kruger
I will be as quick as I can be. I recognise the powerful contributions that have been made on a number of the amendments. I pay tribute to the hon. Member for Broxtowe, who made a very interesting speech in support of her amendment 123. I was struck by her point that we should do what we can to reflect the reality of clinical situations in people’s lives. I very much respect the power of the arguments she made. My concern is that by changing “inevitably” to “typically”, her amendment, although it might reflect reality more closely, would widen the scope of eligibility. I am afraid I will not support her amendment, but she made an important speech about how things actually work.
I will speak briefly in support of amendment 282 in the name of the hon. Member for York Central (Rachael Maskell), and of amendments 48 and 402 in the name of the hon. Member for Bradford West. At the end, I will refer quickly to the amendments in the names of the hon. Member for Harrogate and Knaresborough and of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). All those amendments, with exception of the last ones, fit the Bill to the campaign—they make the Bill more accurately applicable to the people whom the campaigners have been campaigning for and whom everyone has the most sympathy with.
Amendment 282 in the name of the hon. Member for York Central would restrict eligibility to people with a one-month diagnosis only. I stress that the amendment is probing and I do not propose to press it to a vote on her behalf. She tabled it and I am speaking to it to make the point that, if we are serious about the Bill being for people who are dying and not for people who are not—for people at the very end of their life, as we hear so often—we need to be much stricter about the period of prognosis. I will not repeat points that have been made by other hon. Members, but the fact is that the six-month test is literally as good as tossing a coin. It has a less than 50% accuracy. In particular for advanced cancers and neurological conditions, accuracy is very low.
Jack Abbott
A line has to be drawn in the sand somewhere. Will the hon. Member define what an adequate timeline would look like for him to be satisfied?
Danny Kruger
The hon. Member invites me to suggest that I think it would be possible to draw a safe safeguard. I do not. I think that one month is better than six months, because with one month we can have more accuracy and doctors are more genuinely right when they say that someone is close to death at that point, while six months is much more inaccurate and 12 months is notoriously inaccurate. If we restrict the Bill by using a time limit, that limit should be as close to death as possible in my view.
Kim Leadbeater
Does the hon. Member agree that if we were to reduce it to one month, there would be absolutely no way to have the robust process set out in the Bill—or, indeed, I would argue, to have any sort of robust process?
Danny Kruger
I accept that, which is why amendment 282 is probing only. It is trying to demonstrate the point. I recognise that even the expedited process is likely to take up to a month to get through, so that would be difficult. Nevertheless, if our intention is to restrict this to people who are literally in their last days, which is frequently what we hear, I think it would be appropriate to restrict the time.
Danny Kruger
I am not. I think we have allowed six months to creep into common legal parlance because of the Social Security Contributions and Benefits Act 1992; we now recognise in law that it is possible to have certain rights and entitlements on the basis of a six-month prognosis. I presume that is the basis of it. It does feel like a reasonable period, and I understand the rationale for it, but given the difficulty of prognosis and the intense seriousness of what we are doing, I think it is inappropriate and dangerous.
Another way of achieving greater safety—less precise but perhaps more generous to people who want an assisted death—is to tighten the definition of terminal illness to mean those whom doctors think it is reasonably certain, rather than reasonably expected, will die within six months. That is the intent of amendment 48 tabled the hon. Member for Bradford West. The amendment also insists that the condition is terminal even with “all recommended treatment”, so that somebody could not make themselves eligible by refusing treatment. That is a very important point that the hon. Lady is trying to insist on.
By the way, that does not mean—and I hope people will not conclude that it does—that someone is required to have every treatment that might be possible, including invasive and unpleasant chemotherapy. The point is that it would have to be treatment recommended by the doctor: if the doctor recommends it, then it is appropriate. A doctor might be offering chemotherapy, but they would not be recommending it in all circumstances.
For the avoidance of doubt—an important phrase— I think that the hon. Lady’s amendment 402 is very important too. Just in case nutrition is not seen as treatment—perhaps it is arguable that it may not be—it is very important that we specify explicitly that declining food or drink does not qualify someone for an assisted death.
Naz Shah
Does the hon. Member agree that one point that is really important in this afternoon’s debate is that a person has a right to refuse treatment, and indeed food and water, if they have capacity, but that malnutrition is practically reversible? The argument has been made by doctors in Oregon around the voluntary stopping of eating and drinking that doctors cannot legally force a person with capacity to eat, and if they refuse food, their condition can be considered irreversible and terminal. That is the crux of the point. Does he agree with me?
Danny Kruger
I think so. The hon. Lady is absolutely right that there is this difficult loophole that somebody may have capacity and be refusing food and drink and would therefore potentially be eligible. In the Bill as it stands, we have an expedited process for people whose prognosis is only a month. There, the 14-day waiting period could be reduced to just 48 hours. If a person stopped eating and drinking, their death would almost certainly happen within a month. In other words, a person who is not terminally ill could make themselves eligible for an assisted death within 48 hours simply by refusing sustenance. It is very important that we recognise that and explicitly exclude it.
I will refer quickly to other jurisdictions where this specific situation occurs and the voluntary stopping of eating and drinking is used to qualify for legal drugs. A peer-reviewed article in the Journal of the American Geriatrics Society discusses this case—it may be the one referred to earlier. The authors noted that if anyone can access VSED—voluntary stopping of eating and drinking—then anyone can qualify for medical assistance in dying. In Colorado, 12 people qualified for assisted suicide based on a diagnosis of severe malnutrition.
The American Clinicians Academy on Medical Aid in Dying, an organisation of doctors who provide assisted suicide, acknowledges this loophole. Its guidance states that
“there is nothing in the letter of the law”
to prevent voluntary stopping of eating and drinking from being used in this way. It adds that that would
“essentially eliminate the criteria of terminal illness,”
because a person could always qualify as having terminal illness if they stopped eating and drinking. That is obviously not what the Bill’s sponsor and drafters wish. I hope they will consider accepting the amendment to close that loophole.
I will not repeat points made very eloquently by my hon. Friend the Member for Reigate, but I echo the need to ensure that the Bill is not for conditions that, although they cannot be reversed by treatment, can nevertheless be controlled or substantially slowed. I will therefore support the amendments in the name of my hon. Friend the Member for South Northamptonshire.
I pay tribute to the hon. Member for Harrogate and Knaresborough and to the people he speaks for in tabling amendment 234. I recognise absolutely that the MND Association has pointed out that the six-month rule would not work for all MND sufferers. It successfully persuaded the last Government to change the rules on benefits in recognition of that point, and its evidence to us, it has requested a clear and workable definition for assisted suicide. It was not very clear on what that would be, and there are practical problems with extending to 12 months, specifically the one we have with six months—the difficulty of prognosis, which would be twice as bad. I also refer to the evidence from Professor Sleeman, who made the point that a non-neurologist would find it particularly difficult to make an accurate 12-month prognosis for MND.
The main reason to object to the principle of the amendment—I appreciate that the hon. Gentleman is not moving it, but it is an important principle to discuss—is that it makes no sense at all to have two different prognosis periods. Of course, we can see where it will go. The fact that the amendment has been tabled and selected, that it is in scope, and that people will support it in this Committee or beyond, or outside Parliament, is evidence of where things go. We saw it very clearly in the evidence we heard from witnesses from Australia, who pointed out that there is no logical reason to have two prognoses—one for cancer and one for neuro-degenerative disorders. Their response was, “Well, let’s make it 12 months for everyone,” and of course that is the way things would go.
I finish with a tribute to the great quixotic effort of my hon. Friend the Member for Runnymede and Weybridge, who is not on the Committee. Runnymede is the home of Magna Carta; the spirit of liberalism lives on in my hon. Friend, a genuine liberal who wants to scrap the period of prognosis altogether, because he genuinely believes in absolute autonomy. I have been trying to make the Bill live up to its claim to be a Bill for safeguarding; he wants it to live up to its claim to be a Bill for autonomy. In principle—in logic—he is absolutely right. If we think that some people should have access to suicide assisted by the state, then why should person A get it and not person B? Needless to say, I disagree with him.
Lewis Atkinson
I rise to speak in favour of the current, tightly drawn eligibility criterion of a six-month terminal diagnosis. I agree with my hon. Friend the Member for Bradford West that that was a central plank of the Bill as introduced and as debated across the House on Second Reading. I therefore rise to speak against all the amendments tabled to the clause.
Dying people want to put their affairs in order. That includes thinking about the death that they want and how they want to spend their time with their family. Dying people do not want to die, but they do not have an option to live. I feel that the way we talk about death perhaps has not been fully reflected in the debate we have had on the amendments.
In my mind, the evidence from elsewhere is very clear that those who seek assisted dying seek approval for it, going through the safeguards—significant safeguards, as set out in the Bill—so that they can spend the remaining time with their family, with enhanced feelings of control and autonomy, removing some of the fear that causes them to ask, “What if I will have no way out of inevitable pain?” That does not mean, of course, that people wish to die more quickly. The fact that the Bill sets out a six-month eligibility criterion does not mean that people will rush to end their own lives as soon as it is possible to do so. It means that six months is the threshold at which they can start potentially exploring the options and getting through the onerous—rightly onerous—process of eight different stages of capacity checks, three different stages of approval, multiple doctors and so on, so that they have the option. Indeed, as my hon. Friend the Member for Spen Valley set out earlier, a significant proportion of people who have been approved for assisted dying elsewhere do not take up that option, because their end of life is not painful—and that is fantastic—or can be managed through palliative care. That is something that we would all want. However, knowing that they have the option significantly increases their quality of life, their ability to relax with their families and their ability to spend time with their loved ones.
Naz Shah
My hon. Friend is making a powerful speech, and I agree with what he says about autonomy. As I said earlier, autonomy does not necessarily have to lead to pain, and it could be that I do not want to get to that stage. People will never know whether they could have lived longer. Does he not agree?
Lewis Atkinson
Sensible amendments have been tabled elsewhere in the Bill—not to the clause that we are debating—that would strengthen the initial conversations and ensure that people make informed decisions and have access to, and conversations about, all the forms of support, psychological or otherwise. I think that those will address my hon. Friend’s point.
In terms of the eligibility criteria, Chris Whitty was clear that there is diagnostic uncertainty in both directions. He said that
“a significant minority of people die before they actually get to the point”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 37, Q15.]
of the six-month prognosis. Because of that uncertainty, if we attempted to make the criterion much less than six months, we would end up excluding people. From all the conversations I have had, it is clear that once people have a terminal diagnosis, they want to put their affairs in order; doing so means that they can enjoy their final months with their families. We must not reduce eligibility and limit access to those whose disease unfortunately progresses more quickly than they would like and the prognosis suggests. I therefore oppose amendment 48, in the name of my hon. Friend the Member for Bradford West.
The amendment talks about “recommended treatment”. In all my years in the NHS, shared decision making has been a key principle. No one other than the person in question can make the decision about what trade-off they are willing to accept. Invasive chemotherapy may have a 20% chance of elongating my life. Am I willing to accept a 20% chance? Am I willing to accept a 30% chance? What I decide is right for me may be different from what other individuals decide, so a doctor is not in a position to say, “You should accept this because it will give you a 10% chance,” or, “It will give you a certain level of pain that I’m willing to accept.” We each have to make those decisions ourselves.
Lewis Atkinson
No, I will make some progress.
I feel that the amendment risks pressuring people to accept courses of intervention against their will, and I do not think it is consistent with the important principles of autonomy and consent. Because of the safeguards, approvals and reflection periods built into the Bill, going through the process of approval will clearly take in excess of a month. That is why amendment 282, in the name of my hon. Friend the Member for York Central, which would limit the eligibility to one month, is fundamentally not compatible with the safeguards in the Bill, as my hon. Friend the Member for Spen Valley made clear. To me, six months is absolutely the right balance. It reflects people’s wish to put their affairs in order and allows for prognostic uncertainty on the downside—someone given six months may actually only have two or three months to live—but it still allows the operation of robust safeguards and reflection periods.
I turn briefly to the other amendments. I commend my hon. Friend the Member for Broxtowe for the points she made. I share the concern that replacing “inevitably” with “typically” would risk weakening the definition of “terminal illness” and expanding access to other conditions. I fear that “typically progressive” is a weaker interpretation, so I cannot support the change, because I support a tightly drawn Bill with tightly drawn eligibility criteria. For the same reason, although I have sympathy for the amendment tabled by the hon. Member for Harrogate and Knaresborough, I think it goes beyond the scope of what the House discussed in November and the contours of the current debate.
Amendments 9 and 10 refer to disease being controlled or substantially slowed. Those are not recognised medico-legal terms. What is the definition of “substantially slowed”? Who would define it? Is it something that takes 20%, 50% or 100% longer? We talk about the risk of inserting undefined terms and of court interpretation, and I fear that introducing such an amendment would give rise to that.
The people best placed to make decisions about whether the treatment will suitably slow the progression of the disease are the dying people themselves. They are the only people who should do that—fully informed, of course, by their medical and clinical teams. Each of us, when the end is nigh—it will come to me, as it will to us all—has to make that decision ourselves, not on the basis of a recommendation mandated in law or some definition of “controlled” or “substantially slowed”. It feels that the legislature would be putting in primary legislation decisions that I should make about the treatment that I should accept, so I am not in favour of those amendments.
I finish with reference to amendment 402. Although earlier I wanted to make progress, I do not want to rule out any further interventions, if my hon. Friend the Member for Bradford West or others would like to come in. I recognise the concern, and we need to talk about people with anorexia with the respect, dignity and seriousness they deserve. I have heard it said—I think my hon. Friend said it—that there is nothing in the Bill to stop that being the case, and I fundamentally disagree for many reasons. First, as the Bill sets out, capacity is checked eight times. The Court of Protection has repeatedly found that people with anorexia do not have the capacity to make decisions about stopping eating. Although a best interest test may have been made, that is not relevant, as set out in the Bill. People have to have the capacity to request an assisted death, checked eight times. My hon. Friend the Member for Spen Valley has already set out that she is minded to accept—or will accept—amendment 6 to clause 9(3)(b), so that, if there is any doubt about capacity, a psychiatric opinion “must” be sought.
Like my hon. Friend the Member for Bradford West, I considered the written evidence saying that, in instances of a patient with anorexia, psychiatric input is absolutely necessary. Absolutely—in every case where someone has anorexia, under an amended clause 9, psychiatric opinion must be sought as to capacity. That is before we get to the further set of amendments to clause 12.
Lewis Atkinson
That is not my understanding, and I have sought some clarification, including from Professor Hoyano, who provided oral evidence to us, and I believe that that was not her understanding either.
Given the “must” in clause 9 regarding psychiatric referral to a third tier panel—which, let us remind ourselves, is not in place in any of these jurisdictions from which figures are cited around potential deaths of people with anorexia—I feel there are significant safeguards. Furthermore, we have just agreed to amendment 399 tabled by the hon. Member for East Wiltshire, clarifying the “medical condition” piece, which provides a further safeguard.
I respect the need for us to consider these matters carefully, but I urge a degree of holistic thinking when we talk about individual clauses. Some of the statements being made—that there are no protections in place—just do not fly, to me, given the Bill as a whole.
Dr Tidball
My hon. Friend is correct in his interpretation of the judgments in those cases, but does he agree that the evidence given by Chris Whitty to clarify his statement was helpful in clarifying that the application of the test for capacity is heavily orientated towards the gravity and complexity of the decisions to be made? That is also underpinned, as my hon. Friend underlined, by the amendment tabled by my hon. Friend the Member for Spen Valley.
Lewis Atkinson
I do, and I thank my hon. Friend for bringing my attention to that; I was struggling to put my hands on it.
In my view, clause 2 does a difficult job very well in tightly drawing eligibility criteria so that the Bill does what it says on the face of it—that it allows access for terminally ill adults, at the end of their life. By having a six-month prognosis, rather than anything else, it allows individuals to put their lives in order and have the best last months of their lives possible. I therefore speak against the amendments and in favour of the clause as drafted.
Stephen Kinnock
As usual, I will make brief remarks on the legal and practical impact of amendments, while emphasising that the Government continue to remain neutral on the Bill and on assisted dying more broadly. This series of amendments, which I will take in turn, seeks to change the definition of “terminally ill”, either widening or narrowing the cohort of people able to access assisted dying services.
Amendment 123 would change what it is to be “terminally ill” for the purposes of the Bill from having an “inevitably” to a “typically” progressive illness, disease or medical condition that cannot be reversed by treatment. That would widen the pool of those able to access assisted dying services by reducing the level of certainty that a doctor must have that the illness, disease or medical condition in question is progressive—from one that is “inevitably” progressive to one that is “typically” progressive.
Amendment 9 seeks to amend the definition of “terminally ill” such that it would not include a person who has an inevitably progressive illness, disease or medical condition that can be reversed, controlled or substantially slowed by treatment. The effect of the amendment is that such a person would not be eligible for lawful assistance to voluntarily end their own life. Should the amendment be accepted, the effect would be to restrict the eligibility for assisted dying services to a narrower category of patients than is currently set out in the Bill. The amendment may make assessment of a person’s prognosis and eligibility under the Bill more extensive, as it would be likely to require an assessment of a broader range of treatment options.
Naz Shah
I apologise to my hon. Friend the Member for Sunderland Central; I was actually incorrect. The girls did not have capacity, so he was correct. However, in the cases that went before the court, those nine girls did not have capacity yet the judge made a decision that they should not be force-fed to keep them alive, and they should be allowed to die. Perhaps the Minister could comment on how the amendment would not meet that criteria. Would it fix that loophole?
Stephen Kinnock
I thank my hon. Friend for her intervention. I am just talking about the amendment to reduce the time from six months to one month. I will come on to the issue of eating and drinking in a second.
As amendment 282 would reduce the time within which the person is expected to die from six months to one month, it would also limit the number of people with a terminal illness who would be eligible for assisted dying under this legislation. Furthermore, there may be very challenging workability issues in delivering a service within one month, given the other time-dependent safeguards elsewhere in the Bill.
Amendment 51 would remove the requirement for the patient to have a six-month prognosis to be defined as “terminally ill”. If agreed to, it would expand the pool of people eligible for lawful assistance to voluntarily end their own life beyond those with a life expectancy of six months or less. In other words, it would remove the timeframe requirement of when death can be reasonably be expected.
Amendment 234 would widen eligibility to include cases of neurodegenerative diseases, illnesses or medical conditions where a person is reasonably expected to die within 12 months. Matters such as this are for the Committee, and ultimately for Parliament, to decide, but it is clear that the effect of the amendment would be to broaden the number of people eligible for lawful assistance to voluntarily end their own life under this legislation.
Amendment 10 would provide that, if treatment exists for a person’s progressive illness, disease or medical condition that alters the overall prognosis of that person’s condition, they are not terminally ill and would not be eligible for assisted dying services.
Amendment 402 would exclude a person who would not otherwise meet the definition of “terminally ill”—namely, being diagnosed with an inevitably progressive illness with six months or less to live—if that person meets that definition as a result of stopping eating or drinking. The effect of the amendment would be to prevent a person from being defined as “terminally ill” as a result of their own actions of stopping eating or drinking, or both. The Government’s analysis suggests that this may also exclude people who are terminally ill under the definitions of the Bill and who are, for various reasons, unwilling or unable to eat or drink. For example, it may include those with conditions such as oesophageal cancers, which could result in their being unable to eat or drink.
Furthermore, it is unclear whether someone who is on intravenous fluids or being fed through a feeding tube would be considered to have stopped eating or drinking under the amendment. I think that addresses the concern expressed by my hon. Friend the Member for Bradford West, but she is welcome to intervene again if she would like to. The amendment could therefore lead to uncertainty over the person’s eligibility for assistance under the Bill.
The Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed. Questions around the definition of terminal illness and who should be eligible to access voluntary assisted dying under the legislation are matters for the Committee and for Parliament as a whole. However, I hope that these observations are helpful to the Committee in considering the Bill and the amendments tabled by various Members.
Kim Leadbeater
Colleagues will be pleased to know that, despite my copious notes, I do not intend to speak for very long, because I believe we have had a very thorough and robust debate on these issues. The Minister makes a valuable point on amendment 402, which I do not think anyone else raised. Coincidentally, it relates to the person in the Public Gallery this morning, whose mum had a horrible form of cancer and had to have her tongue removed. She would have stopped eating or drinking, but it was not a choice; it was an inevitable result of her condition. She would have been excluded from having an assisted death, which I am sure is not the intention of my hon. Friend the Member for Bradford West.
We have had an excellent debate and covered a lot of ground. I do not intend to add anything more on this group of amendments. I will only say that if we get a move on, we might be able to get through clause 2 before we close at 5 o’clock.
Juliet Campbell
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 9, in clause 2, page 1, line 24, after “reversed” insert
“or the progress controlled or substantially slowed”.—(Rebecca Paul.)
This amendment would mean that illness, disease or medical condition etc, the progress of which can be managed or controlled by treatment are not characterised as terminal illness.
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 12, in clause 2, page 2, line 2, at end insert—
“(c) their illness, disease or medical condition is found on a list that the Secretary of State may by regulations specify.”
This amendment would require an illness, disease or medical condition to be specified in regulations that may be made by the Secretary of State to be considered a terminal illness under the Act.
The Chair
With this it will be convenient to discuss amendment 13, in clause 2, page 2, line 10, at end insert—
“(4) Regulations under subsection (1)(c) are subject to the affirmative procedure.
(5) The Secretary of State may, where they consider it appropriate, make regulations that expire after twelve months from their being made to include temporary additions to the list under subsection (1)(c).
(6) Regulations under subsection (5) are subject to the negative procedure.”
This amendment is consequential on Amendment 12 and specifies regulations under that amendment must be made by the affirmative procedure. Temporary additions could be made by regulations subject to the negative procedure.
Danny Kruger
I will be fairly brief in speaking to the amendments, but they go to the heart of things. We have tried to tighten the Bill by excluding medical conditions from the definition of a terminal illness; I am very pleased that the Committee has accepted that tightening. We have also sought to exclude illnesses that are consequent on mental disorders and disabilities; we have not succeeded with that tightening. We have further sought to tighten the Bill by circumscribing the prognosis period more precisely.
The amendments would tighten the Bill further by explicitly listing the illnesses that qualify. The argument is quite straightforward. The problem that we are trying to address is that, under the Bill, it will be up to doctors and potentially to the court—or a panel, if that is where we go—to decide whether a particular condition is terminal. It would be set by case law and by medical doctors deciding what conditions qualify.
Lewis Atkinson
I rise to speak briefly in opposition to the amendments. When the chief medical officer gave oral evidence to the Committee, the hon. Member for Richmond Park asked him:
“Is it possible to come up with a list of illnesses that are terminal that would qualify under the legislation?”
The response was very clear:
“If I am honest, I think it would be extremely difficult.”
It is difficult in both directions, because some illnesses or diseases can be terminal, but are not necessarily terminal. People can live with prostate cancer for many years. Setting out in the Bill a list of specific diseases or illnesses that would be eligible risks achieving exactly the opposite of the amendment’s intention. To quote Professor Whitty again:
“Equally, there are people who may not have a single disease that is going to lead to the path to death, but they have multiple diseases interacting…I therefore think it is quite difficult to specify that certain diseases are going to cause death and others are not, because in both directions that could be misleading.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 32, Q5.]
Further to the point that the hon. Member for East Wiltshire made about on judicial oversight, my understanding is that giving power to the Secretary of State to make a list that includes only some diseases is absolutely inviting action through the courts on the reasonableness of why one disease is on the list while others are not. We would end up in much more of a legal quagmire than we otherwise would. The safeguards that we have talked about, as to eligibility criteria, terminality and capacity, are in the Bill as drafted. Those are the safeguards that we need. A list would further muddy the water and would create confusion.
Stephen Kinnock
I have some brief comments to make. Amendments 12 and 13 seek to further define a terminal illness for the purpose of the Bill; I will set out some details about their effect. The amendments would add a requirement that a list of a terminal illnesses for which people are eligible to seek assistance under the Bill be specified in regulations made by the Secretary of State. The effect would be that only a person who has an illness, disease or medical condition listed in regulations, and who meets the other eligibility criteria, would be eligible to be provided with lawful assistance to voluntarily end their own life.
I draw the Committee’s attention to the chief medical officer’s oral evidence given on 28 January, which was well articulated by my hon. Friend the Member for Sunderland Central. The CMO said that multiple diseases may interact, making it
“quite difficult to specify that certain diseases are going to cause death and others are not”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 32, Q5.]
It is also the case that many illnesses, diseases or conditions that may be terminal in one case may not be so in another. Committee members may therefore wish to consider where a focus on specific illnesses or diseases, rather than on the facts of an individual case, could aid clinicians in their decision making.
The amendments also include a discretionary power for the Secretary of State to make regulations that expire after 12 months in order to make temporary additions to the list of illnesses that meet the definition of terminal. It is not clear what types of illnesses, diseases or medical conditions are intended to be captured in such regulations. I hope that those observations on the purpose and effect of amendments 12 and 13 are helpful to the Committee in its considerations.
Danny Kruger
I sense that the wish of the Committee is probably not to accept the amendment, so I do not propose to press it to a Division, but we have just heard quite clearly, in response to the amendment, that the Bill is essentially permissive. Once again, we have declined to put clear parameters around the eligibility for this new law. We have heard specific conditions mentioned so many times in the course of the debates over the preceding months. It is a shame that we are not prepared to state those conditions clearly in the Bill, with the opportunity for Parliament to amend them over time.
I end by echoing a point that the hon. Member for Spen Valley made about the importance of good data. I hope that if the Bill passes, we will have the best data collection in the world. I am afraid to say that data collection is not good in other jurisdictions. Nevertheless, it is possible to see how often in Oregon, Australia, Canada, and Europe, albeit in a minority of cases, conditions that most people would not recognise as deserving of assisted dying, including anorexia, arthritis, hernias and diabetes, are listed as causes of death. Indeed, so is frailty, as I discussed earlier.
My fear is that if we pass the Bill, we too—if we do data collection properly—will have a shameful appendix to the annual report showing that people have had an assisted death for reasons that most people would regard as inappropriate. I will leave it there. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 401, in clause 2, page 2, line 5, leave out “, disease or medical condition” and insert “or disease”.—(Danny Kruger.)
This amendment is consequential on Amendment 399.
Amendment proposed: 402, in clause 2, page 2, line 6, at end insert—
“(2) A person who would not otherwise meet the requirements of subsection (1), shall not be considered to meet those requirements as a result of stopping eating or drinking.”—(Naz Shah.)
This amendment means that someone who is not terminally ill within the meaning of subsection (1) cannot bring themselves within that definition by stopping eating or drinking or both.
Question put, That the amendment be made.
Terminally Ill Adults (End of Life) Bill (Fourteenth sitting)
Wednesday 26th February 2025
(2 months ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 February 2025 - (26 Feb 2025)
The Chair
Will everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We will continue line-by-line consideration of the Bill. I gently ask people to abide by my exhortations yesterday.
Clause 3
Capacity
Daniel Francis (Bexleyheath and Crayford) (Lab)
I beg to move amendment 322, in clause 3, page 2, line 13, at end insert—
“except that—
(a) for the purposes of an assessment of capacity under this Act, a person must be assumed not to have capacity unless it is established they do have capacity, and
(b) section 1(3) of the Mental Capacity Act 2005 shall not apply.”
This amendment reverses the burden of proof in the Mental Capacity Act, so that those assessing a person’s capacity would not be able to assume that the person has capacity without evidence.
The Chair
With this it will be convenient to discuss the following:
Amendment 49, in clause 3, page 2, line 13, at end insert—
“(2) The burden of proof for an assessment of a person’s capacity is the balance of probabilities as required under section 2(4) of that Act.
(3) For the purposes of any such assessment, the principles set out in subsections (2) to (4) of section 1 (The principles) of that Act apply.”
This amendment would set out the burden of proof for capacity assessments as being the same as the Mental Capacity Act 2005 and apply the principles from subsections (2) to (4) of section 1 of the Mental Capacity Act 2005.
Amendment 50, in clause 3, page 2, line 13, at end insert—
“(2) An assessment of a person’s capacity under this Act must include, but is not limited to, an assessment that the person understands—
(a) the options for care and treatment of the terminal illness, including—
(i) the extent of prognostic certainty of their illness or condition, and
(ii) the likely effects on day-to-day functioning, symptom management, and pathway to and experience of death of—
(A) relevant and available care and treatment including palliative care, hospice or other care,
(B) withdrawal or absence of care and treatment, and
(C) requesting assistance in ending their own life under the terms of this Act.
(b) a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.
(c) the person’s decision to proceed under this Act must be theirs alone and not bound or directed by the views or decisions of others.
(d) the person is able to change their mind at any stage of the process for requesting assistance to end their own life under the provisions of this Act, regardless of previous decisions.
(e) a decision to proceed under this Act will lead to the provision of a substance that is reasonably expected to end someone’s life following administration and is reasonably expected to be irreversible.
(f) relevant legal consequences from proceeding with a request for assistance to end their own life, including life insurance and categorisation of death certification.”
This amendment would set out certain non-exhaustive requirements for a finding that a person has capacity.
Amendment 398, in clause 3, page 2, line 13, at end insert—
“(2) The following provisions of the Mental Capacity Act 2005 shall not apply to this Act—
(a) sections 1(2) to (4)
(b) sections 2(2) and (4).
(3) Section 2(1) of the Mental Capacity Act 2005 shall apply to this Act as if it read as follows—
‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.’
(4) A person shall be considered not to have the capacity to make a decision to end their own life unless it is proven beyond reasonable doubt that they do have that capacity.”
This amendment disapplies several principles of the Mental Capacity Act: the presumption of capacity, the duty to help someone reach capacity, the irrelevance of an unwise decision, the application of the balance of probabilities, and the diagnostic test. It retains the functional test of capacity and requires that capacity be proven beyond reasonable doubt.
Clause stand part.
Daniel Francis
It is a pleasure to serve under your chairmanship, Mr Dowd. I accept that we had a long debate on issues relating to mental capacity in respect of the amendments tabled by the hon. Member for Richmond Park, but we heard in oral evidence significant representations and concerns regarding how the Mental Capacity Act 2005 would work in connection with assisted dying. The purpose of the amendment is to reverse the burden of proof in relation to capacity.
In general—rightly, as I have said previously—a person is assumed to have capacity unless it is shown that they do not. As we have heard, that is a deliberately low bar in order to preserve the basic human right to participate in society and to ensure that normal daily life does not require us all to prove that we have capacity every time we make a decision. The downside of that assumption, however, is that in situations of limited or unreliable evidence, or a very borderline case, the person has to be assumed to have capacity. It is surely clear that that could put many people into real danger if such an approach were taken with assisted dying.
We should not be afraid to say that a person who is terminally ill is potentially vulnerable. Depression and stress are common and understandable responses to a terminal diagnosis and, whether we like it or not, some people in our society will prey on the fragile for their own gain. Our job is to confront the risk of someone being given access to an assisted death not because that is their considered wish, but because no conclusive evidence is available to the doctors at the time of the assessment, or because someone is controlling or coercing that person and able to persuade them in favour of an assisted death that they do not truly want by hiding any signs of their impaired capacity until it is too late.
On previous amendments, I have spoken from my personal perspective. As parents of a child with a learning disability, our greatest concern is what will happen to our child after we have gone. That is the principal thing—the sole thing, I think—that keeps my wife and me up in the night: what will be that determination for our daughter one day? I hope that her twin will remain with her, and that her twin will be the person who makes those decisions for her, but that may of course not be the case. I know that we may have to entrust the state or others to make those determinations for her in due course.
Every parent of a child with a learning disability considers that determination every day. I know that it weighs on their minds not only in connection with this clause; the decisions about their child will also weigh on their minds when we get to clause 4. I am not talking about my daughter’s case, because she does not have enough capacity, but for those people who do have enough capacity—we know from the evidence that the majority of people with a learning disability do have enough capacity—the decisions that may be made for them in due course will weigh on their minds.
In those circumstances, I suggest it is appropriate and reasonable that the assisted dying process maintains the other principles of the Mental Capacity Act, but reverses the presumption in favour of capacity in order to keep people safe. We have heard that doctors are familiar with the Act, including in cases where people sometimes do and sometimes do not have capacity. On that basis, it is not a great leap for them to look for evidence that a person does have capacity, rather than the opposite. That is a normal exercise of their judgment. It is a compassionate and common-sense approach.
I remind Members of what I have said previously about the position of the Law Society: the issue of what capacity should mean, and how to assess it, is central to the Bill. The Law Society considers that the Bill should be clearer in its approach to capacity for the purposes of ending a terminally ill person’s life. Although expert opinion may reasonably differ on whether to use the Mental Capacity Act approach or to introduce a stand-alone definition, the utmost clarity is required if the Bill’s safeguards are to be robust and effective. The Law Society’s recommendation is that before the clause becomes law, a comprehensive consultation should be undertaken to allow relevant experts to share views on the appropriate definition of capacity for the purpose of the Bill.
I will not quote everything again—I have quoted it all previously—but we have heard oral evidence on this matter, including concerns about how the Mental Capacity Act may be interpreted, from Professor House, through Baroness Falkner, Fazilet Hadi, Dr Hussain, Chelsea Roff, Professor Owen and Dr Price, to Dan Scorer of Mencap. My amendment is a compassionate and common-sense approach that would provide reassurance to members of the public. I invite the Committee to support it.
Amendment 398, tabled by the hon. Member for Reigate, goes further than my amendment, and beyond its scope, but I have some sympathy with it. I will repeat some of what I have said previously, in that I remind the Committee of the statutory principles of the Mental Capacity Act:
“A person must be assumed to have capacity unless it is established that he lacks capacity…A person is not to be treated as unable to make a decision unless all practicable steps”—
that remains a grave concern of mine—
“to help him to do so have been taken without success”,
and a person
“is not to be treated as unable to make a decision merely because he makes an unwise decision.”
I remain happy to stand corrected, as I have continued to ask for clarification on this matter, but my point that doctors or other professionals would have to take all practical steps to help them to make a decision related to assisted death has not been challenged. The matter was clearly considered to some degree previously, given that clause 62 of the Mental Capacity Act 2005 states:
“For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961…(assisting suicide).”
I also challenge whether the Bill’s authors have considered all the scenarios outlined in chapter 3 of the Mental Capacity Act code of practice, entitled “How should people be helped to make their own decisions?”, and particularly those relating to the involvement of family members and carers. Similarly, in chapter 4, “How does the Act define a person’s capacity to make a decision and how should capacity be assessed?”, the code states at paragraph 4.50:
“For certain kinds of complex decisions (for example, making a will), there are specific legal tests…in addition to the two-stage test for capacity.”
Those tests are laid out, but they do not include this scenario.
As I did yesterday, I refer to the Equality and Human Rights Commission paper provided to Members in advance of Second Reading:
“A vital factor in determining how to manage access to assisted dying will be the concept of mental capacity in the context of a decision of this nature and gravity. It will be important to ensure that all decision-makers involved in the process have a full and clear understanding of the law around mental capacity under the Mental Capacity Act 2005. Sensitive consideration must be given, in particular, to the interaction between mental capacity, mental health issues, learning disabilities and conditions such as autism. Clause 30 of the bill states that the Secretary of State ‘may’ issue codes of practice…However, it does not oblige them to do so.”
For those reasons, I remain concerned about continuing to use the full definition under the Mental Capacity Act 2005. I therefore commend the amendment to the Committee.
Dr Simon Opher (Stroud) (Lab)
I thank my hon. Friend the Member for Bexleyheath and Crayford for his sensitive and well presented amendment. I have a couple of things to say about it.
My hon. Friend says that the Mental Capacity Act is a low bar, but in the Act it is important that when we assess people for mental capacity we look at the gravity and complexity of the situation, and therefore take more consideration of deeper understanding of the issues if the gravity of the decision is very enhanced. There is scope within the Mental Capacity Act to take in these types of assisted dying assessments.
Daniel Francis
I hear that. There are different decisions, whether it is buying a coffee or seeking an assisted death. Would my hon. Friend concur that, for some individuals in those scenarios who may be by themselves because of the circumstances of their lives and about whose capacity there may be doubt, the doctor must presume in the first instance that they have capacity, and that the doctor must assist them in making a decision?
Dr Opher
Yes, I totally accept that. The Mental Capacity Act is set so that we assume capacity and look for evidence of lack of capacity. The great danger with the amendment is that it would change a whole raft of very well used provisions. As Professor Whitty said, the Act is used up and down the country every day; I have used it myself many times, and taught it as well. If we change the emphasis from the presumption of capacity to the presumption of incapacity, which is what my hon. Friend is suggesting, that is a major change in the Act.
Naz Shah (Bradford West) (Lab)
Given what my hon. Friend has just said—that he accepts the premise of my hon. Friend the Member for Bexleyheath and Crayford that the doctor would have to assist—can he help me to understand where that leaves the issue of autonomy if a doctor is, as he has agreed, allowed to assist in the decision?
Dr Opher
The way the doctor assists, if making a mental capacity assessment, is to try to tease out the four concepts. Does the patient understand what they are being asked to agree to? Sometimes mental capacity assessments are very straightforward and last five minutes; sometimes they last an hour. I have done one that lasted about 90 minutes because it was really important to tease out whether the patient genuinely understood what they were doing. That is the sort of assistance I am talking about. It is not about trying to persuade them to make a decision that I think is the right decision; it is just making sure that they understand it, can remember it and so on.
Dr Opher
Well, that was disputed by other psychiatrists. We are asking questions about whether the Mental Capacity Act is safe and correct for the Bill. This whole Committee is about making the Bill safe. None of us would dispute that. However, I think that if we accept the amendment, the Bill will become less safe because the amendment would change a massive piece of legislation and therefore have a number of repercussions that we do not understand.
Danny Kruger (East Wiltshire) (Con)
Chris Whitty made the same point that the hon. Gentleman has just made: that there would be knock-on effects and that the Mental Capacity Act works very well currently. Does the hon. Gentleman acknowledge that Chris Whitty himself misrepresented the Mental Capacity Act in the evidence he gave to the Committee? He had to write to us subsequently to clarify his comment, and his clarification contradicted the hon. Gentleman’s implication that the Mental Capacity Act has different thresholds for different levels of decision. Does the hon. Gentleman acknowledge that it does not? The Act has one threshold: capacity as it defines it. Some doctors may have longer conversations than others depending on the severity of the case, but the threshold is the same—Chris Whitty misrepresented it.
Dr Opher
I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold. We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is. I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity. The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same. In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.
I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe. The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re-train all the doctors and, I think, it will not protect patients.
Sarah Olney (Richmond Park) (LD)
At risk of repeating something said in a previous sitting, does the hon. Gentleman accept that the amendment is not trying to amend the Mental Capacity Act itself, and it is not trying to change how the Mental Capacity Act is used in the majority of situations in which it is already used? All it is trying to say is that in this particular circumstance the Act needs to be applied in a different way. We are not trying to rewrite the Act in itself or any aspect of the way in which it is currently used.
Dr Opher
I understand what the amendment is trying to do; my argument is that it will not achieve that because it will muddy the waters of a mental capacity assessment, which will make how we do it less safe. I would also like to return to Professor Whitty’s comments and to say that in the majority of cases mental capacity is very clear. It does not actually take very long to assess whether someone has mental capacity.
The Chair
Can the hon. Gentleman be allowed to fully answer the questions that the hon. Member for East Wiltshire and the hon. Member for Richmond Park asked, before we have an intervention on another point?
Dr Opher
It is really important to understand that for the majority of people mental capacity can be assessed reasonably quickly because it is very clear whether they have it or do not have it. What we are talking about, I think, is a small proportion of patients in which it is unclear whether they have mental capacity. There is scope in the Bill for those circumstances, when the patient should be referred to an enhanced level of mental capacity assessment by a psychiatrist or a psychological nurse. In that way, it makes it much safer. We do not need to redesign the Act for that small number of patients because we already have a very safe route to assess capacity.
Naz Shah
I thank the hon. Gentleman for giving way; he has been generous with his time. I do not know whether the hon. Gentleman has seen the evidence from Alex Ruck Keene KC on mental capacity. He sets out very clearly the myths around mental capacity, one of which is that mental capacity is well understood. He argues that it is not. How would the hon. Gentleman respond to that?
Dr Opher
I think that in most cases mental capacity is very well understood, and it is very clear, as I have said. I would say that, as practising clinicians, almost every GP has to do it. I would not sign up a doctor in training if they could not do it. I think it is a little bit rich to suggest that we cannot assess capacity. I agree with many of the comments that have been made about assessing capacity in more difficult cases for most doctors, and I think we do need an avenue, in those situations, to get further opinions.
Naz Shah
The hon. Gentleman said it would be rich for people to say that capacity cannot be assessed. That is not the case. I am not convinced about that, and I am not sure, from the evidence I have seen, that anybody is saying that anybody is not capable of assessing capacity per se. Would the hon. Gentleman agree that the argument is about assessing capacity for this Bill in particular? That has not been tested. The Royal College of Psychiatrists is very clear, as are many other experts, including legal experts, that the Bill has not been tested for that purpose. Therefore, the Mental Capacity Act does not meet the purpose for the Bill.
The Chair
Order. I will give people the opportunity to explore this issue but, as I have said, interventions are not mini speeches.
Dr Opher
I feel that the Committee has been through these points quite extensively. There is clearly a disagreement in our beliefs; I accept that, but it is very important to make the Bill as simple as possible, because that is the best safeguard. I believe that the Mental Capacity Act is the right test for whether people have capacity. I reiterate that if there is a doubt in the clinician’s mind, there should be an avenue to get an expert opinion on capacity.
Kim Leadbeater (Spen Valley) (Lab)
Is my hon. Friend reassured, as I am, that although we are focusing here on one conversation, we know from the provisions in the Bill that there will be multiple conversations? There will be a doctor, a second doctor, a psychiatrist, and then oversight by an expert panel. It is not just one assessment of capacity; there are multiple occasions. Does that reassure my hon. Friend, and hopefully other colleagues?
Dr Opher
It does reassure me, and I think it should reassure other Committee members. Having eight different people doing a capacity assessment is a very thorough safeguard for capacity. We have gone through the arguments many times in this Committee, but I do not feel that changing the polarity of mental capacity will do anything to make patients in this situation any safer. That is why I do not agree with the amendment. For fear of being interrupted any more, I think I will leave it at that.
Sarah Olney
I apologise for arriving late; thank you for calling me to speak anyway, Mr Dowd. I rise to speak in favour of amendment 50, which stands in the name of the hon. Member for Runnymede and Weybridge (Dr Spencer) and to which I have also put my name. I am conscious that we have been through many of the arguments about the Mental Capacity Act today and at an earlier sitting, but I am keen to press the amendment to a vote, because I think it would address some of the issues that have arisen.
The point of dispute appears to be whether the Mental Capacity Act, as it is currently operated for all the purposes for which it is used—I have no doubt that it is a very effective piece of legislation that is widely used and understood by clinicians everywhere, as the hon. Member for Stroud says—is the appropriate measure and tool to use for the Bill. This decision that people are embarking on is like no other, so I think it right and proper to consider whether the Act is the appropriate way to measure whether people are able to make it.
It is useful to reflect on the experience of the hon. Member for Runnymede and Weybridge, who drafted the amendment. I am conscious of the comments that the hon. Member for Ipswich made yesterday about poorly drafted amendments. My understanding is that the hon. Member for Runnymede and Weybridge has extensive expertise in the area; he is an expert in mental capacity assessment, and I dare say that if he were in the room he would have many useful and interesting things to say. That is why I think his amendment bears greater weight, to the extent that one Member’s amendment should be regarded as any better than another’s.
Key to the Mental Capacity Act is the capacity test, which is about the ability to understand, retain, use and weigh the relevant information. The amendment attempts to address what it means to make an informed decision. Dr Annabel Price, who gave oral evidence to the Committee in her role with the Royal College of Psychiatrists, said that people planning to make the decision of seeking an assisted death
“would need to be able to understand the impact of the substance they are taking and what the likely positives and negatives of that are…The informed consent process is different from a refusal of treatment, and the informed consent process feeds into the capacity assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.]
The point, which has come up in previous debates, is whether an informed decision to refuse treatment can be regarded as the same as an informed decision to end one’s life. My personal view is that the two things are quite different, and that a different standard of capacity should therefore be brought to bear on the decision.
I support amendment 50 because it sets out in detail how the Mental Capacity Act should be used specifically in relation to this decision. As I said in an intervention on the hon. Member for Stroud, it would not change the Act or tamper in any way with how it is currently used; it would merely specify the particular ways in which it should be used in relation to the decision.
I hear what the hon. Member said about doctors’ use of the Act, as well as what the chief medical officer said. I am also conscious of what the hon. Member for Bexleyheath and Crayford has said about the variety of experience that he has, as a parent, with professionals’ understanding of the Act. That came across in a lot of the oral evidence. As the hon. Member for East Wiltshire said, the chief medical officer himself had to clarify the remarks that he made to the Committee in oral evidence. The chief medical officer implied that there were different ways of applying the Act depending on the decision to be made, but there are not—that was a very clear clarification. That implies that there is a difference in the way doctors approach the use of the Act. We cannot have a difference of approach when it comes to a decision of such momentous importance as the decision whether someone has the capacity to choose to end their life.
The amendment reflects the fact that there is value in attempting to standardise how the Mental Capacity Act should be used in relation to the decision. That is why we should agree to it: it is important that Members of this House make a clear statement in the Bill about what we expect doctors to do as they approach an assessment of capacity. We should specify the minimum understanding of capacity to choose an assisted death, which includes an understanding of the likely process of all treatment options, including non-treatment and prognostic uncertainty.
In her evidence, Dr Rachel Clarke said:
“I would not be the first person to make the observation that sometimes doctors can be very pleased with their own abilities at a particular practice, and that practice might be having a conversation where you are assessing someone’s capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 80, Q103.]
Doctors have different assessments of their own ability to assess capacity. That is why a standardised approach, as set out in amendment 50, is so important. I stress how important it is that Parliament be the place where the standards for what MPs expect as an assessment of mental capacity are set. We should be the ones to determine them, rather than leaving them to the vagaries of individual clinicians.
The assessment of capacity and the explanation of treatment options to the person considering an assisted death need to include the extent of prognostic certainty about their illness or condition. We spoke yesterday about the difficulty of knowing whether someone has six or 12 months left to live, and of knowing the extent to which they are going to deteriorate. We also covered in detail the relevant and available care and treatment, including palliative care, hospice care or other care. That needs to be part of the conversation about somebody’s capacity to make the decision.
Amendment 50 states that
“a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.”
It would therefore be clear that somebody had assessed the full range of their options. The amendment makes clear a fundamental issue that I do not think is otherwise covered by the Mental Capacity Act, or at least not to this level of specificity, which is that
“the person’s decision to proceed…must be theirs alone and not bound or directed by the views or decisions of others.”
We have talked about the importance of that issue in relation to the Bill as a whole, but it would be valuable to include it in the clause as a specific requirement for assessing somebody’s capability.
Doubts have been expressed across the Committee about whether the Bill goes far enough in assessing the extent to which somebody might be under duress or coercion. Putting such a provision in the Bill, as part of the capacity assessment, would be an important and essential safeguard. Once someone has made the decision to seek an assisted death, is the doctor or assessing person confident that the person could unmake the decision or change their mind at any stage?
Dr Opher
As my hon. Friend the Member for Spen Valley said, there are eight different opportunities for assessing capacity in the process, the last of which is before the patient takes the medicine that will end their life. At all those stages, it is possible to stop the process, and the patient is in total control.
I do not disagree with anything in amendment 50, but I believe that everything in it is already in the Bill, under other clauses. I do not think that the amendment would add anything to the Bill; it would actually make assessing capacity more confusing, from a legal perspective.
Sarah Olney
What I would say in reply to the first part of the hon. Member’s intervention is that there are plenty of opportunities for the person to change their mind—although I might slightly indelicately point out that there will eventually not be a further opportunity; that is the point of what we are trying to do—but that does not necessarily mean that the person has the capacity to make the right decision at each of those opportunities. That is what the doctors will need to assess.
I return to my earlier point: it is important that Parliament specify, by way of this amendment, precisely what it means by assessing capacity. In the context of all the evidence we heard that there is not necessarily a standardised approach across the medical profession, it is important that the standardised approach be specified in the legislation. Clause 3 is the appropriate place to specify it.
The other major point is that patients need to understand the process by which the assisted death will be enabled. The Bill states elsewhere that it will be by the ingestion of an “approved substance”. It is important that we understand exactly what that means, or what it might mean. We will doubtless get on to talking about the approved substance and the proper legislation around its use.
We did not speak much during the oral evidence sessions about the use of the approved substance, but it is important that people understand that any medical procedure can fail, including with an approved substance, and we do not know how long the substance will take to be effective. Nor do we know what the patient’s experience will be after taking the approved substance. It is important that they understand, to the extent that it is possible for a doctor to give them the information, what they are undertaking.
In his evidence, Professor House said:
“It is a striking feature of the Bill that informed consent is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be…There is no standard informed consent form related to the Bill, for example—of the sort that you would expect to sign if you were having a serious intervention in the NHS.”––[Official Report, Terminally Ill Adults (End of Life) Private Member’s Bill Committee, 29 January 2025; c. 169, Q216.]
He said that informed consent was very underspecified in the Bill. The amendment could start to address that. It is important that people have the capacity to understand what they are undertaking—not just that they are choosing an assisted death, but all the potential attendant risks and complications.
I return to my opening point, which is that it is important that Parliament specify a standard by which mental capacity can be assessed in relation to this specific decision. I feel that I have made the point a number of times, but I will make it once more: we are not proposing to rewrite the Mental Capacity Act or tamper in any way with how it is currently used. We are merely setting a higher bar—a higher standard for how it should be applied in this particular case, because of the very specific nature of the decision that patients are being asked to make in this particular circumstance.
Naz Shah
I will pick up on some of the points to which my hon. Friend the Member for Stroud referred, given his expertise. We heard from three senior psychiatrists during the evidence sessions, who were very clear; I have already mentioned much of their evidence. The Royal College of Psychiatrists’ written evidence states:
“It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill. Extensive consideration needs to be given to what an assessment of mental capacity should consist of for AD/AS prior to the passing of legislation and, indeed, whether a determination through such an assessment can be reliably arrived at in this novel context.”
It goes on to say that the capacity to end one’s life is “entirely different” from assessing for the capacity of deciding treatment.
The Bill moves us into new territory. We need a definition that meets the criteria of what we are assessing, which is to end one’s life. That has never been applied in this country. The Mental Capacity Act, as it stands, requires assessors to presume that someone has capacity until incapacity can be proven, as my hon. Friend the Member for Bexleyheath and Crayford referred to in moving amendment 322.
Dr Annabel Price, Professor Allan House and Professor Gareth Owen all expressed doubts about the use of the Mental Capacity Act to assess whether a person is in a fit state of mind to undertake assisted dying. Because there is nothing in the current medical assessment that requires careful explanation of these factors, there is a real worry that there will be no opportunity to change them. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground.
Professor Owen said:
“I have looked at mental capacity a lot in research, and there is no experience”.
The reference to the Mental Capacity Act in clause 3 puts us into an area where there is no experience of the central capacity issue under consideration. He said:
“It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]
He further said that we are in “uncharted territory”, because the ideas in the Bill are very novel. That is the hub of the Bill: it requires assessors to assume capacity as a starting point. To make the Bill the safest in the world, that is not the yardstick that we should be applying, according to very senior psychiatrists across the country.
Alex Ruck Keene KC also provided evidence to the Committee. He set out some of the myths in a video. There are a few things in this for me. One is the article in The Telegraph, which senior psychiatrists alluded to, that suggested there was a shortage of specialist psychiatrists. We have already had a conversation about the shortage of judges, but we are now having a conversation about the shortage of psychiatrists. Should the measure remain in the Bill as it stands? I would like to understand from the Minister whether that is something that has been assessed, given that we do not have an impact assessment.
Alex Ruck Keene referred to the National Institute for Health and Care Research, which funded a number of research projects in 2022 under the umbrella topic of implementing the Mental Capacity Act in practice—the rationale being that
“The Mental Capacity Act…is designed to empower and protect people who may lack the mental capacity to make their own decisions about their support and treatment, ranging from everyday issues to more serious, life-changing decisions.”
Evidence has highlighted several aspects of the way that the assessments are being carried out that are not compliant with the Mental Capacity Act. If we already have issues with how the Act is being implemented in the everyday work of the NHS and psychiatrists, how many mistakes will be made if the Bill goes through as it is? How much potential is there for mistakes to be made when assessing the capacity of those who are most vulnerable?
The Care Quality Commission in its most recent “State of Care” report in October last year said:
“The Mental Capacity Act 2005 (MCA) directly affects the lives of millions of people. Everyone providing care to people over the age of 16 must be familiar with this vital piece of legislation, which introduced rights and protections for people who may lack mental capacity. A decade after the House of Lords report, we continue to find a lack of understanding of the MCA among providers.”
That is the most recent research, and it is telling us that we have not got this right.
The Mental Capacity Act was passed over 20 years ago in 2005, but is still not understood properly or being applied for the reasons it was supposed to be. If we have not got that right in 20 years, how can we as a Committee be assured that the legislation will be applied properly when it is applied to something that it has never been applied to before and that has not been tested? How can we say that we should be rejecting an amendment that would change that and raise the bar for people? Ultimately, this affects people who are vulnerable; I will come on to that in more detail in the next group of amendments.
That is a real concern, which is why I urge Committee members to support amendment 322 to get the safeguards right. We spent hours talking about capacity, but the amendments to clause 1 were not accepted. This amendment comes from experience, and I really appreciate the personal experience of my hon. Friend the Member for Bexleyheath and Crayford on this issue, because he speaks about the reality. We are not the experts, and we should be relying on the experts who give us their witness testimony.
Daniel Francis
In the evidence from Mencap and in large swathes of the written evidence, we have heard grave concerns from communities representing people with learning disabilities about how this legislation was enacted during covid, particularly with “do not resuscitate” notices. Evidence shows that people with learning disabilities were far more likely to have those placed on them. The written evidence we have suggests that that is due to a misinterpretation of the Mental Capacity Act or bias within the medical community. Can my hon. Friend comment on that?
Naz Shah
My hon. Friend makes a very valid point. Another issue that we have not got to yet, but that we will be looking at, is the doctors who do not want to take part in this process. We must consider whether there will be a bias; he is right to point that out. Will there be a subconscious bias towards helping people? My hon. Friend the Member for Stroud suggested earlier that doctors assist a person to reach a decision, according to the Mental Capacity Act. This is the crux of it for me: when a doctor is assisting a person in their best interests to come to a decision about treatment, for example, that is a different test from what we are testing here.
Lewis Atkinson (Sunderland Central) (Lab)
I share the concerns of my hon. Friend the Member for Bexleyheath and Crayford about the use of DNRs—what happened during covid to people, particularly those with disabilities, was a disgrace. Does my hon. Friend the Member for Bradford West accept that this is an entirely different situation, however, in that people must actively seek it, be tested multiple times, and express a wish for it? The situation with DNRs involved medical professionals making decisions on behalf of a patient without their input.
Naz Shah
Apologies. My hon. Friend is right that those were different situations, but I remind him of the evidence that we heard from Dr Jamilla, for example. I am glad that he reminded me of this point, because although what happened in covid was done under different circumstances—I agree that what happened with DNRs was a “disgrace”, in his words—that is where the trust in NHS providers was lost. That leads me on to my next point: where there is no trust, there is vulnerability, and that vulnerability, in turn, affects capacity.
That brings me to what Alex Ruck Keene said about vulnerability. If people feel—as they did during covid-19—that they have been DNR-ed and that, as some have said, “They’re going to kill us off!”, then the vulnerability directly impacts on their capacity. I accept that, as my hon. Friend says, these are different situations, but the argument is strong and speaks to supporting this amendment.
There is a myth that mental capacity is well understood, but we have gone through that—there are a lot of myths about mental capacity. The reason that mental capacity is always difficult to assess, according to Alex Ruck Keene, is because 85% of capacity determinations by those who actually understand the law are relatively straightforward—that concurs with the point of my hon. Friend the Member for Stroud—with difficulty arising usually because of not having enough time or not listening to the person. Some research was conducted into the experience of liaison psychiatrists through an interview study across three jurisdictions, which concluded that there are four key sources of difficulty in capacity assessment, spanning both clinical and ethical domains.
Those four sources included, first, a difficulty determining whether the decision is the patient’s own or driven by illness. That is important because we are talking about people who are terminally ill, so their decision-making processes may be impacted because of that, or because there is a vulnerability—either could be possible. The 15% of mental capacity determinations that are difficult include for such people. There may also be, secondly, a difficulty in applying ethical principles or, thirdly, a difficulty in avoiding personal bias. Again, that speaks to the point of my hon. Friend the Member for Bexleyheath and Crayford—if doctors are already signed up to this Bill and believe in it, will they have a personal bias? A lot of doctors and psychiatrists—according to the last article I read—are saying that they do not agree with it.
Rebecca Paul (Reigate) (Con)
I rise to speak to my amendment 398. I recognise that much debate about capacity has already taken place, so I will do my best not to be too repetitive, but it is an important topic and I want to cover a few things.
Fundamentally, I consider the bar for the capacity to make a decision to seek an assisted death to be far too low if, as we have already discussed, the approach currently proposed in the Bill is adopted. The Committee has received powerful written evidence that the Mental Capacity Act, as it stands, is not suitable for assisted dying. The Royal College of Psychiatrists says in its written evidence:
“It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.”
The former president of the Royal College of Psychiatrists, Baroness Hollins, says:
“The Mental Capacity Act has proved very difficult to implement and doctors have not been found to be good judges of capacity.”
The eating disorders expert Chelsea Roff says:
“The MCA is not fit for purpose for determinations of capacity in life-ending decisions.”
I do not think it is contentious to say that there should be a higher standard for ending one’s own life than for other courses of action. Baroness Hale has called the Mental Capacity Act threshold “not a demanding one.” The Royal College of Psychiatrists says in its written evidence:
“While we are of the view that a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”
Even if the Mental Capacity Act is working well in some other contexts, it does not necessarily translate well to assisted dying. Professor Gareth Owen told the Committee in oral evidence that although the Mental Capacity Act is quite reliable in current practice,
“in areas of decision making where the decision itself is unsettled or conceptually much more profound or novel—I would suggest that the decision to end one’s own life has those characteristics—you cannot expect there to be such levels of reliability.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 239, Q303.]
The Mental Capacity Act definition of capacity was not created with such a monumental decision with respect to assisted dying in mind. Although I note Chris Whitty’s recommendation that it is the starting point, I do not think it can be the end point. Further provisions are needed to ensure that it is fit for purpose, given the significance of the decision being made. Professor Owen said:
“I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]
Dr Sarah Hooper, a retired oncologist, says that
“the patient in question may undoubtedly have ‘capacity’ for most important decisions. However, in the early days after a cancer diagnosis their ability to make clear judgements is nevertheless likely to be impacted. This kind of decision (for assisted suicide), once acted upon, is plainly irreversible. It is a very bad time to make that kind of decision.”
It is true that the Mental Capacity Act is used for decisions to stop life-sustaining treatment, but, as Professor Owen said, we should not simply equate that with assisted dying. As he pointed out:
“One is a refusal; one is a request. One is traditionally considered to be about bodily integrity—it is the so-called shield of the person, or the patient, against the intervention on the body that is being made by the medical profession. You are giving the patient an important right, which is a shield-like right. That contrasts with a request for assisted dying, which is a request. You are involving other people in an act that is an act of ending one’s life. That is not something that the medical profession has been comfortable with, going back thousands of years.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 236, Q288.]
I also draw attention to a great deal of written evidence making the point that the current Mental Capacity Act is not as well understood by medical practitioners as we hope or expect. Alexander Elphinston, a retired solicitor, says,
“from my experience doctors and other medical practitioners often applied the test of mental (in)capacity incorrectly.”
Victoria Wheatley, a palliative medicine consultant, says,
“I have observed a tendency to overestimate a person’s mental capacity in the absence of obvious features to the contrary.”
Alan Thomas, a professor of old age psychiatry at Newcastle University, says:
“The preferences of the assessor bias the capacity decision towards the assessor’s preference.”
I will move on to the specific issues with the current definition of people who lack capacity under the Mental Capacity Act when applied to assisted dying, all of which my amendment 398 attempts to address. Part of my amendment does exactly the same as amendment 322, tabled and already eloquently spoken to by the hon. Member for Bexleyheath and Crayford, so I will be brief on those overlapping bits.
Under the Mental Capacity Act, there is a starting presumption of capacity. That is too lax a standard, as the Royal College of Psychiatrists says in written evidence. I quote:
“The presumption of capacity may be problematic in the context”
of assisted dying, given that the consequence would be the person’s death. This is literally a matter of life and death, and the presumption of capacity must not apply; the work must be done to assess capacity properly and thoroughly. Professor Preston said during the evidence session:
“I think the aim is to have that bit of extra concern, so that we do not presume capacity, but instead almost presume that there is not capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 241, Q307.]
I think those are wise words, and my amendment and amendment 322 seek to give that protection.
Both amendments also disapply section 1(3) of the Mental Capacity Act on helping a person to make a decision. The hon. Member for Bexleyheath and Crayford has already made his point powerfully about that, so I will not add anything further.
There are some differences where my amendment 398 goes further than amendment 322. First, given the uniqueness and irreversibility of the decision, there should also be a higher threshold of probability. As it stands, a person should be treated as having capacity if that is more likely than not, which is sometimes referred to as the “51% sure” approach. It would be much safer if doctors and judges had to establish beyond reasonable doubt that an applicant has capacity, given the significance of the decision. In my view, 51% sure is just not good enough for such a monumental decision, and amending this part of the Bill would ensure a more rigorous and comprehensive assessment.
Secondly—for me, this is one of the biggest issues with the current approach—the Mental Capacity Act requires an impairment of, or a disturbance to, the mind or brain for someone to be considered not to have capacity, irrespective of whether they can make a decision. Under the Bill currently, even if someone cannot understand, retain or use the information to make a decision—they cannot communicate that decision—they will still be deemed capacitous in the absence of an impairment, or a disturbance, of the mind or brain. In the real world, a doctor could assess a patient who gives the impression of being confused, illogical, erratic or inconsistent—everything about them could scream that they are not in a good place to make the decision—but they will still be considered to have capacity if there is no identifiable impairment of, or disturbance in, the function of the mind or brain at that point in time. That potentially puts those with depression, anxiety, learning disabilities or eating disorders, or even those in physical pain, in danger of being considered capacitous.
In oral evidence, Professor Alex Ruck Keene said,
“If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do?...In other words, I think you cannot understand the information, but I cannot prove the reason that you cannot understand it is that you have an impairment or disturbance.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 90, Q120.]
According to his written evidence to the Committee, this means that someone could be approved for assisted dying even if they did not understand the relevant information, as long as they do not have an identifiable impairment of, or disturbance in, the mind or brain. He wrote,
“the Committee may well feel that it would be problematic that such a person should be considered to be eligible for the receipt of assistance in dying.”
In a letter to the hon. Member for Richmond Park, Professor Alex Ruck Keene KC said,
“no matter how intensive the scrutiny of the person’s capacity, this would not address the issue of the situation where the person appears not to be able to understand, retain, use and weigh the relevant information but that is not caused by an impairment of, or disturbance in, the functioning of their mind or brain.”
That is why my amendment seeks to remove this diagnostic element, so that section 2(1) of the Mental Capacity Act for the purposes of this Bill only would read as,
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.”
That would provide better protections for this life and death decision, and I hope it addresses the issue raised so powerfully by Professor Alex Ruck Keene KC.
As I close, I would like to make reference to amendment 49, tabled by my hon. Friend the Member for Runnymede and Weybridge, which sets out starkly the deficiencies of the current capacity test if it remains unamended for the purposes of this Bill. If autonomy is what counts, and we are using the Mental Capacity Act as gatekeeper for assisted death, then the Bill in its current form means that: a person is assumed to have a capacity as a starting point; a clinician only needs to be just over 50% sure that a person has capacity; unwise decision making is not taken into account in determining capacity; and supported decision making is acceptable—for example, for those with learning disabilities.
I ask the Committee members whether they are comfortable with that. If not, then as a minimum, amendment 322 should be accepted, but ideally my amendment 398 should also be, as it goes even further to increase the threshold for capacity and it addresses the significant issue with the diagnostic leg of the test. I am pleased to say that Baroness Finlay, who established and chaired the National Mental Capacity Forum, supports my amendment. Unlike the current drafting of the Bill, my amendment requires that a person is not assumed to have capacity in the first instance. It requires capacity to be proven beyond reasonable doubt, that unwise decision making is considered in assessing, and that a person is not helped to make a decision. I hope the Committee will support it.
Danny Kruger
I am pleased to follow my hon. Friend the Member for Reigate, who set out with incredible clarity the challenges here and the opportunity we have to build on the Mental Capacity Act, and to fulfil its purposes and the purposes of the Bill to ensure that capacity is properly assessed. I will speak to all the amendments in the group very briefly; I certainly will not repeat material points that have been made already. To clarify, I do not propose to push amendment 49 in the name of my hon. Friend the Member for Runnymede and Weybridge to a vote, although I will speak to it briefly. I hope we will vote on the other amendments.
Dr Opher
On tightening capacity assessments, which is what the amendment is trying to do, I would point out that there are a number of amendments coming up that would mandate training for doctors who are registered to assess capacity—for example, amendment 186. In addition, amendment 6 would mandate psychiatric referral if there was any doubt of capacity. Does that not satisfy the hon. Member?
Danny Kruger
It pleases me but it does not satisfy me. I am encouraged by it, but I am not fully satisfied. Obviously, it is insufficient. The hon. Gentleman and the hon. Member for Spen Valley put great faith in the training that we are going to introduce. Well, I hope they are right. Let us certainly do as much training as we can— likewise, let us get as much data as we can—but the provision set out is not sufficient, not least because the training will be in the application of the Mental Capacity Act, which we are saying, even if properly applied, has all sorts of problems with it, as my hon. Friend the Member for Reigate explained.
Yes to training and yes to the option of the referral—that should be mandatory, and I think there is a proposal to effect that. Every additional safeguard is welcome. It goes back to my point about whether we are being thorough or simplistic. I am not sure. If I think there are four assessments, but the hon. Member for Stroud thinks there are eight, does that not fail Chris Whitty’s test of being simple? If eight is in fact thorough, would nine not be even more thorough? The suggestion that we have hit it at the perfect sweet spot and that to veer one side is to introduce all sorts of bureaucratic hurdles seems unrealistic. Surely we can apply a little more rigour to this exercise.
Lewis Atkinson
I know that we have interacted before about our fundamental difference on the ventilator test: someone saying, “I want to die, please turn off my ventilator” as opposed to, “I want to die, please let me take this substance.” Although we may have a fundamental disagreement on whether those things are the same or different, if he still thinks it is appropriate for the Mental Capacity Act to be used as a one-off test, with no other safeguards, for turning off a ventilator, then why is it appropriate in that situation but not when tested multiple times in this instance?
Danny Kruger
I recognise that this is a vital point; I am not surprised that we keep returning to this important distinction. I do think that there is a vital distinction between accepting treatment and declining a treatment. In fact, the treatment proposed here is not a treatment at all—the British Medical Association specifies that it is not a medical treatment. The termination of life deliberately does not apply to a particular condition, whereas a ventilator, or any treatment that one might decline or withdraw, is specific to a particular condition or illness. There is a difference in purpose, even if the effect—which is death—is the same.
To the hon. Member’s point on whether the MCA is appropriate in cases of withdrawal of treatment; well, there we do seem to have a substantial body of clinical practice over many years, to which I am not aware of many objections. My non-expert view is that it is probably appropriate to continue with the MCA in those cases. I do not have an objection there and I am certainly not making that argument. It may well be that it is appropriate, and I am sure we will constantly review the applicability of that particular test in those circumstances. It might well be that some of the problems that I am identifying with the proposed law may also apply in cases of withdrawal of treatment—but I am not aware of that, because I do think they are substantially different. Even if it were perfectly acceptable to apply the MCA in cases of withdrawal of treatment, that does not mean it is appropriate in this case, because they are fundamentally different scenarios. I do not detect that I have satisfied the hon. Member, but it is always good to have the exchange.
I will conclude my challenge to the suggestion that the MCA is universally understood and properly applied. The Court of Protection case of Patricia, a patient with anorexia nervosa, has been referred to a number of times in the course of our debate. We heard evidence from a group of anorexia sufferers who wrote to the Committee to say:
“The judge in the Court of Protection case of Patricia…stated that he had changed his mind several times while considering the evidence. He then came to a different view on capacity from the treatment team. This single case exemplifies how complex the processes described under Clauses 7, 8 and 12 of the Bill in relation to assessment of capacity are likely to be”.
We are not talking about a straightforward process. It is clear from all the evidence we have had that there is a real problem with the way that the MCA would apply.
I want to make a rather obvious point, which is that when the MCA was debated and passed 20 years ago, assisted dying, or assisted suicide, was not on the table; it was not part of those considerations, as far as I am aware. It turns out that Dignity in Dying was on the case back in those days, although I think it was still called the Voluntary Euthanasia Society then. That group was conscious of what would come—I do not think that others were—and I detect that it is quite pleased now with the influence applied then to ensure that the presumption of capacity would be very useful one day when it came to passing an assisted dying law. It was not the intention of the House of Commons or of the Committee that considered that Bill that in fact they were establishing a test that would be applied in the case of assisting suicide and changing the terms of the Suicide Act. I am sure that if that had been the case, it would have been commented on, and I daresay the Mental Capacity Act would not be in its current form, or there would have been some addendum to that effect.
My hon. Friend the Member for Reigate referred to the very powerful evidence from lawyers, Baroness Hale and the Royal College of Psychiatrists about the challenge here. I want to quickly say, in support of amendment 322 in the name of the hon. Member for Bexleyheath and Crayford, that my hon. Friend the Member for Reigate made a powerful argument about impairment; it is striking that the MCA only applies when there are cases of impairment of, or disturbance in, the functioning of the mind or brain—I will not repeat the point she made, but I urge Members to reflect on it.
I will quote Ruth Hughes, a barrister specialising in mental capacity law and inheritance. This refers back to the point that my hon. Friend the Member for Reigate and I discussed in an earlier sitting about the clear opportunity that the Bill affords people to seek an assisted death for the sole purpose of saving their family money. Ruth Hughes says:
“If the…Bill is passed, then this will lead to some of the most vulnerable people dying for others’ financial gain. That is certain…Although in general I would, of course, accept the importance of the presumption of capacity, in relation to assisted dying, I consider that, the burden of proof for capacity should be reversed so that it is necessary to establish capacity to decide to die positively.”
Amendment 322 is tabled for that very obvious reason: there is a clear financial advantage for family members, and, I am afraid to say, there are many other distressing motivations that people might have that are not intended by the Bill’s promoter, the hon. Member for Spen Valley. It feels absolutely appropriate that we reverse the burden and have a much higher test of eligibility than that afforded by the Mental Capacity Act.
I want to make another point, although I do not know how hon. Members will feel about it because a lot of people do not accept that we are talking about suicide, even though it is in the terms in the Bill that we are amending the Suicide Act. The assumption of capacity in somebody taking their own life is what is proposed if we adopt clause 3: we are proposing that somebody has capacity if they end their own life. That implies directly that somebody who is standing on a window ledge or a bridge, about to commit suicide, is assumed to have capacity and to be making a rational decision, which other people should support. I say that directly, because there is a direct read-across with the whole topic of suicide prevention, which obviously we all strongly believe in. How can we say that somebody who is about to take their own life, unassisted, does not have capacity and is not making a settled and informed wish? In which case, why should we stop them or try to wrestle them back from the edge?
Tom Gordon (Harrogate and Knaresborough) (LD)
When people are in what is often termed a “crisis”, that would indicate that they are not in a situation where they have capacity. I do not see how the hon. Gentleman can think that it is reasonable to make a comparison between these two things; they are entirely different, and I am sure everyone here would broadly agree with that—I think, on this one, he is sort of on his own. Would the hon. Gentleman be able to offer any further insight into why he thinks that two wildly different situations are analogous—one is in a medical context where people have all the safeguards, and that layer of security and checking, and the other is someone who might be doing something in a moment of desperation?
Danny Kruger
The connection is explicitly in terms of the Bill. The Bill disapplies section 2 of the Suicide Act, which makes it illegal to assist somebody to commit suicide. It says that that section no longer applies. This Bill assists people to take their own life—I will not use the word “suicide” if people do not like it. There are other eligibility criteria: I totally acknowledge the hon. Member for Harrogate and Knaresborough pointing out that someone has to have a diagnosis of terminal illness, but that is not the point I am making. I am making the point that, under clause 3, we are saying that somebody who wants to take their own life has capacity, according to the very low bar of having a settled and informed wish. We are assuming capacity in the person who wants to end their own life. I suggest that that presents a real challenge to our national suicide prevention strategy—I will leave that point there, but I welcome any challenges to it.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I question whether the hon. Gentleman is making a false equivalence here in the very title of this Bill relating to terminally ill adults.
Danny Kruger
There are huge challenges around the definition of terminal illness, as we have already acknowledged—but if the right hon. Lady thinks that somebody who is terminally ill should be allowed to jump off a bridge or out of a window without anybody saying, “Wrestle them back,” she should say so. We think that, whether someone has capacity or is in their right mind or not, they should not end their own life. That is the settled view of this country. That is what the law determines. Currently, it is illegal to help someone to do that. We are proposing to change that, to enable people to help somebody to do that in a medical setting.
The implication of clause 3 is very clear: if one has a settled wish, ending one’s own life is something that we regard as acceptable. It will be very difficult to apply the principles of national suicide prevention when we have acknowledged that suicidal people have capacity. I will leave that point—it is not receiving a great echo of affirmation—but I have not heard any objection to it, other than a lot of head shaking.
Jack Abbott (Ipswich) (Lab/Co-op)
Upcoming amendment 339 to clause 4 addresses that specific point. The hon. Gentleman has been asked this a number of times today, but would he be satisfied if that amendment was passed?
Jack Abbott
Essentially, the amendment would require that if a person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally, there must be at least either a supporter or an independent advocate there. That amendment was tabled by my hon. Friend the Member for Bexleyheath and Crayford and will be discussed later.
Danny Kruger
I would indeed support that amendment; it would go a long way to addressing the concerns that we have here. When we discuss clause 4, I will come on to some suggestions for how we can make sure that people with learning disabilities are properly supported, particularly people with Down’s syndrome.
To finish, I will speak to amendment 50, also tabled by my hon. Friend the Member for Runnymede and Weybridge. If we are going to proceed with the MCA, we need to have it on the face of the Bill, to ensure standardisation —hon. Members have confidently asserted that it happens anyway, although the evidence we have been presented with demonstrates that it does not in all cases. Let us be much more explicit about the requirements that are needed. We should specify the minimum of what needs to be understood for capacity, including understanding the likely process of all treatment options, including non-treatment, and prognostic uncertainty. It is not acceptable, in my view, to have all of that worked out later by clinicians. Parliament must clearly say at this stage what is important.
While Members are looking at the quite extensive terms of amendment 50, it would be good to know what in that list they would object to and why any of it should not be included. It does not change the Mental Capacity Act; it preserves the integrity of the Act. It simply specifies more precisely and gives clear guidance to doctors to ensure that they do the best job they can. Lastly, it states that the patient must have full understanding of the consequences of
“requesting assistance in ending their own life”.
That includes the potential for medical complications at the end. That is a point that has been touched on a little in debate, but I will quickly say a word on that.
It is very important, in my view, that we are clear about what the patient should do, what the doctor should do, what the patient is entitled to do and what the doctor will do, in the event of complications at the end. This is not an abstract question. The Association for Palliative Medicine of Great Britain and Ireland gave evidence to us, stating:
“It is important to highlight the lack of scientific evidence for the effectiveness, failure rates or complications of any ‘approved substance’”,
and pointing out that the proposals in the Bill fall quite short of
“the usual practice of approving treatments in the UK, which mandates careful assessment of drugs and their combinations.”
We do not know how that will be applied in this case. It is a point for later in the Bill how we consider which drugs should be used, but it is relevant at this stage to insist that patients are made fully aware of the drugs that will be used and their potential complications. We often refer to Oregon as an inspiration for the Bill, and the law in Oregon requires the applicant to be fully informed by the attending physician of the
“potential risks associated with taking the medication to be prescribed”.
It might be worth considering that.
Professor House, in evidence to us, pointed out that informed consent—which is obviously a principle of the Bill—
“is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 169, Q216.]
So I think it is important that we specify that those complications are explained to them clearly at the outset.
This is not an abstract point. Sarah Wootton, chief executive of Dignity in Dying—my least favourite organisation—wrote in her book “Last Rights”:
“We have to move away from idealised, sanitised, nursery-rhyme accounts of what death can be…towards truthful, no bullshit, plain-spoken explanations of what could happen.”
I do not think Dignity in Dying applied that test when putting those disgraceful adverts in the tube, showing people dancing round their kitchens anticipating their lovely death, but she is right that we need to be very clear about what actual death can be like with these drugs.
I want to end with a reference to the work of Dr Joel Zivot, an American academic. The only proper study that can be done into people who have been given lethal drugs to die, using any of the drugs that will be used in this case, is of people who have been executed in the United States. Of course it is not possible to do many studies into the after-effects on people who have had an assisted death, but there have been some studies of people on death row. Dr Zivot’s point is that there is real evidence of what looked like trauma, distress and pain suffered by people as they died. Even if they themselves look peaceful—because often the first drug that is administered is a paralytic, so they are rendered immobile, and they may look very peaceful—it is evident that in some cases there is real distress going on beneath that peaceful exterior. We need to do a lot more work on understanding which drugs would be used and what their effects would be, and that needs to be properly explained to patients. All of that would be captured in amendment 50.
Dr Opher
We are talking about a whole different area now, but I would say that, as a medical professional, if someone is gaining consent to a treatment it is in their code of practice under the General Medical Council that they explain all these things. We do not need to write it into the Act; that is already in existence. A more general point is that there is a lot of stuff already in the public domain on doctors’ behaviour that does not need to be restated in the Bill. The more we write, the more likely it is that it will be less safe for patients. I would keep it very simple.
Danny Kruger
I really want someone to explain this point to me: how can it make it more unsafe for patients to state the safeguards explicitly? How can it possibly make it harder, or more dangerous, if we specify what—as the hon. Gentleman said—is good practice currently, which the best doctors already do? I greatly respect him and his medical practice, but is he really saying that every doctor conforms perfectly to the GMC guidance? There are obviously clear problems with the way in which some doctors operate, and this is uncharted territory. Surely for the sake of doctors, as well as patients, it would be appropriate to specify explicitly how they should conduct these assessments, what communications they should make and what patients should be properly informed of. I cannot see how that makes it more dangerous.
Kim Leadbeater
I want to concur briefly with my hon. Friend the Member for Stroud; I have done a lot of research into this, believe me. We have the GMC, the British Medical Association and organisations that represent medical practitioners. They have very lengthy codes of conduct and behaviour codes. What we cannot do—and I have tried—is to include all that in the Bill, and we have to be cognisant of that in some of the amendments that we make.
Danny Kruger
I challenge the hon. Lady, and I would welcome her response to this: we clearly can specify some things that can be done, which is what my hon. Friend the Member for Runnymede and Weybridge has done in half a page with amendment 50, which clarifies explicitly what information the patient should receive and what they should properly understand. How does including this list of pieces of information make the Bill more dangerous for patients?
Kim Leadbeater
I am not saying that this amendment would make it more dangerous, but it would overcomplicate things. That is the point that my hon. Friend the Member for Stroud was making. We need to have a very clear piece of good law, and I think the Bill already covers the points in amendment 50 and others, which I fully appreciate have been put forward in good faith. It is the clarity of the law that sometimes has to be the focus. I absolutely concur with the hon. Member for East Wiltshire on safeguards, but unfortunately I feel that we will probably never get to a point with the Bill where he is happy with the level of safeguards, and maybe he is prepared to acknowledge that.
Danny Kruger
It is unlikely that I would ever vote for an assisted dying law but, if we are going to have one, I want to make it as safe as possible, which we all want. On those terms, in the spirit of a Bill that is going to pass, why not include these specific pieces of information? The hon. Lady says that, while it would not make the Bill more dangerous, it would overcomplicate it. Again, how does it overcomplicate it to add a few clauses specifying information that must be clearly communicated?
Kit Malthouse (North West Hampshire) (Con)
Amendment 50 requires that whoever is medically assessing capacity is also able to understand the legal implications. The final point of the amendment says that they have to understand what the insurance implications are likely to be, which would mean that they would have to inquire into the individual’s financial circumstances. They possibly might need to understand what provision they have made for their family.
It also references what the designation of death is likely to be, which again requires them to decide there and then what they will write on the death certificate, when it happens. As the hon. Member for Stroud said, much of what is in amendment 50 is already either in the Bill or implied by it. As Ministers have said before, we have a duty to the statute book not to embroider it to the extent that it becomes overcomplicated and unworkable. I do not think that any of us would necessarily argue with the points in amendment 50, other than perhaps the last one about legal expertise, but clarity leads to certainty, which leads to safety.
Danny Kruger
By that logic, the safest, clearest Bill would be one that simply authorised an assisted death without any of these checks whatsoever. My right hon. Friend made the point that this amendment requires the doctor to discuss with a patient all the implications of their death. That is perfectly appropriate—in fact, if that is not being done at some stage in the process, and if that is not clear in the Bill, it absolutely should be. Otherwise, how can we be sure that the person is making a settled, informed decision, with all considerations taken on board?
I am sorry if that imposes a little extra burden on the doctor. One of the great challenges of the Bill is that, if we are to do it properly and genuinely make it a Bill that is strong in its safeguards, a whole lot of people will have to do a whole lot of work. There will be a huge demand on all parts of the public sector. This is required, I am afraid. I do not accept that the content of the amendment is either already in the Bill or implied in it. There might be some remote piece of GMC guidance that touches on this, which we would hope is properly applied, and I appreciate the point about embroidery. Nevertheless, this is not embroidery; this is upholstery—it is necessary for the Bill to be strong.
Sarah Olney
I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough. We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well. Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?
Danny Kruger
The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that. Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.
My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill. Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.
I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary. That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying-up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.
Danny Kruger
Exactly. A few more words of clarification should not be regarded as burdening the Bill or creating bureaucratic obstacles for doctors and patients; the amendment actually specifies more explicitly what is going on. It is almost akin to the debate we had on amendment 181 and those dangerous words “for the avoidance of doubt”; that is essentially what this amendment does, but it goes further, because it imposes clearer obligations on doctors to do their job properly.
Jake Richards (Rother Valley) (Lab)
Much has been covered today, and the issue of capacity was debated at length when the Committee considered clause 1, but I do have some observations.
I am sympathetic to the assertion that there should be changes to presumption and burden. Those are things that I have considered and spoken about with the promoter of the Bill and, outside the Committee, with experts who gave evidence to the Committee. I have spoken about them publicly as well; I am very sympathetic.
At the heart of this, we have two options. We could change the burden and presumption in the Mental Capacity Act 2005 for the purposes of assisted dying, rewriting 20 years of case law and medical practice. There is certainly some value to that, but that would be a radical departure from current medical practice, and there are other concerns. The alternative is to put in place rigorous processes and training around the Mental Capacity Act to ensure that it is implemented properly. After some reflection, I err on the side of the latter option, for a number of reasons.
First, I accept that there is debate among psychiatrists about this issue. We heard evidence from some who deem the Act not to be suitable for this new realm—I accept that we are entering new grounds, and I will come back to that point—but many psychiatrists and lawyers working in this area would deem it uncomfortable and unnecessary to depart from the Act.
Secondly, there is an oddity in changing presumption. There is an oddity in someone having to prove that they have capacity to fulfil their own desire. That oddity is one of the reasons that the Act is drafted as it is. It is partly—there are two sides to this coin—to ensure that there is no discrimination, partly to comply with the Human Rights Act 1998 and human rights more generally, and partly to ensure that we do not end up in a medical situation that is patrician, whereby medical doctors take an intrusive view of capacity rather than meeting the individual as they are.
Thirdly, the Bill, when amended—I will come on to the amendments that give me some comfort—will offer more safeguards than the Mental Capacity Act. Amendment 5 to clause 9(3) would ensure a further level of assessment. My hon. Friend the Member for Spen Valley has indicated that she will support that important amendment, as have all members of the Committee. If there is any doubt, there will be a further assessment by a psychiatrist. That goes some way to reassuring me that it is not necessary to rip up the burden or change the presumption in this area.
I want to make an observation about burden of proof, presumption and the nature of the assessment. Professor Whitty clarified his evidence. It is right that the burden and the presumption do not change, but of course the nature of the assessment rightly changes according to the circumstances. Every assessment of capacity is somewhat different, which is why amendment 50 is too prescriptive, in my view.
Of course, we can consider incredibly serious cases involving deprivation of liberty or the ability to conduct litigation. I have worked with parents whose children are being removed and looked at whether they have the capacity to make decisions about how they present their case. It is very dangerous to compare the severity and the profound nature of different circumstances, but let us not pretend that the Mental Capacity Act is not used to assess the most complex issues of capacity every day.
I am very sympathetic to amendment 50. I have met the hon. Member for Runnymede and Weybridge, who tabled it, and the hon. Member for Solihull West and Shirley to discuss it, but I stress that such a prescriptive provision is not appropriate for primary legislation when we are entering new ground. I accept, as hon. Members with different views have said, that we are entering new territory and that this is difficult. I accept that psychiatrists and medical practitioners will have to think long and hard about the nature of the capacity assessments, especially under clause 9(3), when that is activated. That work will have to be done. It has been set out in primary legislation through some of the training clauses, which have already been referred to.
There is no doubt that there will be a lot of work and consideration, but I do not deem it appropriate to have a clause drafted by one psychiatrist, albeit an undoubtedly esteemed and experienced one: the hon. Member for Runnymede and Weybridge, who tabled the amendment. Rather, the work needs to be done as the Bill is implemented over a two-year period. It needs to be done as part of a full consultation with psychiatrists, once the Bill has been passed, and that should be set out in guidance. That is what would usually happen with deprivation of liberty. I do not think it appropriate for primary legislation to set out the factors for a capacity assessment.
Jake Richards
We need to be careful when we say that the Mental Capacity Act is misunderstood, full stop. Let us be clear—
Jake Richards
I am grateful, Mr Dowd.
The evidence that we have received is that this is a test. These are assessments that happen every day across the country. Now, there are more complex assessments, and there will without doubt be areas in which the assessment is not done as rigorously as it should be done, but that is why I am assured by the safeguards in the Bill that if there is any doubt—any doubt—as to capacity at first instance, there will be a full and thorough assessment by a psychiatrist.
Let us think that through for a minute. Any competent psychiatrist trained in this area will no doubt have a sense of what the Mental Capacity Act says and of the normal test for capacity. Someone who is seeking assistance to die from a doctor who has doubts as to their capacity will have been referred. To my mind, it is unfathomable that that assessment, at that stage, would not be rigorous and would not satisfy every Member that it had been done to the correct extent practicable.
Jake Richards
We are debating lots of different things now, rather than just clause 3. There is an issue as to whether in those cases the individuals were found to have capacity, but we are talking about the process by which someone is found to have capacity, rather than what happens thereafter. We have had that debate, and I am happy to have it, but we are talking now about the process by which people are found to have capacity.
This is the problem with interventions: I have lost my train of thought. This is why people do not take them.
Jake Richards
But I am happy to take another, although I may come to regret it.
Danny Kruger
I have a simple point to make; the hon. Gentleman can work out what he is going to say next while I make my brief intervention.
The point is that the referral to a psychiatrist will happen if the doctor has doubts in their mind. There is not an obligation on the doctor to refer; there is only an opportunity for them to do so, if they conclude that there is a reason. May I put a scenario to the hon. Gentleman? It is not clear whether this could happen under the Bill; well, it could happen, because it is not prohibited. A private practice might establish itself to provide assisted death, with the medical assessments and the support right through to the end—to the final act.
In those circumstances, if a patient goes to one of those clinics, does the hon. Gentleman not see that there might be a risk that the whole incentive of the business, even if it is a charity, will be to expedite the process, tick the boxes and pass people through? Does he not consider it dangerous that there is not an absolute obligation to refer to a psychiatrist and in fact, an obligation to pass a higher capacity test than the one that is currently in the MCA?
The Chair
A handy household hint: Members do not have to take interventions if they do not wish to do so. If a Member wants to keep their train of thought, they should feel free not to take an intervention.
Jake Richards
That was an intervention that I was grateful to take. I accept the point that there are dangers of a system that somehow incentivises this. That is why the Bill has to have such strict safeguards and such strict regulation of medical practitioners to comply with the law. The point about mandatory referral is key; I would have real concerns about this area of the Bill without that amendment, and unless the sponsor of the Bill had not made it very clear that she would be supporting it. But I take the point.
Lewis Atkinson
Does my hon. Friend agree that clause 8(6), which requires the second doctor to be independent of the first—they must not be
“a partner or colleague in the same practice or clinical team”—
would protect against the situation on which the hon. Member for East Wiltshire speculates?
Jake Richards
Yes, there are safeguards and mechanisms in the Bill to ensure that and to protect from a culture that would incentivise this practice.
Jake Richards
No, I am not going to, actually. I am taking my rights.
My final point concerns section 1(4) of the Mental Capacity Act and the discarding of the principle about whether a decision is deemed to be unwise. This is an issue we have already debated, but it is really important. Introducing a best interests test is, to my mind, impossible without ending up with a law that discriminates against certain groups. Essentially, it is impossible to do fairly.
I remain to be convinced. If there were an amendment that could do what I think the hon. Member for East Wiltshire wants, I would support it. If there were an amendment that could look into someone’s mind and make sure that they are doing this for reasons that society would deem fit, I would support it, but I think that that is impossible. What the Bill aims to do is assess a person’s capacity and ensure that they are making this decision voluntarily. It also aims to protect them from the influence of third parties and outside sources. That is the only way, if this principle is to be adhered to.
Finally, I will be voting against the amendments, but I will finish where I started. I have genuinely thought long and hard, in particular about the presumption. I have spoken to experts who disagree with me, but in my mind it comes down to whether we rip things up and start again or whether we add rigorous safeguards, practices and processes, which may be a bit more boring but will actually be more effective at protecting any patients who go down this road.
Sojan Joseph (Ashford) (Lab)
I rise to speak in support of the amendments. Having worked as a mental health nurse for 22 years, I completed mental capacity training many times in my career, and I carried out capacity assessments as part of my day-to-day job. I think that the capacity assessment proposed in the Bill is not safe enough. That was one of the main reasons I voted against the Bill on Second Reading. I have spoken to many people who oppose the Bill, and one of their concerns is about the capacity assessment.
We have talked about capacity assessments every day in this Committee. It is one of the key issues that we will need to resolve to strengthen the Bill if it goes through. One of the Royal College of Psychiatrists’ concerns is that capacity decisions are
“opinions with a margin of error and are time specific. A person’s capacity can change”.
I will talk about my experience with those margins of error.
A person’s capacity can be influenced by various factors, including their life circumstances, the medication they are taking or severe pain. Suicidal thoughts due to their mental state or depression can also influence their capacity. I have worked in acute mental health units. Every day, we carried out capacity assessments, including before we let someone out of the ward, whether they were admitted under the Mental Health Act or were receiving treatment as a voluntary patient. If somebody wanted to leave the ward, before the member of staff opened the door, they had to assess that person’s capacity. Sometimes a person might have said, “I am going to kill myself,” and the nurse would have had to decide whether or not they had capacity before opening the door.
My hon. Friend the Member for Bradford West has talked about unconscious bias. The initial capacity assessment when a person comes to a hospital is very important. If a doctor has assessed at the beginning that the person has capacity, the following assessment can be influenced by that initial assessment. I totally agree with my hon. Friend’s argument about unconscious bias in capacity assessments. As Members have mentioned, the Bill proposes many occasions in the process when capacity will be assessed, but I am still not confident that each capacity assessment will not be influenced by the initial assessment. The amendments would strengthen that area of concern.
Naz Shah
My hon. Friend is making a very important speech. Members have alluded to the provision in the Bill that the patient would be present and would potentially have an option to be reassessed. We have heard evidence from various experts on capacity, particularly on the issues of coercion and vulnerability, and doctors have told us that it takes years to build rapport with people. At the second stage, the doctor has to be somebody independent who nobody has met, so how would they be able to tease out whether that person has capacity and whether those other influences are affecting them? Does my hon. Friend share that concern?
Sojan Joseph
I agree that when an independent doctor comes to assess a patient’s capacity and sees them for the very first time, they are more likely to be influenced by the assessment made at the beginning by the doctor who has known them for many days, weeks or months. I agree with my hon. Friend’s argument.
Kim Leadbeater
To be clear, the word “independent” means independent of the other doctor, not independent of the patient. The independent doctor could well know the patient. I hope that that clarifies that point.
Sojan Joseph
But it could be the other way around. The Bill does not clarify that the second doctor would know the patient at all.
Sojan Joseph
It is not guaranteed. I am grateful for that intervention.
We have talked about training for all registered professionals who will be involved in the capacity assessments. As someone who has carried out that training many times, I draw the attention of the Committee to Dr Rachel—
Terminally Ill Adults (End of Life) Bill (Sixteenth sitting)
Tuesday 4th March 2025
(1 month, 3 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Chair
Will everyone please ensure that their electronic devices are turned off or switched to silent mode? As I am sure the Committee is aware by now, tea and coffee are not allowed in the room.
Clause 4
Initial discussions with registered medical practitioners
Amendment proposed (26 February): 278, in clause 4, page 2, line 16, leave out from beginning to “nothing” in line 16 and insert—
“(1A) No registered medical practitioner may raise the subject of the provision of assistance in accordance with this Act with a person if that person has made an advanced decision which has been recorded in their medical records that they will not in future wish to seek assistance under this Act.
(1B) The provisions in subsection (1A) do not prevent a person indicating to a registered medical practitioner that they wish to change their previous decision and seek assistance under the Act if they have the capacity to do so.
(2) Other than the condition in subsection (1A),”.—(Sarah Green.)
This amendment would prevent a doctor from raising assisted dying with a patient if that patient had previously recorded an advanced decision that they would not in future wish to seek assistance under the Act.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 8, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life”.
Amendment 124, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall discuss assisted dying with a person unless that matter is first raised by that person.”
The amendment prevents a registered medical practitioner from discussing the provision of assistance under the Act unless that matter is first raised by that person.
Amendment 319, in clause 4, page 2, line 20, after “person” insert
“who has attained the age of 18”.
Amendment 339, in clause 4, page 2, line 20, after “person,” insert
“, unless that person has a learning disability or is autistic, in which case—
(a) the person must be provided with accessible information and given sufficient time to consider it; and
(b) at least one of a—
(i) supporter, or
(ii) independent advocate;
must be present for the discussion.”
This amendment would require that, if the person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally there must be at least either a supporter or independent advocate.
Amendment 368, in clause 4, page 2, line 20, after “person” insert
“, unless that person has Down syndrome, in which case the registered medical practitioner must be acting in accordance with any statutory guidance issued by the Secretary of State under the Down Syndrome Act 2022 to meet the needs of adults with Down syndrome.”
Amendment 320, in clause 4, page 2, line 21, after “person” insert
“who has attained the age of 18”.
Amendment 270, in clause 4, page 2, line 25, at end insert—
“(3A) Before conducting a preliminary discussion under subsection (2) the registered medical practitioner must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.”
This amendment requires that the doctor ensures that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying.
Amendment 276, in clause 4, page 2, line 31, at end insert—
“(4A) A medical practitioner must not conduct a preliminary discussion with a person under subsection (3) until a period of 28 days has elapsed, beginning with the day the person had received a diagnosis of the terminal illness.”
This amendment would mean a doctor could not conduct a preliminary assessment until 28 days from the day the person received a diagnosis of the terminal illness.
New clause 6—Advance decision of no effect—
“An advance decision, made pursuant to sections 24 to 26 of the Mental Capacity Act 2005, which stipulates that the maker of the decision, having become incapacitated, wishes to be provided with assistance to end their own life in accordance with this Act, shall be null and void and of no legal effect.”
The new clause prohibits an individual from making an advanced directive for voluntary assisted death in the eventuality he or she were to become incapacitated at a future date.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Efford.
As I have stated previously, my remarks on behalf of the Government on these amendments will provide a factual explanation. I shall not offer a position on how the Committee should vote, as that remains a matter of conscience. The overarching theme of the amendments relates to the requirement on how and when a medical practitioner may raise the matter of assisted dying.
Clause 4(2), as drafted, provides that nothing prevents a medical practitioner from using their professional judgment to decide when to raise the subject of assisted dying. Amendment 278 seeks to prevent a doctor from raising the subject of assisted dying if the person has a recorded advance decision in their medical records that states that in future they will not want assisted dying.
The Mental Capacity Act 2005 enables a person with capacity to make an advance decision to refuse a specified form of treatment in future, should they lack capacity. A person who has lost capacity under the Mental Capacity Act would not be eligible for assisted dying under the Bill. Where such an advance decision is in place, the effect of the amendment would be to prevent the doctor from raising the subject of assisted dying, unless the person indicates to the doctor that they wish to change their previous decision, that they wish to seek assistance under the legislation and that they have the capacity to do so.
Technically, amendment 278 appears unnecessary, because advance decisions under the Mental Capacity Act are not relevant to assisted dying. That is because advance decisions are about refusing treatment at a time when a person no longer has capacity, and assisted death would be available only to those who have capacity.
As drafted, clause 4(1) states:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
but clause 4(2) specifies that they may do so if, in exercising their professional judgment, they consider it appropriate. Amendment 8 would prevent a registered medical practitioner from raising with a person the subject of provision of assistance under the Bill, unless the person has indicated to that practitioner or to another registered medical practitioner that they wish to seek assistance to end their own life. The effect would be that any conversation on assisted dying will need to be patient-initiated, and not at the discretion of the medical professional within a wider conversation about end-of-life care.
The effect of amendment 124, as with amendment 8, would be to prevent a registered medical practitioner from raising with a person the subject of provision of assistance under the Bill. That would mean that the person will need to indicate to a registered medical practitioner that they wish to seek assistance to end their own life before an initial discussion can take place. The effect would be that assisted dying can be discussed only if the patient has initiated the conversation.
The Government’s assessment of amendment 319 is that, as drafted, it would not prevent the subject of an assisted death from being discussed with a person who is under 18. There is already a requirement that, to be eligible for the provision of assistance under the Bill, a person must be aged 18 or over at the time that they make their first declaration under clause 1(1)(b).
Amendment 319 would impose additional requirements on the approach that a medical practitioner must make if raising the subject of assisted dying with a person who has a learning disability or is autistic. It would require the person to be provided with accessible information and given sufficient time to consider it. It would further require that they must have a supporter and/or independent advocate present for the initial discussion. The amendment would require that a person with autism or a learning disability must have a supporter or independent advocate present for the discussion, even when they have capacity or are high-functioning. Autism is a spectrum disorder, meaning that autistic people have diverse and varying needs, so the effect of the amendment would vary among individuals.
It is already the case that all registered medical practitioners, in meeting their professional standards, are expected to communicate information clearly and effectively. That includes allowing sufficient time for the individual to consider and process the information provided. For example, the General Medical Council’s “Good medical practice” states that all GMC-registered clinicians
“must take steps to meet patients’ language and communication needs”
to support them to
“engage in meaningful dialogue and make informed decisions about their care.”
Amendment 368 would require registered medical practitioners, when deciding if and when it is appropriate to discuss assisted dying with a person with Down’s syndrome, to act in accordance with the Down Syndrome Act 2022. The Act requires the Secretary of State to issue guidance to relevant authorities on what they should be doing to meet the needs of people with Down’s syndrome. Although this work is being taken forward as a priority by the Department, no statutory guidance has yet been published under the Act.
The relevant authorities in scope of the Act are institutions such as NHS trusts. The Act does not provide for guidance to be prepared for individual doctors. The relevant authorities must have due regard to the statutory guidance, which enables them a degree of discretion in following it, but the amendment would require medical practitioners to act in accordance with the guidance. It might therefore create uncertainty as to how a doctor can comply with their obligations under the Bill.
Danny Kruger (East Wiltshire) (Con)
I hear what the Minister says—the guidance does not exist and there is concern that the amendment may therefore induce some confusion—but would the answer not be to put a commitment into the Bill that the Secretary of State will issue guidance on how the 2022 Act could be applied in the context of the Bill?
In the light of our conversation at the Committee’s last sitting, I put on the record my intention to press the amendment if the Minister cannot give a commitment now to introduce an amendment later that the Secretary of State will introduce statutory guidance to ensure that proper care is taken of people with Down’s syndrome in accordance with amendment 368.
Stephen Kinnock
The challenge is the dissonance in how the guidance under the Down Syndrome Act, which is currently very close to publication, is directed towards authorities such as trusts, but there is no coverage around individual doctors. At this stage, without seeing a clear distinction between the two or how it would work for individual doctors, the Department’s concern is that it could create confusion as to the obligations on individual medical practitioners under the 2022 Act. I am obviously open to conversations about how to clear that up, but the lacuna between the authorities and the individual doctors is the problem being flagged by the Department.
Kim Leadbeater (Spen Valley) (Lab)
I take the Minister’s comments on board. Will he agree to a conversation with me and with the right hon. Member for East Hampshire (Damian Hinds), who tabled amendment 368, to take the discussion forward?
Stephen Kinnock
I am happy to have conversations with the hon. Lady and other hon. Members, but as things stand it is not clear to the Department or to me how the proposal would work in practice.
Kit Malthouse (North West Hampshire) (Con)
I apologise for having arrived ever so slightly late, Mr Efford. In the Minister’s view, is it conceivable that he or any future Minister—or, indeed, the current or any future chief medical officer—would not consult with groups representing those with Down’s syndrome in drawing up the various guidelines on the Bill?
Stephen Kinnock
Extensive consultations have taken place with all the key groups and advocacy organisations on Down’s syndrome in the drafting of the guidance. The guidance is very close to publication; once it is published, it will form the basis of a further consultation. It is an iterative process.
Kit Malthouse
Perhaps I was not clear. I meant the guidance on this Bill. Although the Minister may not necessarily be able to say what will be in it, is it conceivable that the CMO, in drawing up guidance as a requirement under the Bill, would not consult Down’s syndrome groups? My point is that, given what has been expressed and the desire of the Committee, I cannot see that a CMO would not talk to Down’s syndrome groups in any event.
Stephen Kinnock
I thank the right hon. Gentleman for that clarification and apologise for my misunderstanding; I thought he was referring to the guidance that we are currently working on under the terms of the 2022 Act. Yes, absolutely: the Bill currently specifies a two-year commencement period, within which a whole range of operationalisation work will need to be done. All of that will need to be consulted on; we will not do it all in an ivory tower from Whitehall or Westminster.
Danny Kruger
It is welcome that a commitment has been made to meet my right hon. Friend the Member for East Hampshire, who tabled the amendment, but a commitment to consult is not the same thing as specific protections in the Bill for people with Down’s syndrome. What we really need is a commitment in the Bill that there will be statutory guidance. There will be opportunities for that later, so we may not need to press the amendment to a vote, but if we cannot have a commitment, we must press it.
Stephen Kinnock
It is absolutely the hon. Member’s prerogative to press the amendment to a vote if he so wishes. As things stand, because of the baseline, which is the GMC guidance that I have just read out, we constantly go back to the Government’s position that the current corpus of guidance, regulations, advice, training, expertise and professional judgment is, in essence, satisfactory to the Department. We believe in and rely on the professional judgment of the experts in the field. That remains our fundamental position.
The effect of amendment 320 would be that the safeguards in clause 4(4) in respect of the preliminary discussion apply only where the person seeking assistance is aged 18 or over. The amendment would not prevent a discussion with a person under 18. As the Committee will be aware, there is already a requirement that, to be eligible for the provision of assistance under the Bill, a person must be 18 or over when they make their first declaration under clause 1(1)(b).
Amendment 270 would make it a requirement for a registered medical practitioner to ensure that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying. The amendment does not state what is to happen if the practitioner considers that there are remediable suicide risk factors. As the Committee will be aware, we rely on medical practitioners to make judgments in relation to their patients that draw on their training, experience and expertise. We would expect the judgment and skill of a medical professional to be brought to bear where there are remediable suicide risk factors.
Amendment 276 would mean that a person is unable to have a preliminary discussion or make a first declaration to be provided with assistance to end their own life until 28 days after receiving a terminal diagnosis. The amendment would add an additional pause into the process for a person who has received a terminal diagnosis in the preceding 28 days. The 28-day pause would apply regardless of the patient’s prognosis, even if they had only one month left to live, for example.
New clause 6 would ensure that an advance decision to refuse treatment under the Mental Capacity Act 2005 cannot be used to seek assisted dying. Our analysis suggests that the new clause is not necessary, because an assisted death is available only to those with capacity, whereas advance decisions provide for a person to be able to refuse treatment at a future time when they have lost capacity. If a person still has capacity, they may be eligible for an assisted death. If they do not have capacity, they will not be eligible, irrespective of whether they have made an advance decision.
That concludes my remarks on this group of amendments. As I say, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could change. However, I hope my comments and observations are helpful to Committee members in considering the Bill.
Rebecca Paul (Reigate) (Con)
I appreciate the opportunity to speak briefly, Mr Efford. Many other speakers have already made excellent points in support of the amendments, so I will not repeat them, but I would like to put on record one pertinent point.
During these proceedings, there has been a tendency by some to speak as though assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. I have grave concerns about that. The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure. Straightaway, we have a conflict. Assisted dying ends the life of a person. It is not a treatment in the normal sense—
Rebecca Paul
We are talking about what a medical practitioner can and cannot say. During the debate, there was a lot of talk about whether it was a medical treatment or not. If so, guidance indicates how it should be treated, so whether it is a medical treatment or not is relevant and pertinent to the clause. I have an important point that I would like to put on the record; I am happy to raise it at a different point, but I honestly believe that clause 4 is the right place.
The Chair
The problem is that this is not a general debate on clause 4; it is a debate about a specific group of amendments. We may come later to a general debate on clause 4.
The Chair
If there is a stand part debate, that will be the right time to make a contribution about the general principles of clause 4.
Rebecca Paul
Okay. I will just put it on the record that whether or not something is a medical treatment is vital. It is possible to give medical treatments without consent, so we need to have that debate.
Kim Leadbeater
It is a pleasure to serve under your chairship, Mr Efford. The amendments relate to the initial discussions with medical practitioners, and it is important to highlight that clause 4(1) states:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person.”
However, subsection (2) states that
“nothing in subsection (1) prevents a registered medical practitioner exercising their professional judgement”.
Doctors and healthcare professionals, like any other group of people, hold a range of views on assisted dying. We need only reflect on the oral and written evidence to see that. However, the British Medical Association has a neutral position on assisted dying, and its representatives were very clear when I met them, and in oral evidence to the Committee, that they wanted an opt-in model for doctors to provide assisted dying, as well as the right to decline to carry out activities directly related to assisted dying, for any reason. These requests have therefore been incorporated into the Bill.
The BMA was clear in its submission that it opposes amendments 8, 124 and 276, as well as amendment 342, which we will come to later. It said that adding a prohibition or limiting factors in the Bill would
“create uncertainty and legal risks for doctors, which may inhibit effective doctor/patient communication and understanding.”
It welcomed the Bill’s provision that a doctor is not under a duty to raise assisted dying, which it felt was necessary to avoid any suggestion that doctors have a legal duty to raise it. It was concerned that these amendments would remove that provision, leaving doctors in a position of legal uncertainty. It said:
“If doctors are concerned that they may be legally obliged to raise assisted dying with all potentially eligible patients, this will impact on how, when, and by whom the issue is raised…It is essential that decisions about when and how to discuss assisted dying are made on the basis of what is best for the patient—rather than to avoid legal challenge. All patients deserve to have this important and sensitive conversation with a doctor who is confident, competent and happy to have the discussion…Doctors should be able to talk to patients about all reasonable and legally available options; a provision that limits or hinders open discussion about any aspect of death and dying is likely to be detrimental to patient care. Doctors should be trusted to use their professional judgement to decide when and if a discussion about assisted dying would be appropriate, taking their cue from the patient as they do on all other issues.”
That is the BMA’s position, and I agree.
As Duncan Burton, the chief nursing officer for England, said in oral evidence to the Committee,
“it is clear that there is increasing discussion in society around death and dying, and I think that is important. It is important that we have discussions and support people with their choices at the end of life, so anything we can do to increase that is important.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 41, Q22.]
Dr Ryan Spielvogel from California told us:
“People cannot make informed decisions for themselves if they do not know what their options are. While this is top of mind for all of you and for the doctors…even if this Bill becomes law, the general population is still not going to realise that it is an option.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 105, Q143.]
He strongly advised against not allowing doctors to discuss patient choice, because in his experience that really hampers their ability to take care of patients. Dr Jessica Kaan of End of Life Washington reiterated the point:
“It is a huge burden to put on patients and their loved ones if they have to bring it up themselves. I would highly caution against any sort of language that requires that, because it is just not fair to them. They are already going through so much”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 106, Q143.]
In the light of our recent discussions, I draw the Committee’s attention to the current BMA guidelines regarding patient requests for assisted dying. Those guidelines will obviously need updating if the law changes, but they are comprehensive and give us a much greater understanding of the approach that doctors take when speaking to terminally ill patients, as well as what these hugely sensitive conversations look like, which is really important to know.
The BMA guidance addresses situations in which patients make an explicit request for doctors’ assistance in or information about ending their life or hastening their death. I will refer to that guidance now. The guidance advises the doctors to
“Explore the patient’s feelings, emotions and thoughts….It might be helpful to discuss their understanding of their condition or their fears and concerns…If you feel that the patient is depressed or suffering from another mental health condition, or would benefit from more support, therapy or counselling should be offered.”
Doctors are also advised to
“Use the opportunity to address those concerns: you should also investigate whether other practical arrangements could help improve the patient’s quality of life. Involve a colleague: you might like to involve a more experienced colleague—making clear to the patient that this is what you will be doing.”
The guidance also talks about involving other sources of support:
“you might like to seek support and input from other members of the healthcare team, such as a specialist palliative care team, colleagues from mental health, or the chaplaincy or voluntary services.”
Danny Kruger
The hon. Lady says that the GMC states that doctors have an obligation to raise the treatment options before them, and I think that she thinks that this is a treatment option. Surely the obligation is on doctors to raise assisted dying in all cases where it may be an option for the patient. Does the hon. Lady agree that doctors should offer assisted dying when that treatment may be appropriate for the patient?
Kim Leadbeater
I agree that, under the provisions of the Bill, the doctor will have a duty to lay out options available to the patient, if they meet the eligibility criteria—absolutely. That is the whole purpose of the Bill.
Danny Kruger
I am grateful to the hon. Lady for giving me a very clear answer. I just want to be totally clear that we understand each other. Is she saying that every doctor facing a terminally ill patient—someone who is eligible under the Bill—should make clear to them that they have the option of an assisted death?
Kim Leadbeater
Well, that is the purpose of clause 4: the doctor has to lay out the options available to the patient as long as all the criteria are met.
We can see from the guidance that currently exists that doctors take a very sensitive and patient-centred approach to end-of-life conversations. If the law were to change, that approach would continue with additional training specifically related to assisted dying, as has been discussed. It would also mean that the issues that doctors currently face around discussing assisted dying would be addressed.
As the BMA says, at the moment
“The law does not provide a clear definition of which actions might constitute assisting or encouraging suicide…What if a patient wishes to travel abroad for assisted dying? While the act of travelling abroad for assisted dying is not illegal, assisting, facilitating, or encouraging someone to do so is a criminal offence…doctors need to be aware of the possibility of legal and professional sanctions if they were to do so.”
I imagine that that must create a real sense of jeopardy for doctors. Similarly, the GMC recognises that doctors will face challenges in
“ensuring that patients do not feel abandoned”,
while ensuring that the advice or information that they provide does not encourage or assist a person to end their own life.
These are very difficult conversations for patients and doctors, but by legalising assisted dying in this country we can give clear guidance through a robust legal framework, and create the thorough, transparent process that is currently lacking. These conversations provide a safeguard while the person is still alive. As the former director of public prosecutions, Sir Max Hill, told the Committee,
“In each of the 27 cases I considered, the deceased individual was already dead, and that is when the scrutiny started. The major advantage of the Bill, if I can put it that way, is that that will be reversed, and scrutiny will be before death.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 86, Q111.]
Mark Swindells from the General Medical Council told us:
“We do get inquiries from doctors who are concerned that they are doing the right thing when it might become apparent to them that a patient wants to travel overseas to access assisted dying.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 46, Q36.]
Bringing those conversations out into the open has to be better for the patient and the practitioner.
Lewis Atkinson (Sunderland Central) (Lab)
With reference to amendment 8, and further to the intervention from the hon. Member for East Wiltshire, can my hon. Friend reflect on the provisions as set out in clause 4(1) and (2), which say that the issue relates to doctors’ professional judgment and that doctors are under no obligation to raise those issues in any situation?
Kim Leadbeater
Absolutely. This is about professional judgment, which is what the BMA is really clear about. Doctors have to be able to use their professional judgment. They are not under any obligation to raise the issue, but they are not under any obligation not to raise it. The BMA is really clear about that. I thank my hon. Friend for his intervention.
I welcome amendments 319 and 320 from my hon. Friend the Member for Bexleyheath and Crayford and I thank him once again for his positive engagement with the Bill. He raises a very valid point about the initial discussion. While the Bill is very clear that it applies only to terminally ill adults over the age of 18, in that someone would have to be over 18 to make the first declaration, it is not clear that the initial discussion could also not happen with someone under the age of 18.
We should not prohibit open conversations with terminally ill young people and their families, as they create openness, transparency and safeguards and provide much-needed support at what most of us can only imagine must be the most difficult time of anyone’s life. However, I think it should be made clear that the actual assisted dying process cannot be embarked upon unless someone is over the age of 18. I have taken advice about how best to incorporate that into the Bill from a drafting perspective. As a result, I have tabled amendment 418, which applies to clause 5, and states that regulations must provide that the first declaration contain, among other things,
“a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion”.
As such, the aim of amendments 319 and 320 is achieved. I hope that that is to the satisfaction of my hon. Friend the Member for Bexleyheath and Crayford.
With regard to amendment 339, I have listened very carefully to the concerns of my hon. Friend the Member for Bexleyheath and Crayford, who tabled it, and the evidence from Mencap chief executive Dan Scorer, who suggested that for terminally ill people with learning disabilities
“that initial conversation has to be incredibly well supported and structured…the person should have accessible information in advance of that discussion so that they are fully informed about all their rights in terms of treatment options at end of life”. ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 280.]
I absolutely agree with the intention of the amendment. I am seeking advice on the legal and technical implications, as I believe there is some tightening up that would need to be done around some of the phrasing, such as the concept of “sufficient time” or what would constitute a “supporter”. I therefore cannot support the amendment as it stands, but I am very happy to look at ways to take this forward and to meet my hon. Friend to discuss the amendment, which, quite rightly, gives special consideration to people with autism and learning disabilities. I know that my hon. Friend the Member for Penistone and Stocksbridge is also considering tabling amendments that would have a similar effect; perhaps we could all meet together.
I also reassure my hon. Friend the Member for Bexleyheath and Crayford that I am considering the involvement of people with learning disabilities, and groups representing them, in the development of guidance and training on assisted dying and end-of-life conversations. As Dan Scorer said,
“people with a learning disability should be involved in the development of that guidance” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 281.]
I absolutely agree.
Amendment 368, tabled by the right hon. Member for East Hampshire, has been discussed this morning. I sought advice about it as it was new to me. I believe that no statutory guidance has yet been published under the Down Syndrome Act, so we lack detail. That Act resulted from another private Member’s Bill; I am sure we can all agree what an excellent process this is for making important changes to the law. As the Minister said, the amendment is likely to be unworkable for doctors so I cannot support it. I would, however, be very happy to discuss the thoughts of the right hon. Member for East Hampshire and look at how we can meet his objectives—possibly through an addition to new clause 8, which is about the duty to consult and the Secretary of State consulting with the Equality and Human Rights Commission. At that point, the specific needs of not just people with disabilities but those with other protected characteristics will be represented. Alternatively, we could look at the codes of practice in clause 30.
I am happy to take those discussions forward and may even be able to speak to the right hon. Member for East Hampshire at the drop-in session he is doing this week with the National Down Syndrome Policy Group, ahead of Down’s Syndrome Awareness Week.
Kit Malthouse
As the hon. Lady will know, a number of our proceedings have been misinterpreted, shall we say, on social media. For complete clarity, with regard to the initial conversation, the Bill leaves to the discretion of the doctor whether it is appropriate to raise the matter, given their knowledge of the patient. They have no obligation to raise it. If the patient themselves indicates a wish to raise the matter, then a doctor is under an obligation to lay out all the options available to that patient. We would not want to leave the outside world with the impression that, in all circumstances, the doctor is obliged to raise the option of assisted dying. It is only when they professionally think it is appropriate or if the patient raises it with them.
Kim Leadbeater
The right hon. Gentleman is absolutely right. As I have said, the BMA has been very clear that doctors should use their professional judgment. For example, if they had a patient whom they knew to be deeply religious and who had no interest whatsoever in an assisted death, it is highly unlikely that they would raise the possibility. It is up to them to use their professional judgment to accommodate the wishes of the patient. It has to be a patient-centred approach.
Sarah Green (Chesham and Amersham) (LD)
We have had a good debate on the amendments in this group. I do not intend to push amendment 278 to a vote, and I have nothing further to add to my previous remarks. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 8, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life”.—(Daniel Francis.)
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 342, in clause 4, page 2, line 23, leave out
“may (but is not required to)”
and insert “must”.
This amendment would strengthen the requirement for a registered medical practitioner to conduct a preliminary discussion.
The Chair
With this it will be convenient to discuss the following:
Amendment 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 343, in clause 4, page 2, line 28, at end insert
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the probabilities and uncertainties of any estimates of how long a person may have to live.
Amendment 344, in clause 4, page 2, line 29, at end insert
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the impact of any treatment available.
Amendment 275, in clause 4, page 2, line 30, leave out “any available” and insert “all appropriate”.
Amendment 108, in clause 4, page 2, line 31, at end insert
“and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion.”
This amendment would require the doctor who has an initial discussion with a person about assisted dying to offer to refer them to a specialist in palliative, hospice or other care.
Amendment 183, in clause 4, page 2, line 31, at end insert—
“(and, accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of, and discussion about, the matters mentioned in paragraphs (a) to (c)).”
This amendment emphasises that the initial discussion mentioned in subsection (3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4).
Amendment 425, in clause 4, page 2, line 31, at end insert—
“(4A) Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, they must be referred to a multidisciplinary team to explore options for relevant care and support.
(4B) The Secretary of State may by regulations specify the requirements for the multidisciplinary team under subsection (4A).
(4C) The regulations must include a requirement for the multidisciplinary team to include all of—
(a) a registered medical practitioner or registered nurse,
(b) a person registered as a social worker in a register maintained by Social Work England or Social Work Wales, and
(c) a practising psychiatrist registered in one of the psychiatry specialisms.”
Amendment 53, in clause 7, page 4, line 8, at end insert—
“(ca) has relevant and available palliative care options.”
This amendment would mean that someone is only eligible for assistance in ending their own life under this Act if they have relevant and available palliative care options.
Amendment 54, in clause 7, page 4, line 17, leave out “(g)” and insert “(h)”.
This amendment is consequential on Amendment 53.
Amendment 426, in clause 7, page 4, line 26, at end insert—
“(4) The coordinating doctor may not take the steps set out in subsection (3) unless they receive confirmation from a multidisciplinary team that the person has had a meeting with that multidisciplinary team as specified in section 4.”
Amendment 286, in clause 9, page 5, line 36, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 424, in clause 40, page 23, line 37, at end insert—
“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”.
This is a drafting change.
Kit Malthouse
On a point of order, Mr Efford. I seek your guidance on the votes that we have just taken on the last group of amendments. If any Member, or any external person, were to attempt to misrepresent part of the debate on those amendments, what could we do? For example, in respect of amendment 368, tabled by my right hon. Friend the Member for East Hampshire, with regard to people with Down’s syndrome, somebody could imply or state on social media that the Committee has refused to look at accommodations for those people, therefore disregarding their welfare under the Bill. As you will be aware, that would be a serious misrepresentation of the debate and the intention of the Committee. If a Member of the House or somebody external did that, what measures could we take to correct it?
The Chair
I suggest that you take the advice of the House on that, because what people say outside of the Committee is beyond my jurisdiction. The House has rules, and if those rules are breached, it is up to any hon. Member, including the Member himself, to raise that with the appropriate authorities.
Danny Kruger
On that ruling, Mr Efford, I concur that it is not your job to police social media but I respect the point made by my right hon. Friend the Member for North West Hampshire: it is important that we accurately reflect the debates held in this place. For my part, I will not be commenting externally that the House has disregarded people with Down’s syndrome. I respect and appreciate the point made by the Minister and the hon. Member for Spen Valley that there will be an effort to engage with the Down’s syndrome community in the drafting of further consultation and guidance. Nevertheless, the Committee did just choose to reject an amendment that would have required the Government to put into the Bill the protections specified by the Down’s syndrome community and my right hon. Friend the Member for East Hampshire. I will be making that point, but I undertake to do so accurately and fairly.
I turn to amendment 342 and the other amendments in this group. There is a lot to discuss, and I will get through it as fast as I can. We are talking about the “initial discussion” and the “preliminary discussion”. It might be helpful to clarify those terms, because clause 4 is confusing. The clause refers to an “initial discussion”, which is when the doctor, or maybe the patient, raises the idea—it is unclear who will do that and how. The initial discussion does not actually need to take place at all, but if it does, then, according to the Bill, a preliminary discussion “may” be held, at which the topic is discussed in more detail and there is discussion of the requirements that need to be met, and so on.
I welcome amendment 342, which was tabled some time ago by the hon. Member for Shipley (Anna Dixon). It provides that if an initial discussion is held—that is to say, if the topic is raised as an option and the patient indicates their wish for an assisted death—then a preliminary discussion must also be held. Over the weekend the hon. Member for Spen Valley tabled amendment 419. That would amend clause 6, but I mention it here because it reaches back to clause 4 by stating that the co-ordinating doctor must either hold a preliminary discussion or see evidence that one has been held at an earlier stage.
I was alarmed that the Bill initially envisaged a situation in which someone could turn up to an assisted dying provider and pay their registration and administration fees, and the only thing the co-ordinating doctor would be required to do is check their photo ID. It is extraordinary that that was viewed as acceptable in the first place, so I welcome the tabling of amendment 419. My difficulty is that it leaves clause 4 quite vague and optional about whether a preliminary discussion would take place, and then it applies a retrospective compulsion at a later stage. It allows the preliminary discussion to be not very preliminary at all, because it might take place quite some time later, at the point the co-ordinating doctor is witnessing the first declaration. It could be weeks or months after the process has started, once the patient has found a doctor willing to do the assessment and the paperwork for assisted dying. Rather than tacking the provision on to clause 6, which deals with proof of identity for the witnessing of the declaration later on, let us have it where it is needed—let us insist on it here at the outset of the process.
What should the preliminary discussion consist of? I will speak now to amendment 183 in the name of the hon. Member for Spen Valley, and amendments 343 and 344 in the name of the hon. Member for Shipley. In her explanatory statement to amendment 183, the hon. Member for Spen Valley suggests that it “emphasises” that the preliminary discussion must include a discussion of palliative care options. That is, I am afraid to say, repetitive of the sentence at the start of clause 4(4), which says that the practitioner conducting a preliminary discussion must discuss all the options listed. In the words of my right hon. Friend the Member for North West Hampshire, this is embroidery of the Bill—it is fine lacework, unrelated to the job of the clause itself. The statement in the clause that the doctor must discuss palliative care is, of course, already the law under the Montgomery judgment. There is a genuine obligation on the doctor to discuss all the options that the patient has, which will obviously include palliative care.
I welcome the amendments tabled by the hon. Member for Shipley, which would require the doctor to be clear about the uncertainties of the prognosis and the risks and benefits of the various treatment options. That is absolutely right. That is not embroidery. As a result, patients will make better-informed decisions with full awareness of what is known and, crucially, what is unknown about their prognosis. A requirement in the Bill leaves no room for doubt.
I am concerned by the suggestion that has been repeatedly made that adding obligations for doctors to do their job as guidance currently states is somehow unnecessary or harmful. Indeed, the selective approach of referencing only some elements of GMC guidance in the Bill increases legal uncertainty. Clauses 7 and 9 include only some elements of GMC guidance on the information that doctors must give to patients. There are five areas that the GMC says information should usually include, but the Bill omits
“uncertainties about the diagnosis or prognosis, including options for further investigation”
and
“the potential benefits, risks of harm, uncertainties”
and so on. The guidance explains:
“By ‘harm’ we mean any potential negative outcome, including a side effect”.
Those are quotes from the GMC guidance that are not reflected in the Bill at the moment. Some parts are, but some are not. I think the fact that some guidance has been excluded would be treated as legally significant by the courts. I would be interested to know why the hon. Member for Spen Valley takes the position that those aspects of the guidance should be excluded, and whether she feels that uncertainties and risks of harm are not relevant to the discussion that doctors should have.
We are often told that this Bill is the safest in the world. Other jurisdictions that have inspired the Bill specify in more detail what informed consent should consist of. In Oregon, the doctor must cover the potential risks, the probable result of taking the medication and the feasible alternatives. In Victoria, the doctor is required to discuss the potential risks—in fact there is a whole series of obligations on them. Interestingly, they are encouraged to inform the registered medical practitioner, so to tell the patient’s doctor what is happening, if they do not know already. South Australia specifies all the same things. In his amendment 50, my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer) is trying to mirror precisely that. That is exactly what should be in the Bill, and yet we are told that it is the safest legislation in the world.
Other amendments in this group address who should do the preliminary discussion or referral, and who else should be involved. Amendment 108 in the name of the hon. Member for East Thanet (Ms Billington), which would require the doctor to offer a referral to a palliative care specialist, is very helpful. It is significant that the Committee has already voted not to mandate referral to a palliative care practitioner at the early stage—that fork in the road that we debated earlier—so people will be facilitated down one fork in the road only. This is an opportunity to ensure that there is in fact a referral to a palliative care specialist.
Kim Leadbeater
I just want to let the hon. Gentleman and the Committee know that I met my hon. Friend the Member for East Thanet last night, and I am delighted to support her amendment 108.
Danny Kruger
I am very pleased to hear that. That is very encouraging news, because I have been concerned that the hon. Lady was resting her case on amendments to clause 12, which would not require a palliative care specialist. I am grateful to her for intervening to inform us of that.
Nevertheless, we need to go further. The amendments in the name of the hon. Member for York Central (Rachael Maskell) would require that a specialist, rather than just a GP, leads the initial assessment. The fact is that despite their enormous range of expertise, general practitioners are not qualified or confident in making prognoses of terminal illness. The written evidence from the Association for Palliative Medicine of Great Britain and Ireland cited a 2021 paper showing that over half of GPs were not consistent in how they applied their predictions to different patients. It is important that specialists in the relevant conditions should be involved in these assessments so that patients receive expert input with a lower risk of error.
It is significant that, during the Second Reading debate on 29 November, the House was unanimous in its appreciation of, and praise for, palliative care specialists. It seems strange that their expertise should not be considered essential to a terminally ill person’s consideration for an assisted death. When we look at other countries, we see that it is not an exceptional safeguard. South Australia’s Voluntary Assisted Dying Act 2021 specifies:
“Either the coordinating medical practitioner or each consulting medical practitioner must have relevant expertise and experience in the disease, illness or medical condition”—
we are not using that any more—
“expected to cause the death of the person being assessed.”
I urge the Committee to reflect on the South Australia model, which is good in this regard.
I turn to amendment 53, in the name of my hon. Friend the Member for Runnymede and Weybridge, and amendment 275, in the name of the hon. Member for Sunderland Central. The Bill currently requires doctors to discuss “available” palliative care options, but that may limit what patients are told. Amendment 275 would provide that patients should be informed of “all appropriate” palliative care alternatives, even if they are not readily available in their local area. We do not want patients choosing assisted dying simply because of unequal geographic provision of palliative care making them unaware of alternatives that could improve their quality of life.
I would go even further in support of amendment 53, which hits the nail on the head. Fundamentally, we have always said that assisted dying should be available only to people who palliative care cannot help. That is what amendment 53 entails: it states that assisted dying should be available only for people for whom the relevant palliative care is actually an option and, if they decline it, that would be their choice.
Finally, I will speak to amendments 425 and 426 in my name, which express the need for a proper multidisciplinary team at the right stage of the assisted dying process. The hon. Member for Spen Valley has emphasised the importance of multidisciplinary teams, and I welcome everything she said. It is very good to get her agreement, through the amendments that she has tabled, that two doctors working alone are not enough to protect and support every patient. I welcome that recognition.
Amendments to clause 12 attempt to fill this gap by introducing the expertise of a psychiatrist and a social worker, but they do not fulfil the role of a multidisciplinary panel. Rachel Clarke, one of the witnesses who told us to consider multidisciplinary assessments, has written subsequent to the amendments being tabled: “A ‘judge plus’ panel”—there will not actually be a judge, so perhaps we should call it a “lawyer plus” panel—
“is not an MDT…the panel’s scrutiny comes only at the end of the process, not at the beginning, when a patient first asks for the intervention of assisted dying. Yet this is a moment of peak vulnerability.”
We will get on to the question of whether a judicial panel should replace a High Court judge, but I emphasise very strongly that the introduction of this process is not the equivalent of having a proper multidisciplinary team considering the application for an assisted death at the appropriate moment.
As the Association for Palliative Medicine said last week, the Bill
“does not align with the standard multi-professional team…decision-making process used across the health service.”
It said that the panel is too distant from the patient and comes too late in the process. It said that the Bill would be stronger if the initial assessments were
“carried within a multi-professional team model”.
It is at the stage we are debating here—in the initial assessments—that the MDT needs to apply. For the record, if it has not been properly noted before, I also state that when the hon. Member for Spen Valley quoted Dr Sarah Cox on the importance of multidisciplinary teams, Dr Cox was not endorsing clause 12, but explicitly arguing for earlier introduction of the multidisciplinary process.
Kim Leadbeater
To be clear on the multidisciplinary approach, the point that I was making in that contribution was that that happens already. We are misrepresenting what goes on in current practice with terminally ill patients if we say that there is not a multidisciplinary approach, as indeed various witnesses told us. It is important to acknowledge that.
Danny Kruger
The hon. Lady is absolutely right that that is what witnesses told us, but we need to ensure that it happens in all cases; the purpose of these amendments is to ensure that good practice is universal. In the case of assisted dying, bad practice would be terrible. Of course, good doctors seek the guidance of others and do not operate in isolation, but the Bill would allow them to do so. It is important to ensure that the system lives up to the good practice that she refers to.
Committee members will be glad to hear that I am not going to rehearse the arguments about capacity and coercion, but those concerns are why it is important to have a multidisciplinary team at an early stage. The Committee has rejected all attempts to strengthen the capacity test, but it could at least allow a psychiatrist to have an earlier role in the process of checking for capacity. We heard from multiple witnesses about the importance of doing that, and that is what National Institute for Health and Care Excellence guidance states. As the hon. Lady said, it is good practice, so as Professor House said in his evidence to us, it would not be “a terribly radical thing” to do it.
On coercion, as the social worker Jess Carrington wrote to us:
“The only people who are comprehensively trained to recognise signs of abuse, in particular, coercive control, are social workers.”
According to research by Dr David Ross, doctors suspect less than 5% of cases of elder abuse. I will not rehearse the arguments around coercion, but I hope that the Committee will note that the only way—or the best way; it will not be foolproof—to ensure that coercion is spotted is by having a social worker at the very beginning of the process.
I think that is enough from me, Mr Efford—I am sure you agree.
Sean Woodcock (Banbury) (Lab)
I rise to speak to amendments 108, 343 and 344. I am delighted that the promoter of the Bill, my hon. Friend the Member for Spen Valley, has said that she accepts amendment 108, which was tabled by my hon. Friend the Member for East Thanet. It would require a doctor who was having an initial conversation with a person about assisted dying to “offer” to refer them to a palliative medical specialist. That would give the patient a chance to discuss end of life matters in depth with somebody who has the necessary expertise.
We have spent much time in previous sittings on palliative care options, and there was some understandable concern about removing autonomy from those looking for assisted dying. I hope that amendment 108 strips away that concern, because it is about offering, not mandating, more information. When we are talking about autonomy, I think that all Committee members would agree that anybody making an autonomous choice could only benefit from more information, rather than suffer as a result of it.
The Bill says that when a doctor has an initial conversation with a person about assisted dying, they should explain and discuss
“any available palliative, hospice or other care, including symptom management and psychological support.”
The amendment aims to ensure that the patient has access to the best available information to make a decision about what they do next. It would act as a safeguard to prevent people from choosing assisted dying because they did not have a chance to have a thorough and accurate discussion about the care options available to them.
As I said, several people were concerned about autonomy, and providing people with the opportunity to meet a specialist. The written evidence from Hospice UK explains that there are currently wide misunderstandings about hospice care at societal level. It says:
“Implementation of assisted dying without care given to public awareness about palliative care is likely to worsen individuals’ ability to make decisions regarding their end of life. People will need access to information about the services and support available to them.”
That reminds the Committee that terminally ill people at the end of their life often may not know the options available to them. I am sure that every Member in the room wants to avoid that situation, and the option of a discussion with a specialist aims to ease some of that fear and provide accurate information.
In order to make palliative and hospice care a genuine choice, it is important that patients with concerns are able to speak to someone who can answer all their questions and offer accurate information. Marie Curie’s written evidence says:
“There must be clear recognition within the Terminally Ill Adults (End of Life) Bill that genuine choice at the end of life cannot exist unless dying people are able to choose to receive high quality palliative and end of life care”.
Unfortunately, we know that the state of palliative care in this country is not yet of evenly accessible quality. The amendment would not solve that problem—there is quite a lot of work to do in that regard—but it would at least improve the Bill. It would give every patient the option of a discussion about palliative medicine and would make some ground on access. We all want to ensure that those with terminal illnesses are given good support and confidence in their decision at the end of their lives. Amendment 108 would do that, and would give people the opportunity of a real, informed choice, which is why I am delighted that the Bill’s promoter, my hon. Friend the Member for Spen Valley, has agreed to it.
My hon. Friend the Member for Shipley, who tabled amendments 343 and 344, has a distinguished record in policymaking in health and social care. She served as chief analyst and director of quality and strategy at the Department of Health. Both amendments are very thoughtful, and we would do well to adopt them. It would be helpful to explain what they would do before I set out why I think that hon. Members should vote for them. Amendment 343 would change clause 4(4), on page 2, which reads:
“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person—
(a) the person’s diagnosis and prognosis”.
If the amendment were made, subsection (4)(a), on line 28, would go on to read
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
Amendment 344 would change paragraph (b) on the next line, which says that the doctor must discuss with the patient
“any treatment available and the likely effect of it”.
If the amendment were made, paragraph (b) would go on to read
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
Like amendment 108, amendments 343 and 344 are both intended to improve the quality of information that patients receive when they have their initial discussion about assisted dying. The first amendment addresses what many of the expert witnesses have identified as a key problem with the Bill. Clause 2 requires a doctor to have prognosed that
“the person’s death…can reasonably be expected within 6 months.”
I will not go over the various arguments that we have already had in Committee about that, but many of the very senior doctors who gave evidence to the Committee have said that it is extremely hard for medical professionals to give a prognosis with such assurance.
The Marie Curie palliative care research department at University College London also submitted written evidence, numbered TIAB 39. Those experts said:
“The Bill’s requirement for a prognosis of death within 6 months could lead to significant errors, where individuals either receive assisted dying prematurely or are denied it when desired. The variability in prognostic accuracy, especially for non-cancer illnesses, may exacerbate inequities in patient care.”
They went on to say:
“We also question how the term “reasonably” will be interpreted by doctors, and this is likely to vary between doctors, but also by the same doctor with different patients”.
The Marie Curie palliative care research department also said that predicting someone’s death “too soon” can result in early palliative care, and that such early care is
“not a harm in the same sense as might be implied in the context of assisted dying.”
Dr Simon Opher (Stroud) (Lab)
I will briefly go through my impressions of the amendments. A lot of amendments in this group call to mind one of the difficulties that we are having in Committee, which is about the role of professional integrity against what we should be putting down in law. One problem is that, if we state something in law and a professional does not do it, then they are acting in an illegal way—and that introduces a different concept into a medical consultation. We must be very careful about introducing to a medical consultation a load of requirements in law, therefore reducing the freedom of that consultation whereby the doctor and patient can decide on what is best for the patient.
Amendment 342 is in the name of my hon. Friend the Member for Shipley. I reiterate that all the amendments have been tabled in good faith, and I absolutely respect them. The amendment would mean that the initial doctor—who is likely to be a GP—to whom the person comes and wants to speak to about assisted dying “must” conduct a preliminary discussion, rather than
“may (but is not required to)”.
The problem there is that some doctors will be conscientious objectors to assisted dying and we have to protect their integrity. We must not force them to do something that is against their will.
I note that amendment 341, which we will come to later, is about the obligation to give information to the patient if they ask for assisted dying. That is an appropriate amendment, but forcing a doctor who does not agree with assisted dying to discuss it is not fair on the medical practitioner. That is not what the Bill is about. In many other places, there is freedom for the medical doctor to avoid getting involved in discussions if they do not wish to. That is an incredibly important part of, and concept in, this Bill. Without that, I think the medical profession would not accept the Bill. That is very important.
Amendment 285 is about needing to consult a specialist in the relevant illness. I think we need to understand the process of what will happen under the Bill. Let us take an example of a patient under an oncologist—a cancer specialist. The oncologist will almost certainly say at some point during the consultation with the patient, “I think that there is no further treatment that is going to prolong your life, and you are likely to have six months or less to live.” That will be done by a specialist. I do not know general practitioners who would confidently predict a prognosis of six months or less; it would come from a specialist. Indeed, cancer care in this country, until the palliative phase, is generally run by specialists and hospitals. GPs are not generally involved, apart from to support the patient. However, if the oncologist feels that the patient has less than six months to live, they would probably come to see the doctor under this legislation, and the initial discussion will then take place. They will already have a steer as to the likely prognosis.
Naz Shah (Bradford West) (Lab)
I am trying to understand. My hon. Friend is saying that the oncologist is a specialist, but that they might not be the first doctor to have the first discussion; he said that they might not want to be a part of this process. I would like to understand that a bit more.
Dr Opher
As far as I see, under the Bill there is an initial discussion when a patient who is requesting assisted dying goes to see a medical practitioner. It does not specify what type of practitioner, which is good because it means they can ask either the oncologist or the general practitioner. That initial discussion is with a doctor, and then the doctor will refer for the first declaration, or they may do the first declaration themselves. That is how the Bill is set out, but the general practitioner will have had specialist opinions on the patient. They would not just say, “Well, maybe you’ve got less than six months to live—I don’t really know, but let’s have a guess.” This will be based on informed information from a specialist.
Danny Kruger
I do not want to labour the point, but does the hon. Member not acknowledge the Bill does not require that at the moment? He is saying that it will happen. Why will it happen—just because the doctors do their job well? Does he recognise there is no obligation to have this wide consultation with other specialists under the Bill? The doctor could do just as he has described and take a decision on their own.
Dr Opher
Again, this is a really interesting part of the Bill. If a doctor is routinely giving prognoses of six months where that is not appropriate, they will come up against the General Medical Council for being poor doctors, and the regulation around poor doctors is within the medical profession. If it is proven that someone has given a diagnosis that they cannot back up in any way, they would then be subject to their own professional standards. That is one of the things here: we cannot go through this Bill and specify the medical requirements at every stage, because that comes under a different format, which is called the General Medical Council. If someone has given a prognosis of six months or less, and if that is clearly inaccurate and would be contested by other doctors, they would be brought before the General Medical Council.
Lewis Atkinson
Does my hon. Friend agree that the provision of a further independent doctor assessment—both one and two—in addition to the doctor conducting the initial discussion, would provide a further safeguard for a diagnosis, if terminality could not be supported by other professionals?
Dr Opher
I absolutely agree. We are imagining that the doctors will all be independent and will not know anything about what other doctors have said, but there will be communication and access to medical records, and they will also tell the original doctor what their opinion is, and so on.
If we accept these amendments, we risk over-embroidering the Bill, which will make it almost impossible for doctors to say anything in a consultation. We must leave that free, because that is a central tenet of medical care, and if we put laws around it, there will be legal process over the medical consultation, and doctors will be frozen with fear about breaking the law. They are regulated by the GMC, and we are all terrified of referrals to the General Medical Council for that very reason: because we are trying to operate at the best standard that we can. I truly understand the amendments, but I do not think they will make the Bill any safer, and that is what we are all here for.
Jake Richards (Rother Valley) (Lab)
I am very sympathetic to the amendment and have thought long and hard about it. Can my hon. Friend explain to me, from his experience, but also from looking at the Bill and speaking to others, the effect of clause 4(4)(b)? As a non-clinician layperson, it appears to me that if a medical practitioner is discussing the likely effect of any treatment, then by its very nature that would lead to a discussion about prognosis, and the uncertainty and certainty around that.
Dr Opher
What my hon. Friend points out is absolutely true. The Bill’s drafting is simple but very effective. For prognosis, for example, it says that it is
“reasonably…expected within 6 months.”
As we have discussed many times in this Committee, prognosis is not exact; it is an estimate. It suggests that the patient has a terminal illness—that is to say, the illness will lead to their death. All we are arguing about is exactly when that will happen. It is reasonable to say, as doctors already do, “It is likely that you have six months to live.” That is not exact—as doctors, we cannot predict the future, even if people think we can. I totally accept that. However, we can make estimates as to what is likely to happen.
As my hon. Friend just mentioned, there are lots of really good news stories of people living longer than their prognosis. However, for the Bill to be effective, and to give relief to people who genuinely need it, we have to have a prognosis, based on medical evidence, of six months.
Dr Opher
Again, I bring my hon. Friend back to the fact that this is a Bill in law, and what we have to guide us as doctors is the General Medical Council, which sets standards for doctors. That is how we do it. If we are hemmed in by legal matters, we can break the law without being aware of it, if we are not careful. If too many legal parameters are set around medical consultations, the patient will get less good care because the doctor will not be free to offer it. I can see that my hon. Friend does not agree with that, but it is the case.
Danny Kruger
The hon. Gentleman is praying in aid the General Medical Council as if it is some sort of effective backstop. He says that the guidance does not need to be in the Bill because it is there hovering over doctors anyway, but the Bill makes explicit reference to GMC guidance—some of it is in there. If he objects to our suggestion to include the full GMC guidance in the communication that should be had, why does he support the presence of some of the guidance that doctors should give? The Bill does not include what the GMC requires: uncertainties about diagnosis or prognosis. Why not include the full GMC guidance in the Bill, seeing as we are including some of it already?
Dr Opher
Sorry, Mr Efford. I do not deny that the hon. Member makes a good point, but if we embroider this too much, the Bill will not be safe. That has been the case throughout. Any good medical care is based on giving treatment, availability and the likely effects of that, and on giving prognosis and the chance of the prognosis being longer or shorter. That is all based in good clinical care.
On amendment 343, the uncertainties of estimates of how long a person has to live are covered in clause 2(1)(b):
“the person’s death in consequence of that illness, disease or medical condition can reasonably be expected within 6 months.”
“Reasonably” is part of the Bill. It suggests that one cannot say that the estimate is exact. The Bill does not say that it is exact; it says that it is a reasonable estimate of that person’s life. I think that takes care of that amendment.
In amendment 344,
“the risks and benefits of such treatment, potential side effects, and the impact of the treatment”
are covered by
“any treatment available and the likely effect of it”
in clause 4(4)(b). My general point is that none of the amendments are actually wrong; they are just unnecessary. I would like to leave it at that.
Lewis Atkinson
I will be brief, as I am conscious that the Committee needs to make progress. I will speak briefly to amendment 275 in my name, which, as others have said, amends the current reference of “any available” to “all appropriate”. Listen—people at the end of their life deserve the best. They deserve to know about and have the option to access all appropriate care. In my experience of the NHS, that is exactly what clinical teams ensure patients get. But we need to guard against any suggestion that the information given should be somehow filtered around availability, which I know is not the intention of my hon. Friend the Member for Spen Valley.
In my experience, views on availability are often incorrect anyway, so ensuring that “all appropriate” options are offered in information is the best thing to do. If nothing else, it creates a level of societal pressure to ensure that all appropriate care is available, which I hope we can all support.
Lewis Atkinson
No, I am going to make some progress because I am conscious of the time, and we want to get through these provisions.
I want to speak in favour of amendments 108 and 183. Those two amendments, taken together with amendment 275, create additional safeguards and assurances on the points made by colleagues on Second Reading that this is not cannot be raised in isolation—as my hon. Friend the Member for Spen Valley has made clear should not be the case—and that referral should always be offered to specialists in palliative and wider care.
As others have said, those patients will almost undoubtedly be in touch with a variety of different multidisciplinary healthcare teams. The suggestion that there must be a further referral to another multidisciplinary team under the Bill, regardless of which teams an individual is seeing, is therefore not appropriate. I also refer Members to amendment 6 to clause 9, which states that a referral to a psychiatrist “must” be made. My hon. Friend the Member for Spen Valley has indicated that she is in favour of that amendment. That reinforces the fact that there will be a multidisciplinary approach, including psychiatric input, where there is any doubt before the third-tier stage of the panel.
For those reasons, I do not feel the other amendments—285, 343 and so on—are necessary. By accepting amendments 275, 108 and 183, we will be able to strengthen the Bill in the way that was set out to the House, and as we heard in oral and written evidence.
Sojan Joseph (Ashford) (Lab)
I rise in support of the amendments, especially amendments 342 and 425. We have discussed various aspects of the Bill, especially capacity, coercion and medical practices, under many previous amendments. As somebody who worked as a mental health nurse for many years, and who worked as part of a multidisciplinary team, I think that amendments 342 and 425 are some of the most important.
Amendment 342 talks about the preliminary conversation with the medical practitioner with whom the patient makes contact. Do we not think that the doctor who knows most about that patient is the best person to have that preliminary discussion? They will have the most information about them. When the patient, who has gone through so much difficulty, goes to their doctor or to a GP who knows them well and says, “I would like to choose the assisted dying pathway,” would that doctor then say, “I do not want to discuss this. Somebody else will.”?
Kim Leadbeater
Is my hon. Friend not concerned about the concept of conscientious objection? The BMA strongly opposes amendment 342, because it does not think doctors should be obligated to have that initial conversation if they do not want to.
Sojan Joseph
There are other people who support this concept, and they are the people who will be having the conversation—we have both sides of the argument. I believe that the best person to have that preliminary discussion would be the doctor who knows about that patient the most—about their circumstances, prognosis, family situation and pain. We talk about compassionate care, but where is the compassion in here? I am not saying that another doctor would deny that—but I am talking about compassion. Someone going through the most difficult time in their life would have the confidence to talk to the person who knows the most about them, which is why I fully support that the initial discussion should happen with them. I am not saying that they should say yes or no, but they should be talking about the care provisions and options available to the patient. Amendment 342 is one of the most important amendments we will debate.
I will move on to amendment 425. When I tabled amendment 1, my thinking was that a psychiatrist should be involved in these discussions, but I think amendment 425 will safeguard most of the concerns we have discussed in previous sittings. Amendment 425 talks about a “multidisciplinary team” and having a psychiatrist involved as well. Written evidence was sent to us on 29 January by the Royal College of General Practitioners, which recommended that a separate pathway that
“covered every stage of the process would ensure healthcare professionals of multiple disciplines…who wanted to do so could still opt in to provide assisted dying, but this would be arranged through a different pathway.”
The hon. Member for Sunderland Central spoke earlier about how patients may be going through many multidisciplinary teams already, but it could be that none of those multidisciplinary teams have talked with them about assisted dying. They could have been pharmacists or nurses talking about the patient’s care—not assisted dying. We are talking about setting up a multidisciplinary team with a mental health nurse, doctor and social worker who can look in detail at evidence of the patient’s capacity, whether they are choosing it because they feel they are a burden, and whether there is any coercion. I think that is a safeguard for most of the concerns we have discussed in previous sessions. I would love to see a psychiatrist involved, because psychiatrists deal with some of the most challenging patients, including those with suicidal thoughts, on a day-to-day basis. They are the most experienced people to carry out a capacity assessment and, if they are a part of the multidisciplinary team, it will safeguard the Bill.
I strongly support amendment 425 and I urge Members to consider it. It will reassure many people who are concerned about some of the discussions. I know it also talks about giving power to the Secretary of State to formalise who should be part of the multidisciplinary team, which would be a discussion for later. I thank the Committee for giving me the opportunity to speak in support of the amendment.
Naz Shah
I rise to speak to amendments 285 and 286, tabled by my hon. Friend the Member for York Central. On amendment 285, we have to understand that, in medicine, clinicians only retain the areas of expertise in which they have clear confidence. I am grateful to my hon. Friend the Member for Stroud, who made very powerful points that, if anything, actually support this amendment. This is why we have developed a health system with so many specialities. Although generalists have incredible knowledge, they cannot confess to the depth of understanding that someone who dedicates their career to a speciality has. Therefore, the amendment seeks to draw on such knowledge rather than assume that a GP, for example, specialises in all fields of medicine.
Clause 4(4) would require a generalist to work alongside a specialist to secure the understanding of a patient’s diagnosis and prognosis. Once again, I recognise that my hon. Friend the Member for Stroud suggested that that already happens and does not need to be tied up in law. However, I feel the amendment gives us more protections if we are to make the Bill safe. It would then enable specialist clinical advice to be provided in the conversation about treatment options.
Danny Kruger
I am afraid the situation is even worse, because the fact is that under the Bill they will not be liable for mistakes made in pursuit of the scheme set out in the Bill. They will be exempt. They are indemnified against civil liabilities for malpractice in the course of their job. It is only guidance, and GMC guidance specifies that breaking the guidance is not itself necessarily considered a serious matter. The provisions are not strong enough at all.
Naz Shah
The hon. Member makes a valid point. That brings us to a very important question: do we wait for something to have happened? In this instance, people will have died.
If we were considering kidneys, for example, and the issue of consent, it would require somebody independent. It needs a specialist. We come back to the point about specialisms: whether they relate to diagnosis, coercion, the care pathway, palliative care or the drugs that bring a person’s life to an end, which we will discuss later, these are specialisms. I know that later my hon. Friend the Member for Spen Valley will speak to her amendment about the panel, which is intended to require expertise. That is what amendment 285 speaks to, and I hope hon. Members will support it.
Amendment 286 would set out the requirements for the co-ordinating doctor and ensure that the standards are upheld throughout the process of assessment, so that the patient and clinician have the highest levels of advice available. Even though the co-ordinating doctor might already have sought the advice of specialists as part of their assessment, the purpose of having an independent doctor is to assess the patient without preconceptions influenced by the co-ordinating doctor’s decision-making process. It is therefore important for the clinician to have access to the same level of advice to inform their clinical decision making.
In medical practice, should a second opinion be sought, the person providing that second opinion might consult a range of sources to establish an opinion. This measure would therefore be in line with normal medical practice. I hope that hon. Members will support the amendments.
Dr Tidball
With respect, I stood earlier and your colleague acknowledged it.
Dr Tidball
I rise to speak in support of the hon. Member for Spen Valley. I thank her for driving amendment 183 forward and for taking on board my input and that of others on strengthening the language in the clause to include the amendment. I will set out why I support clause 4 overall, as augmented by the language in the hon. Lady’s amendment 183, along with amendment 275 from my hon. Friend the Member for Sunderland Central, and amendment 108.
To ensure that there is a compassionate choice at the end of life, it is right that the Bill is tightly drawn around the final stage of terminal illness for adults and includes the strongest safeguards. In my speech on Second Reading, I said:
“The choice of assisted dying as one option for adults when facing six months’ terminal illness must be set alongside the choice of receiving the best possible palliative and end of life care, or it is no choice at all.
Having analysed the Bill closely, therefore, there are changes I would want to see in Committee to strengthen those options and ensure the way that choice is presented by medical practitioners is always in the round.”—[Official Report, 29 November 2024; Vol. 757, c. 1052.]
I am satisfied that the amendments from my hon. Friends the Members for Spen Valley and for Sunderland Central will strengthen the Bill in that way, ensuring that choice for those seeking assistance is more efficient and effectively presented in the round by medical practitioners.
Amendment 183, in the name of my hon. Friend the Member for Spen Valley, emphasises that the initial discussion under clause 4(3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4). It would ensure that the registered medical practitioner must explain to and discuss with the person their diagnosis and prognosis, any treatment available and its likely effect. Amendment 275, in the name of my hon. Friend the Member for Sunderland Central, would ensure that they also discussed “all available” palliative, hospice or other care, including symptom management and psychological support. I support amendments 183 and 275 because, having looked closely at barriers to access to healthcare for disabled people and others over the past 15 years, I believe in the need for transparency, accessibility and equality of choice of healthcare as a fundamental key principle.
The BMA’s written evidence, at paragraph 5.6, sets out its support for clause 4. In particular, it expounds on the principle that there should be no prohibition on a doctor initiating discussion with a patient about assisted dying. Doctors should be trusted to use their professional judgment to decide when and if discussion about assisted dying would be appropriate, taking their cue from the patient as they do on other issues. The BMA goes further, stating:
“Some patients find it difficult to bring up sensitive subjects in their consultations,”
Being able to have these discussions is necessary and helpful.
Dr Tidball
I will make progress.
Clause 4 creates no duty to raise assisted dying, a point supported by the BMA. Keeping things secret is not helpful for the patient making such difficult decisions about how best to live their death with dignity and respect.
Dr Tidball
I will make progress.
In reply to a question from me about those who are seeking assistance, Dr Jane Neerkin, a consultant physician in palliative medicine, said:
“For them, it is about trying to regain some of that control and autonomy and being able to voice for themselves what they want. That is what I tend to see that people want back at the end of life.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 201, Q263.]
Importantly, amendments 183 and 275 would strengthen clause 4 to ensure that we avoid a situation that gives those with the most social capital more choice, while leaving those who might otherwise be unaware of all other options available to them without that choice. If the Bill is passed by Parliament without them, it will exacerbate health inequalities rather than abating them.
Together, the amendments expound and elaborate on the need for discussion of all appropriate palliative and other end-of-life options available to someone with a six-month terminal illness. I commend them to the Committee.
Stephen Kinnock
The amendments would make changes to the discussion between the medical practitioner and the patient. They are largely focused on clause 4, on the initial discussions, but several are thematically linked or related to later clauses.
Amendment 342 would impose a requirement on the registered medical practitioner to conduct a preliminary discussion with a person where that person has indicated that they wish to seek assistance to end their own life. As it stands, the Bill allows registered medical practitioners to opt out should they not wish to hold that conversation with someone, although they have an obligation under clause 4(5) to refer an individual to another medical practitioner for that discussion.
The amendment would remove that discretion and thus remove the opportunity for a medical professional to opt out of having the preliminary discussion. That may conflict with the principle set out in clause 23 that no registered medical practitioner or other healthcare professional is under any duty to participate in the provision of assistance. Our analysis suggests that in removing discretion as to participation, the amendment could interfere with an individual’s rights under article 9 of the European convention on human rights, on the freedom of thought, belief and religion, and article 14, on the prohibition of discrimination.
Amendment 285 would require the registered medical practitioner who conducts a preliminary discussion with a person on the subject of an assisted death to discuss with them, in consultation with a specialist, the person’s diagnosis and prognosis, any treatments available and their likely effects, and any available palliative, hospice or other care. The amendment would therefore require additional registered medical practitioners or other specialists to be consulted as part of the preliminary discussion under clause 4(4). The additional time required for consultation with specialists would be likely to lengthen the period over which a preliminary discussion can take place.
I also note that clause 9, “Doctors’ assessments: further provision”, will already require the assessing doctor to make such other inquiries as they consider appropriate in relation to the first and second assessments.
Naz Shah
The Minister’s point speaks to what my hon. Friend the Member for Stroud and I have spoken about in relation to the amendment, so I wonder which bit he supports. The Minister says that there will be extra time, but my hon. Friend pointed out that doctors do this routinely, so the objection is only that it will be on the face of the Bill. I just want to understand the Minister’s position on that.
Stephen Kinnock
If I understood the point that my hon. Friend the Member for Stroud was making, I think it was that the basic provisions in place enable doctors to carry out their work based on their experience and expertise, whereas the amendment would require additional registered medical practitioners or other specialists, so that would be in addition to what my hon. Friend was talking about.
I turn to amendment 343. As the Bill stands, a registered medical practitioner undertaking a preliminary discussion with a patient is required to discuss the person’s diagnosis and prognosis. The amendment would require a registered medical practitioner also to discuss any relevant probabilities and uncertainties of a person’s diagnosis and prognosis. It would put an additional legal requirement on what needs to be discussed during the preliminary discussion with the patient. In considering whether the amendment is required, the Committee may wish to note that all doctors acting in accordance with the General Medical Council’s “Good medical practice” are expected to discuss uncertainties about diagnosis and prognosis, and potential risks and uncertainties about treatment.
Under clause 4, the registered medical practitioner conducting the preliminary discussion must discuss any treatment available to the patient and the likely effect. Amendment 344 would require the registered medical practitioner conducting the initial discussion to discuss, as part of the conversation on the treatments available, the risks and benefits of such treatment, potential side effects and the impact of the treatment on the person’s quality and length of life. As with amendment 343, the Committee may wish to note, when considering whether the amendment is required, that all doctors acting in accordance with “Good medical practice” are expected to discuss the risks, benefits, uncertainties and the likelihood of success of treatment with a patient.
Amendment 275 would change the wording of clause 4(4)(c) to “all appropriate palliative hospice and other care”. That would require a registered medical practitioner who conducts a preliminary discussion with a person on the provision of an assisted death to explain and discuss palliative and hospice care on the basis of appropriateness for the individual, not on the basis of the care that is available. Clause 4(4) sets out that a registered medical practitioner who conducts the preliminary discussion on assisted dying must, as part of that discussion, explain and discuss the person’s diagnosis and prognosis, any treatment available and the likely effect—
Terminally Ill Adults (End of Life) Bill (Seventeenth sitting)
Tuesday 4th March 2025
(1 month, 3 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 7 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 16 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 12 - Question accordingly negatived.
Danny Kruger (East Wiltshire) (Con)
On a point of order, Mr Dowd. My understanding is that we are planning to sit a bit later today, which is fine by me. I wanted clarity from you that the Committee has no hard deadline—that although the intention is that Report stage will take place on 25 April, if the Committee wished to go further, it could. I was a little concerned by some of the remarks made in this morning’s sitting about people being conscious of time; there is a sense of being asked to speed up as we go. Am I right in saying that the Committee can take as long as it needs to, and that in fact it should, to debate this very important matter?
The Chair
The short answer is yes. I think Members will inevitably deal with this in as sensitive and conciliatory fashion as possible, notwithstanding that point.
Clause 4
Initial discussions with registered medical practitioners
Amendment proposed (this day): 342, in clause 4, page 2, line 23, leave out
“may (but is not required to)”
and insert “must”.—(Danny Kruger.)
This amendment would strengthen the requirement for a registered medical practitioner to conduct a preliminary discussion.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 343, in clause 4, page 2, line 28, at end insert
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the probabilities and uncertainties of any estimates of how long a person may have to live.
Amendment 344, in clause 4, page 2, line 29, at end insert
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the impact of any treatment available.
Amendment 275, in clause 4, page 2, line 30, leave out “any available” and insert “all appropriate”.
Amendment 108, in clause 4, page 2, line 31, at end insert
“and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion.”
This amendment would require the doctor who has an initial discussion with a person about assisted dying to offer to refer them to a specialist in palliative, hospice or other care.
Amendment 183, in clause 4, page 2, line 31, at end insert—
“(and, accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of, and discussion about, the matters mentioned in paragraphs (a) to (c)).”
This amendment emphasises that the initial discussion mentioned in subsection (3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4).
Amendment 425, in clause 4, page 2, line 31, at end insert—
“(4A) Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, they must be referred to a multidisciplinary team to explore options for relevant care and support.
(4B) The Secretary of State may by regulations specify the requirements for the multidisciplinary team under subsection (4A).
(4C) The regulations must include a requirement for the multidisciplinary team to include all of—
(a) a registered medical practitioner or registered nurse,
(b) a person registered as a social worker in a register maintained by Social Work England or Social Work Wales, and
(c) a practising psychiatrist registered in one of the psychiatry specialisms.”
Amendment 53, in clause 7, page 4, line 8, at end insert—
“(ca) has relevant and available palliative care options.”
This amendment would mean that someone is only eligible for assistance in ending their own life under this Act if they have relevant and available palliative care options.
Amendment 54, in clause 7, page 4, line 17, leave out “(g)” and insert “(h)”.
This amendment is consequential on Amendment 53.
Amendment 426, in clause 7, page 4, line 26, at end insert—
“(4) The coordinating doctor may not take the steps set out in subsection (3) unless they receive confirmation from a multidisciplinary team that the person has had a meeting with that multidisciplinary team as specified in section 4.”
Amendment 286, in clause 9, page 5, line 36, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 424, in clause 40, page 23, line 37, at end insert—
“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”.
This is a drafting change.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd.
When we broke at 11.25 am, I was talking about amendment 108. Clause 4(4) sets out that a registered medical practitioner who conducts the preliminary discussion on assisted dying must, as part of that discussion, explain and discuss
“the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 108 would supplement that with a requirement for the registered medical practitioner also to offer to refer the person to a specialist in palliative, hospice or other such care for the purpose of further discussion.
The amendment would add an additional level of specificity to the preliminary discussion on palliative, hospice or other care, but would not in itself place a duty on the registered medical practitioner to make such a referral, or on the person to accept it. In considering whether the amendment is required, the Committee may wish to note that the General Medical Council’s good medical practice already requires doctors, when providing clinical care, to refer a patient to another suitably qualified practitioner when this serves their needs.
As the Committee is aware, the Government have worked with my hon. Friend the Member for Spen Valley on several amendments to ensure that the Bill is legally and operationally workable and reflects her policy objectives. Amendments 183 and 424 are two such amendments.
The purpose of amendment 183 is to emphasise, not change, the existing provisions in the Bill that provide that the preliminary discussion held with the person by a registered medical practitioner must not discuss assisted dying in isolation. Rather, the discussion must reference the matters contained in clause 4(4), including
(a) the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 424 seeks to clarify the meaning of “preliminary discussion” in clause 40, to align that with the description of the discussions in subsections (3) and (4) of clause 4. It is a drafting change. As per subsections (3) and (4), a preliminary discussion takes place between a person seeking the provision of assistance in accordance with the Bill and a medical practitioner, about the requirements that need to be met for such assistance to be provided. The preliminary discussion must include
“the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 425 would introduce a requirement that a person seeking assistance under the Bill is referred to a multidisciplinary team to consider support and care for the person. The Secretary of State may provide regulations to determine what kind of professionals should make up such a team, but the amendment would require that at a minimum each team should include a medical practitioner or nurse, a social worker and a psychiatrist. The obligation to refer to the multidisciplinary team would apply each and every time
“a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act”,
so there could be multiple referrals. Finally, I note that the amendment might have wider resource implications, including for social workers.
Together, amendments 53 and 54 propose changes to clause 7—rather than clause 4, which we have been considering so far today—the effect of which would be that in carrying out the first doctor’s assessment, the co-ordinating doctor must, in addition to the other requirements, be satisfied that the person has relevant and available palliative care options. As such, the amendments would mean that people are eligible for assistance to voluntarily end their own lives only when they have relevant and available palliative care options. The amendments would create an additional criterion, which may reduce the number of people able to receive an assisted death, linked to the availability of palliative care services to any given individual.
Amendment 426 would prevent the co-ordinating doctor from finalising the first assessment process until they had received confirmation from a multidisciplinary team—as set out in amendment 425—that the person seeking assistance to end their own life had met with the multidisciplinary team. The Committee may wish to note that under the amendment there would be no requirement on the multidisciplinary team to provide that confirmation in a given timeframe. That might lead to delays in the co-ordinating doctor being able to make their statement and onward referral.
Amendment 286 would remove the requirements in paragraphs (a) to (c) of clause 9(2) and insert three new requirements. The three new conditions require the assessing doctor, for both the first and second assessment, to consult specialists in relation to the person’s diagnosis and prognosis, any treatments available and the likely effect of those treatments, and any palliative, hospice or other care, including symptom management and psychological support.
The Committee may wish to note that, as drafted, amendment 286 might have some unintended consequences. That is because by replacing clause 9(2)(a), (b) and (c), it would remove the words
“explain to and discuss with the person being assessed”
at clause 9(2)(b). Consequently, the amendment would remove the requirement for the assessing doctor to have a discussion with the person about the factors currently set out in clause 9(2)(b). The assessing doctors would also not be required to examine the person and their medical records, and to make other inquiries as they consider appropriate.
The amendment could also lead to a significant loss of essential discussion between the assessing doctors and the person seeking assisted dying. The removal of clause 9(2)(b) would eliminate the requirement to explain and discuss the diagnosis and prognosis, treatment options and palliative care. Additionally, the amendment would remove the requirement to discuss the person’s wishes in the event of complications arising in connection with the self-administration of an approved substance, which may be seen as important for fully informed decision making.
I thank the Committee for its attention.
Kim Leadbeater (Spen Valley) (Lab)
I will try to keep my comments as brief as possible because we have had another very thorough discussion. First, my amendment 424 is, as the Minister said, a simple drafting change in clause 40 that confirms that “preliminary discussion” means a discussion as per clause 4(3).
Amendment 275 from my hon. Friend the Member for Sunderland Central would, in many circumstances, broaden the scope of the conversation that the doctor would have with the patient, and I am happy to support it.
I am also happy to support the very sensible amendment 108 from my hon. Friend the Member for East Thanet (Ms Billington). It is perfectly acceptable to ask the doctor to offer to refer the patient to a specialist, as they would probably do in most cases anyway, but the amendment is for clarity.
I refer colleagues to the comprehensive comments on my amendment 183 earlier in proceedings, and also to the support of the British Medical Association. Following Second Reading, I listened carefully to Members’ concerns about the possibility of doctors only discussing assisted dying with patients. Even though the Bill states that that cannot be the case, for the avoidance of any doubt the amendment emphasises that the initial discussion mentioned in clause 4(3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4). Accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of and discussion about the matters mentioned in paragraphs (a) to (c) of that subsection—that is, doctors cannot discuss the option of assisted dying in isolation but only in conjunction with discussion about all other available and appropriate treatment.
Indeed, Andrew Green of the BMA told us that
“some patients find it very difficult to bring up sensitive subjects with their doctors, even when those are the most important thing on their mind.”
He asked us to
“please do not pass legislation that makes it harder for doctors to understand their patients.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 42, Q24.]
That concludes my remarks.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 270, in clause 4, page 2, line 25, at end insert—
“(3A) Before conducting a preliminary discussion under subsection (2) the registered medical practitioner must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.”—(Danny Kruger.)
This amendment requires that the doctor ensures that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying.
Question put, That the amendment be made.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I beg to move amendment 414, in clause 4, page 2, line 25, at end insert—
“(3A) If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters.”
The Chair
With this it will be convenient to discuss the following:
Amendment 413, in clause 4, page 2, line 31, at end insert—
“(4A) In Wales, a medical practitioner conducting a preliminary discussion under subsection (4) must also discuss with the person their preferred language of Welsh or English.”
Amendment 415, in clause 9, page 6, line 20, at end insert—
“(2A) When making an assessment under subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters.”
Amendment 416, in clause 30, page 18, line 25, leave out paragraph (c)
This amendment is linked to Amendment 417.
Amendment 417, in clause 30, page 18, line 32, at end insert—
“(1A) The Secretary of State must, within six months of the passing of this Act, issue one or more codes of practice in connection with the arrangements for ensuring effective communication in connection with the provision of assistance to persons in accordance with this Act, including the use of interpreters.”
This amendment is linked to Amendment 416.
Liz Saville Roberts
I rise to speak to amendment 413, which would require a medical practitioner in Wales who conducts a preliminary discussion under subsection (4) to discuss with the person their preferred language of Welsh or English. Amendments 414, 415, 416 and 417, tabled by the hon. Member for Ipswich, relate to adjustments for language and literacy barriers. I will speak to those amendments, but it is not my intention to divide the Committee on them. Although I am supportive of the drive behind the amendments from the hon. Member for Ipswich, they refer to a situation very different from that of Welsh and English, because the use of Welsh and English has particular statutory implications.
This is the first time I have risen to speak about how we need to tease out the Bill’s implications in the context of reserved and devolved powers, where justice and criminal law are reserved, while health and social care are devolved. Amendment 413 concerns the need, in my belief, to place in the Bill the requirement to determine whether a person wishes to use either Welsh or English in their initial discussions with registered medical practitioners. I firmly believe that this needs to be written into the legislation. Later amendments I have tabled to clauses 5 and 8, and new clause 18 and new schedule 2, also relate to the use of Welsh.
Sojan Joseph (Ashford) (Lab)
I fully support the amendments, but they say that the practitioner conducting the preliminary discussion should use an interpreter. Should the interpreter not also be available for all the interactions that follow on from the preliminary discussion?
Liz Saville Roberts
While I agree with the hon. Member in principle, I am operating within the law in terms of Welsh and English, because there are legal considerations with those two languages in particular.
In the matter we are discussing, the ability for the person to communicate as directly as possible is of the greatest importance. I wonder whether the Minister will respond by saying that the codes of practice in clause 30 will be sufficient, but I emphasise that I took advice from the Welsh Language Commissioner’s office, and it was the Welsh Language Commissioner’s officer who advised that I table the amendments. We are operating in unique circumstances with this being a private Member’s Bill, and we need to have clarity on what is required in relation to how the legislation operates between England and Wales.
Sarah Green (Chesham and Amersham) (LD)
The hon. Lady will know that the Welsh Language Act 1993 put the Welsh language on an equal footing with the English language in Wales. Does she agree that it would be helpful to have clarity on whether the provisions in that Act apply to the Bill?
Liz Saville Roberts
That is exactly what I am seeking to do, and I am seeking to do it as co-operatively and collegiately as possible. But we need to have clarity on this, and our discussions need to be thorough and exact in order to be accurate.
When it comes to the individual’s right to use Welsh in their daily lives, two pieces of legislation are relevant to the Bill: the Welsh Language Act 1993, which predates devolution, and the Senedd’s Welsh Language (Wales) Measure 2011. The Welsh Language Act remains applicable for reserved matters, such as justice, and the Ministry of Justice operates a Welsh language scheme that enables people to use Welsh in courts, tribunals and other areas of justice. The Welsh Language Measure established the office of the Welsh Language Commissioner, who has the power to investigate complaints from Welsh speakers who assert that their freedom to use Welsh has been interfered with; created a Welsh language tribunal to hear appeals against the commissioner’s decisions; and enabled the development standards, which are particularly significant here.
The Welsh Language Measure states that individuals in Wales should be able to conduct their lives through the medium of Welsh if that is what they choose to do. Under the Measure, the NHS in Wales has a statutory duty to deliver services to the public in both Welsh and English. The Welsh language standards are a set of statutory requirements that set out responsibilities to provide services, and they apply to health boards in Wales, as well as to NHS primary care services that are contracted by the health boards. The standards do not apply to independent providers, which since 2019 must follow six Welsh language duties, one of which is to establish and record the language preference of patients. That is where I have got the terminology used in amendment 413.
That is a summary of the relevant considerations but, before I close, it is important to say why this matters to Welsh speakers. I spoke recently to medical practitioners in Wales who wanted me to emphasise their concerns at the lack of specific mention of language rights. I also spoke to the Welsh Language Commissioner’s officers, who advised me on the necessity of the amendments. There is a critique against providing Welsh language services that shrugs its shoulders and says, “Why bother? They all speak English anyway.” That is to ignore how integral language use is to the individual.
We are drafting a Bill to do two things in a very delicate balance: to respect the autonomy of the individual and to safeguard people against abuse in any form. For many Welsh speakers, Welsh is the language of their emotions. It is the language in which they express themselves most fluently, and the first language of their feelings. It matters to this Bill. English is the language of authority, and many Welsh speakers are anxious not to challenge the authority of high-status people such as doctors. They do that out of ingrained politeness, and out of fear of not being able to access services if they put any barriers in the way. That is the way that language gets used. Welsh speakers do not use Welsh in the way that monolingual English speakers use English; monolingual English speakers use English because it is the only language they have. For anyone who is bilingual or multilingual, the use of language is very complicated and sophisticated, and we need to be alert to it in all its respects.
I return to the nature of the relationship between doctors and their patients. Doctors have high status, and a patient approaches a doctor seeking services, advice and context. That is not a power dynamic that we should allow to go unchecked, so I urge the Committee to consider the amendment. I do not intend to press it to a vote, but I want a response from the Ministers. Before Report, I want absolute clarity on its legal necessity or otherwise. I feel instinctively—especially because the Welsh Language Commissioner’s office has told me this—that it should be in the Bill. I would also like a response from Ministers on amendment 414, tabled by the hon. Member for Ipswich.
Rebecca Paul (Reigate) (Con)
I rise to speak briefly to amendments 413 and 414, which are very thoughtful and well-considered amendments. I thank the right hon. Member for Dwyfor Meirionnydd for setting out powerfully and persuasively the importance of the subject. I support the amendments, but in reality we probably need to go further by specifying exactly who would be interpreting and making sure that it is regulated reliably. We do not want just anyone coming in off the street and doing that. That would not be appropriate, so we need to think about whether we need to go further. However, the amendments are a great starting point and would move us closer to where we need to be.
There is much subtlety in this debate. We talked a little in the first week of this Committee about the importance of language and the words that are used. We always need to be cognisant that when we are imparting information to people, particularly in a healthcare context, it is vital that we use language that people understand so that the ramifications of what is being discussed are clear. That is where these amendments become really important, because for those for whom English is not their first language, some of the subtlety and nuance around what a term means could be lost. Interpreters could be an important part of adding the clarity required to ensure that everyone going through the process understands exactly what it involves.
A 2024 Nuffield Council on Bioethics survey found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care. That echoes our debate a couple of weeks ago about how assisted dying can be interpreted in quite a few different ways. It is really important that we are clear in the language we use and what we mean by it.
We also find that among ethnic minorities there is sometimes a greater misunderstanding about palliative care. A 2024 King’s College London survey found that 6% of people believe that it is accurate that palliative care involves giving people medicines in order to shorten their life, but 18% of ethnic minority groups think that. We need to be cognisant of that. While 18% of people trust healthcare providers “not very much” or “not at all” to provide high-quality care towards the end of life, that figure increases to 30% for ethnic minority groups. While 6% of people say they have not heard of palliative care, that increases to 22% of people in ethnic minority groups.
It is important to recognise that the text of the amendment is much less stringent than that of section 7 of South Australia’s Voluntary Assisted Dying Act 2021, which strictly regulates interpreters. That goes back to my initial point. Under the South Australian law, they must be
“accredited by a prescribed body”.
They cannot be a family member, cannot stand to benefit from the will and cannot be involved in the patient’s healthcare. It is really important to ensure that a recognised professional is involved in this most important of processes and information sharing.
I support the amendments, although I think they need to go a little further. I look forward to hearing what other hon. Members have to say.
Daniel Francis (Bexleyheath and Crayford) (Lab)
I echo the points that have been made about the importance of the initial conversations, particularly for those who do not have English as their first language. I made a commitment to my hon. Friend the Member for Ipswich that in his absence I would press amendments 414 and 415 to a Division, as he requested.
I support the general principles of the amendments relating to those who are seeking or who need interpretation to explain aspects of assisted dying to them. I support the merit of that principle and the intention behind amendments 414 and 415.
Naz Shah (Bradford West) (Lab)
Like the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Reigate, I will not press the amendments to a vote, but I certainly want to speak to them. I do not think that they go far enough. Let us put ourselves in the position of people of colour: if the English language is seen as superior to or more powerful than Welsh, that means an extra layer of intervention that I do not think the amendments quite capture. We have not even talked about British Sign Language in our discussion of languages, but it is also really important.
I am a qualified interpreter from Urdu to English—in health, funnily enough—and I can tell the Committee that in Urdu there is not even a word for depression. The word for depression does not exist. In a previous life I chaired the largest mental health charity outside London for ethnic minority communities, and I am a former NHS commissioner, so when we talk about health inequalities and patient intervention, I understand acutely the nuances involved in translating from one language to another.
In the first instance, there is a language that someone does not understand. In the second instance, particularly for minority communities who speak languages from the south Asian subcontinent such as Punjabi, Urdu or Hindi, the words do not exist to translate the Bill literally or to talk about assisted death. That speaks to the point that the hon. Member for Reigate made about understanding what it means. I have the same stats that she cited, which show that people do not understand what assisted death is.
I would really value a response from the Minister and from my hon. Friend the Member for Spen Valley to these questions about the nuances of having such a difficult conversation. These are really brave conversations, both on the doctor’s side and on the patient’s. Take a woman from an ethnic minority background whose first language is not English and whose doctor is unable to translate their conversation with her. Would that conversation be disempowering? Would it be empowering? Would we be doing a disservice to that person, with the best will in the world from the doctor? I really would like to understand what consideration is being given to making this accessible, if it is to be a service and a piece of legislation that is open equally to all.
I have mentioned this point a few times and have raised it with the Minister, and I appreciate that the Minister has responded, but this is where my frustration—for want of a better word—comes from about not having an impact assessment in the first place. If we had had an impact assessment, the Government would have looked at these things. Even with small Bills, we go out to consultation for weeks and weeks. With this Bill, we have not spoken to anybody during Committee stage about the nuances of the provisions on languages and what they will mean for patients. Although I support the essence of what the amendments are attempting to achieve, they fall short of providing the necessary protections. I do not know how the Government will address that.
Stephen Kinnock
This group of amendments focuses on language and literacy barriers, including discussion of the use of interpreters and translations. If amendment 414 is agreed to, a registered medical practitioner who conducts a preliminary discussion with a person will first have to ensure the provision of adjustments for language and literacy barriers, including the use of interpreters. It may be helpful to note that, in all areas of practice, registered medical practitioners must uphold the standards in the GMC’s “Good medical practice”, which includes the provision of adjustments for language and literacy barriers.
The purpose of amendment 413 is to require medical practitioners in Wales who are conducting the initial discussion outlined in clause 4 to
“discuss with the person their preferred language of Welsh or English.”
It may be helpful to note that under the Welsh Language (Wales) Measure 2011, the NHS in Wales has a statutory duty to deliver its services to the public in both Welsh and English. The Measure, which gives the Welsh language official status in Wales, states that
“persons in Wales should be able to live their lives through the medium of the Welsh language if they choose to do so.”
The Welsh Government’s active offer for health is intended to support all staff across NHS Wales to provide a service in Welsh for patients, without their having to ask for it.
Technically, I would note that the amendment does not require the medical practitioner to conduct the initial discussion in the person’s preferred language, or to refer the person to another medical practitioner who can conduct it in the person’s preferred language, if they are unable to do so themselves. I have discussed that point with the right hon. Member for Dwyfor Meirionnydd and am more than happy to have a further discussion about how her amendment might work. The concern that I simply flagged was that we have the 2011 Measure and, as with so many of these things, there is a law of unintended consequences. An amendment that may be designed with the best possible intentions could end up disrupting the system and causing confusion or uncertainty, which I am sure she would not want. As with all these things, that is the challenge.
Liz Saville Roberts
We have raised already in the Committee the need for an impact assessment. I have also raised with the Minister the need for an impact assessment in Wales. The fact that we are having this conversation shows that there is an element of uncertainty about exactly whether it is necessary for this provision to be included in the Bill. I am concerned that it could be in a code of practice; I share the concern expressed by the hon. Member for Bradford West that we do not know how such codes of practice will operate, or whether we will have any say over how they operate. However, as the Minister has come to this in a spirit of co-operation, I hope that we will find some clarity. If it appears that it is better for Welsh language speakers that such a provision be set out in the Bill, I hope that he will agree in that respect.
Stephen Kinnock
I am happy to have that discussion, to better understand how it might all work in practice.
If amendment 415 is agreed to, it will mean that an assessing doctor making an assessment under subsection (2) must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters. As with amendment 414, the Committee may want to note the existing standards that all medical practitioners must uphold, which include requirements for the provision of adjustments for language and literacy barriers.
Amendments 416 and 417 would amend clause 30, which states that the Secretary of State may issue codes of practice on a number of matters, including on arrangements for ensuring effective communication and the use of interpreters. The amendments would impose a duty on the Secretary of State to issue one or more codes of practice in connection with arrangements for ensuring effective communication, including the use of interpreters, and to do so within six months of the passing of the Act. The requirement to issue any such code of practice within six months may prove unworkable. Under clause 30, it would be necessary to consult on the code of practice, make regulations to allow for the code of practice to come into force, have the regulations approved by both Houses of Parliament and then issue the code of practice, all within a six-month period after the passing of the Act.
As I have said, the Government will continue to remain neutral on whether or how the law in this area should change. As I have made clear, that is a matter for the Committee and for Parliament as a whole. However, I hope that these observations are helpful to members of the Committee in considering the Bill and the amendments tabled to it.
Kim Leadbeater
On amendment 413, from the right hon. Member from Plaid Cymru—with apologies, I will not embarrass myself by trying to pronounce the wonderful name of her constituency—I am very sensitive to issues around devolution. We have had many conversations about it, which I am very happy to continue. The Minister has confirmed, as I understand it, the issue around the Welsh language, in that it would be covered by the Welsh language legislation, which states that individuals in Wales
“should be able to live their lives through the medium of the Welsh language if they choose to do so.”
I am very supportive of that. I am also happy to continue those conversations, where necessary, with the Minister.
I turn to amendments 414 and 415. I think several Members of the Committee have had the same message from my hon. Friend the Member for Ipswich, who was clearly struggling to get here on time. I, too, would be happy to move them in his name. They seem very sensible amendments, and I am happy to support them. Along with the GMC’s “Good medical practice”, which sets out the principles, values and standards of professional behaviour expected of doctors, it is a belt-and-braces approach to an issue that is very important, for reasons that several hon. Members have set out.
I cannot support amendments 416 and 417, however, because the timeframe that they would impose would not fit with the rest of the Bill. In reference to the two-year implementation period, that would just not be workable or possible.
Liz Saville Roberts
I will not press amendment 413, because I anticipate further conversations on these matters.
Amendment 414 agreed to.
Amendment proposed: 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”—(Naz Shah.)
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 71, in clause 4, page 2, line 31, at end insert—
“(4A) The practitioner must, following the preliminary discussion under subsection (3), refer that person to the Assisted Dying Agency if the person asks them to do so.”
This amendment is consequential on NC4 and would establish a pathway by which a person is referred to the Assisted Dying Agency.
The Chair
With this it will be convenient to discuss the following:
Amendment 72, in clause 5, page 3, line 16, leave out paragraph (b) and insert—
“(b) has been assigned to the person by the Assisted Dying Agency,”
This amendment is consequential on NC4 and provides that the coordinating doctor must have been assigned to the person by the Assisted Dying Agency.
Amendment 73, in clause 7, page 4, line 21, leave out paragraphs (b) and (c) and insert—
“(b) provide the person who was assessed and the Assisted Dying Agency with a copy of the statement.
(3A) Upon receipt of the statement specified in subsection (3)(a), the Assisted Dying Agency must assign to the person, as soon as practicable, another registered medical practitioner who meets the requirements of section 8(6) for the second assessment (‘the independent doctor’).”
This amendment is consequential on NC4 and would require the coordinating doctor to send a copy of their statement to the Assisted Dying Agency. That Agency must then to assign an “independent doctor” to the person.
Amendment 75, in clause 8, page 5, line 9, leave out “coordinating doctor” and insert “Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 74, in clause 8, page 5, line 16, at end insert—
“(ba) has been assigned to the person by the Assisted Dying Agency,”.
This amendment is consequential on NC4 and provides that the independent doctor must have been assigned to the person by the Assisted Dying Agency.
Amendment 76, in clause 9, page 6, line 14, leave out paragraph (e).
This amendment is consequential on NC4.
Amendment 77, in clause 11, page 7, line 18, after “appointment,” insert
“by the Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 78, in clause 14, page 10, line 7, leave out from “person)” to end of line 12 and insert “the Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 79, in clause 16, page 11, line 18, leave out subsections (2) and (3) and insert—
“(1A) The Assisted Dying Agency must, as soon as practicably possible, record the making of the statement or declaration.”
This amendment is consequential on NC4.
Amendment 80, in clause 17, page 11, line 36, leave out subsections (2) and (3) and insert—
“(1A) The Assisted Dying Agency must record the cancellation.”
This amendment is consequential on NC4.
New clause 4—Assisted Dying Agency—
“(1) There shall be a body known as the Assisted Dying Agency (‘The Agency’).
(2) The purpose of the body is to coordinate requests from people to be considered for assisted dying, including assigning, at the appropriate junctures, a coordinating doctor and independent doctor for a person seeking assistance to end their own life.
(3) Where a person has previously been referred to the Agency, no future referral relating to that person can be proceeded with by the Agency unless it considers there has been a material change in the person’s circumstances.
(4) The Secretary of State must make regulations setting out—
(a) the staffing and remuneration of such staff,
(b) the procedures of the Agency, and
(c) the means by which the Agency can pay coordinating doctors and independent doctors for services rendered under this Act.
(5) The Agency’s expenditure is to be paid out of money provided for by Parliament.
(6) The Agency must, for each financial year, prepare accounts in accordance with directions given to it by the Treasury.
(7) The Agency’s chief executive is its accounting officer.
(8) As soon as reasonably practicable after the end of each financial year, the Agency must prepare a report about the performance of its functions during that year and lay that report before both Houses of Parliament.
(9) Regulations under subsection (4) are subject to the affirmative procedure.”
This new clause would create a new body that was principally responsible for coordinating and recording statements and declarations in relation to a person’s request for assistance to end their own life.
Danny Kruger
Although these provisions may seem irrelevant to the Bill—I do not think any of us wishes to see the creation of an assisted dying agency—I am nevertheless grateful to my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer) for tabling them. He is playing his usual role of keeping us honest.
It is extraordinary that nowhere does the Bill lay out exactly how the assisted dying service would be delivered—whether it would be an NHS service, a private service or some mix of the two. I am therefore grateful to my hon. Friend for being clear in his suggestion that it should be a non-NHS service and that, if we are to pass this law, we should establish a bespoke agency for the explicit purpose of delivering that service. It is a rather macabre but logical way of delivering on the proposal in the Bill.
The fact is that many doctors, faced with the prospect of being asked to participate in assisted dying, have expressed their preference for it to be delivered outside the NHS. In its written evidence, the British Medical Association, which has been cited a number of times today, says:
“There is nothing in the Bill about how an assisted dying service might be delivered, although the possibility of a separate service is mentioned in the explanatory notes.”
The BMA’s view is that assisted dying
“should not be part of the standard role of doctors or integrated into existing care pathways”.
I stress that point, because it has often been suggested in the course of debate that the way assisted dying will work will be as part of a holistic range of options—pretty indistinguishable from palliative care or other treatment options put before patients. The BMA is clear that assisted dying
“is not something that a doctor can just add to their usual role.”
The Royal College of General Practitioners has also pointed out in evidence that the shape of the service is not set out in the Bill.
Kit Malthouse (North West Hampshire) (Con)
On a point of order, Mr Dowd. In his opening sentence, my hon. Friend said that none of us wanted to see the creation of an assisted dying agency. My interpretation of our speaking to a particular amendment is that we have to address what it intends to do in the Bill. My hon. Friend said that he does not want what the amendment intends and that he is speaking more generally about the delivery of the service. Could we have your guidance as to whether that is in order? One of our problems is that we are having very expansive debates, and previous Chairs have sought to keep everyone in order. I am anxious that my hon. Friend does not exhaust himself by straying from the central point in the amendment.
The Chair
The fact of the matter is that the hon. Member does not have to agree with the amendment, so he is perfectly entitled to speak in that regard.
Danny Kruger
I am grateful to you, Mr Dowd, and to my right hon. Friend for his concern for my welfare, which is much appreciated. However, he will be relieved to know that I have plenty of energy and can keep going.
To speak seriously, it is very germane to the Bill that the amendments are considered. As I was explaining, GPs and other medical practitioners have been concerned about the absence from the Bill of clauses to specify the delivery of the service, so I am grateful that we have this opportunity to discuss that and to hear from the Minister and the sponsor how they imagine the Bill would operate and whether it would, indeed, be appropriate to establish some kind of agency along the lines proposed. The reason I object to an assisted dying agency is that I object to assisted dying, but I see the logic of the proposal if we are to proceed with the principle of the Bill.
It is extraordinary that this crucial question is not set out. In his evidence to us, Chris Whitty said rather airily that it was for Parliament to decide how the service should be delivered. I would stress that most medics involved, particularly in palliative care and care for people at the end of life, are very hostile personally to the suggestion that they should participate in assisted dying. The BMA’s 2020 survey of its members found that 76% of palliative medicine doctors would be unwilling to participate if assisted dying were legalised. The Royal College of Physicians 2019 members’ poll found that 84% were opposed.
Kit Malthouse
This is not in order; it has nothing to do with the amendment.
The Chair
If the right hon. Gentleman wishes to make a point of order, he should feel free to make a point of order.
Kit Malthouse
On a point of order, Mr Dowd. I am grateful to you, and I am sorry to interrupt. I do not mean to be rude, but I cannot see how this is germane to the amendment. We have a lot of amendments to deal with in detail, and expanding the debate into a wider one about whether the medical profession agrees with assisted dying does not seem to me to address the question of whether we should include the amendment in the Bill, which is what we are here to decide.
The Chair
The right hon. Member is perfectly entitled to express his view, and I respect it. I will make a judgment in due course as to whether the hon. Member is stepping outside the latitude of the issue. He will no doubt bear in mind your intervention and my response to it.
Danny Kruger
I, too, am grateful, Mr Dowd. I stress that I am discussing the suggestion in the amendment that assisted dying be taken out of the NHS and not be part of the normal pathways doctors are invited to participate in. It strikes me as relevant that most doctors, were the law to be passed, would wish for something along the lines of the amendment to be included.
We do not know exactly how that would work. We know that it could potentially be private, according to the scheme set out in the amendment, or it could be within the NHS. We know from the references in clause 40 that private provision is envisaged, because of the talk of reasonable remuneration for the provision of services. So it would be outside the normal service expectation of medical professionals employed by the NHS; indeed, we know that it could be a lucrative market.
Sojan Joseph
Does the hon. Member think that, if we bring in an agency from outside the NHS—from the private sector—this will become like a business?
Danny Kruger
The hon. Gentleman is absolutely right. The opportunity is there in the Bill for private businesses to be established to deliver assisted dying services. Indeed, it would be quite a lucrative money-making enterprise. Estimates have been given of between 5,000 and 17,000 assisted deaths per year, depending on how they are arrived at. If the charges employed by Dignitas—which is in a sense the model being proposed here—are anything to go by, it could be in the region of £5,000 to £10,000 per patient. Even a small proportion of that would be significant—a multimillion-pound business would be possible under the Bill. Advertising would also probably be possible; we saw TfL suggest that the Dignity in Dying adverts in the tube before Second Reading were compliant. There is no prohibition in the Bill on advertising or on people making money from it.
However, the Bill also specifies that this would be a state-protected service, so if it were to be a private enterprise, it would have all sorts of state protections that would not normally apply to private providers of anything. Under clause 25, the providers would be exempt from any civil liability for providing assistance under the Bill. Under clause 29, a death would be exempt from investigation under the Coroners and Justice Act 2009. Clause 30 says that a failure to comply with any code of practice
“does not of itself render a person liable to…criminal or civil proceedings”.
The only monitoring that would be done would be undertaken by the voluntary assisted dying commissioner, who is not an independent figure, but the person responsible for setting up the panels that approve the deaths.
The Chair
Order. We need to get back to the assisted dying agency. Can the hon. Member keep to that, please?
Danny Kruger
I shall—I am winding up now, Mr Dowd. These amendments go to the heart of this great absence—this blank space—in the middle of the Bill, which is how on earth it will be delivered. Who would deliver it, and under what regulation? What would be their terms of engagement? All of that represents quite a scandalous gap in the Bill, and my concern is with that enormous gap.
I want to conclude with a reflection on that lack of clarity. Elizabeth Gardiner, who I understand was the very experienced parliamentary drafter who contributed her time to draft the Bill, talked on the Hansard Society podcast of the opportunity that drafting has to change the law. She noted that if the law
“is a restriction that would curtail the ability of this to be delivered through the National Health Service, the Bill could change that.”
So it has been suggested that the Bill would require changes to the National Health Service Act 1946 to remove what the Hansard Society calls the “duty to protect”.
The Chair
Order. The hon. Gentleman heard what I said earlier, and I do not want to reaffirm it, but can we get back to the substance of the assisted dying agency provision, please?
Danny Kruger
I have one last point to make, Mr Dowd, which I hope you will regard as in order because, as I said, it goes to the heart of things. At the moment, the Bill does not specify how these things should be done, and Elizabeth Gardiner, the drafter behind it, said on the radio:
“we didn’t have time to go into all the detail of how those regimes work and to make the provision on the face of the Bill. And so there are regulation making powers there, which enable that provision to be set out”—
I believe that that is in clause 32. Enormous Henry VIII powers are being established. I deeply regret the gap in the Bill, and I am grateful to my hon. Friend the Member for Runnymede and Weybridge, who tabled these proposals, for enabling us to have this debate.
The Chair
Order. I remind the hon. Member to keep to the issue that we are discussing, because if he or any other Member does not, and goes beyond the scope of what they really should be sticking to, I will take a much less lateral approach in future. I say that gently and with the best intention.
Stephen Kinnock
I will speak to this group of provisions as one, given that amendments 71 to 80 are consequential on new clause 4. The purpose of these provisions is to create a new statutory body—the assisted dying agency—which has the purpose of co-ordinating requests from people to be considered for assisted dying. The provisions provide for various functions and duties of the agency, including assigning a co-ordinating doctor and an independent doctor to a person seeking assistance to end their own life.
The agency would be responsible for accepting referrals, replacing registered medical practitioners with the roles of assigned co-ordinating doctor and assigned independent doctor, and receiving and recording declarations, statements and cancellations made by co-ordinating doctors, independent doctors and those receiving assistance under the Bill.
That would be a change from the current provisions in the Bill, which place a number of those duties on the individual co-ordinating doctor and independent doctor. One effect of the proposed new clause is that a new agency would have to be established by the Government. If it passed, we would have to work to assess how that might be possible in practice.
I hope my brief remarks are helpful to Committee members in considering the Bill, the amendment and the new clause.
Kim Leadbeater
I have nothing to add, other than to agree with the hon. Member for East Wiltshire; I do not think any of us on the Committee are keen on the implementation of the assisted dying agency.
Danny Kruger
I really regret that we have had such a small debate on the enormous question of how on earth assisted dying would actually be delivered. We are leaving it to Ministers, subsequent to the passage of the Bill, to design this service. The clear possibility is that a private enterprise could run the service. It might be an NHS service. The fact that that is unclear in the Bill is shameful, but I am grateful we have had the opportunity to debate the matter, sort of, and I am not going to press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 276, in clause 4, page 2, line 31, at end insert—
“(4A) A medical practitioner must not conduct a preliminary discussion with a person under subsection (3) until a period of 28 days has elapsed, beginning with the day the person had received a diagnosis of the terminal illness.” —(Naz Shah.)
This amendment would mean a doctor could not conduct a preliminary assessment until 28 days from the day the person received a diagnosis of the terminal illness.
Sean Woodcock (Banbury) (Lab)
I beg to move amendment 345, in clause 4, page 2, line 31, at end insert—
“(4A) If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must record and document the discussion and the information provided to the patient in their medical record and provide a copy to the patient.”
This amendment would add a requirement ensuring that the preliminary discussion is recorded and forms part of the patient’s medical record.
The Chair
With this it will be convenient to discuss the following:
Amendment 288, in clause 4, page 2, line 36, at end insert—
“(6) All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”
This amendment would require the coordinating doctor to record efforts to dissuade the person from taking their own life and subsequently make this available to the medical examiner.
Amendment 297, in clause 7, page 4, line 3, at end insert—
“(1A) Any consultation as part of the assessment must have a full written transcript as its record of the conversation.”
This amendment would require all consultations for the first assessment to have a full written transcript.
Amendment 295, in clause 7, page 4, line 26, at end insert “, and
(d) collate all evidence provided regarding the condition of the patient in a document to be provided to the Medical Examiner and the relevant Chief Medical Officer after the person has received assistance to die in accordance with this Act.”
This ensures that the documentation that will be required by the Medical Examiner will be available when required.
Amendment 300, in clause 8, page 4, line 30, at end insert—
“(1A) Any consultation as part of the assessment must have a full written transcript as its record of the conversation.”
This amendment would require all consultations for the second assessment to have a full written transcript.
Amendment 302, in clause 8, page 5, line 10, at end insert “and
(c) provide details of the way the assessment was conducted and the written transcript of any consultation to the relevant Chief Medical Officer and the person’s own GP, maintaining a copy to be supplied to the relevant Medical Examiner after the person’s death.”
This amendment will ensure that medical records are in line with procedures for presentation to the Medical Examiner.
New clause 19—Recording of preliminary discussion—
“(1) This section applies where a registered medical practitioner (‘the practitioner’) conducts a preliminary discussion with a person.
(2) Where the practitioner is a practitioner with the person’s GP practice, they must, as soon as practicable, record the preliminary discussion in the person’s medical records.
(3) In any other case—
(a) the practitioner must, as soon as practicable, give a written record of the preliminary discussion to a registered medical practitioner with the person’s GP practice, and
(b) that registered medical practitioner must, as soon as practicable, include the record in the person’s medical records.”
This new clause requires a practitioner to include, in the person in question’s medical records, a record of a preliminary discussion under clause 4.
Sean Woodcock
Amendment 345 was tabled by my hon. Friend the Member for Shipley (Anna Dixon); I referred earlier to her record in this area. The amendment would ensure that medical practitioners record and document preliminary discussions with a patient about assisted dying and provide the patient with that information. I welcome the amendments from the Bill’s promoter to make records of the first and second doctor’s assessments. Those safeguard patients and the process. It is important that we have transparency and clarity on such weighty decisions.
Several people raised in their written evidence the importance of good documentation. These amendments meet those concerns. I assume that not including a record of the preliminary discussion is merely an oversight by the Bill’s promoter. The amendment seeks to do what she says she wants to do—protect patients and doctors—by making records of the discussions.
In written evidence TIAB55, Professor Allan House suggested that
“It should be required as it is in all other areas of medical practice, that specific written records are kept of this assessment and of procedures followed to end life—not just the substances used. The written record to be included in the person’s medical record so that it is available to the Medical Examiner. Records also to be available at appraisal to enable assessment of the quality of the process.”
Kim Leadbeater
I thank my hon. Friend for his comments. Will he take note of my new clause 19, which is in this group and states that the preliminary discussion has to be recorded?
Sean Woodcock
I am grateful for that intervention, which goes to the heart of my next question: why would we record and document later conversations, but not the initial one? That conversation could be one in which coercion takes place and without a record of it happening, patients and doctors are at risk. We have acknowledged that patients can be influenced by their doctors, whether consciously or unconsciously. We also noted how certain groups lack trust in the healthcare system. Dr Jamilla Hussain, in her written evidence, TIAB252, explained that the various inequalities faced by certain communities
“contribute to mistrust in health and social care services”
and that
“minority patients frequently express fear of having their lives shortened by healthcare providers, especially at the end-of-life with medication such as morphine and midazolam.”
In situations where patients are uncertain or lack trust in medical professionals, a record of the initial conversation is important to protect everyone involved. As Professor House stated, documenting the process and making records is common medical practice, so why would we differ here? We must protect patients and doctors, and making clear records at every stage of the process contributes to that.
Naz Shah
I rise to speak to amendments 288 and 295 tabled by my hon. Friend the Member for York Central (Rachael Maskell), both of which would improve the quality of records kept about people applying for assisted dying. Their aim is to make parliamentary and public scrutiny of the system easier and better. Amendment 288 would insert a new subsection at the end of clause 4, on page 2, line 36, reading:
“All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”
That recognises that a doctor may follow existing guidelines and seek to dissuade the person from ending their life. It would ensure that such efforts are recorded to improve understanding of the Bill and its interaction with suicide prevention. As Professor Allan House noted in his written evidence, the National Institute for Health and Care Excellence guidelines apply
“in other areas where it is important to explore thoughts about life not being worth living”.
After an episode of self-harm or instances of suicidal thoughts, the medical professionals will explore
“current and recent personal and social circumstances, recent adversities, psychological state beyond merely assessing mental capacity and the presence of severe mental illness.”
In line with this suicide prevention strategy, a doctor may feel the need to explore those psychosocial factors and seek to dissuade the person from ending their life. We know that suicidal thoughts and depression are particularly common among terminally ill people. Dr Annabel Price, a member of the faculty of liaison psychiatry at the Royal College of Psychiatrists, gave oral evidence that among people who need palliative care at the end of their life,
“20% will have diagnosable depression, around 10% will have a wish to hasten death, and around 4% will have a more persistent wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 270, Q351.]
She went on to say:
“Those who had a wish to hasten death were 18 times more likely to also feel suicidal”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275-276, Q359.]
Terminally ill people are therefore at particular risk, and it is vital that the Bill does not diminish wider suicide prevention strategies. The amendment would record instances where the medical practitioner may try to dissuade the person from ending their life. Some doctors may take the view of Professor Allan House, who said in his written evidence,
“a statement about wanting to end one's life cannot be simply taken as the result of a straightforward rational decision to choose one type of end of life care over others.”
Furthermore, this amendment would also address some of the concerns about unconscious bias. Recording efforts to dissuade the person from ending their life would show when doctors assume a person should have an assisted death where others should not. Fazilet Hadi of Disability Rights UK spoke about this in her oral evidence:
“We often find that doctors, because they cannot treat or cure us, do devalue our lives. We have had disabled people who have actually had it suggested to them or their families that their lives are expendable, when actually those people have got a lot of years to give.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 180, Q234.]
Providing records of a doctor’s efforts to dissuade the person from ending their life will address some of these concerns. It will ensure that there can be a more meaningful review of the impact of the Bill on different groups, so that the right to die does not become a duty to die.
In conclusion, amendment 288 would strengthen the safeguards in the Bill by ensuring transparency and accountability in doctor-patient discussions by requiring the documentation of efforts to dissuade individuals from ending their lives. We would lessen the impact of the Bill on wider suicide prevention strategies and provide evidence for meaningful review at a later date.
Amendment 295, also tabled by my hon. Friend the Member for York Central, is about enabling public and parliamentary scrutiny of the assisted dying system. It will ensure that, if the Bill passes, there are good records of all applications for assisted dying and that they are readily available to the medical examiner. Some Members will know exactly what the medical examiner does, but I note for the record that it is a newly created public office, in operation since 2024. The task of the medical examiner is to examine any deaths within the context of healthcare, whether NHS or private, that are not being examined by a coroner.
In light of the magnitude of the decision being made, it is important for records to reflect that. It is equally important that those who will depend on the evidence can access the same evidence on which the co-ordinating doctor made their determinations. Therefore, it is essential that the basis of the decision making is accurately recorded, along with the evidence from other practitioners. For instance, if a palliative care specialist, a clinical consultant and a psychiatrist or psychologist have been consulted, evidence of what they did and said must be readily available, and it is essential that that sits with the record of the co-ordinating doctor. The information must be gathered for the medical examiner to be able to come to their determination with all the evidence before them. It is also vital for the reporting mechanisms to be deployed for the process by which the chief medical officer compiles their report. That is ultimately what Parliament will be able to scrutinise.
Both these amendments would greatly improve the quality of records kept on assisted dying. If I recall correctly, the role of the medical examiner was brought into legislation following Shipman, to tidy up and tighten the records we keep—because clearly we had lessons to learn from them. Also, we have heard in evidence that some other jurisdictions keep good medical records, especially when that speaks to people who are potentially coerced. In one jurisdiction, we had somebody who said that they had never felt a burden, but there were many more who said that they had felt a burden.
There is no doubt that these services will continuously need improving. If we keep these records and understand that these conversations have been had then, ultimately, should this Bill become law, these records would form part of the data collection that we could rely on as parliamentarians and for those service improvements. The amendment speaks not just to the Bill itself, but to ensuring that it continues to do what it is intended to do going forward.
These amendments improve equality in assisted dying. That, in turn, will make it far easier for us in Parliament, for our constituents and for the media to find out what is happening with any assisted dying system. In this country, we believe in open justice and open Government. Assisted dying is much too important to be allowed to operate without strong scrutiny by the press, the public and ourselves in Parliament. I therefore urge hon. Members to vote for both these amendments.
Sojan Joseph
I rise to speak in support of the amendment. The documentation in our healthcare system is a very important matter. It helps us to share good practice and to learn from mistakes. Whether in secondary care, primary care or nursing homes, the quality and the safety of our patient care is monitored by the Care Quality Commission, which uses clinical documentation to carry out its process of monitoring that quality and safety. It is important that any conversation had with patients by the doctor, or by any medical professional or multidisciplinary team, is documented clearly. That will help to safeguard our patients.
Stephen Kinnock
This series of amendments relates to the various discussions and assessments that registered medical practitioners, co-ordinating doctors and independent doctors will have with individuals seeking assistance to end their life in accordance with the Bill. In particular, they seek to amend the requirement for recording information about those discussions. As I have done throughout, I will limit my remarks to comments on legal and practical impacts of amendments. In executing our duty to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with the hon. Member for Spen Valley on amendments to the Bill, including new clause 19 in this group.
Amendment 345 would require the registered medical practitioner, following a preliminary discussion with a person, to record and document in that patient’s medical records the discussion and any information provided to the patient, and it would require them to provide a copy to the patient.
Amendment 288 adds an additional requirement on the registered medical practitioner who conducts an initial discussion with the person on the subject of an assisted death to record all efforts to dissuade a person from ending their own life in the person’s medical records, and subsequently to make those records available to the medical examiner. As drafted, it is not clear whether the wording “all efforts” is intended to include efforts made by the registered medical practitioner alone, or to include efforts made by others that could be reported to the registered medical practitioner. Further clarity would be needed to establish the practical implications of the amendment. The amendment does not require this information to be recorded at a specific time. I would also note that, operationally, medical examiners are not involved in scrutinising all deaths. Some deaths are investigated by coroners. Clause 29 will consider inquests and death certifications in relation to assisted death.
Amendment 297 requires a full written transcript to be produced for any consultations that occur as part of the first assessment undertaken by the co-ordinating doctor. That would potentially add some operability challenges and, if passed, we would want to explore those further. For example, there could be situations in which the person seeking assistance does not want there to be a written transcript. Further clarity is also required on whether the amendment intends to capture only consultations between the co-ordinating doctor and the patient, or whether it also intends to capture conversations with relevant persons other than the person seeking an assisted death.
I turn now to amendment 295. As the Bill stands, if, having carried out the first assessment, the co-ordinating doctor is satisfied that the person being assessed has met all requirements in clause 7(2), the co-ordinating doctor must:
“(a)make a statement to that effect in the form set out in Schedule 2, and sign and date it,
(b) provide the person who was assessed with a copy of the statement, and
(c) refer that person, as soon as practicable, to another registered medical practitioner who…is able and willing to carry out the second assessment”.
Amendment 295 seeks to add an additional requirement for the co-ordinating doctor to
“collate all evidence provided regarding the condition of the patient in a document to be provided to the Medical Examiner and the…Chief Medical Officer after the person has received assistance to die”
in accordance with the Bill. The aim of the amendment is to ensure that the documentation will be available when required by the medical examiner.
Naz Shah
The Minister referred to a patient not wanting to keep a written record. How does that fare if there is a potential issue of negligence later on? Is that not a requirement of every NHS service that we provide? For example, in the case of a kidney donation where an independent assessor was needed, the details would have to be kept. I am just a bit confused. I wonder if the Minister might comment on that.
Stephen Kinnock
The challenge we found with amendment 297 is that it is not entirely clear what would happen if the person were to say expressly that they did not want a written record. That eventuality is not baked into the Bill as it is currently drafted, so I think it would require a lot of thinking through—again, we are back to the law of unintended consequences—about the impact the amendment would have in certain circumstances if, for example, someone were to say expressly that they did not want a written record. That is the question: the impact of the amendment is not clear.
Naz Shah
If that is an issue, then it is my understanding, being new to Bill Committees, that it is not because the provision is poorly drafted, but because the outcome is not clear. Can the Government not clarify that on Report or Third Reading? I have heard nothing from the Government, even where they are supportive of amendments, about going away and looking at them. There is none of that conversation coming from the Government. Perhaps the Minister will comment on that.
Stephen Kinnock
As my hon. Friend knows, there will be an impact assessment on the Bill once it has cleared Committee. The Government’s impact assessment would be based on the Bill as it cleared Committee, so it would include the amendment we are discussing, if it were to pass. As things stand, I cannot tell her what the impact of the amendment would be in the event that it passed, because that has not been thought through from all the different angles, including if someone were to expressly say that they did not want a written transcript.
I turn to amendment 300, which would require a full written transcript of the second assessment as a record of the conversation. This goes further than the requirement that the Bill currently places on the independent doctor, which is to make a statement in the form in schedule 3. As with amendment 297, further clarity is required on whether the amendment is intended only to cover consultations with the patient, or whether conversations with other individuals should also be transcribed.
Amendment 302 would require the independent doctor to provide details of the way in which the second assessment was conducted alongside a written transcript of any consultation to the relevant chief medical officer and the person’s GP.
Naz Shah
The Minister is being very generous with his time. I want to understand the idea that someone might say that they do not want a written transcript, when everybody in our country who uses the NHS has a written medical record. Why, in this instance, are the Government of the view that we should stray from normal practice?
Stephen Kinnock
I think it reflects the fact that, as the Committee has agreed, we are in uncharted territory on a whole range of issues here. I think it is best to think through the implications of every amendment. If it passes, every clause of the Bill will have to be assessed for its potential impact. I have other questions about amendment 297 in my notes. Does it intend to capture only the consultations between the co-ordinating doctor and the patient, or does it intend also to capture conversations with relevant persons other than the person seeking an assisted death? That is not clear from the amendment. What I am saying is that it poses more questions than it answers.
Kim Leadbeater
I might be wrong, but my understanding is that a patient could ask for access to their medical records at any point. On the basis that new clause 19 requires the doctor to record a preliminary discussion, presumably, if a patient wanted to see that record, they would be able to.
Stephen Kinnock
I agree with my hon. Friend on that point. As I stated at the start of my comments, officials have worked with her on new clause 19, which I think goes a long way to clearing up many of the points that have been raised, including hers.
The Chair
Order. The Minister is in the middle of responding to a particular question. Will Members wait until he has done so before standing up to ask a question on a question, please?
Stephen Kinnock
Thank you, Mr Dowd. I have answered the question from my hon. Friend the Member for Spen Valley and am happy to take another intervention.
Juliet Campbell
Throughout the debate, we have spoken consistently about things that happen normally within medical practice, but the amendment we are discussing would move us away from ordinary practice. Could the Minister explain why we would do that?
Stephen Kinnock
As I have set out, officials have looked at amendment 297 and raised a couple of flags or questions about it. One is what we have discussed about the transcript. The other is that it is not clear whether other people should be included in the consultation. I do not think it is so much about departing from common practice as about the questions that the amendment raises. As always, the Government are neutral. The Government trust that if the Committee, in its wisdom, sees fit to pass the amendment, it will be workable, but as things stand it raises a number of questions. That is all I am flagging.
Naz Shah
The Minister is being generous with his time. I am even more confused now. Originally, the Minister suggested that a patient might not want a transcript, but in response to the question from my hon. Friend the Member for Spen Valley, he mentioned that under new clause 19 people will have access to their written records. That appears to be a contradiction. I just want to nail this down. What will it be? If a patient does not want a written record, we would not have a written record to access, so that contradicts the Minister’s response. I want to understand exactly what the Minister is suggesting.
Stephen Kinnock
The Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The Government’s view is that if the Committee accepts it, then that new clause will provide the level of robustness and resilience that the system requires. The Government are not convinced that, on its own, the amendment that my hon. Friend the Member for Bradford West is talking about would provide the level of robustness and resilience we would be looking for. As things stand, the choice has been made to work with my hon. Friend the Member for Spen Valley on new clause 19, and we are satisfied that that would provide us with the operational integrity we need.
Amendment 302 would require the independent doctor to provide details of the way in which the second assessment was conducted, alongside a written transcript of any consultation to the relevant chief medical officer and the person’s GP. The independent doctor would be required to maintain a copy of that record to provide to the relevant medical examiner.
As I have mentioned, in executing our duty to ensure that the Bill, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The new clause would require a practitioner to include a record of a preliminary discussion having taken place under clause 4. The record of the preliminary discussion must be included in the person’s medical records. Where the medical practitioner is a member of the person’s GP practice, they must make such a record in the person’s medical records as soon as practicable. Where the medical practitioner is not a member of the person’s GP practice, they must, as soon as practicable, provide a written record of the preliminary discussion to a medical practitioner at the person’s GP practice, who will then be required by the new clause to include it in the person’s medical records as soon as practicable.
The Committee may wish to note that amendment 424 would add a definition of “preliminary discussion” to the Bill that would make it clear what discussion medical practitioners would be required by law to record.
That concludes my remarks on this group. I thank the Committee for its attention.
Kim Leadbeater
I rise to speak briefly to my new clause 19, which refers to the recording of the preliminary discussion. It would require the practitioner to include in the medical records of the person in question a record of a preliminary discussion under clause 4. The initial discussion with the patient is very important and, as such, should be recorded in their records. I hope that colleagues agree and will support the new clause.
Sean Woodcock
I would like to press amendment 345 to a vote.
Question put, That the amendment be made.
The Chair
Before I call Danny Kruger to move amendment 412, I remind Members to keep within scope and to ensure that any points raised are relevant and not repetitive, or I will intervene.
Danny Kruger
I beg to move amendment 412, in clause 4, page 2, line 32, leave out subsection (5).
The Chair
With this it will be convenient to discuss the following:
Amendment 341, in clause 4, page 2, line 33, leave out from “subsection (3)” to the end of line 36 and insert
“is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”
This amendment would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion with a person must provide information to the person about where they can have that discussion, but that this need not take the form of a referral.
Amendment 338, in clause 4, page 2, line 34, leave out from “so” to end of line 36 and insert
“direct them to another registered medical practitioner or the independent information and referral service established under section [Independent information and referral service]”.
This amendment, which is linked to NC13, would mean that a registered medical practitioner who was unwilling to have preliminary discussions would direct the person to another registered medical practitioner or an independent information and referral service.
Amendment 287, in clause 4, page 2, line 34, leave out from “practitioner” to end of line 36, and insert
“who is qualified to undertake such a preliminary discussion, and set out palliative medicine options to provide the patient with appropriate end of life care, including referring them to a palliative medicine expert.”
This amendment means that the medical practitioner who is unwilling to have an initial discussion with a person must, both refer them to another registered medical practitioner and set out the palliative care options including referring them to a specialist.
New clause 13—Independent information and referral service—
“(1) The Secretary of State must, by regulations, make provision to establish an independent information and referral service to—
(a) provide information to persons who are, or may be, eligible for assisted dying in accordance with this Act, and
(b) where requested, facilitate the person’s access to assisted dying in accordance with this Act.
(2) Regulations under subsection (1) are subject to the affirmative procedure.”
This new clause would require the Secretary of State to make provision for an independent information and referral service.
Danny Kruger
I rise to speak to this important group of amendments, which are all relevant to the duty to refer, whereby a doctor who does not want to advise a patient on assisted dying is obliged to send them to somebody who does. In different ways, we each seek to provide more protections for those medical professionals.
There are two main reasons why doctors may not want the obligation to refer that is in the Bill. The first is the central point that this is not a healthcare treatment, as is traditionally understood. Assisted dying does not address the condition or treat the illness; it treats only the symptoms, in the sense that it obliterates the existence of the patient. Like the advert for bleach says, it “kills all known germs”—it kills every experience that the patient has or could have. It is not part of the range of treatments that a doctor should have to offer, as clause 4(1) makes clear.
That point similarly relates to the question of referring to somebody who can offer that discussion. I suggest that the act of referring is an act of endorsement, just as offering the intervention itself is an act of endorsement. Dr Green from the BMA made it clear during oral evidence that the BMA does not like the word “refer”, as it implies assent to the option that is being offered. Indeed, the hon. Member for Spen Valley, in conversation with Dr Green during evidence, accepted that the word “refer” was “not…quite right”, as she put it, because it has the particular implication and expectation of a form of endorsement.
We have heard the same opinion from multiple witnesses in written and oral evidence to the Committee, particularly from Muslim medical professionals and their trade body. Those representing pharmacists also expressed significant concern that they might find themselves included in the definition of medical practitioner. The Association of Anaesthetists and the Royal College of Nursing were worried as well. A range of professional bodies and representative organisations share my concern that imposing a duty to refer—an obligation to assist somebody to have an assisted death by finding them a doctor who will conduct the preliminary discussion—is itself a breach of their rights of conscience.
The second reason follows from the first. Doctors may reasonably conclude that being in a position to help with assisted dying puts them in a totally different relationship with their patients. That is why the BMA is so unhappy and has asked for the requirement to be removed. It has an alternative, which some of these amendments also propose. It said:
“We urge the committee to remove the referral requirement and, instead, make it clear that the doctor’s duty is to direct patients to where they can obtain information”.
That is what amendment 341, in the name of my hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson), would do. The BMA suggests that
“this should be an official body set up to provide individual information and advice to patients, to which patients could be referred or directed to, or could self-refer.”
My preference would be not to have any obligation on doctors to make any kind of referral, but I respect the aspiration of the amendment, which is to ensure that there is an independent body to give advice that patients can seek out themselves or that they can be advised of, so there is no expectation of a referral to a doctor who can facilitate the assisted death.
The Royal College of General Practitioners is also unhappy about the provision. It suggests that instead of expecting doctors
“to refer directly to a medical practitioner who is ‘willing and able to conduct that discussion’”—
as per the Bill—
“the doctor’s duty would be to direct patients to an official service where they can obtain objective and accurate information”.
I think we should pay heed to the advice of the professionals.
As ever, I would like to refer to the experience of foreign jurisdictions, because we are constantly told that this Bill is the safest in the world. None of the legislation in Australia or New Zealand, or the legislation currently going through in the Isle of Man, puts an obligation to refer on to doctors. Victoria and South Australia’s legislation says that a doctor has the right to refuse to participate in the request for assistance process and to give information about voluntary assisted dying, so there is no duty to refer—not even a duty to provide information.
I conclude with an observation that was submitted to us by Dr David Randall, a consultant nephrologist. It was very telling that he said in written evidence:
“I would not be willing to act in accordance with Section 4(5) of the Bill. I am a doctor in good standing with the GMC, and who has always striven to provide the highest standards of care to patients. Passage of this Bill would place my practice in direct opposition to the criminal law.”
He talks about “moral injury”, which is a very important principle. We have an obligation to protect the conscience and human rights of medical professionals.
We are still unclear whether this process will take place within the NHS or outside it. Nevertheless, the obligation to refer in the Bill would be a direct breach of doctors’ rights and would impose a moral injury on them. My preference is to remove clause 4(5) altogether, as that would be consistent with the Abortion Act 1967 and similar legislation on assisted dying in other countries. If we are not prepared to do that, we should at least restrict the obligation and provide more protections, as per the amendments in the names of other hon. Members.
Rebecca Paul
I rise to speak in support of amendment 341 in the name of my hon. Friend the Member for Sleaford and North Hykeham. It would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion must provide information to the patient about where they can have that discussion, but that need not take the form of a referral.
One of the messages that we heard loud and clear in the evidence sessions was that medical practitioners do not wish to be put under an obligation to refer a patient to another registered medical practitioner by the Bill. “Referral” has a very specific meaning in medicine, and it is that word and the corresponding action required of it that many doctors have an issue with. A referral puts a patient on a pathway, whereas the provision of information merely indicates where such a pathway can be found. During oral evidence, Dr Green said:
“The word ‘referral’, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q41.]
We are well aware that assisted dying is a complex issue and a matter of conscience for many. It is therefore important that we respect the personal views of medical practitioners. One of the points that I have made several times in these proceedings is that assisted dying affects not just the patient but other people participating and supporting. Some medical practitioners will be comfortable with it, but many others will not. It is therefore vital that we recognise their rights and needs, not just the patients’, when formulating this law. If for whatever reason a doctor does not want to refer a patient, they should not have to. Their legal responsibility should be limited to directing the patient to where they can find the relevant information that they need. Doctors should have no further obligation.
Kim Leadbeater
I thank the hon. Member for those important points. I reassure her, and possibly other Committee members, that I am minded to support amendment 341.
Lewis Atkinson (Sunderland Central) (Lab)
I will be brief. I am pleased to hear my hon. Friend the Member for Spen Valley confirm that she is minded to support amendment 341. It is incumbent on all of us, but perhaps particularly those in favour of the Bill, to place on record our appreciation and recognition of the fact that many people who work in our health services have strongly held religious beliefs, or beliefs of conscience—however they are motivated. As is the case for a range of other procedures and medical interventions, the law has to allow them scope to continue to practise. They make a valuable contribution to our health service and national life, and we should not do anything to impinge on that.
There is already strong guidance from the General Medical Council about personal belief, and that applies, as the hon. Member for Reigate mentioned, to the Abortion Act, as well as to the Human Fertilisation and Embryology Act 1990, the Female Genital Mutilation Act 2003 and other procedures. It is not for any of us to second-guess someone’s conscience.
Lewis Atkinson
I do not disagree with my hon. Friend. I gently say that the GMC guidance specifically references that Act, so that is what I was referring to.
I am pleased to see amendment 341, which I believe would bring the legislation into line with that GMC guidance, ensuring that removing the duty to refer would absolutely not be a licence for people to be left without access to care. The GMC is very clear, as the hon. Member for Reigate said, that people must be given sufficient information and be empowered to seek the options and information that they need. Therefore, I am pleased to support the amendment.
Daniel Francis
It is a pleasure to serve under your chairmanship, Mr Dowd. I note that my hon. Friend the Member for Spen Valley has said that she is minded to accept amendment 341. I will, however, still briefly speak to amendment 338 and new clause 13, which stand in my name.
The British Medical Association has said that it strongly urges MPs to support the amendments, which would remove the referral requirement in relation to preliminary discussions and establish an official body to provide factual information to patients about the range of options available to them. As the hon. Member for East Wiltshire mentioned, Dr Green, in his oral evidence, said:
“The provision of information would be very useful, because in a situation where a doctor was unwilling to have an initial discussion with the patient, it would provide a way for the patient to get that information that was in no way obstructive.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 46, Q37.]
He went on to say:
“I do not believe that it is ever appropriate for a doctor to recommend that a patient goes through an assisted dying process.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q40.]
He also said:
“The word “referral”, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q41.]
The BMA’s position is that the proposal is analogous to doctors’ professional legal obligations regarding abortion, and consistent with the Bill’s inclusion in clause 23 of a right to refuse, for any reason, to carry out activities directly related to assisted dying. It has said:
“In tandem, we believe creating an official body to provide individual information and advice to patients, to which doctors could direct (rather than refer) patients, would ensure that the doctor’s views are respected, whilst also—crucially—ensuring that patients can easily access the information and support they need. Currently, whilst the Bill acknowledges the need for accurate, impartial information and advice for patients, it gives no indication of how this might be delivered—generic published information would not be sufficient. Patients would need individual advice, guidance, and support so that they can make informed decisions, and an independent information service could meet this need.”
As the hon. Member for Reigate mentioned, a member of the Royal College of General Practitioners also said:
“The BMA referred to the word “refer”—referring to a colleague, for those who did not want to do it. We agree that signposting is a better process.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 279, Q365.]
He went on to say:
“Similar to other services, such as termination of pregnancy, we think that the best option would probably be that the GP could signpost to an information service, such as something like what the BMA suggested the other day. They would not have to do anything more than that, and they would not withhold any option from the patient.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 273, Q354.]
Therefore, I commend amendment 338 and new clause 13 to the Committee.
Naz Shah
It is a pleasure to follow my hon. Friend the Member for Bexleyheath and Crayford. I rise to speak to amendment 287, tabled by my hon. Friend the Member for York Central. Clause 4(5) currently says:
“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must, if requested by the person to do so, refer them to another registered medical practitioner whom the first practitioner believes is willing and able to conduct that discussion.”
If this amendment was to be adopted, it would read:
“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must, if requested by the person to do so, refer them to another registered medical practitioner who is qualified to undertake such a preliminary discussion, and set out palliative medicine options to provide the patient with appropriate end of life care, including referring them to a palliative medicine expert.”
Put simply, the amendment would mean that if a doctor met with a patient with a severe illness who might die within six months, but the doctor was themselves unwilling to have an initial discussion on assisted dying, they would still have to refer the patient on to a doctor who was willing to have that discussion. The patient’s decision to explore assisted dying would not be obstructed; the main change would be that that doctor would now have to discuss palliative care options with the patient. That is surely a measure that would increase the patient’s welfare.
Let us think about the kind of patient who can apply for assisted dying. They must have a diagnosis of a serious illness and a prognosis that they are likely to die within six months. The Bill’s supporters have said many times that they are worried about any changes that will reduce the autonomy of people seeking assisted death. This amendment quite obviously does not in any way reduce people’s autonomy, nor does it in any way place an unreasonable burden upon doctors. If a patient has a diagnosis of a serious illness, and if they have themselves asked for a conversation on assisted dying, then it surely must be good practice for that doctor to discuss palliative care options.
It is also only good practice that one of those options would be for the doctor, if the patient wishes, to refer the patient to a palliative medicine specialist who is more able to talk about such options. That means that the amendment would not place any undue burden on either the doctor or the patient. The doctor ought to be offering such advice on palliative care. The patient may or may not decide to take the doctor’s advice on palliative care, but they have had it, and the patient may well benefit from having had advice on palliative care.
Given the conversations we had this morning, I can foretell one objection to this amendment: that since good doctors will do this anyway, it is unnecessary to have a provision on the face of the Bill to ensure it. This seems to me a very weak objection. Let us be honest, the doctors that we have in this country are of extremely high quality. They are dedicated, skilled and compassionate men and women. We are lucky to have them, but we cannot say that every doctor participating in all the processes that they currently undertake always follow best practice.
Similarly, we simply cannot say that in any assisted dying process doctors will always automatically follow best practice. People make mistakes. That includes people who are highly trained and extremely compassionate. I would be astonished if we could find a doctor who said they had always got everything right. As lawmakers, we have to guard against the fact that even some of our most admired professionals can and sometimes will make mistakes. One way that we will guard against that is to set out duties that they have to follow. This amendment does just that.
I hope that we will not hear the objection that we have heard to a great many good amendments: that it will somehow make the Bill more dangerous by adding complications. The amendment simply adds a small step, by placing a duty on a doctor to give palliative care advice to a patient with a diagnosis of serious illness. Surely the Bill cannot be so lacking in robustness that such a small change would make it dangerous.
In summary, the amendment is a sensible change. It would in no way block the ability of adults who meet the conditions set out by this Bill to explore assisted dying, nor would it place any burden at all upon doctors. It would simply place upon them a duty to follow what we can all surely agree is best practice, and it would greatly improve the early access to palliative care advice for patients with a diagnosis of serious illness. That would improve those patients’ chances of receiving good palliative care. I therefore urge hon. Members to support the amendment.
Stephen Kinnock
Amendment 412 would remove the duty in clause 4(5) on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another practitioner whom the first practitioner believes is willing and able to conduct that discussion. Guidance for medical professionals requires that, where a practitioner objects to performing a procedure, they must refer the patient to a practitioner who can meet their needs.
Amendment 341 removes the duty on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another registered medical practitioner whom they believe is willing and able to conduct that discussion. The amendment requires the registered medical practitioner who is unwilling or unable to conduct the preliminary discussion with the person to instead ensure that the person is directed to where they can obtain information and have the preliminary discussion.
New clause 13 would introduce a requirement for the Secretary of State to create, via regulations, an independent information and referral service for individuals who are, or may be, eligible under the Bill for assisted dying services. The accompanying amendment 338 would require a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to direct the person, upon that person’s request, to another registered medical practitioner or to the information and referral service, as set out in the new clause. The effect of this amendment is to remove the obligation in clause 4(5) for the registered medical practitioner to refer the person to another registered medical practitioner whom the first practitioner believes is willing and able to conduct the initial discussion. This amendment would make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. In addition, these amendments could carry an operational impact, as the new service would need to be designed and brought into existence.
Amendment 287 would mean that, if the first practitioner is unable or unwilling to conduct the preliminary discussion, they must, upon request, refer the person to a registered medical practitioner who is qualified to undertake the preliminary discussion. They must also set out palliative medicine options to provide the patient with appropriate end-of-life care, including referring the person to a palliative medicine expert. This amendment removes the duty in clause 4(5) to refer to a practitioner whom the first practitioner believes is willing and able to conduct the preliminary discussion.
As with previous amendments, this language could make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. It is not clear what
“qualified to undertake such a preliminary discussion”
is intended to mean. In addition, the term “palliative care expert” is not a defined term. Palliative medicine is a designated speciality of the General Medical Council and a doctor can apply to be entered on to the GMC specialist register for this speciality, provided they have the specialist medical qualification, training or experience. I hope these observations are helpful, and I thank the Committee for its attention.
Kim Leadbeater
I rise to speak to amendments 341, 338 and 412 together, and I welcome the debate on these important amendments. Choice is one of the key tenets of the Bill, primarily—but not exclusively—for terminally ill adults with a limited time to live. Choice is also very important for medical practitioners, and I am very respectful of, and acknowledge the importance of, conscientious objection for doctors. When it comes to assisted dying, I believe that they should also have choice. Indeed, the Bill is written so that they can choose not to participate in the process for any reason. That is the BMA’s view, and I agree with it.
The BMA has a position of neutrality on assisted dying, and there are a range of views within medical professions, as there are within all groups of people. That is why I have adopted its position of an opt-in model for the purposes of the Bill. Nevertheless, the process must remain patient focused at all times, and that means enabling them to have a discussion on such an important matter. It would not be right to rely on online advice or even the best-designed written materials. As we have already established, doctors are used to having sensitive and compassionate discussions with people who are terminally ill, and there can be no substitute for that. While a doctor may not wish to participate themselves, and I fully respect that, they still have a responsibility towards their patients, and that should include ensuring that they can speak to a properly qualified medical practitioner at such a difficult time.
I understand that the BMA and others would not be comfortable with the word “refer”, which I understand to have a special meaning within medical practice. The GMC guidelines use different language. They talk about where a doctor has a conscientious objection, in which case they are advised that they must make sure that arrangements are made for another suitably qualified colleague to take over their role. The BMA’s guidance says that patients must be able to see another doctor, as appropriate, and that it need not always be a formal procedure. It is not, however, sufficient to simply tell the patient to seek a view elsewhere—I agree completely.
The BMA supports amendment 341, which says that a doctor
“must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”
I am therefore happy to support the amendment today and, if it were to need further adjustment, I am very happy to consider alternatives based on existing best practice. I would be very happy to meet with the hon. Member for Sleaford and North Hykeham, who is herself a doctor, to discuss her thoughts and draw on her considerable medical experience.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 341, in clause 4, page 2, line 33, leave out from “subsection (3)” to the end of line 36 and insert
“is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”—(Rebecca Paul.)
This amendment would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion with a person must provide information to the person about where they can have that discussion, but that this need not take the form of a referral.
Juliet Campbell
I beg to move amendment 125, in clause 4, page 2, line 35, leave out from start of line to end of line 36 and insert
“who is on the Register of Assisted Dying Medical Practitioners.”
This amendment provides that only a medical practitioner who is on the Register of Assisted Dying Medical Practitioners as provided for in NC7 would have a person referred to them.
The Chair
With this it will be convenient to discuss the following:
Amendment 126, in clause 23, page 15, line 5, at end insert—
“(1A) Medical practitioners who wish to provide assistance under this Act must “opt-in” to the Register of Assisted Dying Medical Practitioners under clause (Register of Assisted Dying Medical Practitioners).”
This amendment provides that any medical practitioner who wishes to provide assistance under the Act must have opted in to the Register of Medical practitioners.
New clause 7—Register of Assisted Dying Medical Practitioners—
“(1) The Secretary of State must, by regulation, establish a Register of Assisted Dying Medical Practitioners.
(2) A medical professional may only carry out the role of co-ordinating doctor or independent doctor under this Act may if they are listed on the Register of Assisted Dying Medical Practitioners.
(3) Initial discussions under section 4 may only take place with a registered medical practitioner if they are listed on the Register of Assisted Dying Medical Practitioners.
(4) Regulations made under subsection (1) must provide that the Register of Assisted Dying Medical Practitioners includes all registered practitioners other than those to whom the conditions in subsections (5) and (6) apply.
(5) The condition in this subsection is that only medical practitioners who have completed such training as required by the Secretary of State by regulation must be listed on the Register.
(6) The condition in this subsection is that only medical practitioners who wish to provide assistance under the Act must “opt in” to be listed on the Register.
(7) Regulations under subsection (1) and subsection (5) are subject to the affirmative procedure.
(8) Before making regulations under subsection (1) and subsection (5), the Secretary of State must consult such persons as they consider appropriate.
(9) Regulations under subsection (5) must be laid within six months of the passing of this Act.
(10) Regulations under subsection (1) must be laid within twelve months of the passing of this Act.”
This new clause requires the Secretary of State, by regulation, to create a Register of Assisted Dying Medical Practitioners. Only those who are on the register would be able to hold initial discussions or act as a co-ordinating or independent doctor, or hold initial discussions under section 4 of the Act. Only those who have had training as specified by the Secretary of State in regulations can be on the Register. Registered medical practitioners would only appear on the register if they had “opted in”.
Juliet Campbell
I will speak to amendments 125 and 126, which are linked to new clause 7. Given the discussion we have just had, and given that amendment 341 has been made, I will not push amendment 125 to a vote. Amendment 126, however, provides that any medical practitioner who wishes to provide assistance under the Bill must have opted in to a register or a service for practitioners who are comfortable with providing care related to assisted dying. In other conversations, my hon. Friend the Member for Spen Valley has said that the opt-in model is provided within the Bill. The challenge is that it is not explicit in the Bill, and I would like to see it so.
The BMA wrote in its evidence to the Committee:
“The Bill should be based on an ‘opt-in’ model, so that only those doctors who positively choose to participate are able to do so. Doctors who opt in to provide the service should also be able to choose which parts of the service they are willing to provide (e.g. assessing eligibility and/or prescribing for eligible patients)…An opt-in model is not explicit in the Bill…We urge the Committee to make it explicit in the Bill that this is an opt-in arrangement for doctors.”
The BMA says that it wants it explicit in the Bill, and at the moment it is not. The Royal College of General Practitioners aligned with this viewpoint, stating that an explicit opt-in system is completely necessary in the Bill. It is my hope that members of the Committee will support amendment 126, which I intend to push to a vote.
Kit Malthouse
I am afraid that I will disappoint the hon. Lady by rising to oppose her amendments, although I understand why she has tabled them.
It was clear from the BMA’s evidence that it opposes the creation of a list of registered providers, which the hon. Lady proposes to create with these amendments. The BMA’s opposition and my opposition are based on two or three—
Juliet Campbell
Based on the fact that we agreed on amendment 341, I am prepared not to press amendment 125 to a vote. It is amendment 126 that I am proposing.
Kit Malthouse
I understand that, but amendment 126 also refers to a register of appropriate medical practitioners being maintained. Of course, new clause 7 would similarly create such a list. We are debating all three proposals, so I wanted to explain why I oppose them, as indeed the BMA does.
As has been outlined in previous speeches, the Bill creates an opt-in model effectively, whereby people who want to be the co-ordinating doctor or indeed the second doctor have to opt in and be trained, and therefore become accredited, so by definition they would be approved for that service.
However, the Bill does not envisage that the initial conversation is necessarily with the co-ordinating doctor. There might well be other medical personnel or practitioners—we have talked a lot about semantics in this debate—who are presented with the situation where a desperate person, somebody who has been given some extremely bad news, wants to talk about their situation and what their options might be. We hope and believe that training will spread throughout the NHS to those who want it. Nevertheless, we have to leave open the option that someone may not be accredited and that they may need to pass on someone, by whatever means the Bill determines, to a doctor who is accredited, who can act as the co-ordinating doctor, who has had the appropriate training and opted in, and I am afraid the register would not allow for that.
The second thing that concerns me slightly, and which we need to avoid for the benefit of both the patient and the system, is any kind of “doctor shopping”—the notion that there is a list of doctors that I can shop around and choose from. I worry slightly about that.
My hope is that these types of conversations, which are necessarily private and sensitive, will take place in an environment of embrace and familiarity between doctor and patient. We have talked a bit about whether doctors have to refer or provide information—obviously, we have just accepted an amendment that seeks to set out how that will work. What I would oppose, for two reasons, is the creation of a list that people can move up and down on, and pick somebody they like the look of, or who they think might be handy for them. First, I am not sure that it would be entirely reputable; secondly, we have to remember who we are dealing with here. These are dying people who may not have long left to live—we are talking about six months as a minimum, but actually they might have only two or three months to go. We need to create a sense that this is something that will be provided to them in an environment that is familiar. They will not have to spend their time finding a doctor on a list, and their phone number, then ringing up their office and saying, “This is what I want to do. Can I make an appointment?” There is a privacy aspect to it.
My third objection is, to be honest, about privacy—not just that of the patient, but that of the doctor. The hon. Lady will know that unfortunately—I do not know whether she thinks it is unfortunate, but I do—there are some people who object so strongly, for example, to abortion that they are willing to go and protest outside clinics that provide that service. This House has legislated to balance the rights of those who want to avail themselves of that service and those who want to protest. That has been a source of conflict.
I am afraid that a public list of doctors who provide this service would raise questions about the privacy of doctors, about patient privacy and about access to that service. I am concerned about it from that point of view.
Kit Malthouse
We do not necessarily have specific registers. People are members of professional bodies, and within those professional bodies, people become accredited because of their training. As the Minister referred to earlier, there is no such thing as a list of palliative care specialists; it is not defined in that way. Creating a list in this way would present problems for the privacy of doctor and patient as they go about what I hope we all acknowledge is a very sensitive and private process at the very end of someone’s life. I will conclude at that point and say that, unfortunately, with great respect to the hon. Member for Broxtowe, I oppose these amendments.
Stephen Kinnock
As amendments 125 and 126 are consequential on new clause 7, I shall speak to them as a whole and not in turn. The purpose of the amendments appears to be twofold. First, they seek to restrict the role of medical practitioners who can hold an initial discussion to those who have completed training. That training would be specified by the Secretary of State in regulations and would make them eligible to be listed on the register of assisted dying medical practitioners.
Secondly, the amendments seek to apply the same principle to the co-ordinating or independent doctor. In addition, they would place a duty on the Secretary of State to make regulations that would create the register to sit outside or alongside the current system of registration of medical practitioners and set out the training requirements to be eligible to be listed on the register.
Both sets of regulations are to be subject to the affirmative procedure, and the Secretary of State must consult such persons as they consider appropriate before making them. The regulations making provision for the relevant training requirements must be laid within six months of the passing of this Act. The regulations establishing the register must be laid within 12 months of the passing of the Act.
Although the purpose of the amendments is clear, our assessment suggests that the drafting would not achieve the desired effect, because the register would include only those doctors who have not undertaken the specified training or who have opted out of the assisted dying service. Additionally, the suggested timeframe for laying regulations is unworkable, given the need to work with regulators and the proposed duty to consult. There are also significant operability concerns regarding the creation of a new register for a subset of registered medical practitioners.
I hope that the Committee has found those observations helpful. I thank Members for their attention.
The Chair
For clarity, amendment 125 is not being pressed to a Division, as I understand it. If the hon. Member for Broxtowe withdraws amendment 125, there will be an opportunity to vote on amendment 126 and new clause 7 later.
Juliet Campbell
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 288, in clause 4, page 2, line 36, at end insert—
“(6) All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”—(Sean Woodcock.)
This amendment would require the coordinating doctor to record efforts to dissuade the person from taking their own life and subsequently make this available to the medical examiner.
Question put, That the amendment be made.
The Chair
I understand that the hon. Member for Reigate wishes to make a point on clause 4 stand part. I am minded to allow a debate on clause 4 stand part, but I remind hon. Members that I do not expect relitigating or rehashing. The debate will have a very narrow scope; it will not be an opportunity to rehash. The Question is simply whether the clause, as amended, should stand part of the Bill. With that caveat, I call Rebecca Paul.
Rebecca Paul
I very much appreciate the opportunity, Mr Dowd. I will attempt to be brief.
First, I welcome the acceptance of amendment 414, in the name of the hon. Member for Ipswich; of amendment 108, in the name of the hon. Member for East Thanet; of amendment 275, in the name of the hon. Member for Sunderland Central; and of amendment 341, in the name of my hon. Friend the Member for Sleaford and North Hykeham. The amendments strengthen the clause, so I thank Committee members for accepting them.
I have one pertinent point to put on the record about clause 4. The clause deals with what is and is not included in the initial discussion with registered medical practitioners, so the definition of assisted dying, as well as what it actually is, becomes relevant to understanding what guidance does and does not come into play. During these proceedings, there has been a tendency to speak as if assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. It has been said many times that assisted dying should be treated in the same way as any other treatment and that the existing guidance from the GMC sets out appropriate best practice and should applicable and relied on. I have some concerns about that, which I wish to put on the record.
The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure, so straightaway we have a conflict. Assisted dying ends the life of a person; it is not a treatment in the normal sense of the word. It is important that it is not a treatment, so that doctors are not obliged to offer it in the same way that they would offer another, more normal, medical treatment.
The Association for Palliative Medicine’s written evidence covers the point:
“A crucial question is whether or not assisted death by lethal medication is considered to be a medical treatment. Given that doctors are required to assess eligibility for, prescribe, and be present at the administration of the medication, AD might be considered to be a ‘medical treatment’. If this is the case then either assisted dying should be offered to all people meeting the eligibility criteria, or doctors need to behave differently towards this medical treatment than to all other treatments. Both of these approaches are contrary to all prior medical practice and public expectation, and laden with risks of unintended consequences.
The APM recommends that if AD is implemented in England & Wales it is done outside of ‘usual medical practice’ and is not regarded as medical treatment.”
This is because there are detrimental consequences from classifying assisted dying as treatment and relying on guidance. First, it could undermine the doctor-patient relationship by confusing the distinction between healing and ending life. Patients who are used to looking to their caregivers for help may worry that they will instead be put on a pathway to an assisted death. That could deter them from seeking medical help when they need it. Dr Jamilla Hussain spoke powerfully on that point, so I will not repeat it.
Secondly, the word “treatment” currently has largely positive connotations. If the word starts to be used for assisted dying, its meaning will change entirely. I wonder about the intersection with other pieces of guidance and law that refer to treatment, for example where treatment can legally be given without the consent of the patient. We all agree that assisted dying should never be administered without consent, but that is why we must be careful with our language and definitions. In certain situations, treatment can lawfully be given without consent, so it must follow that, to protect against the risk of unintended consequences, assisted dying is not deemed to be a treatment.
I ask the Minister’s view on that risk—I note that there is no reference in the Bill to assisted dying being a treatment, which is really good news—and his advice on how best to ensure that assisted dying is not and will never be considered a treatment as a consequence of the Bill or of any other statute or guidance. I also ask his view on the appropriateness of relying so heavily on GMC guidance for best practice, as I imagine that that guidance could change at any point without the consent of Parliament.
The Chair
At this point, I will not necessarily call Members, including the Minister, unless they particularly want to speak. If Members do wish to speak, will they please bob?
Danny Kruger
I think that we are just concluding one of the most important debates that the Committee will have: the debate on clause 4. I welcome the concession from the hon. Member for Spen Valley, particularly her commitment to modify the obligation to refer. That is welcome and will make the Bill a little safer.
In our debates on the clause, there has been clear confusion, as my hon. Friend the Member for Reigate has just mentioned, about the extent to which assisted dying is a healthcare treatment. That speaks to the question of whether there is an obligation on doctors to offer this treatment—as there should be, if it is a treatment that is one of a range of options for which the patient is eligible—or whether it is something that they are not obliged to offer. That confusion, which was present in the Committee’s exchanges, remains. I want to record in hon. Members’ memory the fact that that question was unresolved. In my view, that is extremely unsatisfactory.
Despite some welcome concessions, the Committee has just decided to reject a series of amendments that would have protected both doctors and patients. Most concerningly, we rejected an amendment to give children the right to be protected from the suggestion of an assisted death before they are even eligible for it.
I will conclude by referring to evidence, which I do not believe has been referred to so far in the debate, on the question of how assisted dying is received as a suggestion or offer, particularly by marginalised groups. I was very concerned by the oral evidence that we took from Professor Ahmedzai, who supports assisted dying. In written evidence, he has said explicitly that he especially wants the option to raise assisted dying with
“patients who are poorly educated, ill-informed or seem to be unaware of the option”.
He has explicitly required and requested the opportunity to put it to these disadvantaged, marginalised patients: “poorly-educated, ill-informed” people. Compassion in Dying, the sister organisation to Dignity in Dying, which supports the Bill, makes the same point: that marginalised people will need to be “directly prompted” with the offer.
I am afraid to say that, in rejecting the amendments, the Committee has endorsed the approach that people who are particularly marginalised and disadvantaged need to have this suggestion explicitly made to them. I am astonished that the Committee proposes to proceed on that basis, which completely misunderstands the dynamic of vulnerable people in the face of authority. I am very distressed to find that the Committee thinks that acceptable, and I am very sorry that apparently we are proceeding with the clause. I do not propose to put it to the vote, because the Committee’s will to proceed is fairly clear, but I hope that everybody is fully aware of what they are doing.
Naz Shah
I rise briefly to put on the record my disappointment. In our debates today on various amendments, we have discussed how some patients could see doctors’ language as a suggestion rather than an option. I make no apologies for the fact that I said that this could be the next Horizon scandal or the next infected blood scandal. I struggle with that.
A chap called Nick Wallis, who exposed the Horizon scandal, said something pertinent that I want to put on the record. He said that the difference is that there will not be anybody else left to campaign—
The Chair
Order. I am genuinely trying to provide as much latitude as possible, but the Question before the Committee is whether the clause stands part of the Bill.
The Chair
For Members’ benefit, as we are coming towards the end of the debate, let me say that I want people to be able to express their opinions as widely as possible, but it is also my responsibility as the Chair to ensure that that is contained within the parameters of our rules of debate.
Daniel Francis
Thank you for letting me speak, Mr Dowd. I will be brief.
As we reach the end of our debate on clause 4, I regret some of the decisions that we have made. I welcome the fact that in due course we will discuss amendment 418, in the name of my hon. Friend the Member for Spen Valley, which also relates to the preliminary conversation. My concern remains that it is “a” preliminary conversation, not, in my determination, “the” preliminary conversation. My amendments would have meant that “the” preliminary conversation could not be held before someone is 18. As I read amendment 418, someone could have preliminary conversations before they are 18; it is just that it will be recorded that there was a preliminary conversation after they turned 18. I regret that, as clause 4 now stands, the paperwork and initial discussion must be completed after someone is 18, but that will not necessarily apply to a preliminary conversation.
Equally, I have some regrets in relation to learning disability issues. I welcome the commitment from my hon. Friend the Member for Penistone and Stocksbridge on the amendment that she aims to bring forward, but I am conscious that it is not on the amendment paper for everybody to see. Just as she committed to work with me, I will continue to work with her on bringing it forward.
We have debated clause 4 long and hard, but I do believe that we have a clause that has loopholes in relation to people under 18 and to people with learning disabilities and autism. I will not press it to a Division, but I regret the fact that we have reached this place.
Question put and agreed to.
Clause 4, as amended, accordingly ordered to stand part of the Bill.
Clause 5
Initial request for assistance: first declaration
Sarah Olney (Richmond Park) (LD)
I beg to move amendment 271, in clause 5, page 3, line 5, at end insert—
“(1A) A person may not sign a first declaration within six months of being diagnosed with a condition which meets the requirements of section (2)(1)(a) unless they have received a psychosocial intervention in relation to their diagnosis with that condition.
(1B) The Secretary of State may, by regulations, create exceptions to the provisions of subsection (1A).
(1C) Regulations under subsection (1B) are subject to the affirmative procedure.”
This amendment would create a requirement that the person must have received a psychosocial intervention if a terminal diagnosis was received less than six months ago. The Secretary of State would be given a delegated power to create exceptions to such a requirement with regulations subject to the affirmative procedure.
The Chair
With this it will be convenient to discuss amendment 272, in clause 30, page 18, line 32, at end insert—
“(f) the form of the psychosocial intervention required under section 5(1A).”
This amendment is consequential on amendment 271, and would allow the Secretary of State to issue a code of practice in connection with the requirement for a psychosocial intervention.
Sarah Olney
I will not take up a huge amount of time, because a lot of what I wanted to say has been said in previous sittings, but I return to the issue of people who may request an assisted death who may also be suffering from a mental health condition. Amendment 271 was tabled by the right hon. Member for South West Wiltshire (Dr Murrison), and specifically concerns people who have received their terminal illness diagnosis less than six months ago and whose prognosis is less than 6 months in the future. The amendment specifically addresses the fact that the risk of suicide for people who are suffering from a terminal illness increases when the diagnosis has been made less than six months before.
Professor Louis Appleby is a key academic in the area of suicide prevention and advises the Government on it. Research by him and Professor Sleeman found:
“Diagnosis of severe conditions was associated with an increased risk of dying by suicide”.
In particular, they found:
“The increase in risk was more pronounced in the first six months after diagnosis or first treatment.”
They concluded that:
“A diagnosis of severe physical illness is associated with higher suicide risk. The interaction of physical and mental illness emphasises the importance of collaborative physical and mental health care in these patients.”
We talked at length in an earlier sitting about the risk that bringing in an assisted dying law would undermine suicide prevention strategies and efforts to address the issue of suicide. It is important that we return to this issue, and that we look seriously at the amendment in the name of the right hon. Member for South West Wiltshire, because it addresses the specific concern around those people who have had their diagnosis of terminal illness for less than six months and are therefore at a heightened risk of suicide.
NICE guidelines say that if someone is at risk of self-harm or suicide, a clinician must ensure that a psychosocial assessment has been carried out either by a mental health specialist or by a trained person in primary care. That should cover the person’s living arrangements, relationships, social support network, mental health disorders, risk factors, safeguarding concerns and so on. Professor Allan House told the Committee in oral evidence that this should be part of the assessment for assisted dying. He said the current assessment only answers the question:
“‘Is this person able to make decisions?’…it does not cover the psychological and social assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 165, Q210.]
We have discussed at length the lack of the psychosocial assessment in relation to everybody who makes a request for an assisted death, but the amendment seeks to identify those who are at heightened risk of suicide—those who have received their diagnosis of terminal illness within the last six months—and specifically requires psychosocial assessments for those people.
Depression is common among those with terminal illness. Dr Price from the Royal College of Psychiatrists told the Committee that among
“people nearing the end of life…depression is…at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.]
and that that wish is significantly alleviated if depression is treated, which is an extremely important point for the Committee to consider.
The Pathfinders Neuromuscular Alliance, which is a user-led charity for those with muscle-weakening conditions such as muscular dystrophy, have stated in written evidence:
“Pathfinders members have outlined how important it is to ensure psychological assessments are part of the process in order to ensure that the individual is in a position to make an informed decision. One member outlined:
‘I’ve been there, I’ve wanted to die, and I’ve been in the position where I would take that option if it was given to me, but looking back I can see I was depressed and now I’m so glad that I didn’t take that option.’”
Currently, the Bill does not require anyone to explore any psychosocial factors in respect of someone’s situation. Although the person can be referred to a psychiatrist under clause 9(3), that only covers a capacity assessment. Again, it only answers the question of whether the person is able to make decisions, and addresses none of the other relevant factors. In Oregon, there is more room to explore those factors—the doctor may refer a patient for counselling if the patient may be suffering from a psychiatric or psychological disorder or depression, causing impaired judgment.
On addressing the risk of social pressure and internalised feelings of burden, the British Geriatrics Society warned in its written evidence:
“There is an established link between frailty and feeling a burden to others, meaning many older people with treatable clinical frailty may choose an assisted death to avoid burdening their family, which we view as unacceptable.”
The Committee has already discussed at length the issue of older people or people with a terminal illness wishing to choose an assisted death motivated by the wish to save their family money. Dr Jerram, Dr Wagland and Dr Davis found that attitudes towards assisted dying changed over time. Patients closest to death were least likely to want assisted dying, suggesting that fear of suffering was the driving cause and that it may lessen as end of life care improves.
Psychosocial care is fundamental to good end-of-life care. Committee members and witnesses from other jurisdictions have said that palliative care and assisted dying can complement each other, and that assessment should be part of the picture. Glyn Berry told the Committee about the importance of
“the psychosocial aspect of palliative and end-of-life care”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 53, Q58.]
In its written evidence, the British Association of Social Workers said that
“good health care is not just about clinical interventions”,
but also about
“the wider social context in which a person lives their life…This is particularly pertinent with assisted dying.”
That needs to come before the first declaration, because once somebody has signed that declaration, they are already on a pathway. The amendment would provide an opportunity for people’s needs to be met at the first opportunity.
In conclusion, I emphasise the importance of a psychosocial intervention, which was stressed by a number of witnesses giving oral evidence to the Committee. We have discussed this issue at length. Earlier amendments have been voted down, but I stress the particular importance of the amendment 271 for that group of people who are in the first months of their diagnosis of a terminal illness and the raised level of risk of suicide that they present.
Sojan Joseph
As the hon. Member for Richmond Park says, we have repeatedly debated people’s mental health and how, once somebody has had a diagnosis of a terminal illness, it can have an impact on their decision making. Amendment 425, which we discussed earlier, is about having access to a multidisciplinary team. That team could have on it a social worker or a psychiatrist who would make a comprehensive assessment, which would cover amendment 271.
The amendment is an opportunity for the Committee to look into this issue, to make the Bill stronger, and to bring in safeguards for vulnerable people who may feel suicidal, and may feel a burden to society or to the healthcare system, and may choose this way. Those people who are vulnerable would have a psychosocial and mental health assessment, which would make the Bill stronger and safer.
Lewis Atkinson
I rise to speak against the amendment; there are significant issues with it both in practice and in principle. In terms of practice, I draw Members’ attention to the fact that the amendment does not mention a psychosocial assessment; it mentions mandating “a psychosocial intervention”. As defined by the World Health Organisation, a psychosocial intervention can be as brief as five minutes. I know that it is a brief intervention: I used to manage services delivering psychosocial interventions. Nowhere in the amendment is the type of psychosocial intervention or its purpose specified. If Members hope that the amendment will lead to a psychosocial assessment—
Sarah Olney
For clarity, if the amendment specified a psychosocial assessment, would the hon. Gentleman be minded to support it?
Lewis Atkinson
The holistic assessment is already set out elsewhere in the Bill, so the amendment is not required. Amendment 275, which we made to clause 4, requires “all appropriate” psychological support to have been discussed with an individual in advance of the first declaration. I clearly supported that amendment, and I am very grateful that the Committee did.
From a practical point of view, amendment 271 talks about six months from the point of diagnosis, but if I had prostate cancer, I might have had prostate cancer for absolutely years—so is it six months from the point of being diagnosed with prostate cancer or six months from the point of being told that that is terminal? There are a huge range of practical issues with the amendment as currently written, but there are also issues regarding the principle as well.
Sarah Olney
Would the hon. Gentleman not accept that a terminal illness in itself is a risk factor for an increased risk of suicide, and also that that risk is increased in the first six months following the diagnosis? That is the thinking behind the amendment.
Lewis Atkinson
I accept that that is a risk factor, but it is by no means determinative. Therefore, that risk factor has to be considered in the round with other risk factors such as levels of family and social support. As set out, the amendment does not distinguish between someone receiving a terminal diagnosis by themselves without any support network, and someone who expects to receive a terminal diagnosis at the end of a very long illness. As a point of principle I do not accept that we should mandate psychosocial interventions or that people must receive a level of healthcare in order for them to access other options related to their care—let alone the practicalities, which I have laid out, about when the provision would apply in relation to diagnosis and the fact that it is an intervention, which is in no way an assessment or any such thing.
Stephen Kinnock
I have made it clear throughout the debate that I am not offering a Government view on the merits of amendments. My remarks are focused much more on the legal and practical impacts of amendments, to assist Members in undertaking line-by-line scrutiny.
The amendments were tabled by the right hon. Member for South West Wiltshire. They would create a further eligibility requirement of the person seeking assistance under the Bill. Amendment 271 and 272 would limit those eligible to seek assistance to end their own life, in circumstances where their terminal diagnosis was received less than six months prior to the date on which the person signs the first declaration, to those who have received a psychosocial intervention. This would be subject to any exceptions provided for by the Secretary of State in regulations. Amendment 271 does not define what is meant by “received a psychosocial intervention” in relation to their diagnosis.
The term “intervention” is usually employed in the health service to mean the provision of support or treatment. This is different from, for example, an assessment that a clinician might undertake to assess whether an intervention may be required. While there is not a standard definition of psychosocial intervention, we understand it to mean psychosocial interventions such as cognitive behavioural therapy. The amendment could create uncertainty as to what type of treatment a person will need to undergo to satisfy the requirement. If a person who would otherwise seek assistance to end their own life under the Bill is unable to, or does not wish to, receive a psychosocial intervention, unless an exemption applies, they may need to delay starting the assisted dying process until at least six months has elapsed from their terminal diagnosis. That could be challenging in circumstances where the terminal diagnosis has a prognosis of six months or less.
The amendment would also introduce a requirement for people in certain contexts to undergo an intervention that could undermine a person’s autonomy in making their own treatment decisions. Were the amendment made, it would confer a regulation-making power on the Secretary of State to create exceptions to the proposed provisions on psychosocial intervention. Regulations made using this power would be subject to the affirmative procedure. It would also give the Secretary of State the power to issue a code of practice in connection with the form of the psychosocial intervention required.
If the Committee decides to accept the amendment, further consideration would be needed on Report to ensure that it is operationally deliverable, and my earlier comments about the definition of psychosocial intervention and other comments would have to be clarified. The Government would, of course, stand ready to assist were the amendment to pass.
As I said earlier, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed—as I have made clear, that is a matter for this Committee and for Parliament as a whole. However, I hope that these observations have been helpful, and thank the Committee for its attention.
Kim Leadbeater
I have nothing to add, other than to associate myself with the comments of my hon. Friend the Member for Sunderland Central and those of the Minister.
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 184, in clause 5, page 3, line 7, leave out “Schedule 1” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a first declaration is to be set out in regulations (rather than in Schedule 1).
The Chair
With this it will be convenient to discuss the following:
Amendment 289, in clause 5, page 3, line 11, leave out “another person” and insert “another registered clinician”.
This amendment ensures that the second witness is a registered clinician.
Amendment 418, in clause 5, page 3, line 12, at end insert—
“(2A) Regulations under subsection (2)(a) must provide that the first declaration contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) contact details for the person’s GP practice;
(b) the following further declarations by the person—
(i) a declaration that they meet the initial conditions for eligibility (see subsection (2B));
(ii) a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion;
section 4(4)(a)
(iii) a declaration that they are content to be assessed, for the purposes of this Act, by medical practitioners;
(iv) a declaration that they are making the first declaration voluntarily and have not been coerced or pressured by any other person into making it;
(v) a declaration that they understand that they may cancel the first declaration at any time.
(2B) In subsection (2A)(b)(i) ‘the initial conditions for eligibility’ are that the person making the declaration—
(a) is aged 18 or over,
(b) is ordinarily resident in England and Wales and has been so resident for at least 12 months, and
(c) is registered with a general medical practice in England or Wales.”
This amendment makes provision about the content of regulations under subsection (2)(a), which will set out the form of the first declaration.
Amendment 277, in clause 5, page 3, line 12, at end insert—
“(2A) A person may not make a first declaration under subsection (1) until 28 days have elapsed, beginning with the day they received a diagnosis of the terminal illness.”
This amendment would mean a person could not make the first declaration until 28 days from the day they received a diagnosis of the terminal illness.
Amendment 420, in clause 7, page 4, line 16, leave out subsection (3) and insert—
“(3) After carrying out the first assessment, the coordinating doctor must—
(a) make a report about the assessment (which must meet the requirements of regulations under subsection (4));
(b) give a copy of the report to—
(i) the person who was assessed (‘the assessed person’),
(ii) if the coordinating doctor is not a practitioner with the person’s GP practice, a registered medical practitioner with that practice, and
(iii) any other person specified in regulations made by the Secretary of State;
(c) if satisfied as to all of the matters mentioned in subsection (2)(a) to (g), refer the assessed person to another registered medical practitioner who meets the requirements of section 8(6) and is able and willing to carry out the second assessment (‘the independent doctor’).
(4) The Secretary of State must by regulations make provision about the content and form of the report.
(5) The regulations must provide that the report must—
(a) contain a statement indicating whether the coordinating doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (g);
(b) contain an explanation of why the coordinating doctor is, or (as the case may be) is not, so satisfied;
(c) contain a statement indicating whether the coordinating doctor is satisfied as to the following—
(i) that a record of the preliminary discussion has been included in the person’s medical records;
(ii) that the making of the first declaration has been recorded in the person’s medical records;
(iii) that the first declaration has not been cancelled;
(d) be signed and dated by the coordinating doctor.”
This amendment requires the coordinating doctor to make a report about the first assessment, and (if satisfied of the matters mentioned in subsection (2)) to refer the person to another practitioner for the second assessment.
Amendment 195, in clause 8, page 4, line 40, leave out “statement” and insert “report”.
This amendment is consequential on Amendment 420.
Amendment 209, in clause 16, page 11, line 8, leave out paragraphs (b) and (c) and insert—
“(b) a report about the first assessment of a person is made under section 7;
(c) a report about the second assessment of a person is made under section 8;”.
This amendment is consequential on Amendments 420 and 421.
Amendment 220, in clause 34, page 20, line 36, leave out paragraphs (a) and (b) and insert—
“(a) a report about the first assessment of a person does not contain a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g);
(b) a report about the second assessment of a person does not contain a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e);”
Amendment 421, in clause 8, page 5, line 4, leave out subsection (5) and insert—
“(5) After carrying out the second assessment, the independent doctor must—
(a) make a report about the assessment (which must meet the requirements of regulations under subsection (5A)), and
(b) give a copy of the report to—
(i) the person who was assessed,
(ii) the coordinating doctor,
(iii) if neither the independent doctor nor the coordinating doctor is a practitioner with the person’s GP practice, a registered medical practitioner with that practice, and
(iv) any other person specified in regulations made by the Secretary of State.
(5A) The Secretary of State must by regulations make provision about the content and form of the report.
(5B) The regulations must provide that the report must—
(a) contain a statement indicating whether the independent doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (e);
(b) contain an explanation of why the independent doctor is, or (as the case may be) is not, so satisfied;
(c) contain a statement indicating whether the independent doctor is satisfied as to the following—
(i) that a record of the preliminary discussion has been included in the person’s medical records;
(ii) that the person signed the first declaration;
(iii) that the making of the first declaration has been recorded in the person’s medical records;
(iv) that the first declaration has not been cancelled;
(d) be signed and dated by the independent doctor.”
This amendment provides that the independent doctor must make a report about the second assessment, and makes provision about the report.
Amendment 203, in clause 10, page 6, line 42, at end insert—
“(A1) This section applies where the independent doctor has—
(a) carried out the second assessment, and
(b) made a report stating that they are not satisfied as to all of the matters mentioned in section 8(2)(a) to (e).”
This amendment is consequential on Amendment 421.
Amendment 204, in clause 10, page 6, line 43, leave out from beginning to second “the” in line 44.
This amendment is consequential on Amendment 203.
Amendment 329, in clause 13, page 9, line 20, leave out paragraph (a).
This amendment removes the reference to Schedule 4 from the clause and is linked to Amendment 330.
Amendment 207, in clause 13, page 9, line 20, leave out “Schedule 4” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a second declaration is to be set out in regulations (rather than in Schedule 4).
Amendment 330, in clause 13, page 9, line 26, at end insert—
“(3A) A second declaration must include the following information—
(a) the name and address of the person;
(b) the NHS number of the person;
(c) the contact details for the general medical practice at which the person is registered;
(d) a declaration by the person that they have made a first declaration under this Act;
(e) a declaration by the person that the assessing doctors have made the appropriate declarations under this Act together with the dates of those declarations;
(f) the details of the declaration made by the High Court or Court of Appeal;
(g) a declaration by the person they are eligible to end their life under this Act;
(h) a declaration by the person that they wish to be provided with assistance to end their own life under this Act;
(i) a declaration by the person that they understand that they must make this second declaration under the Act and that they do so voluntarily and have not been coerced or pressured by any other person into making it.
(j) a declaration that they understand that they can cancel their declaration at any time.
(k) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(3B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the requirements for the second declaration by the person and is linked to Amendment 329.
Amendment 331, in clause 13, page 9, line 38, leave out paragraph (a).
This amendment removes the reference to Schedule 5 from the Bill.
Amendment 208, in clause 13, page 9, line 38, leave out “Schedule 5” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations (rather than in Schedule 5).
Amendment 332, in clause 13, page 9, line 41, at end insert—
“(6A) A statement made under subsection (6) must include the following information—
(a) a declaration by the coordinating doctor that the person is terminally ill within the meaning of this Act and the nature of the relevant illness, disease or medical condition,
(b) details of any relevant declaration made by the High Court or Court of Appeal;
(c) a declaration that the coordinating doctor is of the opinion that the person’s death is either likely or unlikely to occur before the end of the period of one month beginning with the day on which the declaration was made by the High Court or Court of Appeal under this Act;
(d) a declaration that the coordinating doctor is satisfied that the requirements of this Act regarding any period of reflection has been met;
(e) a declaration that the person requesting assistance under the Act has the capacity to do so, and that they have a clear, settled and informed wish to end their own life;
(f) a declaration that neither the first or second declarations by the person have been cancelled;
(g) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(6B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the requirements for the second statement by the coordinating doctor and is linked to Amendment 331.
Amendment 333, in clause 21, page 14, line 9, leave out paragraph (a).
This amendment leaves out reference to Schedule 6 and is linked to Amendment 330.
Amendment 214, in clause 21, page 14, line 9, leave out “Schedule 6” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a final statement is to be set out in regulations (rather than in Schedule 6).
Amendment 334, in clause 21, page 14, line 10, at end insert—
“(3A) The statement mentioned in subsection (2) must include—
(a) the contact details of the coordinating doctor;
(b) the name, NHS number and medical practice of the person given assistance under the Act;
(c) a declaration that the person was provided with assistance to end their own life in accordance with this Act;
(d) the date of any declarations made by the person under this Act;
(e) the date of any statements made by assessing medical practitioners under this Act;
(f) the details of the advanced and progressive condition the person had;
(g) the approved substance provided;
(h) the date and time of death;
(i) the time between use of the approved substance and death;
(j) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(3B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the information that must be included in a final statement under this Act and is linked to Amendment 333.
Amendment 403, in schedule 1, page 25, line 25, at end insert—
“7. I have—
1. informed my family of my wish to be provided with assistance to end my life and taken their opinions into consideration
2. decided not to inform my family of my decision
3. no family to inform of my decision”.
Amendment 404, in schedule 4, page 29, line 7, at end insert—
“10. I have—
1. informed my family of my wish to be provided with assistance to end my life and taken their opinions into consideration
2. decided not to inform my family of my decision
3. no family to inform of my decision”.
Kim Leadbeater
I rise to support my amendments in this group, which seek to clarify the details that must be included, under regulations, in the first declaration, and the report that is consequent on that declaration. While I believe it was useful on Second Reading for MPs to be aware of the content of the form that the doctor should complete, the advice I have received—with which I agree—is that the details are more appropriately a matter for regulations. There is always a balance to be struck, but it would not be reasonable to expect the House to have to consider changes in primary legislation simply to alter the contents of a declaration, important though the details are.
The proposed changes go further in a way that I believe should greatly reassure the Committee. As we discussed this morning, they make it clear that a person must have been over the age of 18 when the first discussion under the Bill took place. They also require doctors not just to make formal declarations, but to produce reports covering the eligibility of the person to request assistance, the nature of the assessments they have made, their discussions with that person and, crucially, the person’s understanding of those discussions and of what the process entails. This will ensure that all the relevant discussions have been recorded and understood, and that an account of them has been recorded and will be available for future reference. For reporting purposes, if a person applying for assistance is found not to be eligible, that information will be recorded too. I hope the Committee will agree that further safeguards will be put in place as a result, without imposing additional stress or burdens on terminally ill patients during such a different period.
Kit Malthouse
I rise to speak in support of amendment 184 and to point out that I have now withdrawn amendments 329 to 334, so we will not vote on them later. Like the hon. Member for Spen Valley, I had thought that although it was sensible at Second Reading to have schedules to the Bill that laid out the forms, they were quite limited and strict in their form, so we needed more flexibility and the opportunity for the House, by regulation, to add content to the required forms in the future. I also wanted to insert a declaration by the person that they had had an initial conversation covering all the factors in the Bill and, critically, that they understood the information that had been presented to them. Amendment 184 would do exactly that.
For Members’ reference, I tabled similar amendments that would have done the same with the other schedules. Following conversations with the hon. Member for Spen Valley, I have now withdrawn them all and amalgamated them into amendments that would do the same as those that she has tabled, along with some additional bits and pieces. Amendment 184 is relatively self-explanatory.
I want to speak against amendment 277, which would impose a time limit of 28 days between diagnosis and the first declaration of a terminal illness. In a lot of circumstances, that would be a very difficult time delay for people to face. As the hon. Member for Bradford West, who tabled the amendment, will know, there are already periods of reflection in the Bill, although it also contains provision for a compressed time limit for those who face imminent death. Particularly for those who are unfortunately diagnosed with certain diseases, adding 28 days will insert a delay at a time when people who are facing what they do not want to face—a horrible death—need as much time as they can to get through the process. For example, if we take together all the factors for people who are sadly diagnosed with pancreatic cancer, the median survival is six to 12 months.
I do not know if the hon. Lady knows this, but pancreatic cancer is a particularly unpleasant cancer, not least because it does not exhibit symptoms in its early stages—people do not know they have it until quite late in its development. Treatment for it is not well advanced, and many people diagnosed with pancreatic cancer sometimes have only weeks to live. The idea that we should make them wait 28 days before they can even start the process seems impractical and, I am sorry to say, cruel to them in many ways. It is worth remembering that this is not a six-month “bang, I go and do it.” Most people who have a terminal illness will begin the application process at six months. Once they have the ability to ask for this service, they will then wait until they decide that their life has come to its end, at the time and place of their choosing. That might be at six months, or it might be at six days. The point of the Bill is to put the power to make that decision in their hands. Although the Bill has periods of reflection—it recognises that people need to sit and think about these things—imposing an absolute 28 days on everybody, without accounting for what stage they are at in their disease and how long they have to live, is not necessarily a sensible amendment, and I will oppose it from that point of view.
I understand the objective of my hon. Friend the Member for East Wiltshire in tabling amendments 403 and 404, which are about informing family. I would hope that those are the sorts of discussions that doctors would have—perhaps one of the doctors on the Committee can tell us. On whether we should put that on the face of the Bill, I have been persistent in trying to make sure that the conversation is not guarded. The amendments ask whether I have any family—I am not quite sure what “family” means. Does it mean my children? Maybe I do not want to tell my children. Does it mean my next of kin? I do not know. Is it distant relatives? Is it my whole family? There are problems with the definition of “family”.
While I will not support the amendment, I understand what my hon. Friend was trying to do. I would hope that those are the kinds of sensitive matters that a doctor would tease out of an individual as they look for the various items that we have put in the Bill to make sure that the person is making the decision on a sound basis as a settled view and has the capacity to do so.
Danny Kruger
I am grateful for the points made by my right hon. Friend the Member for North West Hampshire. I will speak briefly to amendments 403 and 404, which would create an expectation that a patient at least addresses the question of whether their family is aware of the decision they are making. In an amendment that has not been selected for debate today, I proposed simply to make that expectation clear.
My personal view is that I do not accept that this is healthcare, and therefore that a doctor would have an obligation to ensure that the next of kin of somebody to whom they are proposing to give lethal drugs is informed. However, in the spirit of the Bill, which is all about autonomy, and in an attempt to be constructive and put forward amendments that might be accepted, I accept that this is a decision for the individual in the same way as a healthcare decision, and that there is therefore no obligation under rules of patient confidentiality and the expectations around healthcare that the family should be informed.
Nevertheless, creating a moment at which the first doctor the patient speaks to gently encourages them to consider telling their family before taking the enormous step of signing the first declaration is appropriate. The amendment would give the patient three options: first, to confirm that they have informed their family of their wish to be provided with assistance to end their life.
The Chair
Order. I understand that the hon. Gentleman wants to touch on that amendment, but it has not been chosen today. He is talking about the declaration that the person has informed their family of their decision and taken their opinions into consideration. We are not dealing with that today.
Danny Kruger
Nevertheless, amendments 403 and 404 have been selected for debate, and it is those amendments that would effect that declaration in the Bill.
Danny Kruger
I am grateful to you, Mr Dowd, but I want to explain why these amendments are appropriate to the Bill.
The patient would have the opportunity to declare clearly that they do not have a family. I take the point made by my right hon. Friend the Member for North West Hampshire; it is not always clear what a family is. Nevertheless, if the patient wants to specify that they have no family or do not want to inform their family, the amendments would give them that right. I want to emphasise the importance of this consideration. I recognise that clause 9, which will come later in the process, includes consideration of the family. It states that, in so far as the assessing doctor considers it appropriate, they may advise the patient to inform their family, so there is recognition of that question a little later. My suggestion is that it should come earlier because it needs to take place before the first declaration is signed.
Crucially, we need to consider the wider impact of not considering or involving the family, particularly when children or dependants are involved. The Bill accepts the scenario where a family can find out after the fact—not through any formal notification, they just discover—that their loved one has ended their life with the help of doctors and the state. Families can be badly impacted by an assisted suicide: clinical grief disorders, depression and post-traumatic stress disorder are all harms that can follow from a family member taking an assisted death. It is unethical and irresponsible not to factor that in as we discuss and design the new law.
A parent may choose to end their life under the Bill, but is not required in any way to consider notifying their family. I wonder if the sponsor could clarify what would happen if they were the sole carer of a minor—would there be an obligation for anyone to inform the child that this was happening? One hopes that that would be an extremely rare scenario; nevertheless, it is possible under the Bill.
I want to mention two more groups quickly. In written evidence, a group of anorexia nervosa sufferers and carers said:
“The Bill does not anticipate situations where someone seeks to end their life as a result of cognitive symptoms inherent to the illness, as is the case with AN. For these patients, families would often be needed to advocate for their loved ones and their potential to recover…Without family involvement, patients may make decisions in isolation, potentially influenced by cognitive distortions or feelings of hopelessness inherent to the illness.”
I hope that we do not want to allow that scenario.
Finally, Dr Jamilla Hussain, who we have heard from a few times, said in written evidence that in her
“consultation with structurally disadvantaged ethnic minority groups”—
which include Pakistani, Roma and Black Caribbean community groups, they showed much concern about the exclusion of families. She said:
“it was emphasised that, traditionally, family and community members provide hope and strength when someone feels like life is too much. There is apprehension that such expressions of care and support could be reframed through a medical or legal lens as coercion.”
That is the saddest thing, which was hinted at quite strongly—in fact, stated explicitly—in some of the evidence sessions. It has been suggested that wanting a loved one to live is seen by doctors as a form of coercion that should be resisted; that trying to argue a loved one out of an assisted death is the coercion that we need to guard against and, on that basis, we should not be making any expectation that families are informed. What a tragic thing for us to say. To enable doctors to issue lethal drugs that kill people without their family knowing is an absolutely tragic thing. I beg the Committee to consider what on earth we are doing allowing that.
The Chair
I apologise to the Member, who was within his rights to speak to amendments 403 and 404.
Naz Shah
I rise to speak to my amendment 277, which would add a new subsection to clause 5. Like my amendment 276, it would alter the time that must elapse between a person receiving a diagnosis of severe illness and their discussion of assisted dying with a medical practitioner. To put the most important point first, the amendment aims to prevent people opting for assisted dying while they are suffering from the initial shock of having a serious illness diagnosed, by imposing a pause. There would have to be 28 days between when a person receives a diagnosis and prognosis of the illness that might end their life within six months, and when they could have their second consultation with a doctor about assisted dying.
The right hon. Member for North West Hampshire asked me whether I was aware of pancreatic cancer. A dear friend of mine, who was known as the “king of curry” in Bradford, told me only in June—the day I launched my election campaign, funnily enough—that he had been diagnosed with terminal cancer. In October, he was gone. I am overly familiar with pancreatic cancer and how fast he went down from being a healthy individual. He is greatly missed in Bradford.
The Committee has already rejected amendment 276. I ask all Members to think again and in particular to consider the evidence given to us by several distinguished doctors, including senior psychiatrists. What those doctors said to us, in both written and spoken evidence, was that immediately after someone receives a diagnosis of serious illness they often experience a major increase in depression and a desire to hasten death. For some patients, that desire to hasten death is what psychiatrists call an increase in suicidality; that is, the patient wants to actively do something to end their own life. For other patients, they do not have an active desire to carry out a physical act to end their life, but they do wish that their life would end sooner.
We can all empathise with people who have just received such a shocking diagnosis and prognosis. They have been told that they are likely to die soon. They may also either have been given information that makes them think their remaining months of life will be degrading and painful, or they may assume that they will be. That might well be how many of us would think if we had such devastating news. But the psychiatrists who gave evidence also said that depression and a desire for death are often not permanent conditions for people who have received such a diagnosis. When a patient gets treatment for their physical symptoms plus social care, and if necessary psychological treatment, the desire to hasten death will often fall.
Let me refer to the evidence of Dr Annabel Price, vice chair of the Royal College of Psychiatrists Liaison Faculty. I appreciate, Mr Dowd, that I am repeating some things I have mentioned previously, but when I spoke previously with reference to this evidence it was to other amendments. Hence, I am having to repeat it for the purpose of this amendment in particular. She said:
“There is a lot of research evidence around depression in people with palliative care needs and people nearing the end of life. We know that depression is common, and across a number of studies it is at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death, and that if depression is found and treated in that group of patients, there will be significant change in the wish to hasten death.”
She said that there were a number of factors besides depression that were associated with the wish to hasten death. In those who had received a diagnosis of serious illness, she told us:
“they include difficult symptom experience, poor functional status—needing a lot of help with things—and being socially isolated. Those are really key ones. They also include a sense of loss of dignity and feeling like a burden on others.”
For patients who have all those factors, she said:
“These things can all come together to make life feel very unbearable.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.]
Perhaps the most important part of Dr Price’s evidence was when she said what good medical and social care could do for people who felt their lives were unbearable. She said:
“The evidence that we have from research—this is in populations who would fulfil the criteria in terms of terminal illness—is that the prevalence of depression is around 20%. That is across a number of populations. It is associated with a wish to hasten death. Depression might impact upon that person’s decision making; I am not saying that it absolutely would, but it might. Also, treatment might change their view. We know that there is a strong association, for example, between pain and a wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 281, Q369.]
Kit Malthouse
On a point of order, Mr Dowd. I am very sorry, but I just want your guidance. The hon. Lady is giving a speech which I am afraid we have covered before. We have had extensive debates on the impact of terminal diagnosis on people’s mental health and depression. I just want your guidance on what the Committee should do to resist the temptation to repeat debates that we have already had extensively, while we are considering these amendments.
The Chair
I thank the right hon. Gentleman for that point of order. I reiterate the point I have made on a number of occasions. I do not want to interrupt Members when they are making a point, because we are in a very sensitive situation—of that there is no doubt. I exhort Members, when they are discussing these things, to bear in mind those factors and those issues.
Naz Shah
Thank you, Mr Dowd. Before I carry on, may I just add to that? I did refer to that and I appreciate the right hon. Gentleman’s point of order, but these things speak to this particular amendment on 28 days. While they speak to many other debates, the Committee will have no doubt that there are many issues in which one piece of evidence crosses over many amendments. I assure the Committee that my intention is just to draw attention to the evidence that is related to the particular amendment that I am speaking to. I appreciate there that there is huge repetition—for want of a better word—but I feel that it is necessary, unless advised otherwise. I would be happy to take your guidance, Mr Dowd.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I rise to set out why—reluctantly—I cannot support amendments 403 and 404, which have been tabled by my hon. Friend the Member for East Wiltshire. It is not because of the principle involved, because my hon. Friend was very clear in setting out the amendments. They would not provide for a prescriptive situation where an individual must tell their family. A range of options are set out, which I anticipate that any sensible and responsible doctor or clinician would take a patient through, encouraging them to involve their family in their decision making.
The issue that I have is around the legal clarity of the wording of the amendments, because under the English and Welsh legal system there is no statutory definition of “family”. There is a concept of family, but the concept of family to me may be very different from that of my neighbour, or from that of someone who lives in another city. For example, for some people stepbrothers, stepsisters and step-parents are very much part of their family; for others, they are not. For some people, unmarried couples with children are a family; for others, they are not. For some people, unmarried couples without children are a family; for others, they are not.
Danny Kruger
I take that point; families are difficult to define. Nevertheless, the Bill currently refers to the opportunity for a doctor, or the suggestion that a doctor,
“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”
That is more precise. Would my hon. Friend accept an amendment along the lines that I have proposed, prior to the first declaration, but using the language that is currently in the Bill about
“their next of kin and other persons they are close to”?
Dr Shastri-Hurst
That would satisfy me. The reason I say that is because at the moment the wording is too broad and ill-defined. The question is: is this about the closeness and proximity of a relationship? The suggested wording that my hon. Friend just put forward would be much closer to that and much clearer, and more akin with the language of medical registration. When someone turns up in A&E, they are asked to give the name of their next of kin. That defines the closeness, the proximity and the permanency of that relationship.
If my hon. Friend was perhaps to consider withdrawing this amendment and tabling it again in an alternative form, or rewording it, that would certainly be something that I would be open to supporting. I have outlined why, as the amendments currently stand, I cannot support them.
Stephen Kinnock
Although it is for Parliament to decide whether to progress the Bill, this Government remain committed to ensuring the legal robustness and workability of all legislation. For that reason, the Government have worked closely with my hon. Friend the Member for Spen Valley, and some amendments have been mutually agreed upon by her and the Government: in this group, those are amendments 184, 418, 420, 195, 209, 220, 421, 203, 204, 207, 208 and 214.
This group of amendments replaces the forms set out in the schedules to the Bill, with the requirement for the forms to be set out in regulations by the Secretary of State. The amendments also make provision about the content and form of the first and second declarations, statements and reports.
Amendment 184 provides that the form of the first declaration must be set out in regulations made by the Secretary of State, as opposed to in schedule 1 as currently drafted. Operationally, using regulations will allow for consultation in relation to the form and content of the declaration. It will also provide flexibility to tailor or update the content of the declaration.
The effect of amendment 289 would be to limit those able to act as a second witness to a first declaration to registered clinicians, though that term is not defined in the amendment. In normal usage, “registered clinician” is broader than “registered medical practitioner”, so practically the amendment may lead to a wide range of registered healthcare professionals being able to act as a witness to a first declaration under the Bill.
Kit Malthouse
Just to be clear, a number of the amendments the Minister mentioned are in my name; I have now withdrawn them, albeit they would not have been voted on until later stages. I have withdrawn them in favour of the amendments tabled by the hon. Member for Spen Valley, which broadly do the same thing.
Stephen Kinnock
I thank the right hon. Gentleman for that clarification, because I had heard he was withdrawing but I thought perhaps he meant he would not push him amendments to a vote.
The Chair
Order. As far as I am aware, they are still on the amendment paper, but let us not get too technical at this particular stage.
Stephen Kinnock
I will therefore speak to amendment 208, which provides
“that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations”
as opposed to the current position, where it is set out in schedule 5 of the Bill. This would have the effect of providing flexibility to update the content of the form of the statement if required later.
Amendment 214 provides
“that the form of a final statement is to be set out in regulations”
as opposed to in schedule 6, on the face of the Bill. This would have the effect of providing flexibility to update the content of the form if required later.
Amendment 404 would mean that, following court approval, the person seeking assistance must confirm, in a second declaration on the form set out in schedule 4, whether or not they have informed their family of their wish to be provided with assistance to end their own life. From a practical perspective, the amendment does not specify how a family would be defined. This may create uncertainty as to who the person would need to inform or how to determine that they have no family. It requires the form of the first declaration, set out in schedule 1, to capture whether a person seeking assistance to end their life has: informed their family of their wish to be provided with assistance to end their life and taken their family’s opinion into consideration; or decided not to inform their family of their decision; or has no family to inform of their decision. It is not clear how the term “family” would be defined. It is also worth noting that the amendment would conflict with amendment 184, which removes schedule 1 to the Bill. I hope those observations have been helpful to the Committee, and I thank Members for their attention.
Amendment 184 agreed to.
Amendment made: 418, in clause 5, page 3, line 12, at end insert—
“(2A) Regulations under subsection (2)(a) must provide that the first declaration contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) contact details for the person’s GP practice;
(b) the following further declarations by the person—
(i) a declaration that they meet the initial conditions for eligibility (see subsection (2B));
(ii) a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion;
(iii) a declaration that they are content to be assessed, for the purposes of this Act, by medical practitioners;
(iv) a declaration that they are making the first declaration voluntarily and have not been coerced or pressured by any other person into making it;
(v) a declaration that they understand that they may cancel the first declaration at any time.
(2B) In subsection (2A)(b)(i) ‘the initial conditions for eligibility’ are that the person making the declaration—
(a) is aged 18 or over,
(b) is ordinarily resident in England and Wales and has been so resident for at least 12 months, and
(c) is registered with a general medical practice in England or Wales.” —(Kim Leadbeater.)
This amendment makes provision about the content of regulations under subsection (2)(a), which will set out the form of the first declaration.
Amendment proposed: 277, in clause 5, page 3, line 12, at end insert—
“(2A) A person may not make a first declaration under subsection (1) until 28 days have elapsed, beginning with the day they received a diagnosis of the terminal illness.”—(Naz Shah.)
This amendment would mean a person could not make the first declaration until 28 days from the day they received a diagnosis of the terminal illness.
Question put, That the amendment be made.
Terminally Ill Adults (End of Life) Bill (Eighteenth sitting)
Wednesday 5th March 2025
(1 month, 3 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 5 March 2025 - (5 Mar 2025)
The Committee divided: - Ayes: 9 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 19 - Question accordingly negatived.
The Chair
Will hon. Members please ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We are continuing line-by-line consideration of the Terminally Ill Adults (End of Life) Bill. I remind Members that the most valuable of all talents is never using two words when one will do. I take that from Thomas Jefferson.
Clause 5
Initial request for assistance: first declaration
Naz Shah (Bradford West) (Lab)
I beg to move amendment 290, in clause 5, page 3, line 13, at end insert
“who is not a physician associate or doctor in any training grade or in postgraduate training or a locum tenens post and—”.
This amendment would exclude physician associates and doctors in training from acting as a coordinating doctor.
The Chair
With this it will be convenient to discuss the following:
Amendment 185, in clause 5, page 3, line 14, leave out from “who” to end of line 15 and insert
“meets the requirements specified in regulations under subsection (3A)”.
This amendment and Amendment 186 impose a duty on the Secretary of State to make regulations about the training, qualifications and experience required in order to act as the coordinating doctor.
Amendment 335, in clause 5, page 3, line 14, after “such” insert “specialised”.
This amendment is linked with NC12.
Amendment 52, in clause 5, page 3, line 15, leave out from “State” to end and insert
“must specify by regulations, including experience of managing terminal illnesses,”.
This amendment would require the coordinating doctor to have experience of managing terminal illness.
Amendment 359, in clause 5, page 3, line 18, at end insert—
“(ba) who has conducted the preliminary discussion in accordance with section 4,”.
This amendment requires that the coordinating doctor has conducted a preliminary discussion prior to witnessing the signing of the first declaration.
Amendment 186, in clause 5, page 3, line 23, at end insert—
“(3A) The Secretary of State must by regulations make provision about the training, qualifications and experience that a registered medical practitioner must have in order to act as the coordinating doctor.
(3B) The regulations must include training about—
(a) assessing capacity;
(b) assessing whether a person has been coerced or pressured by any other person.
(3C) Subject to that, the regulations may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”
See the statement for Amendment 185.
Amendment (a) to amendment 186, after
“(b) assessing whether a person has been coerced or pressured by any other person.”
insert
“(c) specific and up-to-date training on reasonable adjustments and safeguards for autistic people and people with a learning disability.”
Amendment 340, in clause 5, page 3, line 23, at end insert—
“(3A) The Secretary of State must make regulations under subsection 3(a) specifying specific and up to date training on reasonable adjustments and safeguards for autistic people and people with a learning disability.”
Amendment 427, in clause 5, page 3, line 23, at end insert—
“(3A) In Wales, all reasonable steps must be taken to ensure the practitioner under subsection (3) has fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment 20, in clause 5, page 3, line 25, at end insert—
“(4A) Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”
This amendment would require the registered medical practitioner acting as the coordinating doctor to have undertaken training on domestic abuse, including coercive control and financial abuse.
Amendment 336, in clause 8, page 5, line 13, after “such” insert “specialised”.
This amendment is linked with NC12.
Amendment 337, in clause 19, page 13, line 20, after “such” insert “specialised”.
This amendment is linked with NC12.
New clause 12—Obligations related to training—
“(1) No registered medical practitioner or other health professional is under any duty to opt in to undertake specialised training wholly or largely relating to the provision of assisted dying in accordance with this Act.
(2) No medical practitioner or other health professional who has carried out training as may be specified by the Secretary of State under—
(a) section 5(3)(a),
(b) section 8(6)(a), or
(c) section 19(2)(b),
is under any duty to participate in the provision of assisted dying under the terms of this Act.”
This new clause would set out that a registered medical practitioner or other health professional is not under any duty to undertake training in relation to the provision of assisted dying. And anyone who undertakes such training is not under a duty to provide assisted dying under the Act.
Naz Shah
Amendment 290 was tabled by my hon. Friend the Member for York Central (Rachael Maskell). Clarity is needed on who a medical practitioner is. With the regulation of physician associates, there was much unease from the British Medical Association and others on the role and function of the new profession. Although I do not want to debate the merit of this today, it is clear that involvement in the assisted dying process requires someone of significant experience to support a patient while undertaking complex assessments and co-ordinating their care between specialists and others.
In some jurisdictions, we have heard that clinicians have extensive clinical experience, whereas they do not in others. Therefore, being able to determine the level of experience and competencies of the medical practitioner is important to ensure that the patient is receiving care from someone who has significant practice expertise. A doctor in training, whether as a specialist or general practitioner, although making very specific clinical decisions, should not be deemed as having the experience, competencies or breath of experience for the purposes of this process. An associate practitioner should also not be deemed to reach these thresholds. Amendment 290 would therefore show the public that the person who would act as the co-ordinating doctor held such experience, and that there was no doubt in their standing to register for such a role. The public can already be confused on the exact status of the clinician they are under or indeed the profession itself. Including this safeguard would ensure that the patient’s interests are upheld.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
It is a pleasure to serve under your chairship, Mr Dowd.
I rise to speak in support of amendment 185, in the name of the hon. Member for Spen Valley, the Bill’s promoter, regarding training requirements that need to be made by regulation. It would place a duty on the Secretary of State to make regulations about training qualifications and experience required in order to act as a co-ordinating doctor. Similarly, amendment 186 says that the regulations should specifically include training relating to the assessment of capacity and assessing whether a person is being coerced or pressured by any other person. Proposed new subsection (3C), introduced by amendment 186, would make provision that
“the required training, qualifications or experience is to be determined by a person specified in the regulations.”
In making those regulations, reflection of expertise is vital. We heard from many experts who gave us evidence about the importance of training, development and mentorship, which we would expect to see covered in the regulations. Placing those requirements in regulations would mean that they could be developed through consultation with experts and stakeholders, after gaining a wide range of feedback. It would also future-proof the requirement of any training to be developed and strengthened through future experience.
As part of the safeguards in the Bill, the key principles around assessing capacity and potential coercion are really important. I am therefore minded to press the hon. Member for Spen Valley also to support amendment 20, in the name of my hon. Friend the Member for Lowestoft (Jess Asato), which states:
“Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”
That would provide further clarity, and would further strengthen training on assessing coercion in all senses of the word as part of the safeguards, which many Members, even in the earlier debates, have said that it is so important that they see. I agree, and I hope that the promoter of the Bill will support amendment 20.
Daniel Francis (Bexleyheath and Crayford) (Lab)
I rise to speak to the amendments in my name—namely, new clause 12 and amendments 336, 337 and 335. Yesterday, we spoke about the evidence we received from the British Medical Association. I accept that there is some crossover between my amendments and the amendments of the Bill’s promoter, my hon. Friend the Member for Spen Valley, on training.
The British Medical Association stated, with regard to my amendments:
“We strongly urge MPs to support these amendments which would define the ‘training’ explicitly in the Bill as specialised training to provide assisted dying, undertaken by those who opt in…We have been vocal that the Bill should be based on an opt-in model…during the Committee’s oral evidence sessions. Reinforcing this, we believe NC12 and Amendments 335-337 would make two important aspects of this provision in the Bill clearer:
1. That providing assisted dying is not, and would not in the future, be expected of all doctors—the Bill’s current all-encompassing reference simply to ‘training’ does not preclude this training being prescribed as standard general medical training via the regulations, in which case it would apply to all doctors and make the opt-in redundant. Specifying that it is ‘specialised’ training on the face of the Bill, and making clear that there is no obligation on doctors to undergo the training, would safeguard the opt-in model in the Bill’s first principles.
2. That only those who undergo specialised, tailored training on assisted dying could provide the service – during the oral evidence sessions, there has been much discussion about the importance of specialised training for those who opt in to carry out the service. Specialised training for those providing the service is essential for doctors and provides additional protection and safeguards for patients—it should be explicitly referenced in the Bill.”
We heard in our oral evidence sessions from others, including Dr Ahmedzai, on the need for training. He said:
“I personally believe that it would be advantageous if there was formal training, as Dr Clarke has mentioned, specifically to have the kinds of conversations that we now talk about, such as about psychological issues and suicidal tendencies.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 69, Q82.]
I now turn to two amendments in my name: amendment 340 and amendment (a) to amendment 186. Both amendments relate to training for those with learning disabilities and autism. We had a similar discussion on a previous clause, and I know that further amendments are likely to be tabled on the matter, but as I said yesterday, they are not currently on the amendment paper.
I heard and welcome what my hon. Friend the Member for Luton South and South Bedfordshire has said about amendment 20. Putting that training in the Bill is hugely important, and I believe the same is true in relation to training for those with learning disabilities and autism, as set out in to amendments 340 and amendment (a) to amendment 186, particularly given my concerns and those of others about whether we end up with clause 3 relating to the Mental Capacity Act 2005.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
I thank my hon. Friend for his amendments, and I agree with their principle. My concern is that, again, people with mental disorders are left out. Does he agree that, if there were a way to amend the Bill later so that they could be incorporated in these proposals, that would be a positive step forward?
Daniel Francis
I would welcome that as a positive step forward—I think there is probably still some work to do in that regard. My hon. Friend and I will have conversations on the wording of that future amendment, but at the moment we are discussing the amendments that stand before us. Any future amendments that may be tabled are not for us currently to consider.
Dr Tidball
As my hon. Friend knows, I have a great deal of respect for him, so I gently say that if he brings forward similar amendments later in the Bill, I would be delighted to talk to him and I ask him to include mental disorders.
Daniel Francis
I hear that, and I think my hon. Friend and I are on the same page on many of these matters. I think there were some drafting issues when I discussed amendments with Mencap at an earlier stage.
I commend to the Committee the six amendments in my name in this group: new clause 12 and amendments 336, 337, 335, 340 and amendment (a) to amendment 186.
Danny Kruger (East Wiltshire) (Con)
I want to quickly indicate my support for the amendments tabled by the hon. Member for Bexleyheath and Crayford, amendment 290 in the name of the hon. Member for York Central and amendment 20 in the name of the hon. Member for Lowestoft about specific training on domestic abuse and coercive control.
I will now speak to my own amendments, which would require there to be a preliminary discussion before the signing of the first form. At the moment, the Bill allows someone to make the first declaration and state, “I wish to be provided with assistance to end my own life”, without any preparatory discussion about what that entails. It is significant that we heard evidence from Professor House—a professor of old-age psychiatry—that the preferences of the person doing the assessment can bias the capacity assessment. As he explains, we are much more likely to declare that somebody has capacity when they say they want to have the treatment we are offering them, but can we really be sure that the request is freely made and reflects the patient’s wishes?
The fact is, we still do not know from the framework of the Bill how the process would be implemented, but the assessor is likely to be one of a small number of doctors who are willing to do this work on the NHS or somebody who is working for a private provider. Research suggests that the assessing physician’s own personal values and opinions may bias their judgment of a person’s mental capacity. Effectively, research says that the doctor will say that a person has capacity for treatment when he or she wants them to have it or believes that they should. That is significant.
We see from other jurisdictions that the assessment process can quickly become a tick-box exercise in which proper consideration is not given to what might be going on behind the declared wish. In Oregon in 2023, only three people were referred for a psychiatric evaluation by the assessing doctor—down from 33% of people in the early years. It is clear that evaluators have become less cautious when they come to sign the initial paperwork. In California, less than 1% of patients requesting an assisted death are referred for a mental health assessment. These are significant warning signs for us.
I am aware that the hon. Member for Spen Valley has tabled a helpful amendment—amendment 419—to clause 6, which is the clause dealing with the requirement for proof of identity. As I said yesterday, this retrofits a requirement for a preliminary discussion before the process can proceed. It is good that the hon. Member recognises the point that a proper preliminary assessment must be done before the declaration is signed, but I simply do not understand why that should be in clause 6; surely it should be in one single, consistent place, here in clause 5, relating to when the co-ordinating doctor first meets the patient to witness their form. I hope we might recognise that if the principle is being conceded by the amendment tabled by the hon. Member for Spen Valley, we should put that change into its rightful place.
It is worth nothing that at the moment someone could get a proxy to sign for them. The proxy does not need to know the patient or be known to them; they just need to be a person of good standing in the community. They need to undertake no training at all. We have been talking during in this debate about the importance of training, but the proxy who signs on the patient’s behalf does not need to have any training to inform the judgment that they are
“satisfied that the person understands the nature and effect of the making of the declaration”.
Frankly, a stranger to the person, who is not a medic, can sign that declaration on their behalf. At the moment, they can do so without a preliminary discussion taking place. It is only after making that crucial declaratory statement that the co-ordinating doctor discusses the person’s diagnosis. I welcome the tabling of amendment 419, but I think it is in the wrong place. If we do not ensure that that preliminary discussion takes place when we are debating this group of amendments, it might be too late if amendment 419 does not pass, or if it is unsatisfactory, as I think it is.
There is another related problem. Amendment 419 would allow the co-ordinating doctor to confirm that a preliminary discussion has taken place. That means that the discussion could have taken place before the first declaration—in a sense, that is welcome, because that discussion should be taking place—but it does not have to take place with the co-ordinating doctor. The co-ordinating doctor, who is taking responsibility for the whole process of the assisted death for this patient, is not required to have this preliminary discussion themselves. They are not required to go through the very important process of properly discussing the assisted death and informing the patient of what it entails and what the other options are.
My amendment 359 would enhance the significance of the preliminary discussion. It would mean that the doctor who witnesses the declaration—who co-ordinates the process of the assisted death—has had the fullest possible discussion with the patient, and that they genuinely take responsibility for guaranteeing that the patient is fully informed and aware of all of their options. I urge the Committee to support these amendments as well.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I am very glad that amendment 427 has now been unstarred for today, because it develops on what I initiated yesterday with amendment 413, when we were discussing identifying the preferred language of the individual and whether that is Welsh or English.
Of course, if we have identified the preferred language of an individual, we would then take every step to make sure that we satisfy them and that we provide services in their preferred language. The amendment also recognises, when we are talking about specific individuals, possibly in a specific location, whether providing that is possible or not. I have tried to reflect that in using the terminology “all reasonable steps” to ensure that the practitioner has “fluent proficiency” in Welsh if that is the preferred language of the individual with whom they are conducting the initial conversation. Bear in mind, of course, that practitioners who can hold a conversation with fluent proficiency in Welsh will also be able to hold a conversation with fluent proficiency in English.
The “all reasonable steps” phraseology comes from legislation already extant in Wales in relation to educational tribunals, which again recognise that it may not be possible to find an individual with sufficient proficiency. We are trying to find a balance here between the pressure of time and being able to move ahead without having a bureaucratic thicket while also acknowledging that if we do recognise an individual’s preferred language, that we do take “all reasonable steps”.
As with amendment 413, amendment 427 is an amendment that I tabled having met an officer from the Welsh Language Commissioner’s office last week. It would establish a pathway for people for whom Welsh is their preferred language. Reflecting the comments from the Minister and the Bill’s promoter, the hon. Member for Spen Valley yesterday, I need to know—as do the Committee and the Senedd—whether this needs to be on the face of the Bill or whether it could be elsewhere.
I do not intend to push amendment 427 to a vote today, but we very much need clarity on this issue. I suspect that this may not be so easy to clarify as yesterday’s point. We are talking about the rights of individuals in one of the most difficult, emotional, intimate discussions of their lives. We need to reflect that those individuals have a clear right to use the language which they have a choice in law to use. We must make sure that we get everything correct in this Bill. Diolch yn fawr iawn.
Naz Shah
I rise to speak to amendment 20, which was tabled by my hon. Friend the Member for Lowestoft (Jess Asato).
The key point for me is that doctors are not specialists in coercive control, but this amendment would give them training to spot abusive and coercive relationships, which are difficult to detect. Domestic abuse and coercive control have a disproportionate effect on women and disabled people, and if doctors just rely on their experience to detect coercive control and abuse, they are more likely to miss cases. Some doctors will be more experienced or more perceptive than others. This amendment is not a perfect safeguard, but it will improve the chances of doctors stopping people being coerced.
The amendment would ensure that co-ordinating doctors must have undertaken training on domestic abuse, including coercive control and financial abuse. It is a significant and distinct amendment. In particular, it addresses the issue of repeated coercive control, which so far has been overlooked in the Bill. I believe that amendments seeking to improve safeguards against coercion that do not address the issue of repeated coercive behaviour are inadequate in protecting vulnerable people, particularly women.
It is regrettable that in our witness sessions we did not hear from any experts on repeat coercive control. Such testimony would have been valuable, helping the Committee to understand why this specific environment puts people at risk with regard to the Bill.
We have already spoken a great deal about coercion in this Committee and other Members have referred to that. We have raised concerns about someone coercing another person into the process of assisted dying in a one-off incident. However, we have not yet discussed the very real issue of repeated coercive control and what it means to live in that environment, nor the implications that the Bill may have for people in those situations.
Dr Hannah Denno submitted written evidence to this Committee. She wrote:
“As a doctor I am not trained to detect coercion, and I do not believe that the Bill pays sufficient attention to the detection of those who are under pressure from themselves or others to end their lives. The Bill describes two independent medical assessments, both can be carried out by doctors who have never previously met or cared for the patient.”
Kim Leadbeater (Spen Valley) (Lab)
I just want to provide some reassurance to my hon. Friend the Member for Bradford West. I have met my hon. Friend the Member for Lowestoft and today I will support amendment 20, which she has tabled. I hope that provides some reassurance to my hon. Friend the Member for Bradford West.
Naz Shah
I am grateful to my hon. Friend for that intervention and I am really grateful that she is supporting the amendment. However, the reason I am making this speech is that I do not think the amendment goes far enough in terms of providing safeguards within the Bill. So, I will make some progress with my speech and then I will address some of the issues that are not addressed in this particular amendment, and set out how we can go further, as well as highlighting some of my concerns.
I return to what Dr Denno wrote in the evidence that she submitted. She wrote that she was:
“not trained to detect coercion”.
And she also wrote that
“Social workers are better placed to screen for coercion but are not mentioned in the Bill.”
Since that submission, my hon. Friend the Member for Spen Valley has tabled an amendment that would mandate a social worker to sit on a panel to consider each application for assisted death. However, I am afraid that I must repeat several points about these panels, points that have already been made frequently. These panels are under no obligation to interview the applicant for assisted death in person. Panel members may do so if they have any concerns, but they may not. That makes it harder for panel members to detect possible coercion.
There is also an absence of any mechanism for people who know assisted dying applicants to report any concerns they have that that person is being coerced into this form of action. The panels are not used in that way, which is the way that multidisciplinary panels are used in the NHS to decide on the pathway for a patient. Instead, the panels introduced by my hon. Friend’s amendment would wait until the two doctors have submitted their statements on the applicant and then the panel members would scrutinise those statements. If they spot problems with the way that the doctors have determined that the patient is not being coerced, then, yes, they would call the patient in for more scrutiny. However, they will first have to come to that conclusion without seeing the patient. That is not a very robust safeguard.
Kim Leadbeater
I am in the process of tabling an amendment that would change the panel to that effect, so that it would speak to the patient. Hopefully, that provides some more reassurance for my hon. Friend. I am sure that we are working very effectively through the Committee process to achieve what we all want to see.
Naz Shah
I am pleased to hear that my hon. Friend will table further amendments, but I have not seen that amendment, so I cannot speak to it.
I would slightly beg to differ with my hon. Friend in terms of making progress in the way that I would like to have seen. I would just gently remind her that I am not convinced that we are. I think we are making good progress, but I also voted against one clause stand part and had lots of concerns about another one, so we will agree to disagree on that one.
The non-governmental organisation The Other Half observes in its written evidence to this Committee—TIAB 104—that the Bill makes no provision to identify family members who may benefit financially from the death of a patient, and, therefore, the Bill is unable to protect the vulnerable. That is something that I have said before in this Committee.
This amendment makes training in respect of financial abuse mandatory. It is vital that a medical practitioner is trained on how to identify coercion—we can all agree on that—but coercion is different from domestic abuse. Coercion may be relatively obvious to spot, but, in contrast, coercive and controlling behaviour is much less obvious. It can be subtle. It can be hidden, and unexpected to an outsider. It requires much more sensitive questioning and a degree of a doctor-patient relationship to identify. Multiple people have raised that a patient-doctor relationship is important for spotting that, and, currently, there is nothing in the Bill to say that the two independent doctors have to have met the patient before.
That subtle coercion could have happened over years. We have repeatedly heard from people giving evidence that it is really hard to spot, and the reason it is hard to spot is because it is a matter of trust for a patient to be able to tell somebody—for a victim of coercive control to be able to express that. Even recognising that there is subtle coercion going on is hard for victims of that coercion to understand.
If there is domestic violence—again, I say in this Committee that I first campaigned on domestic abuse in the mid-1990s, and I am not convinced that the stats have changed much. I will refer to some more later on, as I make progress, but it takes women, on average, 40 times to leave an abusive partner—40 times—and it took me a long time to leave my abusive forced marriage when I was very young. The coercion that happens is so subtle and, again, when it is repeated coercion, it is hard to even recognise it as a victim, let alone for a professional to be able to see it. Even when a professional may pick up on it, it is acknowledgment from the victim—that they recognise what is happening—that is important, and that often is not the case.
Again, multiple people have raised that the doctor-patient relationship is important, and there is nothing currently in the Bill to ensure that there is a long-standing relationship between the doctor and the patient. Therefore, it is unreasonable to assume that someone in an abusive relationship, or who experiences coercive and controlling behaviour on top of their terminal illness, would be willing and able to disclose that to a stranger, even if that stranger is a doctor.
On top of that, research suggests that a significant proportion of medical staff in the UK do not feel that they have had adequate training to spot domestic abuse. Research by YouGov and the charity SafeLives in 2018-19 found that half of UK healthcare professionals are untrained to spot domestic abuse.
I understand the current difficulty in ensuring that doctors have a prior relationship with patients; it may not be practically possible. In many cases, where patients will know their doctors, or even know them well, it is even more vital that both doctors have been thoroughly trained in spotting coercive-control behaviour.
Like the other Labour MPs on the Committee, I was elected on a manifesto pledge to halve violence against women and girls within the next 10 years. We must not forget that as we scrutinise this legislation; I want my colleagues and I to remain committed to that in this Bill.
This Bill will have particularly grave consequences for women, since we know that domestic abuse disproportionately affects them. The crime survey for England and Wales estimated that 2.3 million people aged 16 years and over experienced domestic abuse in the year ending March 2024. Of those, 1.6 million were women and 712,000 were men. In the same year, there were only 51,183 domestic abuse-related prosecutions—a very small number compared with the number of people who experienced domestic abuse. That is in addition to the abuse of our elderly, on which Age Concern submitted evidence. Those figures demonstrate that we already frequently struggle with bringing domestic abuse cases to prosecution stage. They show that even the dedicated members of our caring professions have trouble detecting domestic abuse. If something is hard, we need to train our doctors to do it.
Our society already diminishes the status of elderly, infirm women and I have concerns that the Bill will further entrench that. We need to be aware of and ensure that we address the problem of mercy killings in the Bill. That issue is distinctly gendered and the Bill as currently worded will have a distinctly gendered impact if we do not address it. In 2024, The Other Half carried out a review of more than 100 UK cases of so-called mercy killings. It found that
“‘mercy killings’ are not the wanted, ‘hastened’ deaths that need assisted dying.”
Instead, the review found that:
“They are overwhelmingly violent domestic homicides of women, by men: and show that our society is still poor at detecting and responding to domestic abuse.”
Some groups are more vulnerable to domestic abuse than others. A higher proportion of people aged 16 and over with a disability—a group that we know is vulnerable in relation to the Bill—experienced domestic abuse in the last year than those without a disability.
The law and Parliament have, unfortunately, taken a very long time to even start adequately responding to these problems. Coercive control was first recognised as a distinct offence in English law only in the Serious Crime Act 2015. As written, the Bill would not mandate training to the doctors whose role it would be to consider assisted dying cases. Of course, no training can be perfect, but to allow the Bill to go forward without ensuring that doctors have training in this complex matter would be negligent. It would mean that we were failing to even try to carry out our responsibilities to protect people, especially women, in abusive and coercive relationships.
I appreciate that my hon. Friend the Member for Spen Valley has said that she will accept the amendment, but it does not go far enough. The question is: how do we prevent abusers making use of the Bill if it becomes law? The amendment gives us one way of mitigating that risk to a degree. We already have issues recognising domestic abuse. The amendment cannot perfectly solve that problem, but it would take steps to do so.
We must safeguard vulnerable people who live subject to coercive and controlling behaviour on a daily basis from opting for assisted dying as a result of that environment. Thorough and specific training on spotting that is vital for doctors. I am grateful that my hon. Friend, in accepting the amendment, will ensure that some of that training will be forthcoming. Even one abused person being driven by their abuser to use assisted dying is one too many. I am confident that all hon. Members would agree with me on that deeply important point.
In the last few days, I have been looking at suicide, and one of the issues that has come up is that last year, for the first time in our history, suicide by victims of domestic violence overtook deaths from what we would term intimate partner homicide. In the last two weeks, there have been further reports highlighting that the number of women driven to suicide because of the experience of domestic violence has risen. Tomorrow, my hon. Friend the Member for Birmingham Yardley (Jess Phillips) will read the name of every woman who has been killed in the last year, as she does every year. Two of those women were my constituents, and many more kill themselves to get away from their abusers.
The Chair
Order. I understand where the hon. Member is coming from, but I think she is very close to moving outside the scope of the amendment, so can I ask her to bear that in mind? As I have said, this is a very sensitive issue and I am giving people latitude, but that cannot go too far. I do not want to interrupt Members, but I will if they do not stick to the confines of the amendment.
Naz Shah
I am grateful, Mr Dowd. I will bring my remarks back to the issue in the amendment, which is related to training. I will also bring them back to the issue of interpreters.
In November 2023, the Imkaan group issued a report, “Life or Death?” It literally is a matter of life and death. The report talked about the use of interpreters, training and minoritised women. Imkaan said that
“The availability and use of quality interpreting services can be critical to women’s access to safety and protection”
and that the current position on police use of interpreters breaches the Equality Act and amounts to indirect discrimination. It also breaches the commitments under the Istanbul convention. I appreciate that that issue is about police training, but surely the principles are exactly the same. We have a service—the police and domestic violence services—which supports victims of coercive control and of domestic violence. Unfortunately they come into contact with it, as our NHS and our medics do, way too often for my liking.
The Chair
Order. The issue of interpreters is not within this group. I am just trying to look for that and it is not in this group, so I am afraid the hon. Lady is out of scope of the clause. It is in a later group, so perhaps she could pick it up then.
Naz Shah
I thank you, Mr Dowd. My apologies. I have made a mistake, but I was referencing the comments of the right hon. Member for Dwyfor Meirionnydd about the use of languages, which is the subject of one of the amendments; that is my understanding. But again, I am happy to be guided by you, Mr Dowd.
To come back to the issue of training and domestic violence, in Committee, we heard evidence from Dr Jamilla Hussain about minoritised women. Again, from the data collection of ethnic minority groups, training is right at the top of the agenda, whether it be training of doctors or specialists.
Language is important when it comes to training as well. When people are training or trained to look at coercive control and to spot that coercive control, there is often an interpreter between them and the victim who is being assessed. They may be an ethnic minority woman or a man from an ethnic minority background whose first language is not English, so that training would need to include cultural sensitivities in relation to spotting coercion and control, and to repeated coercion in particular.
These are subjects that are already taboo for people to discuss. We know the issue of domestic violence is hard to spot. We have repeated that time and again, as have others. We talk about training, but that has to go further when it comes to victims or people seeking assisted dying who are from ethnic minority backgrounds and who have different cultural understandings. I talked about yesterday that. The hon. Member for Reigate also talked about the issue: the understanding of assisted dying among ethnic minority communities is very different if there is a language barrier.
I would like to ask the promoter of the Bill, my hon. Friend the Member for Spen Valley, whether her amendment will go further in addressing some of the inequalities and intricacies that are presented when we are dealing with women from ethnic minority communities or elderly people from ethnic minority communities. I would be happy to sit down and talk her through those issues, so that I can support the development of her amendment to address the concerns I have raised today.
Danny Kruger
The hon. Lady talked earlier about the tragedy of victims of coercive control who commit suicide. Does she consider that the amendments we are looking at will help to address that challenge? What specific support does she think victims of coercive control would need to prevent them from taking that terrible step?
Naz Shah
The hon. Member asks a very important question. When I am talking about reflective services for black and minority ethnic communities, which is something I have delivered training on and worked on in a previous role, I often use the example of my mother, who was a victim of domestic violence. Had she been arrested by a woman instead of a man, her experience might have been different. Had she had a solicitor who was a woman, not a man, her experience might have been different. Had she had judges who were women, not men, her experience might have been different. Let us now add another layer to that. Had the police officer been a woman from the background she was from, they might have understood it.
The same analogy potentially applies to patients who are asking about going down the route of assisted dying, because it is helpful if somebody comes from the same cultural background. If a female victim of domestic violence or coercive control meets a specialist doctor who looks very similar to the hon. Member for East Wiltshire—a white, middle-class male—and he does not have that cultural understanding, he will then rely upon training, and he will no doubt rely upon an interpreter to translate.
That is the kind of thing I am trying to tease out, and these are the kinds of protections I want to see in the Bill. If we want a Rolls-Royce service, and if this is to be the best Bill in the world, it cannot ignore the most vulnerable in society. If the patient is a disabled woman, it is whammy upon whammy and layers upon layers of intersectionality that the Bill does not address. That is why I want to see the Bill strengthened.
I want to talk about the training that doctors get and the training in palliative care. We heard from Dr Jamilla Hussain, who was very clear about the fear among minoritised communities because of what happened during the covid pandemic, with “do not resuscitate” orders and their whole experience. Some people potentially died who could have been saved because they did not have the trust in NHS services to access them.
In this instance, it is important that we have a first doctor. That first doctor might have no relationship with the patient because their regular doctor does not want to engage in the process. Let us take the example of a patient in Bradford West who has had a diagnosis of terminal illness. They might well have a doctor or consultant who has been dealing with them for six months or even a year, to the point where they have reached the terminal stage. They might have a relationship with that doctor, who might have spoken their language and might be from a particular faith background but who does not want to engage in the assisted dying process. According to the Bill, that doctor would then have to refer that patient on to somebody who is prepared to have that conversation, but that person might not have that training or those language skills, and they might not—
The Chair
Order. The hon. Lady needs to keep her remarks to amendment 20. I have looked at other amendments to which this is relevant, including amendment 186, but that has been starred. I exhort the hon. Lady to focus on the particular issues covered by amendment 20.
Naz Shah
Thank you, Mr Dowd. My understanding is that this all relates to amendment 20, and I am happy to clarify why. Ultimately, this is about the professional’s intervention with a patient, and the amendment is about training people adequately to assess coercive control and domestic violence. I am trying to demonstrate—I accept that I might not be doing it well enough—that there is a pathway and a catalogue of things that relate back to the person who is being assessed. I am trying to explain to the Committee in detail, because I feel very strongly about it, what that care pathway might look like for somebody, and why the amendment, although I welcome it, does not safeguard the most vulnerable in society. I am happy to be guided if that is not what I am doing, but that is certainly what I am attempting to do. May I carry on, Mr Dowd?
The Chair
The hon. Lady should take this in the spirit in which it is intended. Dipping in and out of issues throughout the course of a speech is okay, but I am afraid that dipping in and out of issues that are not relevant is not, and we are getting to the stage where the information she is imparting is not necessarily relevant, in significant elements, to the amendments that we are dealing with.
The Chair
Order. My ruling from the Chair cannot be challenged. I exhort the hon. Lady to stick to the amendments before us. If she does not, I will have no other option but to intervene and move the debate on.
Naz Shah
Thank you, Mr Dowd.
I come back to the issue of potential coercive control, which is what amendment 20 addresses. As I have outlined, there are patients who could be in that position. Given the examples that I have put before the Committee, I argue that the amendment, although it is brilliant in getting us to a better place than where we started out with the Bill—I am pleased that my hon. Friend the Member for Spen Valley has indicated that she is happy to discuss strengthening the safeguards—does not go far enough, for the very reasons that I have outlined, and no doubt will outline further when speaking to other amendments.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd. As I have said, the Government remain neutral and my role is not to offer a Government view on the merits of the amendments, but to provide a factual explanation of their technical and practical effect to assist the Committee in its scrutiny.
The Government remain committed to ensuring the legal robustness and workability of all legislation, so I have worked closely with my hon. Friend the Member for Spen Valley on some amendments. Where changes have been mutually agreed by my hon. Friend and the Government, I will offer a technical, factual explanation and rationale for the amendments. Those include amendments 185 and 186 in this group. The Government remain neutral on the Bill and do not have a position on assisted dying.
This group relates to the necessary training, qualifications and experience of the co-ordinating doctor. As drafted, clause 5 gives the Secretary of State the power to specify the training, qualifications and experience required for a registered medical practitioner to act as a co-ordinating doctor, but there is no legal duty for the Secretary of State to do so. Amendments in this group either seek to change that power to a legal duty, or would introduce specific training, qualifications and experiential requirements for a registered medical practitioner to act as a co-ordinating doctor.
Amendments 185 and 186 tabled by my hon. Friend the Member for Spen Valley would introduce a duty on the Secretary of State to make regulations regarding the necessary training, qualifications and experience of the co-ordinating doctor. Giving the Secretary of State a duty rather than merely a power would ensure certainty as to the training, qualifications and experience that the registered medical practitioner must have in order to act as a co-ordinating doctor. The Secretary of State’s duty in this respect would include making provision in regulations about training for co-ordinating doctors relating to assessing capacity and assessing whether a person has been coerced or pressured by another person. Amendment 186 would also enable the Secretary of State, subject to the specific training requirements already mentioned, to delegate the determination of the training, qualifications and experience needed for a co-ordinating doctor to a person specified in the regulations. That would allow that determination to be delegated to a body or bodies with appropriate expertise, in line with other aspects of training for healthcare professionals.
Danny Kruger
Will the Minister clarify that point? Is he suggesting that because fewer doctors might be eligible or willing to conduct the preliminary assessment, we should not require it at that early stage?
Stephen Kinnock
What we are trying to say is that the important thing here is to ensure that, when the Secretary of State brings the regulations forward, the hands of the Secretary of State are not tied too tightly, so that the Secretary of State is able to bring together the right people, to deliver the right training, to achieve the outcomes that are required through the regulations. Our assessment is that this amendment would, in essence, narrow the pool of people available to do the training. That would seem to pre-empt the idea behind doing this through regulations, which is to ensure that there is up-to-date training that is responsive to where we may or may not be two years down the line from the Bill having its commencement. It is about having that flexibility and that ability to build capacity.
Amendment 340 would place the Secretary of State under a duty to make regulations requiring a co-ordinating doctor to have specific and up-to-date training relating to reasonable adjustments and safeguards for autistic people and people with a learning disability. I note that amendments 185 and 186, if passed, would impose a duty on the Secretary of State to specify the training, qualifications and experience that the co-ordinating doctor will need.
The consequence of this amendment would be to require the Secretary of State to introduce a further requirement on the co-ordinating doctor—to have undergone training relating to reasonable adjustments and safeguards for autistic people and people with a learning disability. In considering whether the amendment is required, I note that the Health and Social Care Act 2008 requires that all CQC-registered health and adult social care providers ensure that their staff receive specific training on learning disability and autism.
Amendment 427 would impose an obligation to take all reasonable steps to ensure that the co-ordinating doctor is proficient in the Welsh language if services or functions under this legislation are to be provided to an individual in Welsh in Wales. The amendment does not make it clear who would be obliged to ensure that those steps were taken, or who would assess and enforce whether the “fluent proficiency” standard was met.
Liz Saville Roberts
What the Minister is referring to is the appropriate authorities, because areas related to training and regulation of registered practitioners in Wales are devolved to the Welsh Government. I will be touching on that later, but I would beg him to approach the amendment in that spirit.
Stephen Kinnock
I know that we are coming on to the question of appropriate authorities and I absolutely see and understand the spirit in which this amendment is suggested. The challenge is just about the potential for it to lead to operational issues, such as a reduced pool of registered medical practitioners who are able to carry out the function of a co-ordinating doctor under this legislation.
Liz Saville Roberts
That is exactly why the amendment includes a reference to “all reasonable steps”. It is with that in mind. This is reflected in other legislation where similar concerns have been expressed.
Stephen Kinnock
I thank the right hon. Lady for that. We go back to the point about the true significance of the 2011 Welsh Government Measure, which sets a basic foundation for the duty of the Welsh Government to ensure that Welsh language provision is provided through the Welsh NHS. There is absolutely no debate about that point; that is nailed on. The question is simply how we ensure, if we are to amend this Bill along the lines that the right hon. Lady suggests, that that does not create a lacuna or confusion in the system. I think we need to sit down and discuss that, to ensure that whatever we propose is watertight.
It may be helpful to note, as in discussion of amendment 413, that regardless of this amendment, under the Welsh Language Measure of 2011 the NHS in Wales has a statutory duty to deliver its services to the public in both Welsh and English. That legislation gives the Welsh language official status in Wales, and the Measure states that individuals in Wales should be able to conduct their lives through the medium of Welsh if they choose to do so. The Welsh Government’s active offer for health is intended to support all staff across NHS Wales to provide a service in Welsh for patients without their having to ask for it.
Under amendment 20, regulations made by the Secretary of State on the necessary training, qualifications and experience of the co-ordinating doctor would be required to include mandatory training relating to domestic abuse, including coercive control and financial abuse. Amendments 185 and 186, tabled by my hon. Friend the Member for Spen Valley, would require that regulations made by the Secretary of State on the necessary training, qualifications and experience of the co-ordinating doctor covered training related to assessing capacity and whether a person has been coerced or pressured by another person. But I note that, as my hon. Friend the Member for Spen Valley has said, she is minded to support amendment 20, which clearly would ramp up the requirement, as previously discussed.
As I have said, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed, but to clarify the intent of the Bill, we have worked with my hon. Friend the Member for Spen Valley in relation to amendments 185 and 186, which would place the Secretary of State under a duty to make regulations regarding the necessary training, qualifications and experience of the co-ordinating doctor. That would include specific training on assessing capacity and assessing whether a person has been subject to coercion or pressure.
I hope that that explanation and those observations have assisted the Committee. I thank hon. Members for their attention.
Kim Leadbeater
I rise to speak first to my amendments 185 and 186, which would make important changes to impose a duty on the Secretary of State to make regulations about the training, qualifications and experience required to act as the co-ordinating doctor, as the Minister says. Moving from “may” to “must” would make it a legal requirement that such training take place and would thereby strengthen the Bill. In its present form, the Bill gives the Secretary of State that power to make such regulations but does not legally require him or her to do so.
Amendment 186 would ensure that regulations must include training about
“(a) assessing capacity;
(b) assessing whether a person has been coerced or pressured by any other person.”
Colleagues will appreciate that it is difficult for me to resist the temptation to put the entire training manual in the Bill—we all want to show the thorough approach that has been taken—but doing so would not make for good, clear legislation and can be limited in terms of flexibility and future-proofing. However, given the importance of the matters of capacity and coercion, I felt that it was important that this level of detail be specified in the Bill, because those issues have been at the heart of so many of our deliberations on this hugely sensitive and important issue.
My hon. Friend the Member for Bexleyheath and Crayford, who tabled amendment (a) to my amendment 186, has made a compelling argument, as always. Like my hon. Friend the Member for Penistone and Stocksbridge, I have some concerns that the amendment would limit the number of disabled people who are covered and that it would not cover people with mental disorders, but I understand the concerns around autistic people and those with learning disabilities.
I am also mindful, given that people with Down’s syndrome will typically have some form of learning disability, that amendment (a) may help to address some of the concerns that were expressed yesterday about ensuring that the Bill meets their needs and takes them into consideration. I take on board the Minister’s comments about the Health and Care Act 2022, but I am minded to support the amendment and work with my hon. Friend the Member for Bexleyheath and Crayford and others as necessary to make any further changes as the Bill progresses.
Jack Abbott (Ipswich) (Lab/Co-op)
I am grateful to my hon. Friend for supporting that amendment. We have often debated the level of detail that should be set out in the Bill. I fully appreciate that she does not want to include the whole training manual; I will not discuss my amendment, which concerns culture and trauma-informed care, because I recognise that it is much too detailed in that respect. However, does she agree that where possible, and where it does not create unintended consequences or loopholes, we should reassure not just colleagues across the House but members of the public, who want to see these sorts of thing on the face of the Bill?
Kim Leadbeater
My hon. Friend is absolutely right. If the Bill passes, it will be a huge change. We have a duty to the public to show that we are including sufficient detail in the Bill and to provide reassurance in any way we can. To be honest, I would quite like to put the entire training manual in the Bill, but I appreciate that from a legislative perspective that is not possible. However, there are occasions when, for the avoidance of doubt, we should make certain provisions clear on the face of the Bill.
That brings me to amendment 20, which was tabled by my hon. Friend the Member for Lowestoft, who has a huge amount of experience and expertise in the field to which it relates. Her amendment states:
“Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”
At the moment, there are no safeguards for terminally ill victims of domestic abuse, financial abuse or coercive control. That concerns me, and it feeds into the points made by my hon. Friend the Member for Bradford West.
If a victim of domestic abuse or coercive control—it is often a woman, as we know—is also terminally ill, I can only imagine what a lonely place that is. At the moment, that person is under no supervision. Sadly, there have been instances in which those people have taken their own life. They will continue to be the victims of their incredibly difficult personal circumstances on top of having a terminal illness, which is an absolute tragedy. Opening up the conversation with doctors and healthcare professionals about their circumstances has to be a good thing. It will shed light and transparency on what must be an incredibly difficult situation.
Jack Abbott
On a point of order, Mr Dowd. I think my hon. Friend the Member for Spen Valley said that if amendment (a) and amendment 186 are agreed to, that will negate the need for amendment 340. I seek clarity on whether that is the case.
Liz Saville Roberts
I beg to move amendment 144, in clause 5, page 3, line 14, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 5(3)(a) (training, qualifications and experience of coordinating doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
The Chair
With this it will be convenient to discuss the following:
Amendment 145, in clause 5, page 3, line 24, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of requiring the Welsh Ministers to consult regarding the making of regulations under Clause 5(3)(a) (training, qualifications and experience of coordinating doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 146, in clause 6, page 3, line 34, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 6(3) (forms of proof of identity). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 147, in clause 8, page 5, line 13, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 8(6)(a) (training, qualifications and experience of second doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 148, in clause 8, page 5, line 28, leave out
“Secretary of State must consult such persons as the Secretary of State”
and insert
“appropriate authority must consult such persons as the appropriate authority”.
This amendment has the effect of requiring the Welsh Ministers to consult regarding the making of regulations under Clause 8(6)(a) (training, qualifications and experience of second doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 149, in clause 11, page 7, line 13, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 11(1) (replacing the coordinating doctor on death etc). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 150, in clause 19, page 13, line 21, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 19(2)(b) (training, qualifications and experience of other doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 151, in clause 19, page 13, line 31, leave out
“Secretary of State must consult such persons as the Secretary of State”
and insert
“appropriate authority must consult such persons as the appropriate authority”.
This amendment has the effect of requiring the Welsh Ministers to consult regarding the making of regulations under Clause 19(2)(b) (training, qualifications and experience of other doctors). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 152, in clause 20, page 13, line 35, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 20(1) (meaning of “approved substance”). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 153, in clause 28, page 17, line 3, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 28(1) (prescribing, dispensing, transporting etc of approved substances). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 154, in clause 30, page 18, line 12, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make a Code of Practice in Wales under Clause 30. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 155, in clause 30, page 18, line 31, leave out “Secretary of State” and insert “appropriate authority”.
This amendment is linked to an amendment that allows the Welsh Ministers to make a Code of Practice in Wales under Clause 30. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 156, in clause 30, page 18, line 33, leave out
“Secretary of State must consult such persons as the Secretary of State”
and insert
“appropriate authority must consult such persons as the appropriate authority”.
This amendment has the effect of requiring the Welsh Ministers to consult regarding the making a Code of Practice for Wales under Clause 30. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 157, in clause 32, page 19, line 21, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 32(1) (powers to ensure assistance is available). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 158, in clause 32, page 19, line 22, leave out “Secretary of State” and insert “appropriate authority”.
This amendment is linked to an amendment that allows the Welsh Ministers to make regulations under Clause 32(1) (powers to ensure assistance is available). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 159, in clause 33, page 19, line 34, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 33(1) (notifications to Chief Medical Officers). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 160, in clause 33, page 20, line 16, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 33(2)(h) (notifications to Chief Medical Officers: notifiable events). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 161, in clause 35, page 21, line 30, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of requiring the Welsh Ministers to review the operation of the Act in relation to Wales. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 162, in clause 35, page 21, line 35, at end insert
“or the Senedd Cymru (as the case may be)”.
This amendment has the effect of requiring a review carried out by the Welsh Ministers under Clause 35 to be laid before the Senedd.
Amendment 163, in clause 35, page 22, line 8, leave out “Secretary of State” and insert “appropriate authority”.
This amendment is linked to an amendment that requires the Welsh Ministers to review the operation of the Act under Clause 35.
Amendment 164, in clause 37, page 22, line 30, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 37(1) (modification of form of declarations and statements). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 165, in clause 38, page 22, line 34, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 38(1) (power to make consequential and transitional provision etc). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 166, in clause 38, page 22, line 37, leave out “Secretary of State” and insert “appropriate authority”.
This amendment is linked to an amendment that allows the Welsh Ministers to make amendments under Clause 38(1) (power to make consequential and transitional provision etc). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 167, in clause 39, page 23, line 9, at end insert
“or, where the regulations are to be made by the Welsh Ministers, the Senedd Cymru”.
This amendment has the effect of making certain powers of the Welsh Ministers subject to the affirmative procedure before the Senedd Cymru. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 168, in clause 39, page 23, line 12, at end insert
“or, where the regulations are to be made by the Welsh Ministers, the Senedd Cymru”.
This amendment has the effect of making certain powers of the Welsh Ministers subject to the negative procedure before the Senedd Cymru. A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 169, in clause 40, page 23, line 23, at end insert—
“‘appropriate authority’ means—
(a) in relation to England, the Secretary of State;
(b) in relation to Wales, the Welsh Ministers.”
This amendment to the interpretation provision in Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales. A series of linked amendments change references to the Secretary of State to appropriate authority in order to allow the Welsh Ministers to make regulations in relation to Wales.
Amendment 170, in clause 42, page 24, line 21, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 42(2) (commencement). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Amendment 171, in clause 42, page 24, line 26, leave out “Secretary of State” and insert “appropriate authority”.
This amendment has the effect of allowing the Welsh Ministers to make regulations under Clause 42(4) (commencement: transitional and saving provision). A linked amendment to Clause 40 defines appropriate authority to mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.
Liz Saville Roberts
Diolch, Gadeirydd. As Professor Emyr Lewis of Aberystwyth University told this Committee in oral evidence, because this Bill is a private Member’s Bill it has not gone through the usual process of engagement with devolved Governments. I recognise that there will be amendments and changes and amendments to amendments, but I can speak to the principle here and we will have to adapt as we move ahead, as we are learning to do in this Committee.
The Wales Act 2017 formally acknowledged the Sewel convention by amending section 107 of the Government of Wales Act 2006 with a declaration stating—this is important—that
“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd.”
It is in that spirit that work needs to be done to ensure that the devolved legislature in Wales and the complexities of legislating across reserved and devolved matters are fully considered and represented in the Bill. That is what these 28 amendments seek to do.
The use of the term “appropriate authority” does two things. First, in the here and now, it recognises the complexity of which competency lies where and with which Minister or Secretary of State. Secondly, it future-proofs the legislation, which we know is important. If and when there are any changes to devolved powers and competencies, the appropriate authority can move with time with the specifics of who is responsible for what.
Amendment 169 would amend clause 40 to include a definition of “appropriate authority”, the term that is used in my other amendments. It would mean the Secretary of State in relation to England and the Welsh Ministers in relation to Wales, where those powers are devolved rather than reserved. The amendment would provide for my other amendments, which would modify each relevant mention of powers provided to the Secretary of State in the Bill, to supply Welsh Ministers with equivalent powers in Wales.
Amendment 144 would amend clause 5 to allow Welsh Ministers the same powers as the Secretary of State in England to specify the training, qualifications and experience of the medical practitioner representing the co-ordinating doctor, because that matter is devolved to Wales. Amendment 145, similarly, would require Welsh Ministers to consult persons they consider appropriate before making the relevant regulations in Wales.
Amendment 146 would amend clause 6 to allow Welsh Government Ministers equivalent powers to make provision around proof of identity. Amendment 147 would similarly amend clause 8 in relation to the training, qualifications and experience of the independent doctor; we are talking, of course, about the co-ordinating doctor.
And so on, and so on. I assume that hon. Members now understand the purpose of my various amendments. I am more than willing to explain them further if necessary, but otherwise I will skip ahead.
Amendments 155 and 156 would modify clause 30 so that the Welsh Government are provided with a power to issue a code of practice over arrangements in relation to this legislation in Wales. That might be a useful route into further discussions on the specifications of the codes of practice; it might also be significant in discussions with the hon. Member for Spen Valley and the Government about how to recognise legislative differences in safeguarding and the Welsh language.
Amendments 157 and 158 are also important. They would provide Welsh Ministers with the power to make regulations under clause 32 to ensure that assistance is available through the health service in Wales. That is the responsibility of Welsh Ministers. As Committee members know, Senedd Cymru voted against a motion to support an assisted dying law by 26 to 19, with nine abstaining. There are a number of issues of which we need to be aware when bringing an England and Wales law into Wales. To ignore them would be irresponsible; we do so at our peril, frankly, especially given that clauses 33 and 34 will place explicit obligations on Welsh Ministers and the chief medical officer for Wales.
I put it on the record that I am disappointed that the Committee was not able to question the chief medical officer for Wales. I understand that he was invited. As there are matters in the Bill that we do not deal with every day in this place, that would have been useful. The Bill is unprecedented, certainly for a private Member’s Bill, in respect of the support, information and advice that the Committee needs, and that would have been an obvious opportunity for us to receive advice. I understand that the chief medical officer has advised on other pieces of legislation, including vaping, although that was Government legislation.
Kim Leadbeater
I can confirm that the chief medical officer for Wales was invited to give evidence. I do not know the circumstances of why he did not. If it is helpful for me or other colleagues to meet him, the offer is definitely open.
Liz Saville Roberts
I am grateful for the hon. Lady’s intervention.
Amendments 161 to 165 relate to clauses 35, 37 and 38. Amendments 161 to 163 would provide for the Welsh Government to review the operation of the legislation in Wales, which is vital to understand the specifics of the Welsh context and to learn and adapt as appropriate. To not allow Welsh Ministers that power would be to dismiss the particularities of health policy in Wales, as well as the additional implications of contextual differences. I strongly believe that we require an impact assessment to understand those differences properly within the context of health being devolved to Wales, alongside significant population differences in relation to demographics, age and sickness.
Danny Kruger
I will speak briefly in support of the amendments. The right hon. Member for Dwyfor Meirionnydd may want to intervene to request that the Minister respond to a couple of additional points.
It is very uncomfortable that the Bill ignores the devolution settlement in this way. It is regrettable that it was introduced in its current form in the knowledge that the Senedd in Wales rejected assisted dying a month earlier. That suggests either that originally little thought was given to including Wales in the Bill or that, subsequent to the vote in the Senedd, it was decided that the Bill would be imposed on Wales. It would be helpful to have clarification about the original intent.
I very much echo the points that the right hon. Lady made. She is absolutely right about the appropriateness of giving the Welsh Government powers to manage the Bill’s operation and implementation if it passes. I would suggest a stronger process of implementation, reflecting the advice given by Professor Lewis, who gave evidence to us on Welsh law. In the light of the vote in the Senedd to reject assisted dying, he pointed out:
“The vote was against ‘the principles of assisted dying’, not only about how the NHS in Wales might be affected. It was a decision which the majority of the Senedd made about those principles, having reflected on the…issues raised.”
Professor Lewis proposed a straightforward way of respecting that vote while recognising that, if this Bill passes, it will apply to Wales. He suggests that we should
“provide for different commencement provisions in the Bill. As things stand, under clause 42 of the Bill, most of the Bill will not come into force until the Secretary of State has brought it into force, with the approval of the UK Parliament. Why not provide that the Bill will only come into force in Wales when and if the Welsh Ministers bring it into force with the approval of the Senedd?”
The objection might be made that cross-border issues would be created if Wales does not proceed but England does. Nevertheless, that is a matter that devolution can cope with. It will have to cope with the cross-border issues that will arise if the Scottish Bill does not proceed, and of course we have cross-border issues between Wales and England with respect to organ donation, so I do not accept that the two countries need a uniform policy. I do not know whether the right hon. Lady or the Minister wish to comment on the suggestion that the Bill should commence in Wales only if Ministers bring it forward with the approval of the Senedd.
Liz Saville Roberts
The evidence for a commencement date would be associated with an impact assessment in Wales. That is why it is so important that Welsh Ministers have the power to get the information they need and to implement any changes that come forward.
Danny Kruger
I absolutely agree with the right hon. Lady. There is a whole set of challenges, including in England, in respect of the impact assessment and the Bill’s commencement. Nevertheless, my suggestion is that we strengthen her proposal to empower Welsh Ministers to proceed. We should respect the devolution settlement and reflect what she describes as the “correct and rightful powers” of the Welsh Parliament to ultimately decide whether this law were to come into effect in Wales.
Stephen Kinnock
Amendments 144 to 171, tabled by the right hon. Member for Dwyfor Meirionnydd, relate to the powers and duties vested in the Secretary of State under the Bill. The purpose of the amendments is to change all references throughout the Bill from “Secretary of State” to “appropriate authority”. Amendment 169 defines “appropriate authority” as the Secretary of State in relation to England and as Welsh Ministers in relation to Wales. I note the intent of the promoter of the Bill, my hon. Friend the Member for Spen Valley, that the Bill’s provisions extend and apply to both England and Wales.
The amendments would mean that all the powers and duties vested in the Secretary of State are instead shared between the Secretary of State where they relate to England and Welsh Ministers where they relate to Wales. I would like to put on the record the Government’s continued commitment to devolution and to working with the devolved Governments. Having taken a neutral position on the Bill and the matter of assisted dying, the Government are still committed to working with the Welsh Government to resolve legal and technical issues and discuss constitutional matters that might arise thoughtfully and amicably.
With regard to the phrase “appropriate authority”, the challenge is that in each case throughout the Bill the appropriate authority would be determined by the devolution position of the clause in question—what is the underlying question that the clause seeks to address, and is that a reserved or devolved matter? I have discussed this with parliamentary counsel and others, and the concern is that a blanket provision of this nature may well be premature at this stage. Until we have finalised and determined the constitutional nature and impact of each clause, putting a blanket provision in place may run counter to that process.
Liz Saville Roberts
I have a simple question: in relation to the Sewel convention, if not now, when? We should have clarity on these points. I hope the Minister will forgive me if this is slightly longer than an intervention, but he gives me no option in the here and now but to withdraw the amendments, because I will not push them to a vote if it is likely to be lost. However, these are serious questions. How does this respect the Sewel convention? As a Back-Bench MP, I am not in a position to answer that, and I would have expected the Government to provide clarity on these points earlier than Committee stage. I assure the Minister that I will push this issue on Report if we do not have a satisfactory resolution on the Sewel convention.
Stephen Kinnock
It is, of course, the right hon. Lady’s prerogative to press amendments as and when she sees fit. I am simply flagging that terminology such as “appropriate authority” risks tying the hands of the legislative process in a way that could have perverse outcomes. A clause that should be the lead responsibility of Welsh Ministers could instead end up in the hands of Secretary of State due to the lack of clarity or relative vagueness of the term “appropriate authority”.
The Government’s suggestion is to work through each clause and be specific about the lead responsibility in each case—is it the Secretary of State or Welsh Ministers? We are open to discussing whether it is better to do it that way or with the terminology “appropriate authority”; we are simply flagging that there are risks associated with that term.
Liz Saville Roberts
Before the Minister sits down, will he commit to engaging with me on this issue to identify the specific needs in the spirit of what I have bought forward?
Stephen Kinnock
Yes, absolutely, and before Report. Let us ensure that we do that, and that parliamentary counsel is in the room. I am not a constitutional lawyer, so we definitely need people in the room who can speak to these issues. Of course, it also needs to be done in close dialogue with colleagues in the Welsh Government, particularly given what was said earlier about the need for a legislative consent motion.
The Chair
For clarity, amendments negatived in Committee, if they are pressed today, can be tabled again on Report. I say that in case the right hon. Lady wished to press the amendment and it was defeated. I hope there was clarity from me on that.
Kim Leadbeater
I welcome this important debate about the impact of this potential legislation on Wales. I thank the right hon. Member for Dwyfor Meirionnydd for her valuable contributions. I also welcome the Minister’s commitment to meet the right hon. Lady and me for discussions with parliamentary counsel and the relevant authorities.
This is really important. The criminal justice system covers England and Wales, so it is important for the Bill to do the same, given that it disapplies the Suicide Act in certain very carefully defined circumstances. But health is, of course, devolved and the Welsh Government quite rightly make decisions on the Welsh NHS. I want to make it clear that I recognise that reality and its importance, and I am fully committed to observing the same conventions that the Government would if this were a Government Bill.
As has been said, I am working with UK Government officials to ensure that the right steps are taken at the right time, and I would expect to engage colleagues in the Welsh Government as the Bill progresses. Indeed, I really look forward to doing so and would be happy to visit the Senate if appropriate—although, as Members can tell, I need to work on my Welsh a bit. I look forward to continuing these conversations.
Liz Saville Roberts
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 359, in clause 5, page 3, line 18, at end insert—
“(ba) who has conducted the preliminary discussion in accordance with section 4,”—(Danny Kruger.)
This amendment requires that the coordinating doctor has conducted a preliminary discussion prior to witnessing the signing of the first declaration.
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 360, in clause 5, page 3, line 23, at end insert—
“(e) who, If receiving remuneration for the provision of services in connection with the provision of assistance to that person in accordance with this Act, makes publicly available an annual statement setting out total turnover from the provision of services under this Act and the number of patients assisted, and such other information as the Secretary of State may specify by regulations.”
This provides that if the coordinating doctor receives remuneration for providing assisted dying, they must then make a public annual statement about their operation.
The Chair
With this it will be convenient to discuss amendment 361, in clause 5, page 3, line 28, at end insert—
“(7) Regulations under subsection (3)(e) are subject to the affirmative procedure.”
This is linked to Amendment 360.
Danny Kruger
The amendment speaks to the general confusion we remain in about how the assisted dying law would be implemented and who would operate it. We are in a great cloud of unknowing about whether we are talking about an NHS service or a private service. If there were to be a private service and people were to be paid to deliver it outside the NHS, the amendment would clarify obligations regarding how their remuneration would be recorded.
There is an established precedent for publishing financial interests where there is a potential for a conflict of interest. Senior officials in NHS England, NHS trusts and the Medicines and Healthcare products Regulatory Agency must declare financial interests—including relationships with pharmaceutical companies—in public registers. Those interests include consultancy fees, gifts, hospitality, shareholdings in pharmaceutical companies or research funding, because there is a concern that those influence drug approvals, procurement and healthcare policy and that there is a risk of bias.
NHS England guidance on managing conflicts of interest encourages the detailed disclosure of significant payments from pharmaceutical companies, often with exact figures or ranges for payments above a £500 threshold. The Association of the British Pharmaceutical Industry runs Disclosure UK, which requires pharmaceutical companies to publicly report payments to healthcare professionals and organisations. It would be appropriate to follow this well-established precedent and ensure that people involved in the administration of assisted dying are accountable for the transparency for their remuneration.
Clause 5(3) recognises that there could be a conflict of interest and that there is a risk that someone who is related or might benefit financially may not be a neutral assessor of someone who wishes to die, but clause 40(4), which comes rather late in the Bill—it should be up front—specifies that
“a registered medical practitioner is not to be regarded as benefiting financially or in any other material way from the death of a person by reason only of the practitioner receiving reasonable remuneration for the provision of services”.
Here is where we discover that the Bill does envisage remuneration, but people being remunerated are excluded from the definition of people who financially benefit from the service. To me, that feels dangerous.
Although it has not resolved the question of whether assisted dying is to be an NHS service, the Bill clearly envisages the establishment of a private market for these services, perhaps with a specialist service like Dignitas. Are we content with the Bill’s assertion that remuneration is not a matter for scrutiny? What level of remuneration would we consider reasonable? What level would we consider excessive—remuneration that is capable of influencing a doctor’s thinking? Would they be paid for administering assisted death on a per patient basis, or as a cumulative practice?
As MPs, should we not have some unease at the idea that this could be a highly profitable specialism for private practice? Transparency on what is being charged and who is profiting from the service would help us to understand what is happening in the system that is being established. I suggest that we bring more sunlight into the system, as we do in many other areas.
It is notable that there is little public data on what is charged, or how much revenue assisted dying generates for medical practices, in other countries where assisted dying is a private service. That is regrettable, and I hope we will not replicate that here. We do know that at Dignitas, which is a not-for-profit, the cost for a single patient is between £5,000 and £8,500 in fees alone. What is reasonable remuneration for a practice that provides assisted dying here in the UK? The term is entirely undefined, and I would be grateful for any clarity.
Kim Leadbeater
I understand the hon. Gentleman’s keenness to get to the debate on clause 32, on the provision of the service—we will come to that in due course—but this conversation is about the amendment. To be clear, there is no expectation that assisted dying would be set up as a private enterprise or service. It would be delivered within the provision of the NHS.
Danny Kruger
I am glad to have that suggestion. Clause 32 is extremely broad. It basically empowers the Secretary of State to set up a service in any way they choose, potentially including in the private sector. The hon. Lady says it is not envisaged that would happen, as she is suggesting this should be an NHS service. I am grateful for the clarity, but I wish it were clearer in the Bill.
Danny Kruger
I am glad to hear we will have more clarity. Having assisted suicide as an NHS service is fraught with enormous risks, along the lines we have discussed and will no doubt continue to discuss. At least we have that clarity. If the hon. Lady is going to rule out private provision and profit making or remuneration of people outside the NHS, I would be grateful for amendments specifying that. That would help to address this question.
My amendments would mean that if there is private provision of assisted suicide, as the Bill currently allows, the public and Parliament could understand who is being paid what, which I think is very appropriate.
Jack Abbott
To give the Committee a sense of clarity, is the hon. Gentleman saying he wants the finances to be in the public domain, so that if provision were to go down a private route, everyone would know what an individual is charging for these services? Or is he suggesting a cap on services? What is the intention of his amendments?
Danny Kruger
My amendments state that if a medical professional is paid for delivering assisted suicide, the money they receive should be transparent. The answer is therefore the former.
I do not propose any cap. If we end up with a private service, although the hon. Member for Spen Valley has just told us that we will not, it might be appropriate to create a scale of charges. My suggestion is that we need absolute clarity. I also think we should use the affirmative procedure to approve the regulations on the transparency of finances. This should be something that Parliament expressly approves.
Kit Malthouse (North West Hampshire) (Con)
My interpretation of what the hon. Member for Spen Valley said is that, as long as the service is available on the NHS, it is up to me whether I go private. In such circumstances, I could have it on the NHS if I really wanted. If I chose to go private, as I might if I were having a baby at the Portland hospital or cosmetic surgery at King Edward VII’s hospital in Marylebone, why would my hon. Friend the Member for East Wiltshire want to know the private arrangement between me and my physician?
Danny Kruger
I am grateful for that clarity, although we now seem to be less clear than we were. I understood the hon. Member for Spen Valley to be saying that there will not be private provision, but my right hon. Friend is saying that there may be.
Danny Kruger
It would be helpful if the hon. Lady clarified whether private provision will be allowed under the Bill, because I think we have a party split. My right hon. Friend the Member for North West Hampshire supports private provision, but the hon. Lady suggests this should be done only on the NHS.
Kim Leadbeater
This service, like many others, will be delivered through a range of providers, as alluded to by the right hon. Member for North West Hampshire. I understand the keenness to have this debate now, but we will come on to it further down the line. The hon. Member for East Wiltshire is right that this is really important.
Danny Kruger
It certainly is. Okay, so it could be either. This will be an NHS service, with all the implications for general practice, doctor-patient relations and secondary care and social care, but there will also be an opportunity to deliver it privately, without any clarity or transparency on who is being paid and how.
In answer to my right hon. Friend the Member for North West Hampshire, this is different from cosmetic surgery, as even cosmetic surgery is regulated. In many ways, there is more regulation of the administering of Botox than there is in this Bill. The administering of assisted dying is of a significantly different category and gravity. It is appropriate and important that financial interests are clearly revealed and made public, particularly with the new intervention we are creating. If other hon. Members do not support the amendment, what provisions do they propose that would reveal where there may be potential conflicts of interest and how we may regulate this?
Dr Simon Opher (Stroud) (Lab)
I thank the hon. Member for East Wiltshire for the amendment. The set-up of this scheme is similar to other NHS services. Essentially, a medical professional will opt in to provide the service. That will involve extensive training followed by a short exam, as it does in Australia and California, after which they will be accredited under the scheme—that is how I understand it will happen in the UK. No one is forced to provide the service, but training is offered and many doctors take that up. Therefore, it is a medically based service.
The British Medical Association will then negotiate the fee for doing the assessment with the Department of Health and Social Care. That is not about agreeing to provide the service; it is about doing the assessment. That is mirrored in many aspects of general practice, which itself is a private service contracted to the NHS. It is very complicated. It would be inaccurate to portray this as a private service, where people may profiteer, as it is based on medical professionals performing a duty for which they are trained and for which the price is clear to the general public, because it is negotiated and published.
On publishing the number of patients seen by a single doctor and the fees that doctor has accrued from the scheme, that is not something that happens for things like minor operations, which we perform outside general medical services, although we are rewarded by the Government at a set fee. There are other such services—inserting a coil, for example—where we are given a certain amount of money.
How this is arranged is very complicated. Doing appraisals, being a trainer and all these things have a price attached, and we need training before we can perform the service. I see this scheme as no different. The problem with publishing how many patients have been seen by a single doctor regarding assisted dying is that it puts a target on that doctor. As we have seen with abortion clinics and even this Committee—certain Committee members have been targeted by the press for what they have said—this is a very sensitive issue, and it would not be fair to publish the figures so that doctors could be targeted in the press and made to feel unworthy in all those ways. It is extremely difficult.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
The hon. Gentleman makes a powerful argument about doctors being vilified in the press, but does he believe there is a risk that it may go further and present a genuine safety risk to those doctors?
Dr Opher
Exactly. That is what worries me. I acknowledge what the hon. Member for East Wiltshire said about pharmaceutical sponsorship, but I do not think that has anything to do with what we are talking about here. What we are talking about is specifying what doctors are doing as part of their daily job, for which they are trained. It would not be fair to publish those figures and put those doctors at risk.
Naz Shah
I appreciate what my hon. Friend is saying, because I have mixed views on this. I would like to understand what would be appropriate. My concern is that there will be a difference, because doctors normally have these set-ups for treatment options but, in this instance, the service is not a treatment, so to speak. I genuinely want to understand: in his eyes, what would a good service that provided scrutiny and accountability look like?
Dr Opher
There are examples. Appraising other doctors, for instance, is specified as a job that doctors are trained for, and it is paid at a set rate agreed with the Department of Health and Social Care. There are many instances where this occurs. I totally agree that the fee a doctor attracts for the service should be clearly specified and in the public domain, but I do not agree that a single doctor should be identified as having seen, say, 10 patients who have requested assisted death. I think that is unnecessary, will not lead to increased patient safety and will make it less safe for the medical practitioners too.
Stephen Kinnock
Amendments 360 and 361 introduce requirements on the co-ordinating doctor. Amendment 360 would insert an additional condition into the definition of a co-ordinating doctor and would require a co-ordinating doctor who receives financial payment for providing assisted dying to make an annual statement declaring publicly their total turnover from providing the service, the number of people they have assisted and any other information specified in regulations.
The related amendment 361 would require that any regulations specifying the information to be made available must be subject to the affirmative procedure. It is not clear whether the amendments are intended to apply to both private and NHS providers. It could create difficulty if the requirement were to apply to NHS providers, as a doctor is unlikely to know the total turnover from providing an assisted dying service.
As the Bill’s promoter, my hon. Friend the Member for Spen Valley has said that her intent is to ensure that the assisted dying service is available as an integral part of the NHS. Officials are working on amendments to later clauses to establish the operating model for her consideration.
Rebecca Paul (Reigate) (Con)
Does the Minister not think the word “remuneration” refers to the amount of income received specifically by the doctor, rather than by any organisation or company?
Stephen Kinnock
As my hon. Friend the Member for Stroud has just said, the picture is very complex because there are tariffs for services. Doctors receive a tariff for each service across the entire panoply of everything they do, particularly general practitioners who provide a very wide range of services. They are remunerated on the basis of a tariff that is negotiated in the GP contract between the Department of Health and Social Care and, primarily, the BMA. When a doctor operates in that environment, it is difficult to pick out their turnover from a particular service.
As my hon. Friend the Member for Stroud said, picking out an individual doctor and saying how much money they have made from a particular service, whether assisted dying or any other service, would put a particular focus on that doctor. We are drawing a distinction here with what the tariff could and should be, which we will need to discuss alongside the operating model in later clauses. Moving from being transparent on the tariff to saying, “That doctor over there made this much money from providing this service,” is a whole new ball game.
Danny Kruger
I am grateful to the Minister for raising a number of points, including the extraordinary revelation that we are about to find out how the Bill will operate in practice, with amendments yet to be developed even though we have been debating the Bill for a couple of weeks.
The difference between the tariff and a doctor’s income is fine, but if the tariff is to be clearly specified—no doubt it will be—how could it be complicated to determine how many tariffs a particular practice has received? I recognise that there is a separate question about whether it is appropriate to reveal that, but why is it difficult to identify how many individual tariffs a particular practice has received?
The Minister has described the tariff income, but my other concern is about the sponsorship, gifts, hospitality and fees of all sorts that the pharmaceutical companies are always trying to administer. Will he address the question of whether that should be transparent as well?
Stephen Kinnock
The challenge in the hon. Gentleman’s amendment is the term “total turnover.” A GP would have to extrapolate from the service provided to a whole range of other costs that may apply—for example, the share of the overhead they pay into their primary care network, the share of admin costs or the rent on their building. The definition of total turnover is the entire cost and entire revenue from the tariffs. As officials have made clear, this additional level of complexity would be an onerous task, although not necessarily impossible.
Total turnover is one side of this issue; the other, much more salient point is the quantum leap between having transparency on a particular tariff and pointing at a specific doctor and saying, “You over there—you did this much work on that much tariff, and that’s how much money you made for it.” There is a big difference between the two.
Naz Shah
I also do not like the idea of doctors being identified in such a way, as they have with abortion clinics, but I am trying to understand how we will protect these services. If it is an NHS provision and specialty, with doctors in certain practices signing up to provide services for assisted dying and becoming either the primary or the secondary doctor, by definition those will be the practices to which people will refer. That will become common knowledge, just as it is for musculoskeletal or podiatry services, for example. In this instance, there would be an assisted death service, and there would clearly be practices that do not provide it. How would we then protect the doctors? How will the Government respond to all these concerns?
Stephen Kinnock
If we are specifically talking about the amendments tabled by the hon. Member for East Wiltshire, he is saying that the total turnover from providing this service should be publicly available—it should be published—so I assume he thinks it should be on a website that everybody can see.
My hon. Friend the Member for Bradford West is asking about the knowledge that, if someone wishes to seek an assisted death, they can go to a particular practitioner or service. That is baked into the Bill, and clearly those doctors who wish to opt into the service will be doing so with their eyes open—they will know that they are providing that service. We must ensure that doctors feel protected if there is a sense of risk.
It would of course be deeply regrettable if there were to be threats or risks to doctors, but the evidence from other countries suggests this has not led to some of the deeply unfortunate things we have seen around abortion clinics, for example. It does not seem to have led to that, but of course we as a Government always need to be vigilant in monitoring all our services to ensure that our excellent medical professionals are getting the support they need.
Rebecca Paul
I thank the Minister for that useful explanation. Does he agree that the setting of the tariff will be key, because it could either incentivise or disincentivise the provision of the service?
Stephen Kinnock
I agree. Like any other aspect of what doctors and general practitioners do, this service is based on remuneration. They are professionals and should be remunerated as such, so the tariff will be important. It is also important that we do not jump ahead into defining the operating model. As I said, officials are working on this with the Bill’s promoter, and it will be made clear when we get to the relevant clauses.
Kim Leadbeater
Hopefully the Minister and other colleagues are reassured that, if the Committee agrees to the introduction of the voluntary assisted dying commission, monitoring will be very intense and reporting will be very robust. That might allay some of the fears that have been raised today.
Stephen Kinnock
As I have repeatedly said, the Government are neutral on the fundamental question of the Bill, but we are absolutely committed to ensuring it is workable should it receive Royal Assent. The role of the commission will be pivotal in ensuring that the Bill is workable and that all the necessary monitoring and regulation mechanisms are in place.
Terminally Ill Adults (End of Life) Bill (Nineteeth sitting)
Wednesday 5th March 2025
(1 month, 3 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 5 March 2025 - (5 Mar 2025)
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Chair
I wish to notify the Committee that I have selected amendment (a) to amendment 420 for a separate decision. When amendment 420 is moved, I will invite Danny Kruger to move amendment (a) to amendment 420 formally.
Let me also say that I will not tolerate the word “you”, that I will not tolerate long interventions and that Members are to address the Chair, not other members of the Committee. If we stick to those rules, I am sure we will get along just fine.
Clause 5
Initial request for assistance: first declaration
Amendment proposed (this day): 360, in clause 5, page 3, line 23, at end insert—
“(e) who, if receiving remuneration for the provision of services in connection with the provision of assistance to that person in accordance with this Act, makes publicly available an annual statement setting out total turnover from the provision of services under this Act and the number of patients assisted, and such other information as the Secretary of State may specify by regulations.”—(Danny Kruger.)
This provides that if the coordinating doctor receives remuneration for providing assisted dying, they must then make a public annual statement about their operation.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing amendment 361, in clause 5, page 3, line 28, at end insert—
“(7) Regulations under subsection (3)(e) are subject to the affirmative procedure.”
This is linked to Amendment 360.
Kim Leadbeater (Spen Valley) (Lab)
I have nothing further to add in this debate.
Danny Kruger (East Wiltshire) (Con)
In the light of the suggestion from the hon. Member for Spen Valley that there will be further amendments later, when we can discuss the shape of the provision and presumably any remuneration, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 186, in clause 5, page 3, line 23, at end insert—
“(3A) The Secretary of State must by regulations make provision about the training, qualifications and experience that a registered medical practitioner must have in order to act as the coordinating doctor.
(3B) The regulations must include training about—
(a) assessing capacity;
(b) assessing whether a person has been coerced or pressured by any other person.
(3C) Subject to that, the regulations may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”—(Kim Leadbeater.)
See the statement for Amendment 185.
Amendment made to amendment 186: (a), after
“(b) assessing whether a person has been coerced or pressured by any other person.”
insert
“(c) specific and up-to-date training on reasonable adjustments and safeguards for autistic people and people with a learning disability.”—(Daniel Francis.)
Amendment 186, as amended, agreed to.
Kim Leadbeater
I beg to move amendment 187, in clause 5, page 3, line 24, leave out subsection (4).
This amendment is consequential on NC8, which contains a single duty to consult before making regulations under various provisions of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 188, in clause 5, page 3, line 28, leave out subsection (6).
This amendment is consequential on Amendment 233, which contains a single set of provisions about the procedure for regulations under the Bill.
Amendment 192, in clause 6, page 3, line 36, leave out subsection (4).
See the statement for Amendment 188.
Amendment 199, in clause 8, page 5, line 28, leave out subsection (8).
See the statement for Amendment 187.
Amendment 200, in clause 8, page 5, line 30, leave out subsection (9).
See the statement for Amendment 188.
Amendment 206, in clause 11, page 7, line 24, leave out subsection (3).
See the statement for Amendment 188.
Amendment 211, in clause 19, page 13, line 31, leave out subsection (5).
See the statement for Amendment 187.
Amendment 212, in clause 19, page 13, line 33, leave out subsection (6).
See the statement for Amendment 188.
Amendment 213, in clause 20, page 13, line 39, leave out subsection (3).
See the statement for Amendment 188.
Amendment 215, in clause 28, page 17, line 11, leave out subsection (3).
See the statement for Amendment 188.
Amendment 216, in clause 30, page 18, line 37, leave out subsection (4).
See the statement for Amendment 188.
Amendment 217, in clause 30, page 18, line 38, leave out “that procedure” and insert “section 39”.
See the statement for Amendment 188.
Amendment 218, in clause 32, page 19, line 31, leave out subsection (4).
See the statement for Amendment 188.
Amendment 219, in clause 33, page 20, line 24, leave out subsection (5).
See the statement for Amendment 188.
Amendment 222, in clause 38, page 23, line 1, leave out subsection (2).
See the statement for Amendment 188.
Amendment 233, in clause 39, page 23, line 6, leave out subsections (3) to (5) and insert—
“(5A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A), 30(3) or 32 unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(5B) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.”
This amendment brings together the various provisions about the procedure for regulations and makes regulations under clauses 5 and 8 about training, qualifications and experience subject to the draft affirmative procedure.
Amendment 225, in clause 40, page 23, leave out line 23.
The amendment is consequential on Amendment 233.
Amendment 226, in clause 40, page 23, leave out line 37.
The amendment is consequential on Amendment 233.
New clause 8—Duty to consult before making regulations—
“(1) Before making regulations under section 5, 7, 8, 13, 19 or 21, the Secretary of State must consult—
(a) the Commission for Equality and Human Rights, and
(b) such other persons as the Secretary of State considers appropriate.
(2) The persons to be consulted under subsection (1)(b) must include —
(a) persons appearing to the Secretary of State to have expertise in matters relating to whether persons have capacity, and
(b) persons appearing to the Secretary of State to have expertise in matters relating to whether persons have been coerced,
unless the Secretary of State considers that, having regard to the subject-matter of the proposed regulations, it would not be appropriate to consult such persons.”
This new clause imposes a duty to consult before making regulations under various provisions of the Bill.
Kim Leadbeater
This group of amendments is consequential on new clause 8, which would create a single duty for the Secretary of State to consult before making regulations under various provisions of the Bill. It would consolidate the previous requirements to consult in relation to clauses 5, 8 and 19 and expand the duty to cover additional clauses. It would require the Secretary of State to consult the Equality and Human Rights Commission and such other persons as the Secretary of State considers appropriate. The persons to be consulted under subsection (1)(b) must include persons appearing to the Secretary of State to have expertise in matters relating to whether persons have capacity, and persons appearing to the Secretary of State to have expertise in matters relating to whether persons have been coerced.
This is an important strengthening of the Bill. It applies to multiple clauses: clauses 5, 7, 8, 13, 19 and 21. The duty to consult experts, particularly on issues around capacity and assessing for coercion, is an important change that reflects the detailed debate that the Committee has undertaken on those two important issues.
Amendment 233 brings together the various provisions about the procedure for regulations. It would make the regulations to be made under clauses 5 and 8, on training, qualifications and experience, subject to the draft affirmative procedure, so that Parliament has to debate and approve them first. Again, that would strengthen the Bill.
Danny Kruger
In a sense, this is a technical set of amendments that consolidate the provisions for secondary legislation. However, it reflects the seriousness of a concern that I and others have raised, which is that so much in this Bill will be left to the discretion of Ministers, often through the negative procedure.
It is important to reflect briefly on the questions that we are considering. The hon. Lady has mentioned quite a few of them, but we are talking about the training of doctors; the High Court procedure, if there is one; the substances that may be used in the administration of assisted death; the prescribing of those substances; the registration of deaths; the codes of practice to be introduced; provision through the NHS; notification to the chief medical officers; changing the schedules in the Bill, and so on.
Those are important matters. I recognise that many of them are complicated and technical, and that it is appropriate to leave them to a degree of professional and ministerial discretion. Nevertheless, my great concern, which relates to the parliamentary procedure—you may have a view on this, Mrs Harris—is that we are having this debate without the benefit of a delegated powers memorandum to explain why each power has been taken, the nature of it, the reason for taking the power and the procedure to be selected.
In a recent report on the Bill, the Hansard Society notes that under the Government’s “Guide To Making Legislation”, a delegated powers memorandum would normally be published prior to Second Reading for a private Member’s Bill on issues of conscience on which the Government are neutral. The report explains that a delegated powers memorandum gives
“details of each power in the bill, including its context, its scope, to whom the power is delegated, and the parliamentary scrutiny procedure…the reasons for taking the power; and…why.”
It points out that
“where the responsible department recommends that the Government should support the Private Member’s Bill or remain neutral then a DPM should be produced for consideration by the relevant Cabinet Committee—the Parliamentary Business and Legislation (PBL) Committee—alongside other key documents such as the explanatory notes, a legal issues memorandum, and an impact assessment”.
We have not yet had an impact assessment either.
The Chair
Order. I ask the hon. Member to speak to the amendments. You have gone out of scope.
Danny Kruger
I am sorry about that. I am trying to make the point that the amendments would all grant a large number of powers to Ministers through the statutory instrument procedure. That is why I am referring to the Hansard Society report.
Danny Kruger
I understand, but it would be interesting to know whether the Government have produced a delegated powers memorandum, and when it will be published.
I have four quick points to make about my concerns about the amendments and new clause 8. First, new clause 8 provides that when making the SIs, the Secretary of State must consult the Equality and Human Rights Commission. That is a very positive step, but the other provisions on who should be consulted are, on closer inspection, illusory. The Secretary of State must consult those with expertise on capacity and coercion—that is all great—unless he or she considers that
“it would not be appropriate”.
What the new clause gives with one hand, it takes with the other. It would be good to identify in the Bill who the groups are that the Secretary of State must consult for each power.
Secondly, the vast majority of the SIs made under the Bill, as amended by the amendments, are to be made by the negative procedure. The last time that an SI subject to the negative procedure was annulled by the House of Commons was 1979. The procedure gives only the outward appearance of involving Parliament again. The SIs take effect when signed by the Minister, subject only to a motion of either House to annul them. However, by strong convention the Lords will do no such thing, and the convention in the Commons is that the Government will make time to debate such a motion only if it is put forward by the Opposition Front Bench, and it is at the Government’s discretion.
This being a matter of conscience, it is unlikely that any Opposition Front Bench would be in a position to table such a motion, and no one else has any standing. In practice, that means that there will be no opportunity for parliamentary scrutiny on, which lethal substances may be approved, for example, or on what events should be notified to the chief medical officer. These are not mere details.
Thirdly, on some of the matters addressed in the amendments it is doubtful whether the use of delegated powers is even appropriate, because even if there is a debate and a vote in Parliament, debate on an SI is limited to 90 minutes only and an SI is not amendable. In fact, the House of Lords Delegated Powers and Regulatory Reform Committee considered it improper that the Assisted Dying Bill introduced by Baroness Meacher gave the power to the Secretary of State to decide which substances should be allowed to cause death, because it was an inappropriate question for an SI.
Finally, and perhaps most substantially, clause 32 will establish a vast Henry VIII power. It allows Ministers even to amend primary legislation, and those changes would be subject to a simple yes or no vote in the Commons, without the possibility of amendment. It has been suggested in the Hansard Society podcast with the drafter of the Bill that the power is there because provision on the NHS could be made only if section 1 of the National Health Service Act were modified, removing the duty of the Secretary of State to improve the “physical and mental health” of the public. I look forward to seeing whether the amendments that have been promised include that. However, they will not necessarily amend the National Health Service Act, because that could be done under the statutory instruments created in these amendments.
If such a foundational piece of legislation as the National Health Service Act needs to be modified to allow this law to pass, surely it would be better to do it on the face of the Bill. I want to know why a Henry VIII power is needed. I hope that the Government might bring forward the relevant amendments to the Bill so that a Henry VIII power is not needed. I see that the hon. Member for Spen Valley is nodding, which is encouraging.
I stress that the Committee must bear it in mind that this power would exist on the statute book forever, unless the statute is repealed, so any Government could use this power. The last time that a Parliament found its voice to reject an SI by the negative procedure was back in the 1970s. When we come to a decision on amendment 233 and new clause 8, I will seek to make further amendments.
Daniel Francis (Bexleyheath and Crayford) (Lab)
It is a pleasure to serve under your chairship, Mrs Harris. It would be remiss of me not to comment briefly on new clause 8, given that throughout this process I have consistently raised issues around evidence given by the Equality and Human Rights Commission, and given that new clause 8 states that before making a recommendation the Secretary of State must consult the commission.
I remind hon. Members that the commission has told us that it strongly recommends that
“at the earliest opportunity, Parliament is provided with further information and assurance about the bill’s compatibility with equality and human rights.”
It went on to say that its concerns were that the Bill
“may also particularly impact disabled people. We recognise that this bill is focused on assisted dying for adults who are terminally ill, and does not propose access to assisted dying on the basis of disability or chronic conditions. However, there is not always a clear line between terminal illness and disability. Disabled people can also suffer from terminal illness, and illness may itself amount to a disability.”
It has also stated:
“A vital factor in determining how to manage access to assisted dying will be the concept of mental capacity…It will be important to ensure that all decision-makers involved in the process have a full and clear understanding of the law around mental capacity under the Mental Capacity Act 2005.”
I welcome new clause 8, which is in the name of my hon. Friend the Member for Spen Valley, as it would ensure that the Equality and Human Rights Commission is consulted. We await its comments, which hopefully we will have before Report, on whether the concerns that it raised, both in writing before Second Reading and in their oral evidence, have been allayed. However, I welcome this initial commitment, and we will see where that brings us on Report.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mrs Harris. The amendments have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. This reflects the Government’s role in ensuring that the Bill is legally robust and workable. The amendments relate to the regulation-making powers and bring together various provisions about procedure and requirements for regulations and consultation.
I will address the amendments in two groups, starting with new clause 8 and its consequential amendments 187, 199 and 211. The new clause contains a duty to consult before making regulations; it is intended to consolidate three subsections that contain duties to consult before making regulations, as set out in the original draft of the Bill under clauses 5, 8 and 19. In addition to retaining the existing duties to consult before making regulations in clauses 5, 8 and 19, the new clause requires the Secretary of State to consult before making regulations under clauses 7, 13 and 21, and brings together these requirements under a single duty.
The new clause would place an additional requirement on the Secretary of State to consult the Equality and Human Rights Commission, as well as such other persons that the Secretary of State considers appropriate. The latter group must include persons with expertise in matters relating to whether persons have capacity or have been coerced, unless it would not be appropriate to consult such persons.
I turn to amendments 233, 188, 192, 215 to 219, 222, 225, 226, 212, 213, 200 and 206. There are provisions throughout the Bill, as it is currently drafted, about the procedure for making regulations. All regulations, except for those made under clause 5(3)(a), clause 8(6)(a), clause 30(3) and clause 32, are required to be made under the negative procedure. Amendment 233 would bring together the various provisions about the procedure for making regulations into a single clause, clause 39, thereby removing repetition in the Bill. The amendment seeks to achieve that by replacing subsections (3) to (5) in clause 39 with the following:
“(5A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A), 30(3) or 32 unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(5B) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.”
The amendment would require that any regulations made under those provisions must be laid before, and approved by, a resolution of both Houses of Parliament. This procedure, the draft affirmative procedure, will apply to regulations setting the training, qualifications and experience of both the co-ordinating and the independent doctors, establishing a code of practice and securing arrangements for the provision of assisted dying under the Act. Any other statutory instrument made under powers within the Bill will remain subject to the negative procedure.
As I have said, the Government have taken a neutral position on the substantive policy questions. These comments relate to the legal and regulatory side of the Bill, and I hope that my observations are useful to the Committee.
Kim Leadbeater
I have nothing further to add.
Amendment 187 agreed to.
Amendment made: 20, in clause 5, page 3, line 25, at end insert—
“(4A) Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”—(Daniel Francis.)
This amendment would require the registered medical practitioner acting as the coordinating doctor to have undertaken training on domestic abuse, including coercive control and financial abuse.
Amendment made: 188, in clause 5, page 3, line 28, leave out subsection (6).—(Kim Leadbeater.)
This amendment is consequential on Amendment 233, which contains a single set of provisions about the procedure for regulations under the Bill.
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Requirement for proof of identity
Kim Leadbeater
I beg to move amendment 189, in clause 6, page 3, line 30, leave out
“where a person makes a first declaration”
and insert
“in relation to the making of a first declaration by a person”.
This amendment adjusts the wording so as not to suggest that a first declaration has been made before it is witnessed.
The Chair
With this it will be convenient to discuss the following:
Amendment 190, in clause 6, page 3, line 31, leave out
“at the same time as that declaration is made”
and insert “before signing that declaration”.
This amendment provides that the required two forms of proof of identity must be provided before the person signs the first declaration.
Amendment 291, in clause 6, page 3, line 33, at end insert—
“(2A) At least one of the forms of identity required under subsection (2) must contain photographic proof of identity.
(2B) The person must, at the same time as that declaration is made, provide proof that they have been resident in the UK for at least a year to the coordinating doctor and the witness mentioned in section 5(2)(c)(ii).”.
This would require a person to produce a form of photographic ID and proof they have been resident in the UK when making the first declaration.
Amendment 292, in clause 6, page 3, line 34, leave out “may” and insert “must”.
This places an obligation on the Secretary of State to make regulations on proof of identity.
Amendment 191, in clause 6, page 3, line 35, at end insert—
“(3A) The coordinating doctor may witness the first declaration only if satisfied that the requirements of subsection (2) have been met.”
This amendment provides that the coordinating doctor may witness the first declaration only if satisfied that the requirements of subsection (2) are met.
Amendment 419, in clause 6, page 3, line 35, at end insert—
“(3B) The coordinating doctor may witness the first declaration only if—
(a) the coordinating doctor has conducted a preliminary discussion with the person or is satisfied that another registered medical practitioner has conducted such a discussion, and
(b) the coordinating doctor has made or seen a written record of the preliminary discussion.”
This amendment provides that the coordinating doctor may witness the first declaration only if satisfied that a preliminary discussion of the kind mentioned in clause 4 has taken place and that a written record of it has been made.
Amendment 293, in clause 6, page 3, line 36, leave out “negative” and insert “affirmative”.
This will change the process to the affirmative procedure for statutory instruments specifying acceptable forms of ID for the first declaration.
Kim Leadbeater
Amendment 419 provides that the co-ordinating doctor may witness the first declaration only if satisfied that a preliminary discussion of the kind mentioned in clause 4 has taken place and that a written record of it has been made. The co-ordinating doctor must have made or seen a written record of the preliminary discussion. Amendment 189 adjusts the wording so as not to suggest that a first declaration has been made before it is witnessed to clarify that proof of identity must be provided before the declaration is signed and witnessed.
Amendment 190 provides that the required two forms of proof of identity must be provided before the person signs the first declaration. Amendment 191 provides that the co-ordinating doctor may witness the first declaration only if satisfied that the requirements of clause 6(2) are met; that is to say, that the patient has provided two forms of identity to the co-ordinating doctor. This is a relatively straightforward set of amendments to tidy up the requirements around proof of identity.
Naz Shah (Bradford West) (Lab)
I rise to speak to amendments 291, 292 and 293, which were tabled by my hon. Friend the Member for York Central (Rachael Maskell). I do not intend to press them to a vote; they are probing amendments. They all relate to the amendments tabled by my hon. Friend the Member for Spen Valley about the identification required of applicants for assisted dying. They do not change those requirements; they take a more logical and businesslike approach to proving that those requirements are met.
Amendment 291 would change the current requirements on identification and require applicants for assisted dying to produce a piece of photo ID and proof of residence in the UK for the previous year. As currently written, clause 6(2) states:
“The person must, at the same time as that declaration is made, provide two forms of proof of identity to the coordinating doctor and the witness mentioned in section 5(2)(c)(ii).”
Subsection (3) states:
“The Secretary of State may, by regulations, make provision about the forms of proof of identity that are acceptable for the purposes of subsection (2).”
Surely that is not tight enough.
In particular, the Bill as written does not specify that either form of proof of identity should be photo ID. That may be a major omission. For much less significant decisions, the law of England and Wales requires at least one form of photographic ID. For example, there is currently a requirement to have photo identity to work on the parliamentary estate, vote, or have a bus pass or railcard. None of those is as important as applying for an assisted death.
I remind hon. Members that assisted death is a process that would end in a person being issued with and then taking a mixture of lethal drugs. In a hospital setting where drugs are dispensed, rigorous processes are undertaken to verify the patient. Drug errors are not uncommon. The previous Health and Social Care Committee’s report into pharmacy witnessed how clinical practice was being improved to reduce drug errors. Given that a lethal dose is dispensed as part of this process, the identification mechanisms are weak and should be addressed in this preliminary stage through the provisions set out in this amendment. It is possible that the wrong person could be prescribed the medication. That would be an extreme case, but we are talking about creating a wholly new power that would relate to life and death. We are talking about making assisted dying available to people who are, in many cases, extremely distressed. People in extreme circumstances will sometimes do extreme things. We should expect some extreme cases and seek to guard against them.
Amendment 291 would provide such a safeguard. The Bill says that to qualify for assisted dying, applicants must have been resident in the UK for at least a year, but it does not ask them to provide any proof of that residence. In such a serious matter, we surely cannot simply accept someone’s word that they live in the UK. Making that a requirement without a test to establish it de-values the importance of the criteria for qualifying.
Amendment 292 would change clause 6(3), which currently reads,
“The Secretary of State may, by regulations, make provision about the forms of proof of identity that are acceptable for the purposes of subsection (2).”
The amendment would change that “may” to a “must”, as the former treats the identification process with reduced seriousness. If the word “may” stays in legislation, there is no obligation to have rigour in the identification process. As drafted, the Bill is more open for abuse.
Amendment 293 seeks to place the regulations concerning identification under the affirmative procedure, which the hon. Member for East Wiltshire mentioned earlier. Assisted dying is so important that no regulations made under it should be drawn using the negative procedure. As Members will know, if a statutory instrument is made under the affirmative procedure, it must be approved by Parliament within a certain timeframe, which is usually 28 or 40 days. If that does not happen, the change to the law made by the statutory instrument will not take place. In the Bill as drafted, these regulations are covered by the negative procedure, which means that if and when the Secretary of State decides to change them, they could go through on the nod unless Members raised an objection. A statutory instrument laid through the negative procedure becomes law on the day the Minister signs it and automatically remains law unless a motion rejecting it is passed by either House within 40 sitting days.
Placing all changes to regulations under the affirmative procedure would ensure that we have scrutiny by Parliament. We should all approve this. Our responsibility for this legislation will not end when and if it becomes an Act of Parliament. These amendments speak to tighter safeguards and parliamentary scrutiny for all new regulations made by the Secretary of State in relation to identity and residence. All hon. Members should support them.
Danny Kruger
I will quickly echo the points well made by the hon. Member for Bradford West in support of the amendments in the name of the hon. Member for York Central. It is important to specify the form of identity that will be presented. The person presenting themselves for an assisted death needs to be who they say they are. At the moment, the power to specify the forms of proof of identity has no minimum requirements. As written, it does not require the Secretary of State to specify what is acceptable.
Two specific aspects we have to pay particular care to are age and residency. The process must be accessible only to over-18s. I am concerned that we rejected amendments yesterday that would have prevented people under 18 having the conversation. In light of that, it is even more important that we make it clear that people who access assisted death must be adults. We need to ensure that the forms of identity are specified and that Parliament can satisfy itself that they are robust.
Kim Leadbeater
We did not reject proposals for the preliminary discussion not to be taken by people under 18. We actually put a clause into the Bill that would ensure that the preliminary discussion was not taken with someone under 18.
Danny Kruger
That is right. The preliminary discussion will not, but there is nothing to stop the conversation beginning before the person is 18. I know they cannot formally begin the process of an assisted death, but the concern—although I will not revisit the debate—was that the topic should not be raised or discussed with children, and we did not succeed in that.
The proposal is to ensure that we have proper ID—a passport, driving licence or other combined photo ID and proof of age, so a birth certificate must be paired with something if it is to be robust. We think such questions should be reflected more clearly in the Bill. All sorts of ID would not be appropriate, such as student ID, a sworn statement with no underpinning official record and other such things, which we want to avoid.
Stephen Kinnock
This group of amendments refines the requirements related to the first declaration, clarifying the witnessing process, identity verification and regulatory obligations. I will take the amendments in turn.
In executing our duties to ensure that the legislation, if passed, is legally robust and workable, in this group the Government have worked with my hon. Friend the Member for Spen Valley on amendments 189 to 191 and 419. Amendment 189 would clarify the requirement for proof of identity when making a first declaration. It would adjust the wording to make it clear that proof of identity must be provided before a person signs a declaration, ensuring no ambiguity about when the requirement applies.
As with amendment 189, amendment 190 clarifies the requirement for proof of identity when making a first declaration. This amendment would make it clear that a person must provide two forms of proof of identity before signing the declaration, rather than simply at the same time. That ensures that both the co-ordinating doctor and the witness have received the necessary proof before the declaration is signed.
Amendment 191 ensures that the co-ordinating doctor can witness the first declaration only if they are satisfied that the person has provided two forms of proof of identity. The doctor must therefore first be satisfied that the required proof has been given to them and to the witness before proceeding with witnessing the signing of the declaration.
Amendment 419 requires that, before witnessing the first declaration, the co-ordinating doctor must be satisfied that a preliminary discussion has taken place, whether that was conducted by the co-ordinating doctor or another registered medical practitioner. The co-ordinating doctor must also have made or seen a written record of the preliminary discussion.
Amendment 291 adds to the requirement around proof of identity when making a first declaration. It requires that one of the forms of ID provided to the co-ordinating doctor and witness be photographic. The person must also provide proof of residence at this stage of the process. I note we would expect this type of issue to be considered by the Secretary of State when making regulations about forms of proof of identity that are acceptable, as already provided for in clause 6(3). Requiring a person to provide proof that they have been resident in the UK for at least 12 months appears to impose a different residency requirement to other parts of the Bill. Specifically, “being resident” is a looser test than being “ordinarily resident”, in clause 1, and “in the UK” is broader than “in England and Wales”, also in clause 1. In consequence, our assessment is that this amendment may make the Bill less legally coherent.
Rebecca Paul (Reigate) (Con)
I want to raise a question on photo ID. My apologies, I probably should have spoken sooner. Thinking this through as we have debated, I think photographic ID is important to avoid mistaken identity and fraud, and to make sure everything works as it should. With respect to this process, would the Minister normally expect photographic ID to be an acceptable or appropriate form of identification?
Stephen Kinnock
Yes, I believe so. Photographic ID would be the standard to which we would aspire. I do not know whether there was anything else under her question? I think the answer is yes.
Sojan Joseph (Ashford) (Lab)
Could the Minister clarify whether the requirement for one year of residency in the UK means that a foreign citizen studying at a university here would be able to consider assisted dying?
Stephen Kinnock
I thank my hon. Friend for that intervention. We have the term “ordinarily resident” in the UK in clause 1. Obviously if the Committee sees fit to accept the amendment it would change to “resident”, which is a looser term. This matter would also be one for the Home Office, as the custodian of our rules and regulations on immigration, but my sense would be that if we stick with “ordinarily resident” then someone who is not ordinarily resident in the United Kingdom would not qualify for assisted dying.
As the Bill currently stands, the Secretary of State has the power but not the obligation to set these requirements in regulations. This amendment would remove this discretion and require the Secretary of State to specify what forms of ID must be provided.
Amendment 293 ensures that regulations on acceptable forms of proof of identify must be approved by both Houses of Parliament before coming into force, by requiring these regulations to follow the affirmative rather than the negative procedure. As I said earlier, the Government’s position is neutral, but I hope my observations—
Kim Leadbeater
This is a thought based on the comments by the hon. Member for Reigate. The issue of photographic ID is worth giving consideration. Photo ID is used in multiple settings for different reasons. My slight concern is that some of the people we are thinking about with this Bill would be older and I think of some of my own family members who no longer have driving licences, passports or potentially any form of photographic ID. I would be concerned this could be a barrier for terminally ill people. Considering we are making this a robust process, which I totally agree with, I would be concerned that might present an issue.
Stephen Kinnock
I thank my hon. Friend for that intervention. She makes a very good point. It is definitely something that needs to be explored, to ensure that people are not being excluded for the reasons she set out. It is a different example, but when voter ID was introduced a special ID card was created by the Government to cater for exactly the situation she set out. We have to find a way of ensuring that people are not excluded because of that technicality. She makes a valid point.
Kit Malthouse (North West Hampshire) (Con)
Scanning back through my experience of the health service, I do not remember ever having to show my ID, whatever the procedure or medical service. I do not remember showing ID to witness the birth of my children or my wife having to show her ID. I am not sure that is common in the health service. Why would we introduce it for this? I can go in and have a heart bypass and not be asked to show my ID. My assumption is that often people will have been—
Stephen Kinnock
This section of the Bill covers the issue of ID and says that proof of ID is required. I am simply responding to the requirements of the Bill. I am more than happy to have a debate about ID cards and all sorts of other issues more broadly—
Stephen Kinnock
I look forward to having that debate on another day. Unless other colleagues want to intervene, I will now sit down, to the delight of the Chair.
Kim Leadbeater
You will be delighted, Chair, that I have nothing further to add.
Amendment 189 agreed to.
Amendments made: 190, in clause 6, page 3, line 31, leave out
“at the same time as that declaration is made”
and insert “before signing that declaration”.
This amendment provides that the required two forms of proof of identity must be provided before the person signs the first declaration.
Amendment 191, in clause 6, page 3, line 35, at end insert—
“(3A) The coordinating doctor may witness the first declaration only if satisfied that the requirements of subsection (2) have been met.”
This amendment provides that the coordinating doctor may witness the first declaration only if satisfied that the requirements of subsection (2) are met.
Amendment 419, in clause 6, page 3, line 35, at end insert—
“(3B) The coordinating doctor may witness the first declaration only if—
(a) the coordinating doctor has conducted a preliminary discussion with the person or is satisfied that another registered medical practitioner has conducted such a discussion, and
(b) the coordinating doctor has made or seen a written record of the preliminary discussion.”
This amendment provides that the coordinating doctor may witness the first declaration only if satisfied that a preliminary discussion of the kind mentioned in clause 4 has taken place and that a written record of it has been made.
Amendment 192, in clause 6, page 3, line 36, leave out subsection (4).—(Kim Leadbeater.)
See the statement for Amendment 188.
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
First doctor’s assessment (coordinating doctor)
Amendment proposed: 296, in clause 7, page 4, line 2, leave out from “must” to end of line 3, and insert
“after a first declaration is made by a person, arrange a time and which is convenient for both the medical practitioner and the person date that does not jeopardise the care of other patients, to carry out the first assessment.”—(Naz Shah.)
This amendment replaces the requirement that the coordinating doctor to arrange a first assessment as soon as practicable with a requirement to arrange it for a mutually convenient time which doesn’t jeopardise the care of other patients.
The Chair
With this it will be convenient to discuss the following:
Amendment 127, in clause 7, page 4, line 2, leave out
“as soon as reasonably practicable”
and insert “within 10 working days”.
The amendment requires the coordinating doctor to carry out an assessment under the Act within ten working days.
Amendment 128, in clause 7, page 4, line 23, leave out “as soon as practicable” and insert “within 10 working days”.
This amendment would require the coordinating doctor to refer a person within 10 working days rather than as soon as practicable to another registered medical practitioner to carry out the second assessment.
Amendment 129, in clause 8, page 4, line 29, leave out
“as soon as reasonably practicable,”
and insert “within 10 working days”.
This amendment would require the independent doctor to carry out the second assessment within 10 working days rather than as soon as practicable to another registered medical practitioner to carry out the second assessment.
Amendment 130, in clause 16, page 11, line 19, leave out “as soon as practicable,” and insert “within 10 working days”.
This amendment would require the coordinating doctor, where they are a practitioner with the person’s GP practice to record the making of the declaration or statement, or the refusal to make the declaration or statement, in the person’s medical records within 10 working days rather than as soon as practicable.
Amendment 131, in clause 16, page 11, line 23, leave out “as soon as practicable,” and insert “within 10 working days”.
This amendment would require the coordinating doctor, where they are not practitioner with the person’s GP practice, to give a registered medical practitioner from that practice notice of the making of the declaration or statement, or the refusal to make the declaration or statement, in the person’s medical records within 10 working days rather than as soon as practicable.
Amendment 132, in clause 16, page 11, line 27, leave out “as soon as practicable,” and insert “within 10 working days”.
This amendment would require the coordinating doctor, where they are not a practitioner with the person’s GP practice to record the making of the declaration or statement, or the refusal to make the declaration or statement, in the person’s medical records within 10 working days rather than as soon as practicable.
Amendment 133, in clause 17, page 11, line 38, leave out “as soon as practicable,” and insert “within 10 working days”.
This amendment would require the coordinating doctor, where they are not a practitioner with the person’s GP practice to record the making of the declaration or statement, or the refusal to make the declaration or statement, in the person’s medical records within 10 working days rather than as soon as practicable.
Amendment 134, in clause 17, page 12, line 2, leave out “as soon as practicable,” and insert “within 10 working days”.
This amendment would require the medical practitioner to whom notice or indication of the cancellation of declaration is given to notify a registered medical professional from the person’s GP practice within 10 working days rather than as soon as practicable.
Amendment 135, in clause 17, page 12, line 5, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 136, in clause 21, page 14, line 12, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 137, in clause 21, page 14, line 15, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 138, in clause 21, page 14, line 18, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 139, in clause 22, page 14, line 27, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 140, in clause 22, page 14, line 30, leave out “as soon as practicable,” and insert “within 10 working days”.
Amendment 141, in clause 22, page 14, line 33, leave out “as soon as practicable,” and insert “within 10 working days”.
Jake Richards (Rother Valley) (Lab)
I was expecting someone else to have spoken in support of amendment 296, but I will be very brief. The tone of the debate so far has been respectful, and it should continue to be so. I hope that this will not be characterised as a personal attack on my hon. Friend the Member for York Central, who tabled the amendment, or anyone else who supports it, but this is a shocking amendment. It is shocking because I doubt that the motives behind it are to improve the Bill or make it safer. In fact, I fear that the motives are to build a political attack to support opposition to the Bill, rather than to be constructive in improving it.
I have come to that conclusion because there is no concept in any other piece of legislation, or in any healthcare guidance in operation, that would ever presuppose that a clinician would undertake a consultation, assessment or meeting that would ever put other patients in danger. I fear that this amendment has been tabled because some people are attempting to assert, perhaps not purposefully or wilfully, that the introduction of an assisted dying system would somehow force clinicians to put other patients at risk. If that is the assertion, that is wrong and—in my view—shocking. It is a shocking indictment on their view of our medical practitioners in the NHS.
Danny Kruger
The hon. Gentleman is impugning the motivation of his colleague, the hon. Member for York Central, who is herself an experienced practitioner in the NHS. To suggest that she has tabled this amendment improperly is a serious accusation, which I cannot believe that he really wants to make against his colleague. He said that the amendment’s intention is to suggest that assisted dying would cause problems in the NHS, but the explicit terms of the amendment are to ensure that that does not happen. Of course, no practitioner would want to take choices that would prejudice other patients’ care.
The Chair
Order. Mr Kruger, you are down to speak and you can make your point then. I want interventions to be short.
Jake Richards
I am grateful, Chair, and I can take further interventions on any further points from the hon. Gentleman, but I will deal with that one. This is not a personal criticism of my hon. Friend the Member for York Central. I do not doubt that she has good intentions. What I stated was that her opposition to the principle of the Bill is guiding some of the amendments that she has tabled, and this is one of them.
Jake Richards
Not only do I question the motives behind amendment 296 but its necessity is—to put it politely—mind-boggling. We have attempted to navigate a balance between ensuring that, when clinicians are dealing with this process, they do so safely, and not mandating them to undertake such conversations, assessments and procedures in a straitjacket. Put simply, this amendment attempts to manage diaries. Primary legislation should not do that. We cannot use primary legislation to manage clinicians’ busy diaries, as this amendment attempts to do. It is not only unnecessary but challenges the integrity of our clinicians and what they do every day. Therefore, I will be voting against it, if it is pressed to a vote.
Danny Kruger
I was not intending to speak on this amendment, but since you have called me, Mrs Harris, I will quickly respond to the comments of the hon. Member for Rother Valley. I sincerely think that he should withdraw the suggestion that the amendment was made in bad faith and his remarks about the motivation of the hon. Member for York Central. She clearly tabled it only to make the Bill safer, which is the purpose of all the amendments, even if there might be very good reasons to disagree with them, so I regret that attack on her integrity.
On the point that we should simply rely on the integrity of clinicians—although the hon. Member for Rother Valley has not done so in respect of the hon. Member for York Central, who is herself a clinician—of course we do that. Nevertheless, the laws we make and the guidance we introduce send strong signals about priorities. The purpose of the amendment is to ensure that doctors do not feel that the obligations created by the Bill impose a duty on them to prioritise the assisted death procedure over other priorities. In fact, it would give clinicians genuine autonomy and freedom to make their own decisions—obviously, in consultation with colleagues and patients—about the appropriate prioritisation of the treatments and services they are offering.
The hon. Member for Rother Valley made the point that there is, in a sense, an attempt to suggest that the Bill should not become law because of the pressures it could impose on the NHS. I think that such pressures are a valid concern. When we create new laws, we should consider what new burdens they will place on existing services. We should consider whether the new service will be introduced and implemented safely, and its knock-on implications for the wider system.
Jake Richards
The point is that the amendment is not about the wider system; it is about a clinician’s individual decision making. Does the hon. Gentleman agree that that is a very different prospect?
Danny Kruger
Well, that concern for the individual clinician is in the context of their wider obligation to treat their patients well and to manage a resource—their own time—in a way that is equitable to all the patients they have to see. As often in these debates, we are really considering the extent to which we should be putting into the Bill an obligation on doctors to do the job that we hope that they are doing anyway. We do have such rules in the system to clarify what we expect of clinicians, however, and I think they would be appropriate in this case, given the resource requirements—which are unknowable, but with common sense one can see that they will be quite significant—that this new service would entail for many clinicians in the NHS.
Jake Richards
If the Government were to introduce legislation to expand the NHS’s role in how it undertakes operations in a certain area, would the hon. Member suggest that similar amendments should be added to that legislation, or it is just about this issue?
Danny Kruger
There is no rule that can be applied universally in the abstract. All rules take their value from how they are introduced. On the hon. Gentleman’s hypothesis, I do not in principle suggest that every new treatment and every new obligation that is created in the NHS should require laws determining how clinicians prioritise them. In the case of a new service—I am trying not to use the word “treatment”, because I do not accept it as such, but it sounds like it will be treated as an NHS treatment—that is very significant and whose resource implications are unknown, it strikes me as appropriate that, as far as possible, we should be clear that doctors should manage the resource demands placed on them by the Bill in the context of their other obligations to patients.
Kit Malthouse
Can my hon. Friend not see that, as the hon. Member for Rother Valley said, the amendment is based on what could be construed as an offensive assumption: that doctors otherwise might or would? Effectively, it is the legislative equivalent of the “When did you stop beating your wife?” question.
Danny Kruger
I am afraid to say that we do impose obligations on doctors to do the things that we expect them to do. If that is offensive to doctors, so is all the guidance from the General Medical Council. It might well be argued that the amendment is otiose, because of course we would expect doctors to manage their resource requirements appropriately and to consider other patients. Nevertheless, the point that is being made in defence of the amendment, about which I feel strongly, is that we are creating a new service with unknowable resource implications, with strong parliamentary backing behind it, and with a whole set of guidance that will be created ex nihilo by the Secretary of State and that Parliament will have little control over.
Because we have not seen the amendments on the design of the service, we do not even know what the service will involve and how much work it will take. It is therefore appropriate to specify explicitly that doctors have an obligation to consider the potential impact on other patients.
Kit Malthouse
I understand where my hon. Friend is coming from. To give us fair warning, if the Committee votes the amendment down, how will he portray that publicly? Will he say to the public that the Committee has voted for doctors to harm other patients?
Danny Kruger
I am grateful for your ruling, Mrs Harris, but I hope you will not mind if I do respond to the question.
Danny Kruger
Okay. I might address the question at a future point, because the issue of how we reflect on these proceedings outside this place has come up privately.
Kim Leadbeater
I do not consider for one second that there is any ill intent behind the amendment, but I am slightly concerned about the language, which is what I think my hon. Friend the Member for Rother Valley meant. The issue is the suggestion that a doctor would, in any circumstances, jeopardise the care of other patients. We are talking about doctors a lot, and we have the utmost respect for medical practitioners, but I imagine that that would be a worrying concept to have in writing from their perspective.
Danny Kruger
I respect that point, and it is a fair charge: that doctors would not do this. Nevertheless, as I have been stressing, we are in uncharted territory, and there is a genuine concern about the resource implications of the Bill.
The Bill clarifies and emphasises things in lots of other places—“for the avoidance of doubt” and so on—and the amendment would clarify that the procedure under the Bill would not take precedence in a clinician’s time over other matters that they also consider to be pressing and urgent. That is an appropriate safeguard for doctors.
Jack Abbott (Ipswich) (Lab/Co-op)
The problem with the amendment, which has been mentioned before—I will not go as far as my hon. Friend the Member for Rother Valley and say that it would essentially nullify the Bill—is that it is entirely subjective. It is not guidance or a clear point of reference; it is entirely subjective to each individual doctor.
Danny Kruger
I am afraid that the English language is rather subjective. The service would rely on guidance or case law that had been built up, although one hopes that there would not have to be court cases in respect of it. The interpretation of the language of the Bill would be the duty of clinicians and, ultimately, NHS trusts and their lawyers.
Jack Abbott
A lot of the conversations we have had in Committee have been about eliminating the lottery that exists in our healthcare system. What the hon. Gentleman is suggesting will be exactly that: a lottery according to each individual clinician and doctor.
Danny Kruger
We cannot have it both ways. We cannot give doctors and clinicians autonomy, which the Committee has repeatedly seen as a ground to reject all sorts of obligations that I and others have proposed to ensure that doctors do the job in a specific way, and then suggest the opposite in this instance. I recognise what the hon. Gentleman says, and he may be right that that is inappropriate.
Danny Kruger
The hon. Lady is absolutely right. We should not forget that doctors are indemnified against any civil claims under the Bill. Nevertheless, they will want to protect themselves against the accusation that they inappropriately prioritised one case over another. That is the purpose of the amendment, and I urge the Committee to support it.
I will finish with this point. I am ashamed to say it, because my party was responsible for the NHS for the 14 years until last year, but the fact is, as Labour Members said frequently when they were in opposition, that there are enormous resource constraints on the frontline in the NHS. I do not think that is inappropriate to consider, when we create a new service, how it might have an impact on existing treatments in the NHS. Leaving aside all the ethical questions, including on coercion and capacity and our concerns in that respect, what will this mean for hard-pressed GPs and clinicians of all sorts on the frontline? What protections can we offer them when they make difficult decisions about whether to support an assisted death application?
The Chair
I remind Members that the running of the Committee will be much smoother if we do not have: long interventions; Members refusing to bob when they wish to speak and hoping that they will catch my eye; and conversations from a sedentary position. I will not tolerate any of those any longer.
Juliet Campbell (Broxtowe) (Lab)
I will speak to amendment 127, which is a probing amendment. I will not press it to a vote, but the reason I tabled it is that I felt that the phrase “as soon as reasonably practicable” was a little vague. I was taking into consideration the fact that we often talk about people who have six months to live, who are eligible for the assisted death, but sometimes people learn later on and do not have six months. If people are thinking about having an assisted death, there might be some pace at which the doctors need to work together—the co-ordinating doctor and whoever else they speak to.
I put 10 days, because I needed to put something down, and that is why I am saying amendment 127 is probing, but I do think that we need to be a little tighter with the timeframe in which we enable doctors to speak to each other, so that the patient is aware of what is happening. Also, if the patient wants to change their mind and is speaking to another doctor, they would know what timeframe they have got. The amendment is probing, and I will not press it to a vote.
Rebecca Paul
I think most points have been covered, so I will be brief. The point of the amendment 296 is to recognise the challenges faced by medical practitioners in the NHS. It is really well intended. I suspect that there are different ways to do this, which we could discuss, but the amendment would recognise that medical practitioners will come under a lot of pressure.
The very nature of the assisted dying process means there is pressure to move quickly—for obvious reasons. If someone is in pain and an assisted death is what they have chosen to do, they are going to want to move forward at pace. It cannot be as usual, with however long it can take in the NHS—often for a normal procedure. The point of the amendment is simply to be cognisant of the fact that other patients, too, require healthcare. This comes back to the debate we have had many times about what is healthcare and what is not. It is one of the issues that comes up when we have assisted dying amalgamated with general healthcare in the NHS.
We are hearing concerns from doctors on the frontline. In written evidence, eight doctors, six of them GPs, say that the NHS lacks both the time and the capacity to create the new role of co-ordinating doctor with its grave responsibilities. The statistics bear out their concerns. In a 2024 survey by the Royal College of General Practitioners, over 40% of UK GPs who responded said that they were “unlikely” to be practising still in five years’ time; 40% feel stressed to the point of “not coping” at least once a week; and 79% are concerned about having fewer GPs at their practice and its impact on the quality of care that their practice can deliver. The reality of the matter is that we have to recognise that the introduction of assisted dying places another pressure on our health system, and to try to address that head on.
Kim Leadbeater
The hon. Lady is making some interesting points, but would she agree that we are talking about not new patients, but existing patients who are already in their last few months of life? It will not create a whole new pressure on the health service, because they are already receiving treatment.
Rebecca Paul
I thank the hon. Member for that point. There will absolutely be some occasions where that is the case, but assisted dying is a different pathway—and we have a whole Bill on it, so there will be other formalities and safeguards. We are all here to make sure that rigour is applied to that pathway. With the best will in the world, there will always be more work and pressure, especially time pressure, on doctors. That time pressure will be critical.
Danny Kruger
I completely agree. The hon. Member for Spen Valley makes the important point that these patients are, indeed, being treated already; one would hope that the palliative care process would continue alongside their application. It is absolutely right that they are being treated, but as my hon. Friend the Member for Reigate says, there would be additional work being done for them. Does she agree that there is also an opposite threat—that the resource being expended on the patient might be less as a result of the assisted death that they get? I am afraid to say that that would introduce a terrible new incentive into the system, as happens elsewhere.
Rebecca Paul
This is a complex issue, and that is why I welcome the debate on this group. There are lots of things that need to be thought through to make sure that, if assisted dying is legalised, we manage it in the most effective way for patients.
Dr Simon Opher (Stroud) (Lab)
I thank the hon. Lady for making this point, which is important, although probably not specifically relevant to what we are talking about in general with regard to making the Bill safe. Has the hon. Member for East Wiltshire not just completely contradicted the whole point of the amendment, however, by saying that we really do not know whether this process will cost more or less time for the NHS?
Rebecca Paul
Different situations will give a different result. It is a complex situation. We could have a patient who, if they did not have an assisted death, would be on a palliative care pathway, which might not involve as much time from their GP—the assessing doctor, in that instance. If they moved on to the assisted dying pathway, however, the assessment process would need to start, and it has to happen quickly for all the reasons that I have set out.
The Bill relies on doctors being highly conscientious and hard-working, but it also risks taking them for granted if it makes no allowance for the present realities that they face in our healthcare system. This amendment tries to reflect and recognise that.
In November, the hon. Member for Stroud said,
“I have watched with horror as our NHS has gone from being the best health service in the world…to being a service on its knees.”—[Official Report, 6 November 2024; Vol. 756, c. 358.]
If the NHS is to get off its knees, surely we cannot afford for assisted suicide to jeopardise the care of patients who already struggle to get an appointment. We must recognise that there are people out there who cannot get an appointment to see their GP, and reflect that in the Bill.
Sojan Joseph
I rise to speak briefly to amendment 296. We all know how the NHS operates, how the appointment system works in the NHS and how long people have to wait to see a doctor. I do not think that my hon. Friend the Member for York Central tabled the amendment with any ill thought, but just to highlight the issue. I do not think that the amendment will make the Bill any safer or stronger, or safeguard anything, but the Committee needs to acknowledge it.
I will quote the Royal College of Physicians, which represents 40,000 doctors who primarily work in hospitals, including on palliative care. The Royal College of Physicians took a neutral position on the Bill. In its written evidence, it highlighted,
“We recognise that the ultimate decision on assisted dying rests with society through Parliament, however any changes to the law will significantly affect clinical practice beyond palliative care…Should the law change, the RCP strongly argues that assisted dying must not divert resources from end of life and palliative care provision, which are not currently adequate.”
With amendment 296, my hon. Friend the Member for York Central is trying to get the Committee to acknowledge that some NHS departments work with vacancies of 50 medical professionals. A patient who has been waiting for six months should not have their appointment cancelled because the provision here is prioritised. I think that is what my hon. Friend meant with her amendment, and I commend her thought about wider NHS provision.
Danny Kruger
I appreciate the point that the hon. Gentleman is making, and that he will not be able to support the amendment, but does he acknowledge that its purpose is to clarify the triage process that needs to be done by doctors? It is a perfectly appropriate request to make of doctors.
Sojan Joseph
I agree. It highlights the point that the impact assessment will be very important here, to see from where the resources are being pulled to provide this. The Committee should acknowledge amendment 296.
Stephen Kinnock
These amendments introduce requirements on the timing within which the co-ordinating doctor must carry out a first assessment once the first declaration is made by a person. I will turn first to amendment 296. As currently drafted, clause 7(1) requires that the co-ordinating doctor must carry out a first assessment
“as soon as reasonably practicable”
after a person has made a first declaration. Amendment 296 would require that after the first declaration is made, the co-ordinating doctor must arrange a mutually convenient time and date for the first assessment to take place, but it removes the stipulation that the assessment must be carried out as soon as reasonably practicable. The amendment would also require the date and time agreed not to jeopardise the care of other patients. The effect of the amendment may be to lengthen the period between the first declaration and the first assessment, in some cases.
Amendments 127 to 141 seek to ensure that the assessments, declarations and statements made throughout the Bill are finalised and recorded within 10 working days of being started. The amendments achieve this by inserting the term “within 10 working days” in place of
“as soon as reasonably practicable”
in clauses 7, 8, 16, 17, 21 and 22. This would put in place a time-bound limit that the medical practitioner must adhere to when carrying out the first and second assessments, when recording information in medical records at various stages, including the High Court declaration, and when recording other matters in medical records.
Our assessment suggests that in most circumstances, although it would depend on the facts of a particular case, the requirement to do an action as soon as practicable would generally amount to a requirement to do the action sooner than in 10 working days’ time. In terms of the operational effects, having a set timeline may give greater certainty to individuals seeking assistance. However, it may limit doctors’ discretion to set the timeline based around the patient’s wishes. These are matters for the Committee to weigh up and consider.
Kim Leadbeater
That has been a very useful discussion. I have nothing to add.
Daniel Francis
I beg to move amendment 347, in clause 7, page 4, line 4, leave out from “to” to the second “the” in line 5 and insert—
“ensure that steps have been taken to confirm that”.
This amendment would remove the emphasis on the role of the coordinating doctor in making these assessments.
The Chair
With this it will be convenient to discuss the following:
Amendment 294, in clause 7, page 4, line 5, after “doctor” insert—
“based on provided evidence that”.
This amendment would require that the doctor bases their assessment on provided evidence.
Amendment 14, in clause 7, page 4, line 15, at end insert—
“(2A) The coordinating doctor must take the report required under subsection (2B) into account in making an assessment under paragraph (2)(b), (f) and (g).
(2B) One or more qualified persons must have conducted a separate interview with the person and made a report to the coordinating doctor on the matters specified in subsection (2C).
(2C) The matters that must be covered in the report required under subsection (2B) are—
(a) any evidence of duress or coercion affecting the person’s decision to end their life,
(b) any difficulties of communication with the person interviewed and an explanation of how those difficulties were overcome, and
(c) the capacity of the person interviewed to understand the information given to them under paragraph (9)(2), (b), (c) and (d).
(2D) A person shall be taken to be qualified to conduct an interview under subsection (2B) if that person—
(a) is a registered medical practitioner who—
(i) is registered in the specialism of psychiatry in the Specialist Register kept by the General Medical Council, or
(ii) has such training, qualifications and experience as the Secretary of State may by regulations specify,
(b) has not provided treatment or care for the person being assessed in relation to that person’s terminal illness,
(c) is not a relative of the person being assessed,
(d) is not a partner or colleague in the same practice or clinical team as the coordinating doctor,
(e) did not witness the first declaration made by the person being assessed, and
(f) does not know or believe that they—
(i) are a beneficiary under a will of the person, or
(ii) may otherwise benefit financially or in any other material way from the death of the person.
(2E) Before making regulations under subsection (2D)(a), the Secretary of State must consult such persons as they consider appropriate.
(2F) Regulations under subsection (2D)(a) are subject to the negative procedure.”
This amendment, and its consequential and linked amendments (15, 16, 17, 18 and 19), would provide for an independent assessment, via an interview conducted by a specialist, of a person’s capacity to make the decision to end their own life, their clear, settled and informed wish to do so, and that they have made the first declaration voluntarily and without coercion.
Amendment 15, in clause 8, page 4, line 38, at end insert—
“(2A) The independent doctor must take the report required under subsection 7(2B) into account in making an assessment under subsections (2)(b)(d) and (e).”
This amendment is linked to Amendment 14 and requires the independent doctor to take into account an assessment that would be required under that amendment.
Amendment 16, in clause 8, page 5, line 16, at end insert—
“or conducted the interview under subsection (7) (2B)”.
This amendment is linked to Amendment 14 and ensures that the independent doctor cannot be the same person who undertakes the assessment that would be required under that amendment.
Amendment 284, in clause 9, page 6, line 27, leave out from beginning to “refer” in line 28 and insert “must”.
This amendment would require a referral for the purposes of assessing capacity for both assessments.
Amendment 17, in clause 9, page 6, line 27, leave out paragraph (b).
This amendment is consequential on Amendment 14.
Amendment 6, in clause 9, page 6, line 27, leave out “may” and insert “must”.
This amendment would require the assessing doctor to refer the person being assessed for a mental capacity assessment if the assessing doctor had doubt as to the person's capacity.
Amendment 280, in clause 9, page 6, line 27, after “assessed” insert—
“or,
(ii) the person has a mental health condition;”.
Amendment 370, in clause 9, page 6, line 29, leave out
“registered in the specialism of psychiatry”
and insert—
“a practising psychiatrist registered in one of the psychiatry specialisms”.
This is a drafting change.
Amendment 18, in clause 9, page 6, line 32, leave out “or (b)”.
This amendment is consequential on Amendment 14.
Amendment 19, in clause 9, page 6, line 34, leave out “or (b)”.
This amendment is consequential on Amendment 14.
Daniel Francis
I will not press amendment 347 to a vote, but I will speak to it, and to this group of amendments.
First, I shall turn to amendments 14 to 19, tabled by my hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier), which would require a co-ordinating doctor to refer the patient to an independent psychiatrist, or someone else qualified, as decided by the Secretary of State. That practitioner would then produce a report that the co-ordinating doctor must take into account when assessing whether the person has capacity, has a clear, settled and informed wish to end their life, and has not been coerced or pressured.
These amendments would replicate the existing practice of assessment for living organ donors. If we use a psychiatrist’s assessment for those who are donating an organ—a serious decision—how much more serious is this decision to end one’s life, and how much more necessary is the psychiatric assessment? It feels illogical to offer psychiatric assessments to patients who may donate organs, but not to those who may end their life. The wording of these amendments mirrors the regulations that have been applied through the Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006.
For organ donation, there is a separate body—the Human Tissue Authority—which oversees the network of assessors. These amendments do not suggest a separate body for assessors in the context of assisted dying, instead suggesting that the assessor should be a registered psychiatrist or someone qualified, as decided by the Secretary of State. This ensures control over who can be an assessor while also being flexible.
My hon. Friend the Member for Spen Valley, the Bill’s promoter, said in oral evidence that she had looked at the model of assessment for capacity and coercion that is used for living organ donation, so I will be interested, when we get to that point of the debate, to know why the Bill does not model its assessments on those that are already done for organ donation.
These amendments would strengthen the Bill by ensuring that patients are properly assessed as having capacity to make such a huge decision and would help to spot coercion. As it stands, the Bill has no mention of the doctors giving assessments having psychiatric specialisms. These amendments would ensure that a specialist meets the patient, which is vital. We have heard already how difficult it can be to spot coercion, especially repeat coercion.
Sean Woodcock (Banbury) (Lab)
Given that this is a significantly more serious decision than organ donation, these amendments would seem a very appropriate change to consider.
Daniel Francis
I agree. An assessment by a specialist would protect patients and give another opportunity to spot coercion—something that we all want to safeguard against.
I welcome the acceptance of amendment 20, tabled by my hon. Friend the Member for Lowestoft (Jess Asato), ensuring that doctors will be better trained to spot these issues, but that is only the start. We need the same in-depth assessment that living organ donors would get. Patients must fully understand the decision they are taking, and doctors must be convinced that they are capable of making it.
For organ donation, the NHS recommends that potential donors meet a mental health professional at an early stage, particularly in cases where people have a history of mental illness. As we have already noted, those diagnosed with terminal illnesses are likely to also have mental health issues. Dr Sarah Cox, in her oral evidence, cited a study by Professor Louis Appleby, the Government’s suicide prevention adviser. Dr Cox said:
“If we look at the evidence of suicide, we know that it is increased in people with serious illnesses.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 82, Q105.]
Sojan Joseph
We have discussed this issue many times. Within the Bill there is a provision for clinicians to refer to a psychiatrist if in any doubt. Does the hon. Member think that having that conversation at an earlier stage would be beneficial, rather than at a later stage?
Daniel Francis
I agree with my hon. Friend about the number of amendments in this vein, but clearly the amendments suggested by my hon. Friend the Member for Hackney South and Shoreditch bring us into line with existing regulations. In her evidence, Dr Cox said:
“If we look at the evidence of suicide, we know that it is increased in people with serious illnesses, but it is actually increased in the first six months after diagnosis, not in the last six months of their lives, so it is about the trauma of the diagnosis.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 82, Q105.]
It is likely, therefore, that those diagnosed with a terminal illness will experience mental distress that could affect their capacity to make a decision about an assisted death. In her written evidence, Dr Virginia Goncalves, a retired clinical psychiatrist with over 30 years of experience in the NHS, writes:
“In my consultant psychiatrist role, I have encountered many desperate and suicidal patients wanting to end their lives after struggling with longstanding mental distress, who could have easily sought the option of assisted suicide if it had been available to them! But however depressed and hopeless they felt, with a compassionate and hope filled approach from their care givers and the correct medical and psychological treatment, the vast majority recovered enough to be able to have a ‘life worth living’. In so many cases, these patients have thanked me later for not giving up on them! Not once have I heard anyone say ‘you should have let me die when I wanted to do it’.”
A meeting with a psychiatrist or other psychological specialist will protect people who may otherwise not have chosen assisted dying. I emphasise again that we already ensure that patients who will donate an organ have this assessment, so why not those seeking an assisted death? We must protect vulnerable terminally ill people from being coerced into assisted death, and psychiatrists and other specialists are best placed to spot that. That is why the assessment is included for living organ donation.
Daniel Francis
Absolutely. This amendment, of course, is widely supported by Committee members for that very reason. As I was saying, we already use that assessment for organ donation, and Members supporting this amendment believe that should be the case for those that are seeking an assisted death.
I now move on to amendment 284, in the name of my hon. Friend the Member for York Central. This amendment would change clause 9(3). Currently, that subsection lays out, and I will quote the language of the Bill, that the assessing doctor,
“(b) may, if they have doubt as to the capacity of the person being assessed, refer the person for assessment by a registered medical practitioner who is registered in the specialism of psychiatry in the Specialist Register kept by the General Medical Council or who otherwise holds qualifications in or has experience of the assessment of capability;”
This amendment would change the word “may” to “must”. In other words, the assessing doctor would have a duty to refer the person being assessed to a consultant psychiatrist if they had any doubt about that person’s capacity. I argue that this is a change that we both should make, and can easily make. If a doctor has doubts about the capacity of an applicant, it is good practice for them to refer that person to a doctor or a specialist in that field.
Dr Opher
Could I ask which amendment the hon. Member is talking about? Is it 284 or 6? Amendment 284 says that psychiatric assessment is mandatory in all cases, whereas amendment 6 says it is mandatory if capacity is in doubt. I just wondered which one he was talking about, because I support one and I do not support the other.
The Chair
Dr Opher, maybe you want to catch up on the papers and then intervene when you have a question to ask.
Daniel Francis
As my hon. Friend will know, my name is down as a supporter of amendment 6. I will get to that in due course. At the moment, I am speaking to amendment 284. I hear what my hon. Friend says—I am talking about the merits of amendment 284, but will get to amendment 6 in my closing comments.
On amendment 284, if a doctor has doubts about the capacity of an applicant, it is good practice to refer that person to a doctor with specialist expertise in that field. That would be true if the doctor was assessing the capacity of a patient to take any important decision, and is surely especially true when we are talking about a decision of this importance. I accept that people will have different views on amendment 6, when we get to it, from those they hold on amendment 284. Amendment 284 would put a duty on doctors to do something that is good practice. Most doctors in most circumstances would do it anyway, but in some cases, some may not. My hon. Friend the Member for York Central, who tabled this amendment, believes that we should write this law as tightly as possible so that doctors have that duty.
Amendment 294, which was tabled by my hon. Friend the Member for York Central, would require the doctor to base their assessment on provided evidence. Again, that is something that most doctors would do anyway in the extremely serious circumstances of a person’s applying for assisted death.
Many laws that we consider in this House relate to things that we are familiar with and understand well; but as my hon. Friend the Member for Bradford West said last week, some laws, such as this one, concern new matters. They are about things to which we need to give due consideration, as we are doing in scrutinising the Bill, because we need to understand the issues that arise. Those laws can introduce powers that could be dangerous if not properly safeguarded. This Bill, as has been accepted, needs strong safeguards. The aim of my hon. Friend the Member for York Central in tabling this amendment was to spell out that a doctor’s assessment of someone seeking assisted dying should be based on evidence. That would make it much less likely that any doctor would not pay sufficient attention to evidence they were presented with.
Lastly, as my hon. Friend the Member for Spen Valley knows, I am a long-standing of supporter amendment 6—I was in that base going into Second Reading. Alongside my concerns about clause 3, which she has heard at length, this matter was a key concern of mine going into Second Reading. I was therefore an early supporter of this amendment to change the wording around the referral from “may” to “must”. That was discussed on Second Reading. I do not want to speak for my hon. Friend, but I think she shares similar views to mine on the matter and suspect that the matter may be supported when we get to that debate.
Jake Richards
I will be brief. I will talk about my amendment 280, which I will not press to a vote. There remains an area that needs more exploring in this legislation—it has come up in debates already, but needs to be looked at further—namely, that a person may have capacity but have other mental health conditions that may impair their judgment. In those circumstances, a more thorough assessment than the two-doctor stage there is at the moment would be right. In reality, that is very likely to happen under the current structure of the Bill. My amendment simply attempts to make sure that it is mandatory. Having had discussions with my hon. Friend the Member for Spen Valley, I know that she is sympathetic to that.
There are amendments in the next group that aim to do the same thing. They, along with my amendment, may not be quite right. I urge the Government to look at this issue and see how we can work together to come to a conclusion, because I think that all members of the Committee would want that. I also support amendment 6, as I think everyone does.
Dr Opher
I apologise, Mrs Harris—I have got slightly confused with all the amendments. I do not have a speech that has been prepared for me, or anything like that, but I would like to make some comments. I think this is about the role of psychiatry and capacity, and how we deal that in the Bill. All these amendments reflect that. I would like to concentrate on whether we should actually mandate referral for all patients to a consultant psychiatrist, or adopt amendment 6, which suggests that if one of the two assessing doctors has concerns about either capacity or mental health, they should refer the patient to a psychiatrist. Those are the two choices I think we have here.
Danny Kruger
I appreciate the hon. Member’s point, and it is very logical that it should only be in the case of doubt, but does he not recognise that in the case of organ donation, it is mandatory? If people have this proper assessment when they are giving an organ, why should they not be asked to have one if they propose to give their life?
Dr Opher
That is an interesting point, but we are not discussing organ donation, and we are dealing in a different environment here; the patients we are talking about are about to die, and all we are giving them is the right to control the moment and manner of that death. I acknowledge that using a psychiatrist in organ donation has its benefits, but in this service, getting every patient—who, for example, are frail and ill by definition, because they are about to die—to see a psychiatrist is frankly neither applicable nor appropriate.
Kim Leadbeater
My hon. Friend makes a powerful point. If we think about some of the people we have met—the families who have lost loved ones to terminal illness and the patients who are terminally ill—they are very clear in their decision. For me, it would be another barrier to those patients, who are dying people, to make them see a psychiatrist for every single case.
Danny Kruger
It is a very important point. Yes, we are talking about those people, but we are also talking about a different category of people who have a terminal diagnosis of six months or more, and may only be reasonably expected to die within six months. I am not just talking about people at the very end of their life, who are at death’s door; we are talking about people who qualify for the Bill, which is a much larger category of people, so it is appropriate to require them to do this.
Dr Opher
I agree with all of this. I think psychological assessment is incredibly important in all patients, and I personally specialise in it from a primary care basis. But we are suggesting here that the two other doctors have no ability to do any sort of psychological assessment, and that is simply not true.
Dr Opher
I apologise to my hon. Friend; I will continue for a little bit. We use secondary care and psychiatrists when we have a doubt about our decisions. If we have a doubt, then it is entirely appropriate to use psychiatrists in that instance, and we must do so. That is why I approve of amendment 6.
Kit Malthouse
As I understand it, I do not think if someone is donating an organ that they do actually have to see a psychiatrist; they have to see somebody who is an appropriately trained assessor from the Human Tissue Authority. To me, that sounds equivalent to the second doctor in our process—someone who is appropriately trained to assess patients and what they need to do. This talk of it having to be a qualified registered psychiatrist, compared with an organ donation, is incorrect.
Dr Opher
I completely agree with the right hon. Gentleman. By amending clause 12 to include social workers, who specialise in spotting coercion, there would be a psychological component in that panel. I emphasise that the first two doctors are trained in psychological assessment—they have to be to become a doctor, and we must respect their knowledge and decision making. Psychiatrists will be incredibly useful in difficult cases of capacity, but using them in every case would not be using them in the best capacity.
Naz Shah
My hon. Friend is being generous with his time. I do not question the capability of those doctors, but how does that square with the concerns of the Royal College of Psychiatrists that if a doctor has never met the person before, they cannot make an assessment on coercion? That might impact on capacity.
The Chair
Dr Opher, I remind you yet again that “you” is me, and I have not asked you any questions. It is “my hon. Friend”.
Dr Opher
I am grateful that you have not intervened as well, Mrs Harris. You did say that I am allowed to call you “you”.
I will finish on this serious point. Amendment 6 has much power, and we would all agree that if the first or second doctor has doubts, they must—not may—refer to a psychiatrist. Expecting every patient who requests assisted death to have a psychological or psychiatric assessment is simply not necessary, and it would not improve the safety of this Bill.
Lewis Atkinson
Thank you, Mrs Harris—you really are giving the Minister some exercise during these long sittings.
Amendment 14 likens assisted dying to organ donation. I understand that an organ donor, before the point of independent assessment, has had no other independent assessment, which is in stark contrast to this Bill. The idea that, by failing to support this amendment, we are somehow adopting a weaker framework than for organ donation is patently false.
As the Bill sets out, there are already at least two assessments by independent doctors. As per the amendments we have already agreed, those doctors must have training, as specified by the Secretary of State, on the assessment of capacity and coercion. The rationale behind this amendment is already met, and it is significantly more strenuous than the framework for independent assessment in the event of organ donation.
Danny Kruger
I am not sure that is right. The amendment insists that this referral and assessment should happen at the earliest stage possible, in the same way as for organ donation. One of the confusions of the Bill is that multiple different conversations could happen. The purpose is to ensure that this conversation with a psychologist or social worker, as per organ donation, happens at the very earliest opportunity.
Lewis Atkinson
I disagree with the hon. Gentleman’s reading. The amendment talks about the co-ordinating doctor, as in the first independent assessor, and that is the case in the provisions we have already adopted. Clearly, the co-ordinating doctor may consult—and must consult, as per the amendment we are about to get to—psychiatric or other expertise, if there is any doubt in their mind. Amendment 14 would not bring forward that assessment earlier than elsewhere. I urge hon. Members to bear in mind that the idea that this proposal is somehow weaker than the current human tissue regulations is absolutely false.
On the point made by my hon. Friend the Member for Bradford West, the amendment does nothing to address coercion by a medical professional who knew the person beforehand. Under the amendment, it is by definition an independent person who has no prior relationship with the person.
Stephen Kinnock
Thank you so much, Mrs Harris—I will try again.
Although it is up to Parliament to pass or reject this Bill, the Government remain committed to ensuring its legal robustness and workability. For that reason, we have worked closely with my hon. Friend the Member for Spen Valley, and we have mutually agreed some amendments, including amendments 370 and 202. This group of amendments relates to the assessment process for determining a person’s ability to make a first declaration. I will take them in turn.
As the Bill stands, the co-ordinating doctor is responsible for ascertaining whether, in their opinion, a person applying for assistance to end their own life has met the eligibility criteria in clause 7(2), as part of the first doctor’s assessment. Amendment 347 would change the co-ordinating doctor’s role from ascertaining whether, in their opinion, the criteria in clause 7(2) are met to instead ensuring that steps have been taken to confirm that those criteria are met. Its practical effect would be that the co-ordinating doctor could rely on the assessment of other, non-specified, persons to confirm that the eligibility criteria have been met.
Amendment 294 provides that the co-ordinating doctor, in ascertaining whether, in their opinion, the criteria in clause 7(2) are met, would be required to base that assessment on evidence that has been provided. It does not specify who would provide the evidence, what types of evidence would be considered acceptable or whether the co-ordinating doctor could disregard evidence if they consider it appropriate to do so. It could create uncertainty for the co-ordinating doctor in carrying out the first assessment.
Amendment 14 would require the co-ordinating doctor, when making the first assessment, to take into account an additional report. The report would be made by a qualified person and would cover duress and/or coercion, communication needs and capacity. It would be informed by an interview between the specialist and the person applying for assistance to end their own life. The specialist must have expertise in psychiatry or other qualifications set out in regulations. There are various exclusions aimed at avoiding conflicts of interest.
Amendment 15 would similarly require that the independent doctor, in making the second doctor’s assessment, takes the report into account. Amendments 16 to 19 are consequential to amendment 14.
In practice, the amendments would represent a change at the medical assessment stage from requiring two professionals to requiring three. They also represent a departure from usual practice for professionals applying the Mental Capacity Act 2005. The requirement to interview the person and write a report that must, in all cases, address capacity may amount to an assessment of capacity in itself. That would undermine a core principle of the Mental Capacity Act, which is the presumption of capacity.
In addition, the test of capacity set out in the amendments is more limited than the test of capacity under the Mental Capacity Act. It covers only capacity to understand information, not capacity to retain, use or weigh it.
Amendment 284 would require the co-ordinating and independent doctors to, in all cases, refer the person seeking assisted dying to a psychiatrist for an assessment of their mental capacity. Although that is set out in the explanatory note from my hon. Friend the Member for York Central, the amendment does not specify the type of assessment that is required. Putting aside specification of the type of assessment, the overall intention of the amendment is that, in order to be eligible for assisted dying, a capacity assessment would always be required, irrespective of whether there is a proper reason to doubt that the person has capacity. That would differ from the Mental Capacity Act, under which capacity is presumed unless it is established that the person lacks it.
Amendment 6 would require the assessing doctor to refer all cases where there is doubt about mental capacity for an assessment by a doctor who is an expert in psychiatry. This is a power, as currently drafted, but the amendment would make it a duty. Requiring, rather than permitting, the assessing doctor to make a referral when capacity is in doubt would remove their discretion on whether to refer a person to a doctor who is an expert in psychiatry. Instead, it would be required in all cases where there is doubt about capacity.
Kim Leadbeater
I will do the easy bits first. As the Minister said, amendment 370 in my name is a drafting change to the definition of a psychiatrist, which is obviously very important. These useful amendments have enabled us to have this discussion, and they all come from a good place in trying to enhance safeguarding within the Bill.
On organ donation, my sister-in-law has had two kidney transplants. On neither occasion, to my understanding, did a psychiatrist speak to either her or the organ donor, who in one instance was her brother—my sister-in-law would be very upset that I have mentioned her in Parliament. My understanding of the law is that someone may be referred to a mental health specialist. I am happy to be corrected if that is not the case, but I do not think a consultation with a psychiatrist is compulsory.
As I said to my hon. Friend the Member for Stroud, it is absolutely right that we support amendment 6. From the start, I have been clear that we should move from “may” to “must” in referring to a psychiatrist where either doctor has any doubt. That is a sensible approach, and it covers most of today’s discussion.
However, introducing a whole new system that would almost sit alongside the Bill, and that would change the process, is unnecessary. Those are my conclusions, based on what has been another very interesting discussion.
Daniel Francis
I will not come back on anything but, obviously, I will press some of these amendments in due course.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 294, in clause 7, page 4, line 5, after “doctor” insert
“based on provided evidence that”.—(Daniel Francis.)
This amendment would require that the doctor bases their assessment on provided evidence.
Question put, That the amendment be made.
Terminally Ill Adults (End of Life) Bill (Twentieth sitting)
Tuesday 11th March 2025
(1 month, 2 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 March 2025 - (11 Mar 2025)
The Committee divided: - Ayes: 2 / Noes: 20 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 20 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 15 - Question accordingly negatived.
The Chair
I have a few housekeeping announcements. Will everybody ensure that electronic devices are turned off or switched to silent. I remind hon. Members that tea and coffee are not allowed in the Committee Room.
We are due to continue line-by-line consideration. I am asked to remind Members that interventions should be short, and should raise points of clarification or ask questions; they should not be speeches in and of themselves. Members who do wish to give a speech should bob, please—we are not mind readers—and continue to do so throughout the debate in which they take part unless and until they are called.
When Members say “you”, they are referring to the Chair. “You” should not be used to refer to each other in any circumstances. Debate should be through the Chair.
Members may find it convenient to know that the Committee will be sit this afternoon and until 8 o’clock this evening. Please bear in mind that if there are Divisions on the Floor of the House and the sitting is not adjourned, then it will be suspended for the Division, which means that Members will have to come back even if the witching hour of 8 o’clock has passed. At that point, Members will sit again until the adjournment is moved formally. That can be done only when the floor is vacated, not in the middle of a speech.
Tomorrow morning, I shall be in the Chair; I shall also take the Chair at 5 o’clock tomorrow afternoon. Divisions in the House are expected tomorrow evening. There are six hours of protected business tomorrow evening, so those votes could again come up until and including 8 o’clock, or possibly even later if there is a statement or two. I have also indicated that I am willing, if necessary, to sit through the night. If the Committee chooses to sit very late, as a courtesy I expect to be notified in order that the people who really matter—the Clerks, the Doorkeepers and the Hansard writers—have a chance to be informed and organise their lives accordingly. I hope all that is clear.
We will now continue our debate on amendment 301 in the name of Rachael Maskell.
Clause 8
Second doctor’s assessment (independent doctor)
Amendment proposed (5 March): 301, in clause 8, page 4, line 39, leave out “7” and insert “14”.—(Naz Shah.)
This amendment would increase the period of reflection to 14 days.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 317, in clause 13, page 9, line 12, leave out “14” and insert “28”.
This amendment would provide 28 days for the second period of reflection instead of 14.
Amendment 314, in clause 13, page 9, line 17, leave out
“48 hours beginning with that day”
and insert
“7 days beginning with that day and the person must be referred immediately for urgent specialist palliative care.”
This amendment would increase the second period of reflection in cases where the coordinating doctor reasonably believes the person will die within a month from 48 hours to seven days.
Amendment 315, in clause 13, page 9, line 17, leave out “48 hours” and insert “7 days”.
This amendment would increase the second period of reflection in cases where the coordinating doctor reasonably believes the person will die within a month from 48 hours to seven days.
Danny Kruger (East Wiltshire) (Con)
It is a pleasure to serve under your chairmanship once again, Sir Roger. I am looking forward to this week’s debating.
I want to draw the Committee’s attention to further evidence that has come in since the debate got under way. Since we started the Committee, we have had more than 400 pieces of evidence, so I apologise for not having got to this earlier, but it is relevant. I do not want people who have submitted evidence to us to feel that their submissions have fallen into a black hole and are not being considered, and I think this is significant evidence. We are talking about the necessity of a proper period of reflection, which is acknowledged in the Bill—it is understood that it is inappropriate for people to be able to request and receive an assisted death in very short order. The debate is about the extent of that reflection period. I am supporting amendments that suggest that we need slightly longer in some cases.
I want to refer to two pieces of the evidence that has come in. One is from six palliative care doctors who wrote that
“our experience is that many patients experience a period of adjustment to ‘bad news’ and may say that they cannot live under these conditions. However, after a period of reflection and adjustment, the majority come to find peace and value in their altered life circumstance, in a way they would not have believed possible. This may often take many weeks and sometimes short months. It is our profound concern that the two ‘periods of reflection’…would not allow time for this adjustment. This is even more so the case where these periods of reflection are reduced for patients predicted to have an even shorter prognosis. It is thus a reality that patients and their families may miss out on a period of life they would have valued by seeking to end their lives prematurely, and these days, weeks and perhaps even months will never be regained.”
The other piece of evidence is from Tom Pembroke and Clea Atkinson, who are experts in hepatology and palliative care in Cardiff. They raised the problems of the seven-day reflection period where there is alcohol misuse. I do not think this topic came up in last week’s debate, but it is worth acknowledging because liver disease is the most common cause of death for people in middle age. It is also worth noting that liver disease disproportionately affects the people who are most disadvantaged in our society. These experts say:
“Prognostication in advanced liver disease is challenging as management of the underlying causes, including abstinence from alcohol, potentially reverses advanced liver failure…The neurocognitive and depressive effects of alcohol misuse disorder frequently requires more than seven days to resolve following abstinence. Advanced liver disease frequently manifests with hepatic encephalopathy which can affect the ability to make informed decisions.”
Their concern is that
“A seven-day review period is not sufficient to ensure that there is an enduring wish to die which is not influenced by alcohol misuse.”
Considering the prevalence of alcohol misuse in our society, the extent to which so many people tragically die of it and the difficulties in prognostication, I suggest to the Committee that there is a particular argument to be made for extending that short period at the end for the expedited process that is being considered. I beg the Committee to consider accepting the amendment.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship again, Sir Roger.
Amendment 301 would prolong the first period of reflection, after which point the independent doctor can conduct the second assessment. In the original draft of the Bill, the first period of reflection is seven days, but the amendment would extend that period to 14 days. That means 14 days would have to pass between the time that the co-ordinating doctor has made their statement following the first assessment, and the independent doctor carrying out the second assessment.
Amendment 317 would increase the duration of the period of reflection before a person may make a second declaration from 14 days to 28 days. It relates to cases where a person’s death is not reasonably expected within one month of the date of the court’s declaration.
Amendments 314 and 315 would increase the duration of the second period of reflection before a person may make a second declaration, in cases where a person’s death is reasonably expected within one month of the date of the court’s declaration, from 48 hours to seven days. They would also introduce a requirement for a mandatory immediate referral for urgent specialist palliative care. The requirement would be introduced into the definition of the second period of reflection. It is unclear what impact it would have on the duration of the period of reflection. The amendments do not say who should be responsible for making the referral or where it should be recorded. The drafting is also ambiguous as to what happens if a person does not consent to such a referral or care.
I hope these observations are helpful to the Committee in considering the Bill and the amendments put forward by various Members. Whether these amendments should form part of the Bill is a matter for the Committee to decide.
Kim Leadbeater (Spen Valley) (Lab)
I have nothing to add on this group of amendments. I am confident that the Bill as drafted already includes significant periods of reflection. Bearing in mind that we are putting dying people through a very lengthy process already, I remain confident that the periods of reflection are adequate as set out in the Bill.
Naz Shah (Bradford West) (Lab)
I have a couple of additional comments. We talked last week about the reflection periods. I referred to the fact that when even someone buys something from a shop, they have 28 days to return it; when they are deciding on whether to have an assisted death, there is a great deal more at stake. During that debate, someone asked, “What if someone had a prognosis of just one month?”, but clause 13 has an option for a fast-track process in that situation—the person would be able to access the service in 48 hours.
I beg to differ with my hon. Friend the Member for Spen Valley, the Bill’s promoter, who said that we have enough reflection periods in the Bill. Yes, there are reflection periods, but they come after the panel’s decision. The reality is that the NHS is under so much duress, with patients waiting weeks to see their GP for anything other than urgent treatment, that getting an appointment with another GP in seven days is unlikely; it is unlikely to happen given how uncommon that is at the moment. It is right that doctors are able to triage their patients to prioritise those who require medical intervention to keep them well, to prevent hospital admission, or to stop them deteriorating or even dying.
The Government are trying to protect the NHS, and the best way of achieving that is to ensure that medical interventions are provided at the earliest opportunity before a patient deteriorates. In some cases, a medical appointment may need to take priority over an appointment for an assisted death. If someone who is dying has longer—even just a further week—in which to reflect, it removes the pressure from GPs and consultants, and enables them to prioritise properly their patients. It does not build up false expectation in patients that they have a right to a rapid consultation process. Likewise, we know that it can currently take a few weeks for patients to see another consultant, if not months or even over a year. It is therefore more helpful for the patient to have a more realistic period of reflection before moving to the next stage of their assessment.
Issues of such intensity as someone planning to take their own life should not be rushed. We know from all the work that has been undertaken on suicide that other interventions and conversations can help with reflection and reconsideration. It is important that people are given this opportunity. In their first raising the matter with a doctor, the doctor would have provided a lot of information about alternatives to the patient, such as what treatment options would be available. Perhaps they would have had a discussion with a palliative medicine consultant to review their options. There needs to be time for a patient to really reflect on all this new information. If the patient does want to explore assisted dying, there will also be all the conversations about drugs and their impact, which we will come to when we discuss later clauses.
Amendment 317 to clause 13 seeks to increase the reflection period from 14 days to 28 days. I gently suggest that we should have the reflection period before the decision, whether it be by the judge or a panel, to give people the right amount of time to consider; currently, the reflection period is afterwards. This is such a monumental decision that people should be able to contemplate all other options available. As it is, the process is rushed, and a patient could be caught up in the moment of concentrating on getting through the stages. I appreciate that others have suggested that once we have got past that stage, with the paperwork and all those things out of the way, then there is time to reflect. During the process, however, the patient has not had time to consider the options in making their decision. I am not convinced that there is enough reflection during, as opposed to after, the process.
Amendment 314 seeks to increase the reflection period from 48 hours to seven days for patients who have been given a month to live. In that case, seven days is quite adequate time to reflect on the information they have received to make informed choices. If this is about autonomy, which my hon. Friend the Member for Spen Valley has talked about many a time, it is important for people to have choices. To have that autonomy is surely to have the options in front of us and be able to consider them in detail.
In considering whether to sit on this Bill Committee, I slept on the decision. I can usually make instantaneous decisions, but knowing the amount of work, knowing that I was new to the subject, and knowing the things that I knew then—not the things that I know now—it was a big decision for me. I was even thinking about how I would manage the workload. We are talking about something that is not at all comparable. We are talking about somebody who will be taking a decision to potentially exercise the right—if the Bill becomes law—to an assisted death. That is really important for me.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 195, in clause 8, page 4, line 40, leave out “statement” and insert “report”.
This amendment is consequential on Amendment 420.
Amendment 421, in clause 8, page 5, line 4, leave out subsection (5) and insert—
“(5) After carrying out the second assessment, the independent doctor must—
(a) make a report about the assessment (which must meet the requirements of regulations under subsection (5A)), and
(b) give a copy of the report to—
(i) the person who was assessed,
(ii) the coordinating doctor,
(iii) if neither the independent doctor nor the coordinating doctor is a practitioner with the person’s GP practice, a registered medical practitioner with that practice, and
(iv) any other person specified in regulations made by the Secretary of State.
(5A) The Secretary of State must by regulations make provision about the content and form of the report.
(5B) The regulations must provide that the report must—
(a) contain a statement indicating whether the independent doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (e);
subsection (2)(a)
(b) contain an explanation of why the independent doctor is, or (as the case may be) is not, so satisfied;
(c) contain a statement indicating whether the independent doctor is satisfied as to the following—
(i) that a record of the preliminary discussion has been included in the person’s medical records;
(ii) that the person signed the first declaration;
(iii) that the making of the first declaration has been recorded in the person’s medical records;
(iv) that the first declaration has not been cancelled;
(d) be signed and dated by the independent doctor.”—(Kim Leadbeater.)
This amendment provides that the independent doctor must make a report about the second assessment, and makes provision about the report.
Danny Kruger
I beg to move amendment 348, in clause 8, page 5, line 10, at end insert—
“(c) inform the person’s usual or treating doctor and, where relevant, the doctor who referred the person to the independent doctor, of the outcome of the assessment.”
This amendment would ensure that the independent doctor communicates the outcome of their assessment to the referring doctor as well as the usual or treating doctor.
The Chair
With this it will be convenient to discuss the following:
Amendment 303, in clause 8, page 5, line 12, at end insert—
“(aa) has confirmed that no other practitioner has undertaken a second assessment for the same person.”
This amendment would prevent a patient from seeking multiple assessments from different doctors.
Amendment 458, in clause 10, page 6, line 45, after “declaration” insert “and if there has been a material change of circumstances,”
Amendment 459, in clause 10, page 7, line 3, at end insert—
“(2A) (a) Where a referral is made to a registered medical practitioner under subsection (1), the coordinating doctor must provide that new registered medical practitioner with the report by the independent doctor setting out their reasons for refusal.
(b) If the new registered medical practitioner reaches a different conclusion from the original independent doctor, they must produce a report setting out why they disagree.
(c) Those two reports must be made available to any subsequent decision maker under this Act and to the Commissioner.”
Amendment 460, in clause 10, page 7, line 9, leave out “particular”.
Danny Kruger
This is a key group of amendments. I shall specifically speak to amendment 303, which would prevent a person from seeking multiple assessments from alternative doctors if a second assessment had already been undertaken. I am not sure that I will press that amendment to a vote, but it is important to explore this issue. I will take the view of the Committee on it.
Last week, my right hon. Friend the Member for North West Hampshire said that it was important to avoid doctor-shopping. He made that point in reference to the suggestion that there would be a list of professionals that would administer the procedure. I respect that view; I think it is absolutely right. It needs to be clear in law that we avoid doctor-shopping. For that reason, it is important that the independent doctor should seek to establish whether the patient has previously had a second assessment. That could be very material.
Clause 10 states:
“In consequence of a particular first declaration made by a person, the coordinating doctor may make only one referral for a second opinion under subsection (1).”
This only limits the number of times that a person can seek another medical assessment. Amendment 303 to clause 8, in the name of the hon. Member for York Central (Rachael Maskell) , would further strengthen the current safeguards against doctor-shopping, by placing a duty on the doctor to confirm that there had not been previous assessments.
Doctor shopping is not a hypothetical concern. We have seen it take place in other jurisdictions. An understanding develops that some doctors are more likely to grant an application for an assisted death. That is totally natural. Professor Preston said in oral evidence to us:
“People go doctor shopping—they are going to multiple doctors until they get the right answer.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 245, Q315.]
According to an official report in 2021, one Oregon doctor wrote one eighth of all the prescriptions for assisted death. I met a doctor in Canada who had performed hundreds of assisted suicides. It was her whole practice; that was what she did, and people knew to go to her.
Doctors who are reluctant to grant an application may instead refer a person to doctors they know are more likely to grant the person’s application for an assisted death, so those practitioners become the go-to when other doctors deny applications. Over time, the safeguards can become weakened and circumvented by a system of doctors who apply the criteria quite loosely, as was found in Ontario. The Ontario review committee found evidence of patients doctor shopping for approval. Some 8% of non-terminally ill people who died by assisted dying had made previous requests. People do try again, naturally enough, if they do not get the answer they wanted.
Danny Kruger
The hon. Lady is absolutely right. We will address in later debates the point that insufficient attention will be given to the reasons why an application has been refused. If an application has been refused on the grounds of coercion, a future doctor will not necessarily know that that was the reason. As the hon. Lady says, in cases of coercive control there is a very real danger that if a person has been unduly influenced to seek an assisted death and the doctor declines their application, possibly because they detected coercive control, the patient can then be coerced, or influenced, into starting again with a new doctor. There is nothing to stop that in the Bill. We have a real problem, and I hope the Committee will consider the amendments.
Sarah Olney (Richmond Park) (LD)
It is a pleasure to serve under your chairmanship, Sir Roger. I will speak to my amendments 458 to 460, which would tighten the process around seeking a determination from a second independent doctor if the first has refused to say that the criteria are met. The amendments relate to clause 10, which I will say more about when we come to it, but they have been selected for debate in this group.
The risks of abuse in seeking a second independent doctor’s opinion are well illustrated by the evidence we have received from Dr Sharon Quick, the president of the Physicians for Compassionate Care Education Foundation, who tells us about the experience of Dr Charles Bentz, who refused to provide a second opinion for a physician-assisted suicide for a patient he had referred to an oncologist for cancer treatment. The co-ordinating doctor persisted and clearly found a compliant second opinion, as two weeks later his patient was dead.
Dr Charles Bentz said in his testimony:
“I was caring for a 76 year-old man who came in with a sore on his arm. The sore was ultimately diagnosed as a malignant melanoma, and I referred him to two cancer specialists for evaluation and therapy. I had known this patient and his wife for over a decade. He was an avid hiker, a popular hobby here in Oregon. As he went through his therapy, he became less able to do this activity, becoming depressed, which was documented in his chart.
During this time, my patient expressed a wish for doctor-assisted suicide to one of the cancer specialists. Rather than taking the time and effort to address the question of depression, or ask me to talk with him as his primary care physician and as someone who knew him, the medical oncologist called me and asked me to be the ‘second opinion’ for his suicide. She told me that barbiturate overdoses ‘work very well’ for patients like this, and that she had done this many times before.
I told her that assisted-suicide was not appropriate for this patient and that I did not concur. I was very concerned about my patient’s mental state, and I told her that addressing his underlying issues would be better than simply giving him a lethal prescription. Unfortunately, my concerns were ignored, and approximately two weeks later my patient was dead from an overdose prescribed by this doctor. His death certificate, filled out by this doctor, listed the cause of death as melanoma. When I reviewed his chart, the radiation oncologist documented a clear diagnosis of depression.
My patient did not die from his cancer, but at the hands of a once-trusted colleague who failed to recognize and treat his depression. This experience has affected me, my practice, and my understanding of what it means to be a physician. What happened to this patient, who was weak and vulnerable, raises several questions that I have had to answer.”
I appreciate that, under the Bill, Dr Bentz could not have been the independent doctor as he already knew the patient and was treating him, but in that case that contributed to enhanced safety. Dr Bentz’s example illustrates the real risks of abuse in a person being able to seek the opinion of a second independent doctor. The starting point is that the task of the independent doctor is not that of a normal doctor. It is not to cure the patient or to provide advice about medical treatments: it is to check whether the eligibility requirements are met. It is a decision-making function, not a medical one—albeit, of course, a decision-making function that is informed by medical expertise.
In the light of that function, it is not appropriate for someone to seek another decision simply because they do not like the answer that has been given. The independent doctor is asked to apply an objective set of criteria against the evidence in front of them in order to make an assessment. It is not the case—or it should not be—that a different doctor would come to a different assessment based on the same criteria and the same evidence. If we are doing our job properly in the Committee, we should not expect that a second opinion could be arrived at.
I have no objection to provision being made for a person to see a second independent doctor if the first did not manage to finish the task. Nor do I object in respect of cases in which there is a change of circumstances—for example, if the patient’s condition deteriorates to such a degree that although the first independent doctor thought the six-month prognosis test was not met, it becomes clear that it is met—which is the point of my amendment 458. In such circumstances, it would make sense to allow the patient to go to a second independent doctor. Although my preference in such a situation would be to go back to the original independent doctor and ask them to reconsider in the light of the change of circumstances, that may not always be possible. Amendment 458 is an attempt to find a middle ground.
Amendment 459 seeks to reduce the possibility of abuse by ensuring that the second independent doctor has available the reasons why the first independent doctor concluded that the person was not eligible. That would allow the second independent doctor to approach the assessment with open eyes. Such a report would be particularly useful when it comes to the detection of coercion or pressure, as the first independent doctor might have spotted something that the second independent doctor might not easily see.
Let us consider the evidence of Dr Tim Howard, who has been deeply involved in end-of-life palliative care and assisted dying for many years. He has been a non-exec director of a health authority, a member of an ethics committee, a postgraduate teacher and, finally, chair of the General Medical Council fitness to practise tribunals, dealing with complex medico-legal principles and decisions in public. He also helped to set up the Medical Practitioners Tribunal Service, which separated medical standard setting and investigation from adjudication.
Dr Howard says:
“I remain uncomfortable that when either doctor, the assessing doctor or the independent doctor, declines to agree with a request for”
assisted dying,
“they take no further action. I feel that the reasons for their refusal should, as well as being given to the patient, be recorded in the patient’s notes, and given to any ‘second opinion’ independent doctor. This is not an attempt to bias; it is a value judgement that criteria are not being met, and as such, is sharing an early warning to be extra careful.”
The Committee should note that he has, in his own words,
“been a strong proponent of medical assistance in dying…and a member of Dignity in Dying for many years.”
Danny Kruger
It does seem an extraordinary gap in the Bill, but I am afraid it is not unique to this Bill. In countries where assisted dying in some form is legal, there are remarkable failures to insist on the proper recording of applications that are declined or about which there are concerns. This speaks to the general cloud of unknowing that we are operating in. Does the hon. Lady agree that were we to pass the Bill, it would be great if, at least in this country, we kept proper records?
Sarah Olney
The hon. Member is exactly right. An assessment of whether somebody should qualify for assisted dying needs to be based on objective criteria. If those are not met, the only way that a second independent doctor should have a role is if either the circumstances have changed or, for whatever reason, the first doctor is unable to reach a conclusion. There must not be a situation in which the first doctor has made one decision and a second doctor arrives at a different decision, because that would imply a variability in the way the objective assessments are made. Not tightening this loophole would imply that we are prepared to allow such a variability across the medical profession, and I do not think we should allow that.
My final amendment in this group is amendment 460. I am concerned that the word “particular” in clause 10(3) negates the subsection’s purpose of ensuring that only one second opinion from the co-ordinating doctor can be sought, because a person could withdraw their first declaration, make a new one and start the process afresh; that declaration would then not be the “particular” first declaration. By removing “particular”, the loophole would be closed, and the safeguard would be made more effective. This concern was brought out well in Disability Labour’s written evidence:
“We are concerned that whilst 10(3) only allows for one second opinion to be sought, there appears to be nothing in the bill that stipulates a waiting period before a new application can be made. This risks applications being repeated until a supporting opinion can be obtained, thus negating the purpose of 10(3).”
I hope the Committee will accept my amendments.
Dr Simon Opher (Stroud) (Lab)
I thank the hon. Member for Richmond Park for her considered amendments. I would like to go through all the amendments in the group.
Amendment 348 is about the doctor communicating the outcome of the assessment, but I understand that that is already covered in clause 8(5)(b), which states that, having carried out the second assessment, the independent doctor will
“provide each of the coordinating doctor and the person who was assessed with a copy of the statement.”
I therefore do not think the amendment is necessary—it would be doubling up.
Rebecca Paul (Reigate) (Con)
I just point out that the amendment states that the independent doctor would
“inform the person’s usual or treating doctor”,
and that is not covered by the paragraph the hon. Gentleman just mentioned. I hope that is helpful.
Dr Opher
I do not see what that would add to the Bill. The co-ordinating doctor would have a result and the patient would have had the report back. I do not feel the amendment is necessary—it would over-complicate the Bill—but we can see what the Government’s legal position is on that.
Amendment 303, tabled by my hon. Friend the Member for York Central, suggests that the independent doctor should have to check that there has not already been a second opinion. We need to step back a bit and remember how the Bill will work. Basically, a doctor will refer to a co-ordinating doctor, who will make a full assessment of the patient. If, having carried out the first assessment, the co-ordinating doctor is satisfied that the requirements in the Bill are met, they will refer the person for the independent assessment. That doctor will therefore need to see a report, because he is the co-ordinating doctor. He cannot then get a second opinion from a different doctor; that would not be part of the process under the Bill. I do not feel the amendment would make the Bill any safer.
Dr Opher
Actually no, I will not. I will go on, if that is okay.
Amendment 459 states that the second-opinion doctor “must produce a report” outlining their reasons for reaching a different opinion, but the whole nature of this is that the doctor is independent. As we have heard, if it is suggested that someone either is or is not allowed to get an assisted death, that might affect the assessment of the independent doctor. It would not be good medical practice to have that assessment in front of the independent doctor—that would lead to poor assessments. We need a right to a second opinion and we should have a truly independent doctor.
Amendment 460, which is the last in the group, would allow a patient only one declaration in any part of their lives, even if circumstances change. Although there will be vanishingly few instances where that would be relevant, I do not feel that such a provision would make the Bill any fairer or safer.
Amendment 143, tabled by my hon. Friend the Member for Broxtowe, would allow a second and a third opinion. It is my opinion, and the opinion of many of us, that we do not want doctor shopping. We want to allow one second opinion from an independent doctor, but not more than that.
Lewis Atkinson (Sunderland Central) (Lab)
It is a pleasure to serve under your chairship, Sir Roger.
I rise to speak to a couple of the amendments. Amendment 348 is likely unnecessary. I would have been minded to support it had it referred to a registered GP, but the language of “usual or treating doctor” is unconvincing. I am not sure what those terms refer to. The registered GP absolutely should be informed, and both normal practice and the provisions in the Bill about entering information into medical records would mean that that is the case. For me, “usual doctor” is not the right terminology; it does not achieve what I think some of its proponents want. With reluctance, I will vote against that amendment because it does not refer to a registered general practitioner.
On amendments 303 and 458, I believe there must be provision for a second opinion. However, I am persuaded by the points made by the hon. Member for Richmond Park about amendment 459. I slightly disagree with my hon. Friend the Member for Stroud: although the independence of the second opinion is important on matters such as the terminal prognosis, when it comes to the detection of coercion, the more information, the better. It is one thing to be independent in a medical assessment, but the amendment speaks to a psychosocial assessment. We are trying to detect coercion, so it is important that every decision maker gets further information as the process progresses.
The provision for five different touchpoints of assessment is one of the strengths of the Bill. Each assessment should be done in a way that can be progressed with more information. It is not just five different independent points of information; because of the Bill’s record-keeping provisions, the assessment should become increasingly informed throughout the process. I certainly think that the panel, or whatever we get to, should have sight of any negative assessment from an independent doctor, as well as any positive one. The panel will then be able to do its job of scrutinising the two decisions, potentially weighing them up, and calling the different doctors who have given different decisions. I am, then, persuaded by amendment 459.
Jake Richards (Rother Valley) (Lab)
It came up in the debates last week that we heard some evidence from medical practitioners on how decisions and assessments were better made when done collaboratively. That means that we need to keep them independent but that, where possible, doctors should be working together in this process. Does my hon. Friend agree that amendment 459, tabled by the hon. Member for Richmond Park, may assist in that?
Lewis Atkinson
Yes, I do. I recognise the importance of independent assessment for prognosis and capacity. However, particularly with the issue of coercion, healthcare is a team sport, as anyone who has worked in healthcare knows. The more information and the more viewpoints we can get in those instances, the better. One of the strengths of the Bill is the team sense around it, which we will further in the amendments to clause 12 that we will come on to in due course.
I will finish briefly on amendment 460. I do not see the loophole that has been described. I think we would all want someone to be able to cancel their first declaration, and they are more likely to do so if they feel they have the option of going back and making a future first declaration. My worry with amendment 460 is that, by removing the word “particular”, it suggests that people are only able to make one first declaration in the course of their life. With the periods of reflection built into the Bill, which Members spoke about earlier, if someone changes their mind, they should cancel their first declaration. They are absolutely free to do so and the Bill, as currently drafted, makes good provision for that. To me, amendment 460 would remove the ability for that person to come back to that decision at a later point and go through the assessment process again. While I understand the motivations behind amendment 460, I am cautious about it for those reasons.
Stephen Kinnock
Amendment 348 seeks to add an additional requirement to clause 8(5). This would mean that, where the independent doctor is satisfied that the requirements under clause 8(2) have been met, they must
“inform the person’s usual or treating doctor and, where relevant, the doctor who referred the person to the independent doctor, of the outcome of the assessment.”
Some elements of amendment 348 duplicate requirements that already appear in the Bill, such as the requirement in clause 8(5)(b) for the doctor to inform the co-ordinating doctor of the outcome, including providing a copy of the statement.
The amendment would also overlap with the requirements in clause 16 for the co-ordinating doctor to make entries in the person’s medical record that must include the original statement or declaration. Where the co-ordinating doctor is not with the person’s GP practice, they must also give notice to a registered medical practitioner with the person’s GP practice of the outcome of the assessments.
Amendment 303 seeks to prevent a person from seeking multiple second assessments from different independent doctors. It places a requirement on the independent doctor to confirm
“that no other practitioner has undertaken a second assessment for the same person.”
This amendment creates the risk of a medical practitioner inadvertently committing an offence if there is no centralised record-keeping. It may also have the impact of preventing the person seeking assistance from obtaining a second opinion, as provided for in clause 10. Under the amendment, as drafted, it is unclear how this is intended to interact with the possibility of an independent doctor’s becoming unable or unwilling to continue to act as the independent doctor following the second assessment, when an alternative independent doctor may therefore be required.
On amendment 458, as the Bill stands, clause 10 provides that if, following the second assessment, the independent doctor refuses to make the statement confirming that they are satisfied that matters in clause 8(2)(a) to (e) are met, the co-ordinating doctor may refer the person to a different registered medical practitioner who meets the requirements of clause 8(6), and is able and willing to carry out an assessment mentioning clause 8(2). The effect of the amendment is to restrict the circumstances in which the co-ordinating doctor can make a referral under clause 10(1) to a different registered medical practitioner to only when there has been a material change of circumstances. It is not clear from the amendment who is required to establish that there has been a material change in circumstances and/or how that will be proved. That may cause some uncertainty for the co-ordinating doctor.
I now turn to amendment 459. Clause 10 provides that if, following the second assessment, the independent doctor refuses to make the statement that they are satisfied that the person meets the criteria in clause 8(2)(a) to 8(2)(e) when conducting the second assessment, the co-ordinating doctor may, if requested to do so by the person who made the first declaration, refer that person to a different registered medical practitioner who meets the requirements of clause 8(6) and is able and willing to carry out an assessment of the kind mentioned in clause 8(2).
The effect of the amendment is that, where such a referral is made to the registered medical practitioner under clause 10(1), the co-ordinating doctor is required to provide them with the report by the independent doctor setting out their reasons for refusal. If the new registered medical practitioner reaches a different conclusion from the original independent doctor, they must produce a report setting out why they disagree. The two reports must be made available to any subsequent decision maker under the Bill, and to the commissioner. This additional requirement for reports on the reasons for refusal or differences in opinion may make the process of seeking assistance longer and add to capacity demands on co-ordinating and independent doctors.
Turning to amendment 460, clause 10(3) provides that if, following the second assessment, the independent doctor refuses to make the statement mentioned in clause 8(5), the co-ordinating doctor may make one referral for a second opinion. The effect of the amendment is to remove the word “particular” from clause 10(3), which says that only one second opinion may be sought
“In consequence of a particular first declaration made by a person.”
The amendment is unclear and could have several possible effects in practice. For example, it could have the effect of limiting the circumstances in which a referral can be made under clause 10(1) to the first time a person makes a first declaration.
I hope that these observations were helpful to the Committee.
Kim Leadbeater
I associate myself with the Minister’s comments regarding the other amendments in the group; however, I listened carefully to the debate on amendment 459 and the points made by the hon. Member for Richmond Park, my hon. Friend the Member for Stroud and the Minister. My view on that amendment has changed: I do think independence is really important in the doctor’s opinions during the normal process that the Bill sets out. However, it is a really fair point to make that if the independent doctor refuses the patient, there needs to be transparency about that, and it is important that everybody involved in the process can see how that decision has been made. That is a really valid point. It is a good example of how this Bill Committee is operating, and should be operating, in that we have been listening to different views and opinions.
I take on board the Minister’s point on capacity. We need to be aware of that. We will hopefully debate the third layer later today. That layer may be a panel of experts who are there to oversee the full picture of the patient journey. For them to see what has happened with the doctors that they have interacted with is very important. Therefore, I am minded to support amendment 459.
Danny Kruger
I want to respond to a point made by the hon. Member for Stroud. It is relevant to the whole debate about whether we are talking about a medical treatment at all. He made the point, in respect of the question of a second or subsequent referral to an independent doctor, that it is appropriate in medicine to have second opinions; he said that that is normal in medicine, and he is absolutely right. Indeed, there is nothing to stop a patient seeking a third, fourth or any number of opinions if they want to do that and can get a doctor to consider them. The fact is that what we are discussing here is not a medical diagnosis—that is not what is being asked for when someone goes to see the second doctor, or indeed the first. What they are asking for is permission to proceed with the process.
The Chair
I am satisfied that the items contained within the clause have been adequately debate. I do not therefore propose to permit a clause stand part debate.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Doctors’ assessments: further provision
Kim Leadbeater
I beg to move amendment 201, in clause 9, page 5, line 36, leave out “and their medical records” and insert
“, examine such of their medical records as appear to the assessing doctor to be relevant,”.
This amendment provides that the duty on an assessing doctor to examine a person’s medical records is limited to records appearing to the doctor to be relevant.
The Chair
With this it will be convenient to discuss the following:
Amendment 422, in clause 9, page 5, line 36, after “records” insert
“make such enquiries of professionals who are providing or have recently provided health or social care to the person as the assessing doctor considers appropriate,”.
This amendment requires an assessing doctor to make such enquiries of professionals who are providing, or have recently provided, health or social care to the person as the assessing doctor considers appropriate.
Amendment 468, in clause 9, page 5, line 37, at end insert—
“(aa) ask the person why they are seeking an assisted death.”
Amendment 423, in clause 9, page 6, line 20, at end insert—
“(2A) To inform their assessment, the assessing doctor must—
(a) consider whether they should consult a health professional or social care professional with qualifications in, or experience of, a matter relevant to the person being assessed;
(b) consult such a professional if they consider that there is a need to do so.
(2B) Where an assessing doctor consults a professional under subsection (2A)(b), the assessing doctor must give a written record of the consultation to the other assessing doctor.”
This amendment requires the assessing doctor to consider whether they should consult specialist health or social care professionals, and to consult them if they consider there is a need to do so. A record of any consultation must be shared with the other assessing doctor.
Kim Leadbeater
Amendment 201 provides that the duty on an assessing doctor to examine a person’s medical records is limited to records appearing to the doctor to be relevant, which makes sense. Amendment 422 requires an assessing doctor to make such inquiries of professionals who are providing, or have recently provided, health or social care to the person as the assessing doctor considers appropriate. Amendment 423 requires the assessing doctor to consider whether they should consult health or social care professionals, and to consult them if they consider there is a need to do so. A record of any consultation must be shared with the other assessing doctor.
The amendments seek to emphasise the importance of taking a holistic and multidisciplinary approach to the assessments by both doctors. The Bill as drafted provides that the assessing doctor must
“make such other enquiries as the assessing doctor considers appropriate”
when making the first and second assessments. With the amendments, I have sought to strengthen that language, by being much more explicit and making specific reference to consulting health and social care professionals. I have done so in response to the evidence we have received from professionals such as nurses and social workers, who often spend a significant amount of time with terminally ill adults.
It is clearly right that the assessing doctors should have access to all relevant details of a person’s medical records. If the records show that the person has recently been receiving health or social care, that may impact their application, so the doctors have to consult the providers of that care. As is the case at all stages in the process, records should be kept of any and all such discussions, and reports should be shared where appropriate.
Taken together, the amendments would ensure that the doctors’ assessments are thorough and comprehensive, and have taken into consideration the views and opinions of any wider health and social care team that may be working with a patient.
Danny Kruger
I will speak briefly to each of the amendments in this group. I will allow my hon. Friend the Member for Reigate to speak to the amendment in her name, but I state clearly that I very much support it. In my view, it is very important that the doctor asks the simple question of the patient, “Why do you want an assisted death?” The question is not being asked at the moment.
I respect the points that the hon. Member for Spen Valley has just made about amendment 201, and that the amendment may be intended to focus assessments on the information that is relevant. Nevertheless, it would introduce subjectivity into what is deemed relevant, and by narrowing the scope of the review of patient records, it could unintentionally allow for incomplete assessments, thereby undermining the safeguards that we all want to see. The risk is that potentially crucial medical history, including past mental health concerns, poor coercion indicators or undisclosed diagnoses, might be overlooked.
I call the Committee’s attention to the evidence from the British Geriatrics Society, which raised concerns that the definition of terminal illness in the Bill is often vague and risks misclassification, especially for older patients. Limiting the review of medical records could exacerbate that issue, as doctors may not have a full picture of the patient’s long-term prognosis and their mental health history. The General Medical Council has called for strong regulatory oversight to ensure that eligibility assessments are thorough.
Allowing doctors to determine which records are relevant, without standardised criteria for that judgment in the Bill, risks inconsistency and potential misdiagnosis. The criteria should include diagnosis and prognosis, treatment history, consultation, second opinions and mental health history. Consideration should also be given to disclosures of domestic violence and abuse, or patterns in medical records that might indicate domestic abuse without explicit disclosure, such as frequent visits for unexplained pain, chronic pain complaints, mental health concerns such as anxiety and depression, inconsistent explanations for injuries, and multiple visits to different healthcare providers. All of that should be properly considered by the assessing doctor.
I draw the Committee’s attention to the fact that in the Netherlands, 1% to 2% of assessments annually—a significant number when we consider the volumes we are talking about—are deemed “not careful” under the law. Other countries do not have adequate ability to look into the data, but that is significant, and it is often due to inadequate consultation or documentation. I also draw attention to the fact that in our country, I am afraid to say, the cause of death listed by doctors is too frequently inaccurate. Analysis of postmortems suggests that one in 20 deaths have been wrongly recorded. Clearly, mistakes are made in medical records, and therefore it is particularly appropriate to require doctors to give complete consideration to the full medical history of the patient.
I recognise very much that we are trying to create a Bill that works in practice; nevertheless, I think we can emphasise streamlining and efficiency at the expense of patient safety, and we are doing that here. If we tell doctors that they are only required to sift through records that appear relevant to them—a quick skim of recent notes, a glance at the obvious items in a medical history—that may sound efficient, streamlined and practical, but it is likely to leave the vulnerable exposed, in particular when social workers and psychiatrists are not involved at this early stage, as they plainly should be. No multidisciplinary team is looking at the patient at this stage.
Lewis Atkinson
Does the hon. Member share my concern that the wording in medical records has no duration over a person’s lifetime? For example, consulting all the medical records of someone in their 70s or 80s at the end of their life would surely include the records from when they were a child—childhood vaccinations, the removal of tonsils and so on—and that would clearly be impractical. Does he not agree that amendment 201 would clarify that element?
Danny Kruger
What the amendment clarifies is that the doctor does not have to look at any records at all unless he or she considers them relevant. It gives total discretion to the doctor to disregard huge swathes of the patient’s history. Yes, I do expect the doctor to review the entirety of a patient’s record—obviously, the record of a childhood broken leg can be skipped over quickly. What I do not want to do, as the Bill currently does, is allow the doctor to say, “Oh, I missed this evidence of a mental health condition” or “this indication of coercion from five or 10 years ago, because I didn’t consider that aspect of their records to be relevant.” It places a significant obligation on the doctor, but that is, I am afraid, what we are doing in the Bill. We are placing huge obligations on doctors and we should do it properly.
Dr Opher
As the amendment states, it is about examining medical records for things that are relevant. If we are talking about coercion or capacity, these sorts of items will be relevant. I do not know if Members have ever seen medical records. Some people have extremely large medical records, and we have summaries for that, but if a part of that summary indicated something that we were suspicious of, we would look into it. As my hon. Friend the Member for Sunderland Central has just said, the complexities of childhood tonsillitis do not really need to be examined in this case. We have to, and we always do, specify what we look into doctors.
Danny Kruger
As I have said in my many exchanges with the hon. Gentleman, I want to see the good practice that he claims—absolutely accurately, I am sure—to perform is applied across the system. He says that if doctors see in the summary some indication of concerns, they will look more closely into it. Well, I jolly well hope they would. The problem is that the summary might not be complete. I suppose the distillation of my point is that we should say, “Don’t rely on the summary. Proceed with a proper analysis. Take responsibility for making sure that you have reviewed the entirety of the patient’s record.”
We have to address throughout our consideration of the Bill the workload that we are placing on busy professionals. Nevertheless, if we consider that this matters—and it is a question about knock-on effects on the NHS, which we could discuss in due course—it is appropriate to expect proper time to be taken. A specialist with two hours and a full record in front of them might spot the misdiagnoses, question the prognosis, flag the depression and catch the abuse. If given half the time and a licence to skim the record, as the amendment would give them, they could very easily miss something, so I think the word “relevant” is a great gamble.
Lewis Atkinson
The hon. Member is discussing amendment 201, but there is also amendment 422, which indicates that the professional should make inquiries of other healthcare professionals who have been involved in treatment recently. Does he not agree that that would mitigate against the sort of scenario he describes?
Danny Kruger
I will come on to that. I agree with him: amendment 422 is a very helpful amendment, and I support that. It is a very good suggestion that wider consultation should be made, and it is a point that we have been trying to make with amendments throughout. I recognise that that would enhance the safeguards in the Bill—I am grateful to the hon. Gentleman.
Amendment 422 seeks to introduce an additional requirement that the assessing doctor must consider whether to consult health or social care practitioners who are providing, or have recently provided, care to the patient. The amendment is presented as addressing previously expressed concerns, but I regret to say that I feel it is excessively weak. It is a positive step in recognising the issue, but it does not ensure a broader and more informed assessment of a patient’s condition and external influences.
Patients with terminal illnesses often receive care from palliative care teams, social workers or community nurses who might have crucial insights into their wellbeing and the potential external pressures on them. The British Psychological Society has highlighted that mental health and social pressures are often overlooked in assisted dying requests in other countries. Social workers and allied health professionals play a key role in assessing whether a patient feels pressurised due to financial, social or familial burdens. As I have repeatedly said and we will debate further in due course, in my view it is very important that that assessment comes earlier in the process.
We have evidence from doctors—I will not cite it at length—pointing out that independent doctors who refuse assisted dying requests are often ignored, and patients are simply referred to another doctor willing to approve the request, as we have discussed. Consultation with health and social care professionals could act as an additional safeguard against that practice. Although the amendment introduces an obligation to consult other professionals, it leaves it to the discretion of the assessing doctor. It relies on the doctor’s subjective judgment
“if they consider that there is a need”.
I think that is too weak for assisted dying, where consistency is so critical. One doctor might consult a palliative care specialist to explore pain relief options, while another might not, assuming that they understand the patient’s suffering sufficiently. The variability in the Bill—this discretion—undermines fairness and safeguarding.
There is also a lack of accountability in what is a very sensitive process. There is no requirement to document the consideration process, which weakens oversight in a context where errors could be fatal. I respect the point made by my right hon. Friend the Member for North West Hampshire that we must not police conversations and that being prescriptive may encourage a tick-box approach. I am afraid that we risk that tick-box approach if this amendment is all that we do on this subject. We can imagine a scenario in which a doctor simply makes a note in the record with little underpinning substance.
There is also no obligation to act on the specialist input, so the duty ends at the consultation. There is no requirement to integrate the findings of the additional input that the doctor has received, which is a glaring flaw in what is an irreversible procedure that is being authorised. Finally, there is insufficient rigour for the ethical stakes. This discretionary duty is too weak to catch the difficult cases.
Kim Leadbeater
On the hon. Member’s point about recording those consultations, amendment 423 states in its proposed new subsection (2B):
“Where an assessing doctor consults a professional…the assessing doctor must give a written record of the consultation to the other assessing doctor.”So the consultation is recorded.
Danny Kruger
The hon. Lady is absolutely right, and that is very welcome. My concern is that there is no obligation to do anything about it. There is no obligation for the doctor to integrate the conclusions of the additional professionals that they have consulted into their treatment. I recognise that that provision is valuable and I welcome the amendments, but I suggest that they do not go far enough.
Let me use a hypothetical example to bring my point home to the Committee. Imagine a woman with terminal lung cancer asking to end her life. Her assessing doctor considers consulting a palliative care specialist for symptom control or a social worker to check on her home life, but decides, “My notes are enough. There’s no need for that.” What if the patient’s pain could be eased with a new approach that the doctor does not know about? What if her family’s pushing her to spare them the burden of her care goes unnoticed without a social worker’s input? The lady might die needlessly or be denied treatment unfairly.
The discretionary duty that the amendment would introduce essentially collapses because it does not force the broader scrutiny that patients deserve. The amendment sees the problem, but it is too feeble: it is too discretionary, too vague and too unenforceable for a choice as profound as assisted dying. While I will support it, I do not think it goes far enough.
Amendment 423 builds on amendment 422 by requiring that if the assessing doctor consults a specialist, a written record of that consultation must be shared, as the hon. Member for Spen Valley just mentioned. It is critical for transparency, consistency and accountability in decision making. In high-stakes cases, such as assisted dying requests, paper trails matter. Without a formal record, one assessing doctor might dismiss concerns raised by another professional without accountability—a point made by the hon. Member for Richmond Park.
As I pointed out in an intervention on the hon. Member for Richmond Park, it is remarkable how few jurisdictions around the world have such safeguards. The American model in Oregon, Washington and California does not track how many doctors a patient consults before finding one willing to approve an assisted dying request, so we do not know the extent of doctor shopping abroad. Canada’s system does not require refusals to be formally documented, making it difficult to assess the patterns of approval. Ensuring that records are available to both assessing doctors would add an extra layer of scrutiny and help to prevent doctor shopping.
However, while the amendment is a step in the right direction, it does not require an independent review of the records. Sir James Munby, the former president of the family division of the High Court, has criticised the lack of procedural rigour in oversight mechanisms, warning that assisted dying laws risk becoming a rubber-stamp exercise if refusals and approvals are not documented with transparency. The Royal College of General Practitioners has called for independent oversight of the entire process, not just a reliance on individual doctors. These amendments would partially address that, but would not fully resolve it.
Amendments 422 and 423 are welcome but otiose: they would simply give doctors permission to do what they should be doing anyway. If they are conscientious, they will do it anyway, and if not, they will not. It is slightly like an illegal gun amnesty: the good guys will not have illegal firearms in the first place, and the bad guys with guns are not going to hand them in voluntarily. I fear that we are requiring good behaviour of good people, and not requiring it of doctors who are not doing their job properly.
Several hon. Members rose—
The Chair
Order. Rebecca Paul has an amendment tabled in this group, so I shall call her next. I have had indications from Rachel Hopkins and Dr Opher that they wish to speak, and I see two others, of whom I shall make a note.
Rebecca Paul
It is a pleasure to serve under your chairmanship, Sir Roger. I rise to speak to my amendment 468 to clause 9, which would ensure that the assessing doctor must
“ask the person why they are seeking an assisted death.”
We have heard a lot in this Committee about the importance of the patient-doctor relationship. My hon. Friend the Member for Solihull West and Shirley said that we should be
“trusting in the judgment of clinicians, who know their patients well”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 26 February 2025; c. 634.]
He also said that patients
“may want to speak to their GP because they have had a relationship with them over 30 or 40 years”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 25 February 2025; c. 481.]
It is therefore worth asking how the Bill shapes the patient-doctor relationship.
The Bill asks doctors to do many things to and for patients. It asks doctors to consider whether to raise the subject of assisted suicide; personally, I wish we had agreed to the amendment that would have ensured that it was the patient who brought the subject up first, but we are where we are. The Bill asks doctors to explain the patient’s diagnosis and prognosis and to lay out options for treatment and palliative care, if there is any available; if there is not, the doctor can only state that point and move on. Nevertheless, we are asking the doctor to look into the matter and lay out possibilities.
The Bill asks doctors to check for capacity and for coercion, to ascertain whether the patient has a clear, settled and informed wish to end their own life, to witness declarations and, eventually, to give the patient a substance and oversee the patient taking it. In other words, it makes doctors absolutely central to the process, as the facilitators of the process, as the people who accompany the patient and as the professionals with the biggest responsibility for ensuring that the safeguards are followed, yet it never asks doctors to make a simple but vital inquiry: why?
That is all that my amendment would add. It would simply require the assessing doctors to ask the person why they are seeking an assisted death. I hope that the Committee will agree that that would be a reasonable and not overly burdensome change. Some hon. Members have suggested that certain amendments embroider the Bill too much, but in this case, the patient-doctor conversation is already embroidered. The Bill makes some very specific demands of the doctor as to what the conversation should cover. Surely it is only natural, amid all the conversations, for the doctor to take a moment—perhaps more than a moment, but a moment at the very least—to help the patient to talk through their reasons. This is a very vulnerable moment in somebody’s life.
The simplest of questions can often unlock the most information. In some cases, for the small number who would benefit from the Bill, the answer would probably reassure the doctor, but for those others we worry about, the question would provide another important safeguard. It would be another opportunity to check that this really is in the best interests of the patient.
How would the conversation go? I do not think that we can generalise. It might be the briefest exchange or it might lead to a really searching discussion. Doctors know how to take their cue from the patients in these things. Crucially, the doctor’s role is not just to offer advice or information. Even if the doctor says nothing, it may make all the difference for the patient to be able to speak aloud their concerns, their confusion and their hopes and fears. I absolutely accept that many doctors, if not most doctors, would ask the question why anyway, but given its importance, I still urge the Committee to set that out in the Bill. In doing so, we would be affirming that this is more than a bureaucratic exercise; it is about a person and about getting to the truth of what they want and need.
I do not think we should not make the mistake of assuming that every doctor has the time, or will take the time, to have the in-depth conversations needed to really understand what is driving a patient’s request. It is up to us to make legislation that keeps standards high at all times. There is currently nothing in the Bill that will guarantee an in-depth conversation. I am afraid that not all doctors believe that that is even a likely outcome. In written evidence, the GP Edward Tulloch states:
“To conduct the required assessments outlined in 7.2 and 8.2 of the Bill within a standard GP appointment (lasting 10-15 minutes) is completely unrealistic. It will require multiple appointments to properly carry out such detailed discussions and complete the associated legal paperwork.”
We all know what pressure the NHS is currently under. Many of us cannot get a GP appointment. So, how certain are we that adequate time can be allocated to the assisted dying process to ensure the criteria are truly met?
By putting the “why” question on the face of the Bill, my amendment would bring us closer to the possibility of real, serious and honest conversations about a patient’s reason for seeking an assisted death. That would be especially helpful for those who have just received a terminal diagnosis. We have received some important written evidence from six palliative care doctors, who state that
“our experience is that many patients experience a period of adjustment to ‘bad news’ and may say that they cannot live under these conditions. However, after a period of reflection and adjustment, the majority come to find peace and value in their altered life circumstance, in a way they would not have believed possible.”
The consultant psychiatrist Jennifer Bryden provides an especially interesting perspective, as someone who has seen this from both sides:
“Having gone through several long episodes of illness, I now know that feeling entirely useless and a burden to everyone is a phase that will pass. For many people a terminal diagnosis will be their first time through the cycle and they will believe those thoughts represent reality. In coming to terms with a severe illness, depression is an expected phase and learning to accept all humans need each other takes time”.
Dr Bryden goes on to say that the current cooling-off period is not enough time for people to come to terms with such a diagnosis. Clearly, people may need all the help they can get to understand their new situation. Asking the patient for their reasons is only the beginning of that process, but one that may help them come to terms with their situation and validate, or not, their initial inclination.
Finally, asking why can identify those patients who are being coerced or pressured. Nobody should think that that is easy to spot. According to the charity SafeLives, which counters domestic abuse, it takes the average person who experiences violent abuse 2.3 years to access effective help. In the year before they finally get help, 85% of victims will have sought help of some kind from an average of five professionals. Often, sad to say, those who missed the signs will have been healthcare professionals. That is for physical abuse; psychological abuse will be far harder to spot. We cannot put in enough safeguards to ensure that doctors have all the tools they need and all the opportunities they can, to spot those signs.
Jack Abbott (Ipswich) (Lab/Co-op)
For clarity, at what point in the conversation does the hon. Member expect the question to be raised? In reference to an assessing doctor, do I take it that the question must be asked twice, at different times, by both the co-ordinating and the independent doctor?
Rebecca Paul
I thank the hon. Member for his very good questions. I suggest that it be asked twice, because it makes a lot of sense to ensure that the patient is given the chance to really explain what is driving their decision. It is the simplest of questions, but it is amazing what can sometimes come out of the simplest question.
I return to the safeguard against coercion. In a sense, this is not a new safeguard; rather, it confirms and bolsters the other safeguards in the Bill, which are there to explore the reasons for assisted dying. Asking why will help doctors to better understand what is driving a patient’s decision and to give that patient an opportunity to validate that they are truly eligible. It is the simplest of questions, driving the most significant conversation that a doctor and patient can have. I hope that hon. Members will support my amendment.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
It is a pleasure to serve under your chairship, Sir Roger. I rise to speak in support of amendments 201, 422 and 423, which stand in the name of my hon. Friend the Member for Spen Valley, and against amendment 468.
On amendment 201, a point was made earlier about the relevance of records. It was mentioned that it might well not be relevant to look at a childhood tonsillectomy. However, I wish to speak in slightly more specific terms, in support of women and their reproductive rights, and to highlight the risk of unconscious bias if all records are to be looked at.
If a woman had a termination in her teenage years, that will be highly irrelevant to her decision, many decades later, whether to choose an assisted death. Relevance is very important, because there will be a high level of record keeping in the process. It is not only the doctors working with the patient on the assessment who will read the records and reports; ultimately, it will also be the panel. I make the point again that so many parts of a patient’s medical records are highly irrelevant to the diagnosis and prognosis of a terminal illness, and to the six months under the eligibility criteria. Indeed, there is a risk of unconscious bias in the judgment. It is about the professionalism of the doctor in respect of understanding the records that are relevant for the process.
Rachel Hopkins
I will continue, if I may.
I turn to amendments 422 and 423. The importance of a rounded, holistic assessment and discussion with the patient has been pointed out in many of our discussions, as has the importance of the multidisciplinary team and the other health and care professionals who support the patient with health and social care. That would all have to be recorded—the conversations that have been had, and why the assessing doctors and other health and social care professionals were involved. In oral evidence, many doctors in other jurisdictions said that they worked in multidisciplinary teams. The amendment would firm that up. It is about being clearer, because the clarity that the amendments provide would make for a stronger process.
On amendment 468, the hon. Member for Reigate pointed out that it asks a very simple question. However, I return to the point about the professionalism of the doctors involved in the process, who will be working within the legal requirement under the Bill that the individual have a clear, settled and informed wish. The doctors will have to check individuals’ eligibility under the requirements, for example that they are over 18 and have a terminal illness with a six-month prognosis. The doctors will use their expertise and professionalism, and that of the multidisciplinary team, to make assessments about coercion. They have strong rules about assessing for capacity.
The requirement to ask why someone wants an assisted death is a requirement to police the conversation that the doctor has with their patient. Setting it out in primary legislation would lead to a tick-box exercise, with doctors saying, “You’ve told me a number of times already in our conversation that I’ve been having with you, but I’m sorry: I have to officially ask this question and tick the box.” That could lead to an insensitive conversation and relationship between the relevant people in the process.
To a certain degree, the patient may think, “So what? Do I have to tell you why? It is none of your business why I want to pursue this legal course of action down the line.” I appreciate where the hon. Member for Reigate is coming from, but with the best of intentions, her amendment would actually lessen the individual’s autonomy and their right to choose what if the Bill passes will be a legal course of action. I am content that the stringent training that will be required for any of the assessing healthcare professionals will enable a good holistic conversation so that good judgments can be made. Adding this extra sentence would detract from that, so I cannot support the amendment.
Sojan Joseph (Ashford) (Lab)
I support amendments 422, 468 and 423, which I think would strengthen and safeguard the Bill. However, as someone who worked in mental health for many years, I have grave concerns about amendment 201, which would restrict access to medical records. Health professionals work in environments with great confidentiality of records; I have no concern about health professionals or doctors having access to health records. Some Committee members have talked about doctors not needing to know whether a person had tonsillitis, but most medical records or GP summaries will note whether someone has had tonsillitis, along with details about vaccinations and infections. I do not think that those records will necessarily be relevant or that a doctor would look in detail at what medication they have had in that respect.
What is relevant, however, are records for people who have a mental health disorder or are vulnerable. For example, people with serious mental illnesses such as chronic treatment-resistant schizophrenia may be on treatments such as clozapine that, if stopped, will have an impact on their mental health. The treatment that they may undergo during terminal illness may have an interaction, and medication that they have been using for many years to treat their mental health condition may have to be stopped. Doctors need to know why the person wanted to choose that route, and whether it will have an impact on their mental health.
Restricting access to important medical records by the doctor who makes the decision will have an impact on very vulnerable people. As we have discussed before, people may be homeless or may not have any family members, and it will all have an impact on why they decide to seek the assisted dying route. People may feel that they are a burden to society and the system. If there is any documentation from six months or a year ago, it will be relevant for the doctor. Removing access to medical records for doctors will have an impact on people with mental disorders, intellectual disabilities and neurodevelopmental conditions, so I oppose amendment 201, although I support the other amendments.
Naz Shah
I will try to keep my remarks brief. I first speak to amendment 468, tabled by the hon. Member for Reigate, on the asking of the question why someone wants to have an assisted death. When I originally came to this debate, Dermot, a humanist who was also my election agent—a lovely guy—came to me and said, “Now that this Bill is going through Parliament, will you support it”? I said, “Explain it to me.” He never once mentioned the word “autonomy”. If I remember correctly, what he talked about was suffering, pain and horrible deaths, which many hon. Members have referred to. We have heard lots of examples during this Bill Committee.
My hon. Friend the Member for Luton South and South Bedfordshire said that the decision was none of a doctor’s business and that the issue was about autonomy. However, if a woman was being coerced into an assisted death, the idea that it was none of the doctor’s business would not quite wash with me. We talk about autonomy, but if someone does not have autonomy in their lives—if they are in an abusive relationship, are a victim of coercion or have a vulnerability—they might not have the choice.
When we ask a question, it is often about something else. I have experienced this myself. I am very passionate; when I am talking about things, somebody might just stop me and say, “Naz—what’s this actually about?” That is all it takes to make me stop, take a step back and a breather, and think for a deeper minute about whether the issue could actually be about something else. We do not always stop to think.
Dr Opher
The amendment is good practice; I do not in any way deny that. The hon. Member for Reigate is obviously coming from a really good place. However, the amendment is almost like specifying that when someone goes to see a doctor, the doctor has to say, “How can I help? What is wrong?” It is just unnecessary; that is my only feeling about it. If someone came in and said, “I would like to request an assisted death”, the doctor would not just say, “Okay”—they would ask how the patient was feeling. It is normal medical practice to ask what is going on in someone’s mind, so that does not need to be specified in the Bill.
Naz Shah
I thank my hon. Friend for his intervention. There is a medical model and a social model of intervention. If I walk into a GP surgery with a really bad headache, I am prescribed paracetamol. If the headache gets worse, I am prescribed something stronger—maybe co-codamol or codeine. Doctors are really busy. We have had to add another 40,000 appointments just for people to get through systems, so we know how hard it is to get a GP appointment.
If the person who turns up at the GP’s with a headache is usually quite healthy, the doctor might not take a minute to ask about what has actually happened. If I say, “I have a headache because I am banging my head against the wall—I have that much stress”, that is a whole different conversation. Having that conversation with the patient—probing a little more—is, for me, very important from a holistic point of view.
Rachel Hopkins
I want to check that my hon. Friend was not implying that I had not thought deeply—for more than a minute–in the course of making my comments earlier.
Rachel Hopkins
I am grateful to my hon. Friend for reiterating those points. Does she accept that it is a patient’s right to say, “It’s none of your business” in the course of the conversation?
Naz Shah
I absolutely accept that it is the patient’s right to say, “It’s none of your business”, with the really clear caveat that they could well be a vulnerable patient. They might say that it was none of the doctor’s business, and that doctor might then not be able to explore the other things going on with that patient. That is why, for me, this does not wash.
The point that I am trying to make is that, in the course of a normal consultation, it is presumed that every doctor will know their patient and be able to have these conversations. In most cases, they probably will because we have amazing doctors; I have amazing relationships with my doctors. But does that mean that the doctors will ask that one question: “Why?” That is the crux of the whole Bill.
Rebecca Paul
The right to say, “It’s none of your business” might be fine when no one else is involved, but if someone seeks an assisted death, that involves multiple members of NHS staff. There is an impact on all those people, who need to be comfortable with what they are doing. Maybe the person needs to accept that they do need to provide some information so that the medical staff feel comfortable about the question of eligibility.
Naz Shah
That opens up a whole different debate for me. Some clinicians will not sign up to this process and some will. That is a whole different debate, but I take the point that there has to be a reason.
We talk about the option for referral to palliative care. I have previously moved amendments that would have meant a referral, without the option; however, when considering that option, a doctor needs to understand that if a patient says, “I do not have to explain myself—full stop”, or, “I do not want to talk about palliative care”, that should raise alarm bells. If a doctor says, “You’ve got this terminal illness. These are the options—let me spell them out for you. You have the option of referral to palliative care and the option of these drugs, so why do you want to kill yourself?”, and the patient turns around and says, “It’s none of your business”—
Naz Shah
Sorry, I will just finish my point.
From a common sense perspective—I am not medically qualified—that situation should make me, as a human being, want to understand more. As a human being, I would like to understand whether something else was going on, such as anger towards—
Rachel Hopkins
The Bill already sets out a number of things that a doctor has to assure themselves of, with regard to coercion and capacity. They would do that having had a significant amount of training to establish, in the round, after consulting others, that one way or another the legal requirements have been met. The “Why?” question appears to me to bring in a judgmental element—
Rachel Hopkins
Indeed: subjective, as the right hon. Gentleman said. That is the point that I am trying to get at. There is an objective assessment, which is wholly appropriate, but a subjective assessment would lead down a different route and muddy the objective assessment.
Naz Shah
I absolutely see where my hon. Friend is coming from and appreciate her concern, but we will have to agree to disagree as we have a difference of opinion. A subjective assessment might reveal that something else is going on for that patient.
I hate to put myself in this position, but imagine I have just received a diagnosis and I am going to die within six months. I could have a whole load of anger about that happening to me and I could say, “I don’t want this. I don’t want to talk about it. It’s none of your business. I’m angry—this is what I want.” At that point, does the doctor stop? In most cases, my hon. Friend the Member for Luton South and South Bedfordshire is absolutely right, but in some cases she might not be. I might want to shut the conversation down because I am angry or because other things are going on in my head and I do not want to explain. Amendment 468 would allow the doctor, from a compassionate point of view, to have another conversation with the patient.
Jake Richards
Does my hon. Friend agree that she is making a powerful case against amendment 468? A multitude of conversations and different circumstances will need to be taken into account; it is wholly inappropriate to have a mandated question in primary legislation. We should go back to clause 1, which I think the Bill is actually about. It states that the person must have
“a clear, settled and informed wish to end their own life”.
Does my hon. Friend agree that that is what is at the heart of the Bill, rather than decisions about what is in the person’s best interests?
Naz Shah
I respectfully disagree. I am making the case that there is a conversation to be had. Yes, there is informed choice but is my hon. Friend suggesting that the question should not be asked at all? I take the point that with an informed choice there would have been an exploratory conversation, but sometimes just calling something out, or stating the obvious, makes a huge difference.
Rebecca Paul
I wish to clarify that the amendment is about not an additional assessment but merely a simple question. Like many who have spoken, I hope that most good doctors would ask the question anyway and take the answer. It may inform them or it may not but sometimes, as the hon. Member for Bradford West has just discussed so powerfully, it is helpful to remind medical staff, who are under lots of time pressure, that sometimes it is worth stepping back and asking why.
Jack Abbott
I appreciate that my hon. Friend has given way a number of times, but I gently suggest that we already know the crux of the Bill and what we are debating. The “why” is that people with a terminal diagnosis, with six months to live, would like a course of action to end their lives in a pain-free way and to have the autonomy to do so.
We are in danger of over-legislating for a range of different permutations that could potentially happen in conversations. I agree that these kinds of questions are absolutely crucial, but it may satisfy my hon. Friend that amendment 21, to which we agreed a few moments ago, requires medical practitioners to take training on
“domestic abuse, including coercive control and financial abuse”.
That sort of protection and safeguard has already been agreed to.
We will rely on highly specialised individuals to pick up on these issues. They may want to explore, through further questioning, why people are making these decisions but we cannot legislate for all the different sorts of conversations, and all the emotions that may be going through people’s minds. If someone comes back and says, as my hon. Friend put it, “Well, it’s none of your business,” or whatever the answer may be, we will rely on the specialised professionals to pick up on danger signs. However, that would not necessarily lead them in every single conversation to have a suspicion of the patient’s motives. Life and conversation do not work like that and we cannot legislate in that way.
Naz Shah
I absolutely agree that life does not work like that. Life is very complicated and that is why I want the conversation to happen. My hon. Friend referred to amendment 21, which we have just agreed to. I spoke extensively about why that is a brilliant amendment that moves us towards much more safeguarding, but I also think that it does not go far enough for women, marginalised communities and people from ethnic minority backgrounds. I genuinely do not feel that amendment 468 is about over-legislating. It is just stating an obvious fact: sometimes, even in normal life, we go around the houses to get to a conversation and get to the right point. That is what I want to get to.
Jack Abbott
To follow up on the example my hon. Friend gave earlier, if—to be glib—someone said, “None of your business”, she would want the doctor to keep probing. At what point does that end? If someone genuinely does not want to have that conversation and says, “I want to end my life because I have a terminal diagnosis. I live in fear of the pain that could await me and I don’t really want to go into much detail,” where does that end? Where does that conversation continue to?
Danny Kruger
I completely agree with the hon. Lady’s point. The conversation goes on in the way the doctor would want it to, but they have at least asked the question. Is it not very simple? The Bill already requires doctors to look for signs of external coercion. As we have acknowledged, there is no way to determine internal coercion—the influence people have on themselves. There is no way in the Bill at the moment to identify whether somebody feels that they want an assisted death because they fear that they are a burden to others. This question is the only opportunity we have to tease out that answer: does she agree?
Naz Shah
The hon. Member for East Wiltshire makes an important point. Where are the opportunities? When doctors are doing the assessment.
The other issue that speaks to me is the question of internalised bias. We will have professionals with subconscious bias or affirmed bias. They will be clinicians who have chosen or agreed to take part in the process; fundamentally, the majority of clinicians will not take part in this process because of their beliefs. It changes the relationship between doctor and patient from a societal perspective.
I know that a number of times I have been stopped during a process and asked a different question, and at times that opportunity for reflection—even without the pressure of knowing I have only six months to live—is of benefit to me. I am sure that others would benefit from it, too, particularly because the decision is so momentous. For that reason, I will certainly support amendment 468.
I thank my hon. Friend the Member for Spen Valley for tabling amendment 201. I have mixed views on it. I appreciate what my hon. Friend the Member for Luton South and South Bedfordshire said about medical records, especially when it comes to women and their past, but I also appreciated what my hon. Friend the Member for Ashford said about his experience from a mental health perspective.
I am still thinking about the amendment and I am not sure whether I will support it or not, but further thought needs to be given to the subject. There are the issues of mental health and women’s rights, but another issue applies, too. If someone has experienced trauma in childhood but that trauma has come out much more recently, even though it does not necessarily affect the decision at hand—whether to choose an assisted death—is there some kind of historical post-traumatic stress disorder that would then need to be explored? I do not have the answer, but I look forward to hearing the comments of my hon. Friend the Member for Spen Valley on that point. I would value hearing whether she has thought about that and what her understanding of it is.
Stephen Kinnock
As I have mentioned before, the Government have worked closely with my hon. Friend the Member for Spen Valley on some mutually agreed amendments, including amendments 201, 422 and 433. The amendments that the Government support aim to ensure the legal robustness and operability of the legislation, should it pass, and I will offer a technical explanation for them.
Amendment 201 will clarify the wording in clause 9 on the doctor’s assessment. It provides that the duty on an assessing doctor to examine a person’s medical records applies only to records that appear relevant to the doctor. The effect of the amendment is to make clear as part of the assessment process that the assessing doctor is required only to review medical records that are considered by the doctor to be relevant to the person’s request to seek an assisted death.
Amendment 422 would add an additional requirement on an assessing doctor to make inquiries of professionals who are providing or who have recently provided health or social care to the person and make such other inquiries as the assessing doctor considers appropriate. This applies to—
Terminally Ill Adults (End of Life) Bill (Twenty-second sitting)
Wednesday 12th March 2025
(1 month, 2 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 March 2025 - (12 Mar 2025)
The Chair
Good morning, ladies and gentlemen. The usual litany: would everybody ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room.
We will now continue line-by-line consideration of the Bill. I remind Members that interventions should be short and should raise points of clarification or questions; they should not be speeches in and of themselves. At this point, I interrupt myself to say that Members may have noticed that on occasion I, at least, have allowed slightly longer interventions. One reason for that is that there is a natural flow in debate that sometimes warrants a slightly longer intervention, rather than a speech later that has become irrelevant. Please do not construe that as an encouragement to make long interventions, however; a ton of bricks may come down upon you.
Members who wish to make speeches should please continue to bob at the appropriate points throughout the debate until they are called. I have a list of Members who bobbed at the end of the last sitting, but it would be helpful to the Clerk and to me to refresh that, so perhaps those who wish to participate in this debate could bob again.
Please remember that when Members say “you”, they are referring to me, the Chair. Members should not use the word to refer to one another. Debate should be through the Chair.
Clause 12
Court approval
Question (11 March) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 371, in clause 13, page 9, line 5, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person, and”.
This amendment is consequential on NC21.
Amendment 61, in clause 13, page 9, line 5, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert
“certificate of eligibility was granted,”.
This amendment is consequential on NC21.
Amendment 62, in clause 13, page 9, line 13, leave out from “the” to “or” in line 14 and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.
This amendment is consequential on NC21.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.
This amendment is consequential on NC21.
Amendment 63, in clause 16, page 11, line 12, leave out “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.
This amendment is consequential on NC21.
Amendment 64, in clause 18, page 12, line 9, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 381, in clause 27, page 16, line 16, leave out sub-paragraph (iii) and insert—
“(iii) a certificate of eligibility,”.
This amendment is consequential on NC21.
Amendment 65, in clause 27, page 16, line 16, leave out from “the” to “under” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 388, in clause 34, page 20, line 40, leave out paragraph (c) and insert—
“(c) a panel has refused to grant a certificate of eligibility;”.
This amendment is consequential on NC21.
Amendment 66, in clause 34, page 20, line 40, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 390, in clause 40, page 23, line 24, at end insert—
“‘certificate of eligibility’ has the same meaning as in section (Determination by panel of eligibility for assistance);”.
This amendment is consequential on NC21.
Amendment 391, in clause 40, page 23, line 24, at end insert—
“‘the Commissioner’ has the meaning given by section (Voluntary Assisted Dying Commissioner);”.
This amendment is consequential on NC14.
New clause 14—Voluntary Assisted Dying Commissioner—
“(1) There is to be a Voluntary Assisted Dying Commissioner.
(2) The Commissioner is to be appointed by the Prime Minister.
(3) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(4) The Commissioner’s principal functions are—
(a) receiving documents made under this Act;
(b) making appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see Schedule (Assisted Dying Review Panels));
(c) making arrangements in relation to such panels and referring cases to them (see section (Referral by Commissioner of case to multidisciplinary panel));
(d) determining applications for reconsideration of panel decisions under section (Reconsideration of panel decisions refusing certificate of eligibility);
(e) monitoring the operation of this Act and reporting annually on it (see section 34).
(5) In this Act “the Commissioner” means the Voluntary Assisted Dying Commissioner.
(6) Schedule (The Voluntary Assisted Dying Commissioner) makes provision about the Commissioner.”.
This new clause provides for there to be a Voluntary Assisted Dying Commissioner.
New clause 15—Referral by Commissioner of case to multidisciplinary panel—
“(1) This section applies where the Commissioner receives—
(a) a first declaration made by a person,
(b) a report about the first assessment of the person which contains a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g), and
(c) a report about the second assessment of the person which contains a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e).
(2) The Commissioner must, as soon as reasonably practicable, refer the person’s case to an Assisted Dying Review Panel for determination of the person’s eligibility to be provided with assistance under section 18.
(3) But where the Commissioner receives a notification that the first declaration has been cancelled—
(a) the Commissioner must not refer the person’s case to such a panel, and
(b) if the person’s case has already been so referred, the Commissioner must notify the panel of the cancellation.
(4) Schedule (Assisted Dying Review Panels) makes provision about Assisted Dying Review Panels.”
This new clause provides for the Voluntary Assisted Dying Commissioner to refer a person’s case to a multidisciplinary panel, to be called an Assisted Dying Review Panel.
New clause 17—Reconsideration of panel decisions refusing certificate of eligibility—
“(1) This section applies where—
(a) a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) to an Assisted Dying Review Panel (“the first panel”), and
(b) the first panel refuses to grant a certificate of eligibility in respect of the person.
(2) The person may apply to the Commissioner for their case to be reconsidered on the ground that the first panel’s decision—
(a) contains an error of law,
(b) is irrational, or
(c) is procedurally unfair.
(3) The Commissioner must consider an application without a hearing.
(4) On the application—
(a) if the Commissioner is satisfied that any of the grounds mentioned in subsection (2) applies, they must as soon as reasonably practicable refer the person’s case to a different Assisted Dying Review Panel for a fresh determination under section (Determination by panel of eligibility for assistance);
(b) in any other case, the Commissioner must dismiss the application.
(5) The Commissioner must give reasons, in writing, for their decision.
(6) The Commissioner must notify the following of the outcome of the application, and give them a document containing their reasons for their decision—
(a) the person who made the application;
(b) the coordinating doctor;
(c) any other person specified in regulations made by the Secretary of State.”
This new clause provides for certain decisions of Assisted Dying Review Panels to be referred to a different panel for reconsideration.
Amendment (a) to new clause 17, leave out subsections (1) to (3) and insert—
“(1) The person applying for assisted dying, their next of kin, any of their relatives (within the meaning of the Family Law Act 1996), the registered medical practitioners who are treating them and anyone who took part in proceedings before the panel or gave evidence to the panel may apply to the Commissioner for the Panel’s decision to be reconsidered.
(2) The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust because of a serious procedural or other irregularity in the proceedings.
(3) The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
New clause 21—Determination by panel of eligibility for assistance—
“(1) This section applies where a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) to an Assisted Dying Review Panel (“the panel”).
(2) The panel’s function is to determine whether it is satisfied of all of the following matters—
(a) that the requirements of sections 5 to 9 have been met in relation to—
(i) the first declaration,
(ii) the first assessment and the report under section 7 on that assessment, and
(iii) the second assessment and the report under section 8 on that assessment;
(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
(d) that the person was aged 18 or over at the time the first declaration was made;
(e) that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person;
(f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration;
(g) that the person is registered as a patient with a general medical practice in England or Wales;
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.
(3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case.
(4) The panel—
(a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both);
(b) must (subject to subsection (5)) hear from, and may question, the person to whom the referral relates;
(c) in a case to which section 15 applies, may hear from and may question the person’s proxy;
(d) may hear from and may question any other person;
(e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.
In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link.
(5) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person.
(6) The panel—
(a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”);
(b) must refuse to do so in any other case.
(7) The panel must notify the following of its decision—
(a) the person to whom the referral relates;
(b) the coordinating doctor;
(c) the Commissioner;
(d) any other person specified in regulations made by the Secretary of State.
Where it grants a certificate of eligibility, it must give a copy of the certificate to each of these persons.
(8) If the panel is notified that the first declaration has been cancelled, it must cease to act in relation to the referral (and, in particular, it may not grant a certificate of eligibility).”
This new clause provides for a person’s eligibility to be provided with assistance under clause 18 to be determined by a multidisciplinary panel (instead of the High Court).
Amendment (d) to new clause 21, in subsection (4), leave out paragraphs (a) to (e) and insert—
“(a) must hear from, and must question, the coordinating doctor and the independent doctor;
(b) must (subject to subsection (5)) hear from, and must question, the person to whom the referral relates;
(c) in a case to which section 15 applies, must hear from and must question the person’s proxy;
(d) must consider hearing from and questioning—
(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to; and
(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness; and
(e) may hear from and may question any other person, including any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
Amendment (c) to new clause 21, in subsection (4), after paragraph (e) insert—
“(aa) if it considers that the matters mentioned in subsection 2(c), (h) or (i) are established on a balance of probabilities but still considers that there is a real risk that they are not satisfied, then the panel must stay its proceedings until such further inquiries it orders are made,”.
Amendment (e) to new clause 21, after subsection (4) insert—
“(4A) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Amendment (a) to new clause 21, in subsection (6)(a), after “satisfied” insert “beyond reasonable doubt”.
Amendment (b) to new clause 21, in subsection (6)(a), after “subsection (2)” insert
“unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,”.
New clause 2—Tribunal authorisation—
“(1) Where—
(a) a person has made a first declaration under section 5 which has not been cancelled,
(b) the coordinating doctor has made the statement mentioned in section 7(3), and
(c) the independent doctor has made the statement mentioned in section 8(5), that person may apply to the First-tier Tribunal (“the Tribunal”) for a declaration that the requirements of this Act have been met in relation to the first declaration.
(2) On an application under this section, the Tribunal—
(a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and
(b) in any other case, must refuse to make the declaration.
(3) The matters referred to in subsection (2)(a) are that—
(a) the requirements of sections 5 to 9 of this Act have been met in relation to the person who made the application,
(b) the person is terminally ill,
(c) the person has capacity to make the decision to end their own life,
(d) the person has relevant and available palliative care options available to them,
(e) the person is not liable to be detained under the Mental Health Act 1983,
(f) the person was aged 18 or over at the time the first declaration was made,
(g) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration,
(h) the person is registered as a patient with a general medical practice in England or Wales,
(i) the person has a clear, settled and informed wish to end their own life, and
(j) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.
(4) The Tribunal—
(a) may hear from and question, in person, the person who made the application for the declaration;
(b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);
(c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the tribunal.
(5) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the Tribunal may also—
(a) hear from and question any other person;
(b) ask a person to report to the Tribunal on such matters relating to the person who has applied for the declaration as it considers appropriate.
(6) In considering an application under this section, the panel must consist of—
(a) a sitting judge,
(b) a medical practitioner, and
(c) a lay person.
(7) In subsection (4)—
(a) in paragraph (a), the reference to the person who made the application includes, in a case where the person’s first declaration was signed by a proxy under section 15, that proxy, and
(b) “in person” includes by means of a live video link or a live audio link.”
This new clause would replace the role of the High Court with the tribunal system.
New clause 3—Tribunals in Wales—
“(1) For the purposes of this Act, the First-tier Tribunal and the Upper Tribunal, in exercising functions under or arising from this Act in relation to Wales, are to be treated as devolved tribunals within the meaning of paragraph 9 of Schedule 7A to the Government of Wales Act 2006.
(2) The Welsh Ministers may by regulations make provision relating to the procedure to be followed by the First-tier Tribunal and the Upper Tribunal in exercising functions under this Act in relation to Wales.
(3) Statutory instruments containing regulations made under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of Senedd Cymru.”
Amendment 67, in schedule 4, page 28, line 32, leave out from “The” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 68, in schedule 5, page 30, line 6, leave out from “the” to “made” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 69, in schedule 5, page 30, line 10, leave out from “the” to end of line and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 70, in schedule 6, page 32, line 3, leave out from “of” to “declaration” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
New schedule 1—The Voluntary Assisted Dying Commissioner—
“Status
1 (1) The Commissioner is to be a corporation sole.
(2) The Commissioner is not to be regarded as—
(a) the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(3) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
General powers
2 The Commissioner may do anything the Commissioner considers appropriate for the purposes of, or in connection with, the Commissioner’s functions.
Deputy Commissioner
3 (1) The Prime Minister must appoint a person to be the Deputy Voluntary Assisted Dying Commissioner (the “Deputy Commissioner”).
(2) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(3) The Commissioner may delegate any of the Commissioner’s functions to the Deputy Commissioner, to the extent and on the terms that the Commissioner determines.
(4) The delegation of a function under sub-paragraph (3) does not prevent the Commissioner from exercising that function.
(5) The functions of the Commissioner are to be carried out by the Deputy Commissioner if—
(a) there is a vacancy in the office of the Commissioner, or
(b) the Commissioner is for any reason unable or unwilling to act.
Appointment and tenure of office
4 (1) A person holds and vacates office as the Commissioner or Deputy Commissioner in accordance with the terms and conditions of their appointment as determined by the Secretary of State, subject to the provisions of this paragraph.
(2) An appointment as the Commissioner or Deputy Commissioner is to be for a term not exceeding five years.
(3) A person may not be appointed as the Commissioner or Deputy Commissioner if a relevant appointment of them has been made on two occasions. “Relevant appointment” here means appointment as the Commissioner or Deputy Commissioner.
(4) The Commissioner or Deputy Commissioner may resign by giving written notice to the Secretary of State.
(5) The Secretary of State may by notice in writing remove a person from the office of Commissioner or Deputy Commissioner if satisfied that the person—
(a) has behaved in a way that is not compatible with their continuing in office, or
(b) is unfit, unable or unwilling to properly discharge their functions.
Remuneration
5 The Secretary of State may pay to, or in respect of, the person holding office as the Commissioner or Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Staff: appointed by Commissioner
6 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(5) The Employers’ Liability (Compulsory Insurance) Act 1969 does not require insurance to be effected by the Commissioner.
Staff: secondment to Commissioner
7 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded.
Staff: general
8 (1) Before appointing staff under paragraph 6 or making arrangements under paragraph 7(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
(2) A function of the Commissioner may be carried out by any of the Commissioner's staff to the extent authorised by the Commissioner (but this is subject to sub-paragraph (3)).
(3) Sub-paragraph (2) does not apply in respect of—
(a) the Commissioner’s function under paragraph 2(1) of Schedule (Assisted Dying Review Panels) of making appointments to the list of persons eligible to be panel members;
(b) the Commissioner’s function of determining applications for reconsideration under section (Reconsideration of panel decisions refusing certificate of eligibility).
Financial and other assistance from the Secretary of State
9 (1) The Secretary of State may—
(a) make payments to the Commissioner of such amounts as the Secretary of State considers appropriate;
(b) give such financial assistance to the Commissioner as the Secretary of State considers appropriate.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 7;
(b) provide premises, facilities or other assistance to the Commissioner.
Accounts
10 (1) The Commissioner must—
(a) keep proper accounts and proper records in relation to them, and
(b) prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(2) The Commissioner must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General—
(a) before the end of August next following the end of the financial year to which the statement relates, or
(b) on or before such earlier date after the end of that year as the Treasury may direct.
(3) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State.
(4) The Secretary of State must lay before Parliament each document received under sub-paragraph (3)(b).
(5) In this paragraph, “financial year” means—
(a) the period beginning with the date on which the Commissioner is established and ending with the second 31 March following that date, and
(b) each successive period of 12 months.
Application of seal and proof of documents
11 (1) The application of the Commissioner's seal is to be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the Commissioner’s seal or signed on the Commissioner’s behalf —
(a) is to be received in evidence, and
(b) is to be treated as duly executed or signed in that way, unless the contrary is shown.
Public Records Act 1958
12 In Part 2 of the Table in paragraph 3 of the First Schedule to the Public Records Act 1958 (bodies whose records are public records), at the appropriate place insert “The Voluntary Assisted Dying Commissioner”.
House of Commons Disqualification Act 1975
13 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying person from membership of House of Commons), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner or the Deputy Voluntary Assisted Dying Commissioner.”
Freedom of Information Act 2000
14 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner.”
Equality Act 2010
15 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities subject to public sector equality duty), at the end of the group of entries for bodies whose functions relate to health, social care and social security insert—
“The Voluntary Assisted Dying Commissioner.””
This new Schedule contains provision about the Voluntary Assisted Dying Commissioner and the Deputy Commissioner.
New schedule 2—Assisted Dying Review Panels—
“Introduction
1 In this Schedule—
(a) “referral” means a referral under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) (and similar references are to be construed accordingly);
(b) “panel” means an Assisted Dying Review Panel.
List of persons eligible to be panel members
2 (1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.
Tenure of persons appointed to list
3 (1) Subject to the provisions of this paragraph, persons on the list hold and vacate their appointments in accordance with the terms on which they are appointed.
(2) An appointment to the list is to be for a period not exceeding five years.
(3) A person who has held appointment to the list is eligible for re-appointment for one further period not exceeding five years.
Membership of panels
4 (1) The Commissioner must make arrangements for determining the membership of a panel.
(2) The arrangements must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.
Decisions of panels
5 (1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.
Panel sittings
6 (1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)).
(2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.
Staff and facilities
7 The Commissioner may make staff and other facilities available to panels.
Practice and procedure
8 (1) The Commissioner may give guidance about the practice and procedure of panels.
(2) Panels must have regard to any such guidance in the exercise of their functions.
Reasons
9 Panels must give reasons, in writing, for their decisions.
Money
10 The Commissioner may pay to or in respect of members of panels—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
House of Commons Disqualification Act 1975
11 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying persons from membership of House of Commons), at the appropriate place insert—
“Person on the list of those eligible for membership of an Assisted Dying Review Panel.””
This new Schedule contains provision about Assisted Dying Review Panels.
Amendment (c) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) The Commissioner must ensure that each member of a panel has had training in respect of domestic abuse, including coercive control and financial abuse.”
Amendment (a) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) Each member of a panel must have fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment (b) to new schedule 2, in paragraph 8, leave out sub-paragraphs (1) and (2) and insert—
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
This amendment would require Assisted Dying Panels to follow an adversarial process to test the evidence by appointing an advocate to the panel.
I trust that that is absolutely clear to everybody. I understand that at the end of the last sitting Ms Paul graciously and courteously sat down in order to enable the Adjournment to be moved—as all Members will have worked out by now, the Adjournment cannot be moved while somebody is speaking—but that she had not finished what she had to say. On that basis, Rebecca Paul has the floor.
Rebecca Paul (Reigate) (Con)
I rise to speak to new clauses 17 and 21 and to the four associated amendments. There is a lot to say, so please bear with me, but I will do my best not to repeat myself.
How exactly will the panel operate and function? I appreciate some of the explanations provided by the hon. Member for Spen Valley, and I look forward to hearing from the Minister on the point, but I have concerns about exactly what the panel will do and how it will do it. I will do my best not to repeat what others have said, but I reiterate the concerns as to whether it is indeed a better safeguard than the High Court one that was originally envisaged, given that it will have no full judicial role.
On a practical level, I question whether it is even feasible to find sufficient numbers of psychiatrists and social workers who are able and willing to perform this very burdensome role. As we all know, social workers do an incredibly important job, but people with their skillset are in extremely high demand. The hon. Member has made it clear that she is removing the High Court safeguards not because of the capacity concerns raised in oral evidence in January, but because she believes that this is truly a better and safer model.
I am also concerned that something that was originally meant to bring judicial oversight into the process has been replaced with something that is not judicial. I welcome more involvement from psychiatrists and social workers, who have a key role to play in the process, but I have concerns about whether the panel is the right place for it. Its expertise would be more valuable earlier in the process, when the co-ordinating doctor and the independent doctor are performing their assessments, rather than at the stage with the legal oversight component. A panel’s involvement in a truly multidisciplinary approach during the clinical stage of the assessment process would have been a gold-standard safeguard, but unfortunately that approach was not put on the face of the Bill.
How the panel will operate is an issue of great significance. If we do not flesh out the detail now, when will we? We must have this conversation. I have looked for this information in the new provisions. According to new schedule 2,
“The Commissioner may give guidance about the practice and procedure of panels.”
That is all there is. I cannot see any further information. Disappointingly, it is not even that the commissioner “must” give guidance—it “may”—so the operation of panels may change depending on who is in the role of commissioner. Given that this is a new approach and process, I urge the promoter and the Government to ensure that it is adequately fleshed out to avoid ambiguity.
When I imagine the panel, I am not sure what I am supposed to be imagining. Is it an administrative process—three people checking the papers—or is it more like a court, calling in evidence? Yesterday, the hon. Member for Banbury eloquently set out the practical realities of the new provisions with regard to witnesses. According to new clause 21, the panel “must hear from” at least one of the doctors, but it does not need to question him or her, so what is it exactly that the panel is required to hear? What does “hear” mean, and does it cover anything specific? Does it cover all the items in new clause 21(2), or just some? The new clause does not specify.
It is the same for the patient. The panel just needs to “hear” from him or her; it does not need to question them. As I will come to shortly, in exceptional cases, even the patient will not need to be heard from. Again, I would be grateful to the Justice Minister for clarity on what “hear” means and what she would expect would be covered.
We do know that the panel must be “satisfied” of the relevant matters, yet how it is to be satisfied, and even what that means, is not clear. The only person who must be heard from is either the co-ordinating doctor or the independent doctor—just one person. That may be fine, or it may not, but I put it on the record here, because it is important that we are clear-eyed about it.
Compare the process with an employment tribunal. Someone litigating an employment claim would know well in advance the rules that the tribunal would apply, what test the tribunal would apply to the facts, the legal representation they can have, and how and on what basis they can appeal. That kind of clarity is essential, but I cannot find it in the new clause. I also do not know whether the panel is inquisitorial or adversarial.
Kim Leadbeater (Spen Valley) (Lab)
I am very happy to clarify that the panel is not adversarial, but inquisitorial and investigative.
Rebecca Paul
I thank the hon. Member for that confirmation. Now that I have that clarity, I will skip on.
One aspect of the panel that gives me cause for concern is that the panel would not hear from the patient themselves where there are “exceptional circumstances”. What are exceptional circumstances? The Bill does not say or provide any guidance. Many people with a terminal diagnosis who are seeking assisted dying could consider their circumstances exceptional; many undoubtedly will be too unwell to attend. That means that such panels could be making these decisions based on testimony from only one doctor. I am not for one second suggesting that people on their deathbeds should have to attend a panel—that is the point of exceptional circumstances—but I urge the promoter and Ministers to ensure that the much-need clarity around the meaning of the term is set out in order to reduce ambiguity in this area.
Danny Kruger (East Wiltshire) (Con)
It was helpful to hear the Bill’s promoter suggest that the system will be inquisitorial—that is not sufficiently apparent in the new clause, as my hon. Friend the Member for Reigate says. Does she agree that the panel must therefore have proper inquisitorial powers and authority? At the moment, there is a lack of genuine power to investigate the circumstances. If it not going to be adversarial but inquisitorial, it should have proper powers to make an investigation.
Rebecca Paul
My hon. Friend makes a good point; I completely agree with him on that front. This goes back to being clear on the face of the Bill about what the panel does and the powers it has in order to avoid ambiguity. It is important that we set that out now, during this process, rather than finding ourselves in a position in two years where it is all starting to happen, if the Bill is approved, and the questions starting at that point. Let us try to answer them now and be really clear about it.
Where a panel does not hear directly from a patient, it may be forced to rely on second-hand accounts. In law, second-hand evidence is known as hearsay and is always handled with a lot of provisions and warnings across our criminal and civil legal systems, because it can be inaccurate or of lower quality than evidence directly from a source. However, the panel is open to depending on such evidence. We must be clear-eyed about the risks that come with that.
In summary, I do not believe that new clause 21 gives sufficient clarity on how the panel will perform its role and what evidential standard it would apply. We do not know if it is an administrative task or a judicial one. We do now know that the panel is inquisitorial—I thank the Bill’s promoter for that—but we do not know how much it will rely on hearsay evidence in practice. I will say this again, because it is really important: the panel is required to hear from only one doctor and does not need to question them. Under the Bill, would it be legally acceptable for the doctor to turn up, say, “No concerns”—and that’s the end of that? I am here to tell Committee members who think that that will not happen if the Bill allows it: somewhere, with some panel, it absolutely will—particularly as our society gets desensitised and more comfortable with the concept of assisted dying.
I urge the Committee to be precise with the legislation it is passing for the sake of the statute book and, more importantly, for the sake of all the people who may find themselves being assessed by such a panel.
Lewis Atkinson (Sunderland Central) (Lab)
The hon. Lady sketches out a very short exchange. Does she think that we should specify in primary legislation the exact nature of interactions in these sorts of matters elsewhere—in the High Court, employment tribunals and so on? In my understanding, we do not: we trust regulated professionals to have appropriate interactions. It is not for Parliament to say that a lawyer or doctor should ask x or y question. Does she agree?
Rebecca Paul
I am afraid I do not agree. I do not think that we should not put in place precise legislation because we trust that everyone will do the right thing. Our job as lawmakers is to always think about the worst possible situation that could arise and legislate accordingly to protect against that as best as possible. In 99 cases out of 100, it will work perfectly fine and people will do their job as they are meant to. The point I am trying to draw out is about exactly what the Bill says, and what it says is required is actually very little. The panel is required to “hear” from only one of the doctors. I still do not know what “hear” means. Exactly what content are they meant to provide? That is the point I am making. It is important that we make legislation for the worst-case scenario. That is our job.
Lewis Atkinson
I am not going to pursue that exact line of argument. The point of discussion, and the point of the vote, is whether we think this proposal, which, to me, is robust—the panel “must hear” from doctors and “must…hear” from the patient unless there are exceptional circumstances, and three professionals are involved—is stronger than the previous draft that involved the High Court and had no such requirements. Even if the hon. Lady does not think the new clause is perfect, does she think it is a stronger set of safeguards—surely it is—and will she support it?
Rebecca Paul
Again, I am not sure I agree that that is what I am here to do today. I think my job is to set out the strengths and weaknesses of the proposed amendment, and I do think that the High Court judge safeguard, on the face of it, was probably safer. I appreciate, value and truly welcome what the new clause attempts to do by bringing in psychiatrists and social workers, but it has come in at the wrong phase of the process. I am not sure we are really getting the value of that expertise at the judicial point; we would have got that value at the clinical stage.
I ask Members to take what I am saying in the good faith that it is meant. My intention is to make sure that the Bill is as safe as possible. I do not profess to have all the answers, but I do have questions, and sometimes it is useful to ask questions, because there are others here who can answer them. I hope that, by asking questions when we are uncertain whether something is the right way forward, we will get a stronger piece of legislation.
Kim Leadbeater
The hon. Member is absolutely right that we are here to ask questions, and I appreciate those questions being asked. On what happens earlier in the process, I hope she is reassured by the fact that we will now have compulsory referral to a psychiatrist if there is a doubt about capacity, and we have specified in the Bill doctors consulting other health and social care professionals, to provide for a holistic approach earlier in the process.
Rebecca Paul
I absolutely welcome those amendments. I do think they improve the safety of the Bill. As I have mentioned, I would have liked to see a truly multidisciplinary approach. At the moment, we have just included something in the Bill, as the hon. Lady says, stating that a doctor can refer to another specialist if they so wish. I would have liked to see that team pulled together, and that recognised in the Bill—we heard strong oral evidence about that.
Kim Leadbeater
The other point I would reiterate is that none of that stops happening. We have heard from professionals and experts that that happens. Someone who has cancer will have a multidisciplinary team around them as part of their natural treatment process. Nothing in the Bill stops that happening.
Rebecca Paul
I take that point. In an ideal world where our public services were not under pressure, I might be more reassured, but I am a local councillor, and I am well aware how difficult it is to get social workers involved in all the things that they need to be involved in, because they are spread so thin. The hon. Lady lays out very well how things should work, but when I take off my rose-tinted glasses, I am concerned that they will not work like that in the real world. That is why I always go back to putting things in the Bill, because that forces them to happen—doing so here would force that treatment to happen.
The Committee will be pleased to hear that I now turn to my amendments—but I am afraid there are four of them, so bear with me. Amendment (a) to new clause 17 may be one of the most important amendments that I will speak about. This is something that I feel very passionately about. One of the most important questions we should ask is how the panel might deal with a family member with concerns, for example, that a relative was being coerced. Would the family member be afforded the status of a party to proceedings? Would they have a right to see the relevant documents before the panel? Would they have a right to be informed that a panel was taking place? If they are not a party to proceedings, is their status that of a witness? If they are a witness, do they have the right to observe proceedings when a panel sits in private? Do they have a right to be heard by the panel? Again, I am asking questions. I am not necessarily saying one way or the other what the answer should be, but those are questions I have.
None of this is laid out in the new clauses that we are considering. In fact, I suggest that in the struggle to balance autonomy with the rights of impacted others in the Bill, autonomy is very much winning the fight. I was struck yesterday by various Members setting out their fears that the first a family could know about an assisted death is when they are called upon to make arrangements for the burial. That would be an awful situation, and I strongly believe that families and loved ones should not be cut out of the process without good reason, especially when, no doubt, they will be required to bury the person and pay for it, as I assume the state will not take on that responsibility. I suggest that this point on funeral arrangements and expenses needs further thought as the Bill progresses.
From reading the Bill, all we know is that the panel may
“hear from and question any other person”.
There is no mechanism for family members to have a right to be heard or even to submit information. That needs to be rectified. The panel could reach its conclusions without hearing at all from the family. That is unacceptable. If someone’s mother, father, son or daughter were going in front of an assisted dying panel, that person would at least want to know and be clear about their rights and available options to feed into the process.
We then come to the big issue. What if a mistake is made and a relevant piece of information is not provided to the panel by the people it hears from? My amendment (a) to new clause 17 seeks to help the panel to avoid making the wrong decision, and give time for it to be remedied before the patient is dead.
Kim Leadbeater
Is the hon. Lady reassured by the fact that, under the Bill, coercion becomes a criminal offence with a serious prison sentence? If any family members are in any doubt as to whether coercion is taking place, it is straightforward: they go to the police.
Rebecca Paul
I welcome the hon. Lady’s intervention, but the point I am making is not about coercion; it is about the subtleties in families’ relationships. I was trying to bring to life a situation—sometimes it is families who understand the relationships, the dynamics and the pressure points. It is very hard for professionals to get underneath that.
In a sense, families are the greatest experts, but the process as drafted excludes that expertise. Under my amendment, if a family member had knowledge that could make the difference between life and death, they would be able to apply to the panel. If there had been a clear error in applying the eligibility criteria, the application would be reconsidered. It is true that the panel will be informed by at least one of the doctors and that it has the option of hearing from others. Perhaps the panel will always be incredibly thorough and explore every avenue, but we have to legislate for every situation, including situations that are not ideal.
We can learn a lot from other jurisdictions. In written evidence, the academic Christopher Lyon from the University of York describes his experience in Canada. Dr Lyon writes that his father, who was “openly suicidal” and had a “history of mental illness”, qualified for medical assistance in dying in 2021. In Dr Lyon’s words:
“He was classed as having a ‘foreseeable natural death’ (i.e., terminal illness), my family was told, because he had momentarily skipped some meals at his residence and had an elevated but unremarkable white blood cell (WBC) count that the AD doctor suggested might be an infection that, if untreated, might become lethal, despite being a common side effect of his arthritis medication.”
Dr Lyon says that when he was informed two days before the event, he pushed for an urgent psychiatric assessment to be carried out. Dr Lyon has obtained a copy and says that it is
“full of errors. It claims he wasn’t suicidal, when he had a whole history of suicidality. It states he didn’t think he was depressed, and yet on the list of medications there was listed antidepressants.”
Dr Lyon’s concerns about his father’s prognosis, the assessment and other aspects of the events were widely shared, he says:
“After he died, the provincial regulatory college, police, and even other AD clinicians suggested his death was questionable or even wholly unlawful. However, privacy law and the continuing resistance from the local health authority have so far succeeded in blocking access to his medical records necessary for a full investigation”.
In Ontario, meanwhile, the chief coroner has published a report detailing the assisted death of an anonymous patient, Mr A, who had inflammatory bowel disease. He was unemployed, dependent on his family for housing and financial support, and struggled with alcohol and opioid misuse. He received an assisted death on the basis that his illness was advanced, irreversible and causing intolerable suffering. According to the coroner, the family were not consulted by those involved with processing the application, even though it was recorded that the family expressed concerns. Most members of the death review committee thought that shutting the family out was a mistake. The committee concluded:
“Engagement with family and/or close relations in the MAiD process should aim to be a key component of MAiD practice.”
We can hope that these were exceptional events, but they are the kinds of situation in which a panel might have benefited from a family perspective, which is the reason why I cite them.
Kit Malthouse (North West Hampshire) (Con)
As my hon. Friend heard yesterday from the hon. Member for Rother Valley, there are multiple points in the new system at which family could make their views known. Indeed, they could apply very quickly for an injunction if they thought something was untoward.
My hon. Friend has talked a lot about families knowing best. Surely it should be the dying person who chooses how best to handle their family. The evidence overseas is that giving dying people choice about the manner and time of their death also gives them the choice about how to handle their family, and particularly their children. My hon. Friend might have a particular approach, and mine might be completely different, but I should have that choice. She seems to think the family know best for the dying person—how come she does not think the dying person knows best for their family?
Rebecca Paul
My right hon. Friend makes an important point. I do not think family always know best. There are situations where someone rightly will want to exclude their family from the process, and I totally respect that choice. I am saying that there will be other situations in which family do have something valid to input that could impact the panel’s decision making. My right hon. Friend also mentioned injunctions; I am keen to understand more about how that process works as a protection, so perhaps the Minister could respond on that, because that may well give me some reassurance. I will come to judicial review in a moment.
My right hon. Friend is right that this is not easy. I am not saying that family should be involved in all situations. I am saying there is a balance to be struck, and I do not think we are getting it right, because at the moment it is all about full autonomy. The working assumption is that input from family must always be ignored if the patient wants that. There must be a balance, and it is difficult to say where that should sit, which is why we have such an incredibly difficult job with the Bill.
Jake Richards (Rother Valley) (Lab)
I have a genuine question: is the hon. Lady of the view that families’ views about whether the decision is right for the individual should be considered by the panel, tribunal or judge, or is it just their views about eligibility under clause 1?
Rebecca Paul
I thank the hon. Gentleman for that important point. My point is that the family should be listened to and should have a route to legally provide information to the panel. Right now, they have no right to do that. In reality, I think most panels would take that information. I would like to think that, 99 times out of 100, if a family member contacted the panel saying, “I have really important information,” it would listen to that. But I am legislating for the one case in 100 or 1,000 in which, for whatever reason, the panel refuses to engage with a family member who has a relevant bit of information, and not having the right information leads to someone’s death.
The amendment is about protecting panel members too. If I were a panel member, I would want this process in place, because it would protect me when I make a decision. I would take great comfort from knowing that a family member with relevant information has a legal right at least to communicate it to the panel.
Danny Kruger
This is a very helpful exchange, for which I am grateful to my hon. Friend. In response to the hon. Member for Rother Valley, does my hon. Friend agree that although there should be an obligation to help the decision maker to conclude as to whether the eligibility criteria have been properly met, there is no best-interest consideration, as there might be if some of us were designing the Bill? Nevertheless, the role of the family is to enable the decision maker to conclude as to whether there have been issues of coercion or lack of capacity, to ensure the decision is properly informed. We are concerned that the Bill as drafted does not do that.
Rebecca Paul
I completely agree. Some of the amendments were tabled because there is not a best-interest component in the Bill. In an ideal world, I would have liked it to have included a best-interest component; that would have given me some reassurance. Some of the amendments that I will discuss today were tabled because other amendments were voted down. I would not have tabled them had we taken different decisions earlier. I am trying to put the safeguards in somewhere, although we can have an argument about whether they are in the right place. They were ruled out when we debated earlier clauses, so I have been left in this situation.
We can hope that the events I have described were exceptional, but they are the kinds of situation in which a panel may have benefited from a family perspective or, as my amendment (a) would allow, for second thoughts from one of the assessing doctors or any of the other people whose expertise the panel calls on. The amendment would protect not just the family but the doctors. If a family member suddenly became aware of something, there would be another avenue by which they could appeal the decision, so the amendment would be positive for the co-ordinating doctor, the independent doctor, social workers, psychiatrists and anyone else who had been involved throughout the process.
I would like briefly to outline two additional practical benefits to my amendment. First, it would resolve issues before legal disputes arise. In Belgium, the long-running case of Tine Nys has been pursued in both criminal and civil courts after her family argued that she did not meet the eligibility criteria for euthanasia. In Canada, a man’s family launched a legal challenge after he received medical assistance in dying while on a day pass from a psychiatric ward. They claim that he lacked mental capacity. It is all too easy to imagine similar cases coming to court here, but if there were a chance to challenge the decision earlier, that might allow families to come to terms with the decision before having to launch legal action.
Secondly, my amendment could help families to come to terms with grief. There are several stories from other jurisdictions about the grief felt by relatives at being cut out of the assisted dying process. In written evidence, the National Bereavement Alliance said:
“We believe that as currently drafted, the Bill overlooks the needs of families and friends…While it rightly includes safeguards to protect people against coercion, it does not include reciprocal clauses to address the health, welfare and wellbeing of the family and friends who will be bereaved…As drafted, the Bill prioritises the autonomy of the person who is choosing to access an assisted death. This is appropriate: however, it does not mean that the Bill should not also address the needs of family members and friends in relation to the decision.”
Tom Gordon (Harrogate and Knaresborough) (LD)
The hon. Lady has highlighted a few different legal cases from around the world; is she aware of the case currently going on in Spain, where a family member is challenging his daughter’s wish to have an assisted death? That challenge has been funded by religious groups—Christian groups—and is not actually going through the parent. He had the option and ability to raise the case, and it has then been funded and hijacked by outside groups. How would the hon. Lady see her amendment as helping to protect against that sort of thing?
Rebecca Paul
This is a really important opportunity to share all these examples. I have to be honest that I am not sure I see the relevance of how a case is funded, and I cannot speak on that person’s behalf. I am going to talk about some of the inequalities that come from this, because there will be people—we will come to this when we discuss judicial review—who will rely on legal aid to challenge a decision. If we do not get this right, we are in danger of creating a situation in which poor families cannot appeal and rich families can. That could give rise to the less than ideal situation the hon. Gentleman has raised. If we get this right and make sure that an appeals process is available on an equal basis to everyone in the country, that will prevent the kind of situation the hon. Gentleman has raised. I thank him for that, because he has helped to support the case for my amendment.
Kit Malthouse
I have to say that my concern about the hon. Lady’s amendment is growing. We have talked in the past about policing the conversation and the process to the point that it becomes guarded. Say I had a strong, long-standing conviction that I wanted assisted dying if I was in extremis, but I had a child who I knew was violently against assisted dying; if the hon. Lady’s amendment were in place, and there was the possibility of appeal, surely my tendency would be to keep my disease and diagnosis, and my approach to the system, secret from that person. By opening this formal door, I would effectively be encouraged to conceal the process from a family member who I know may object.
I say that particularly in the light of the fact that, as we heard from overseas experience, coercion more often than not comes the other way. That is certainly what they see in Australia, where families try to persuade somebody not to do it. I think the hon. Lady has good motivations, but I am concerned that she might actually produce the opposite effect and drive people into secrecy.
Rebecca Paul
I thank my right hon. Friend for that alternative perspective. The appeal process is valid only if there is new and relevant information that the panel did not have. For someone who is absolutely eligible, nothing has been excluded from the process that would change their eligibility. There is nothing to worry about here, so I am not sure that I concur that my amendment would prevent sharing information. However, it would provide important protection when a bit of relevant information has not been shared with the panel, which I think is the greater harm. We are trying to weigh up the harms to make sure that they do not outweigh the benefits; I honestly believe that the amendment would help to balance the scales a little better.
Danny Kruger
The scenario that my right hon. Friend the Member for North West Hampshire suggests implies that the patient has no faith in the panel. The patient would be concluding that they did not want to go through the formal process for an assisted death and explain it to their relatives, because they fear that the panel’s decision might be overturned on application by their relative. That objection is predicated on a lack of faith in the process that is being decided. If we are to have confidence in the process, we should trust that people will expect it to work properly. There is nothing wrong with giving a family member the right to make an application to the panel or the commissioner, because they would have every right to reject that family member’s application if they concluded that the original decision was valid.
Rebecca Paul
I completely agree. While I was preparing my speech, as is often the way, I found myself wishing that I had tabled an amendment to add a legal requirement that the family be able to feed into the panel and share information. Perhaps that is something that can be picked up at a later stage. The nature of the process is that as we debate these things and think about them in detail, other ideas come through.
Kim Leadbeater
The hon. Lady mentioned a few moments ago that the family would make such an appeal only if there was new information, but her amendment does not say that, and it has no explanatory statement. Could she clarify what she meant?
Rebecca Paul
That comes under subsection (2) of my amendment:
“The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust”.
It is implied that the decision is wrong because there is missing information. Missing information is one example; other things would enable an appeal, but the obvious and most likely reason in this instance would be that a certain bit of information had not been shared.
I am not saying that the amendment is perfect in any way. It is set out clearly in guidance on the private Member’s Bill process that amendments will not necessarily be drafted perfectly and that it is incumbent on the Government to take the spirit of what is intended and get the clause to an appropriate place to deliver that. I am happy to work with the Government to ensure that the wording works and is clear. I think the hon. Lady’s point may be that it is unclear; I am happy to work in any way to improve that clarity.
Kit Malthouse
Through my hon. Friend, may I respond to the point made by my hon. Friend the Member for East Wiltshire? It is not necessarily about not having faith in the panel. Somebody may, for example, have a relative driven by a strong religious faith who wants to create some form of delay in the system, just to put off the awful day. Even if a commissioner were to take that relative’s application and decide that it was not valid, that would inject delay into what is naturally a time-limited process.
A person may want to retain the right to handle their family themselves, and have the choice about how to do that. If the state, rather than the dying person, is effectively deciding how the family should be handled, we are naturally giving that person an incentive to keep this thing quiet until they are ready to tell their family, which may be well towards the end of the process. As the hon. Member for Rother Valley said, there are multiple points at which the family can intervene if they know. My concern is that this kind of—what is the word we have been using?—embroidery actually drives people in the opposite direction to the one my hon. Friend the Member for Reigate wants to achieve.
Rebecca Paul
I thank my right hon. Friend for raising that point, because it gives me a wonderful opportunity to draw everyone’s attention to subsection (3) of my amendment, which states:
“The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
My right hon. Friend is absolutely right that time is of the essence and that there will be situations in which it is right that things move as quickly as possible. I hope that that goes some way towards reassuring him that I am trying to come up with amendments that are balanced. I am aware that we have two different examples here; I am genuinely trying to make sure that I do not make it harder for those genuine cases, because I totally understand how important it is and I understand that there is a lot of pain and suffering, for all the reasons that have been set out. I hope that I am getting the balance right, but I am always happy to have further discussions.
Sir James Munby was one of the first to criticise the High Court safeguard; the hon. Member for Spen Valley says that she has taken those criticisms on board. His criticisms of the panel seem similarly acute. I hope that the Committee will agree that my amendment answers a real need and recognises the important role of family in the death of a loved one in most situations, although I accept not in all. It has a profound and long-lasting impact on them too, and their needs should not be entirely disregarded in the name of autonomy. The hon. Member for Rother Valley gave a very powerful speech yesterday on the subject, setting out that the amendment is not required because any decision could be judicially reviewed. I am not qualified to opine on whether judicial review would be relevant with this panel, but I look forward to the Minister covering the matter in her closing remarks. We need to be clear on that front.
Judicial reviews are a challenge to the way in which a decision has been made, rather than to the rights and the wrongs of the conclusion reached. It is important that this is understood. A judicial review just checks that the process was followed, not whether the right decision was made. That is why our role in setting the process is so important. If the new clause remains unchanged and there is no requirement for a panel to accept relevant evidence from a family member, there will be no avenue for appeal under judicial review if such information is not taken into consideration when making the decision, because the process will have been followed.
Our role on this Committee is a heavy one. It is about getting it right and setting the process for judicial review to work as it should. We have an appeal process in the new clause for when a panel wrongfully turns down an application, but not for when it wrongfully approves one. Why not, if judicial review is available and suitable? I suspect that it is because, as the hon. Member for Rother Valley is aware, the judicial review is not the best way to do it. It is a long, onerous process involving application for permission and, in some situations, the securing of legal aid, which is fraught with difficulty. I say gently to the hon. Member that if judicial review is not suitable when the panel has wrongfully turned down an application, then why is it suitable when they have wrongfully approved someone for an assisted death?
I think it is clear that my amendment is needed as a safeguard to prevent wrongful deaths under the Bill. It is a helpful safeguard. No panel will ever want to see someone assisted to die who should not have been, just because it did not have all the information. I suggest that the safeguard will help to secure panel members, because they will feel reassured that a process is in place to avoid mistakes. If my amendment is not agreed to, and if wrongful approvals have to rely on judicial review for a remedy, I suggest that the impact assessment will need to take into account the likely impact on socioeconomic groups that rely on legal aid for funding. I suspect that, owing to a lack of funds, they will find themselves with no avenue at all to appeal. I do not think that any of us wants a two-tier system in which rich families can intervene and poor families cannot.
Jake Richards
I have been rightly and fairly challenged in the hon. Member’s speech, but the difference is that if a family member has a right to appeal in the internal process, that family member would have to be a party in the original hearing. The whole point of the panel is that a person comes to it with their application. The family have the right to put information before the panel, but they do not have the right to make their case to the panel, because their views on the application are not relevant. Information that they might have is relevant, but their views are not. That is why there is a disparity between the person’s ability to appeal internally against a refusal of their application, and third parties having to take other routes. I hope that that offers some clarity as to why I am comfortable with the difference between the two. I reassure the hon. Member that I have thought about it long and hard as well.
Rebecca Paul
I thank the hon. Member. I would just clarify that currently there is no legal right for a family to provide information to the panel, which is part of the issue.
I turn to my amendment (c) to new clause 21. New clause 21 includes provision that, among other things, the panel’s function is to determine whether it is satisfied that the person has capacity, that they have a clear, settled and informed wish to end their life, and that they have not been coerced or pressured. However, it is not entirely clear what “satisfied” means in the new clause. My amendment assumes that, as in a civil court, it means “on the balance of probabilities”.
As I understand it, the leading case on the meaning of “satisfied” is a 1964 House of Lords case, in which the court held that “satisfied” meant “on the balance of probabilities”, rather than the tougher test of “beyond reasonable doubt”. In a later amendment, I will propose that we adopt that tougher standard, but this amendment assumes that the current wording will stand.
My view, as we have already established in lengthy debate, is that the capacity bar is low, because the doctor need only be 51% sure. On the clear, settled and informed wish and coercion test, the standard is only “to the best of the doctor’s knowledge”, which is not a particularly high bar to meet. We are therefore applying a low bar to a low bar. That certainly leaves us with a highly accessible process, but I suggest that that is not a positive or safe thing.
My amendment would bring in a further safeguard. As I have said several times, I would have preferred to see such safeguards in clauses 1 to 3, but as they were not accepted there, I am forced to propose them here, because it is better to have them than not. The amendment would give the panel the ability, if there is a “real risk” that the criteria have not been met, to pause and make further enquiries. They would not be obliged to give a decision that day, but would be obliged to look into the matter further, ask for more testimony, request more documents and consult experts.
The real risk test is taken from the jurisprudence of the European Court of Human Rights. Doctors will already be familiar with it, as they are already required under the Human Rights Act to assess when there is a real risk of suicide. It is not a strange novelty. The objection has been raised that introducing a real risk test to the doctors’ assessments would complicate matters, but the panel stage is a distinct stage with a distinct set of rules. I hope that the amendment will be seen not as introducing a complication but as filling a gap, particularly as this stage is meant to be more akin to a judicial stage.
Difficult situations will not necessarily be as rare as we hope. On coercive control, those with decades of experience of working with the most vulnerable have warned us time and again what the Bill could mean. Jane Monckton-Smith, one of the leading academics in the area, has said:
“Unless we do take this incredibly seriously, this Bill is going to be the worst thing, potentially, that we have ever done to domestic abuse victims.”
The consultant clinical psychologist Sue Smith, who specialises in cancer and palliative care, has submitted written evidence from which I will quote at length, because it vividly brings out the scale of the risk of coercive or controlling behaviour:
“In my clinical experience working with people who have cancer, a cancer diagnosis and treatment effects can amplify CCB…A woman asking for her needs to be seen and met alongside her increased physical and psychological vulnerability creates a change within the couple, which can lead to violent acts or CCB. The seriousness of the cancer diagnosis may be systematically and actively denied or minimised, claims can be made by the male partner that she is attention seeking, or she is accused of making up the effects of treatment, and can be left isolated and alone when in physical need, e.g. managing treatment effects like nausea or pain that restrict the ability to wash, dress and where she is reliant on others for help. At the same time a male partner may also state, ‘You are better off dead anyway,’ ‘Your children don’t care, and no one else in your life cares about whether you die.’ They may also threaten to leave. This pattern is extremely confusing, harmful and threatening. It continues over time, and a woman learns to doubt her reality and experience, and is extremely isolated. This can lead to heightened anxiety, hopelessness and helplessness, and abject despair, which can lead to a person wishing they were dead. The confidence and ability to know what one needs and wants is severely compromised when her reality is continually minimised or denied and will impact informed decision making.”
We can hope that the existing safeguards will catch some of those cases, but they will not catch all cases, so my amendment would go a little way towards improving the safeguards.
Amendment (a) to new clause 21 tries to pin down a missing detail, namely the standard by which the panel makes its decision. In a criminal trial, a jury is sent away to consider its verdict. The members of the jury know that they must be certain, beyond reasonable doubt, of the defendant’s guilt. It is not enough to think it likely on balance, nor is it enough that they have an opinion that they can justify with good reasons. It must meet a high threshold. Why is there such a high standard? Because we have to be sure about the decision, given the grave consequences. We are now considering a similar question: what is the right standard for a decision that will make the difference between life and death?
I turn to subsections (2) and (6) of new clause 21. We are told that the panel must be satisfied that the eligibility criteria have been met. The word “satisfied” is doing a lot of heavy lifting in the Bill. If a question subsequently comes to court, as has happened in Belgium where there was a wrongful assisted suicide, we will be asking the court to rule on whether the panel should have been satisfied. That raises an obvious question, which my amendment is designed to answer: what does “satisfied” mean?
I turn to a real-life example. In a famous case in Oregon, an elderly woman called Kate Cheney sought assisted suicide. She had a terminal cancer diagnosis; she also had dementia, so she was referred to a psychiatrist to establish whether she had capacity. She was accompanied to the appointment with the psychiatrist by her daughter Erika, who seemed extremely assertive about the assisted death. Kate Cheney denied that she was being pressured. However, the psychiatrist noticed that the daughter was coaching her mother. Referring to Kate, the psychiatrist wrote in his report:
“She does not seem to be explicitly pushing for this.”
He concluded that she did not have capacity to make the decision. The daughter was, in her own word, “incensed” that the psychiatrist was casting such a judgment on her mother. Kate applied for a second opinion and was assessed by a clinical psychologist. He found that Kate did have capacity, but he added that her
“choices may be influenced by her family’s wishes, and her daughter, Erika, may be somewhat coercive”.
Nevertheless, he gave the green light to the application and Kate received the go-ahead.
I ask members of the Committee whether they would be satisfied that Kate Cheney was eligible for an assisted death. Are they confident that colleagues would share the same judgment about being satisfied? Can they be sure that every social worker, legal figure and psychiatrist would be satisfied in the same direction? After all, the psychiatrists in Oregon were divided on it.
In written evidence, the most experienced clinicians have urged us to recognise that abuse is difficult to pick up. Sarah Grove, a consultant in palliative medicine, says:
“Over my years in practice, I have witnessed families acting for financial gain and not in their loved one’s best interests but in this kind of situation, this has always been impossible to prove.”
Dr Kathryn Myers, a retired palliative medicine consultant, says:
“I have seen coercion in the contexts of decision-making around the best place of care for patients and of money and property. Perpetrators are usually family members…Occasionally it has been overt and easy to detect, for example, threatening or manipulative words or actions. Most frequently it has been very subtle, one might even say, gentle. It can take skilled clinical nurse specialists highly trained in communication skills and in detecting coercion, who know the person well and who have a relationship of trust with them, several conversations over several days if not weeks to uncover that coercion has occurred.”
In such a case, with limited time, a panel may not be certain whether to give the green light to an application. That uncertainty will be even greater if it does not know what evidential standard to employ.
My amendment would clarify that grey area. It would bring in a standard that has been tried and tested and is well understood. To be clear, “beyond reasonable doubt” merely means that the panel is sure. The courts have said that the two phrases are equivalent, as has the Judicial College in its guide to judges, “The Crown Court Compendium”:
“What is required is a clear instruction to the jury that they have to be satisfied so that they are sure…if an advocate has referred to ‘beyond reasonable doubt’, the jury should be told that this means the same thing as being sure.”
The Crown Prosecution Service says:
“the magistrates or district judge in a magistrates’ court or the jury in a Crown Court must be sure that the defendant is guilty. Sometimes you’ll hear this described as ‘sure beyond a reasonable doubt’ or ‘satisfied so you are sure’.
Importantly, the word “satisfied” by itself is not enough. Juries must be not just “satisfied”, but
“satisfied so you are sure”.
The wording in the amendment would be equally strong. It opts for “beyond reasonable doubt” because it is a better known phrase and more widely understood than
“satisfied so you are sure”.
I do not want to get too hung up on which of those phrases to use. The point is to adopt the tried and tested standard that has worked in the courts. We want the Bill to have the highest standards and to protect people. Amendment (a) to new clause 21 would help to achieve that.
Members will all be delighted to know that I am moving on to the last amendment.
Jake Richards
I know that the hon. Lady has been on her feet for some time, but I just want to explore the difference between what a jury is doing and what this panel is doing. Let us, for example, consider the issue of coercion and a case where there is no evidence that the person is being coerced in any way, but of course the panel has not asked everyone in that person’s life. It has not heard evidence from everyone. There is no factual matrix determining what has happened or what has not happened. Can the panel sit there and say, “We are sure,” or do you think it would have to investigate all the circumstances of that person’s life and interview everyone that is in and around their social circle to be sure that they have not been coerced? Can you see why, as I set out in my speech, the “beyond reasonable doubt” burden is not appropriate for the task of this panel?
The Chair
Order. Can I gently again remind Members that “you” means me? Please refer to the hon. Lady.
Rebecca Paul
I thank the hon. Member for sharing that. It is useful to have these debates and conversations, but I would suggest that the panel needs to be sure off the back of the information that it has been given and the witness testimony, which goes back to why it is so important to ensure that we have that coverage and the right things feeding into the panel so it can get to that high threshold. I would expect the threshold to be at court level, given the huge, significant ramifications of this decision for that person.
Naz Shah (Bradford West) (Lab)
The hon. Lady is making a powerful point. I refer back to the point on jury trials. When we have criminal trials and jury trials, they go through not every single thing in somebody’s life, but the actual act of criminality itself and what is relative to that criminal act. That does not mean to say they trudge through a person’s whole life.
Rebecca Paul
I thank the hon. Member for that intervention. She eloquently explains exactly the point I was trying to make. That is absolutely right. Clearly, we do not expect the panel to pore over everything. It can only be sure based on the evidence put before it, so I reiterate: that is why it is really important that all the right and relevant information can be fed into the panel in order to get a good, robust, solid decision.
Members will all be relieved to know that I am now coming to the last amendment, amendment (b) to new clause 21. It puts in an additional mechanism for the panel not to grant an application when particular circumstances make it inappropriate. I do not think many in the Committee are going to like the amendment. I make the point again that, in an ideal world, there would have been a best interest clause or something similar in the Bill to protect patients from opting for assisted dying due to some other perfectly solvable challenge in their life, such as being homeless, but, given our amendments were not accepted, I am putting this amendment forward again as a responsibility of the panel, given its oversight role. This is likely to be where the social worker on the panel can play an important part.
In Ontario, assisted dying is monitored by a team of nurse and coroner investigators who review every reported death. The state has also established a death review committee. A recent report shows some of the difficulties for a panel in making its decision. A patient referred to as Ms B successfully applied for an assisted death. She suffered from multiple chemical sensitivity syndrome, which made it difficult for her to find appropriate accommodation. The report found that
“As a result of her housing situation and conditions, necessary to address her MCSS, Ms. B experienced social isolation, which greatly contributed to her suffering and request for MAiD.”
Kim Leadbeater
I might have misheard, but I believe the hon. Member asked what happens when a patient asks for assisted death not as a result of illness. If that was the case, then they would not fall under the criteria of the Bill.
Rebecca Paul
I am making a point regarding if a person fitted the diagnosis in that they are terminally unwell, but it is actually the fact that they have got nowhere to live that is really driving the decision rather than the terminal illness. My apologies if that was not clear.
In Oregon there was the case of Barbara Wagner, who had recurring lung cancer. She had been prescribed a drug, Tarceva, which had an excellent record. It increased patients’ one-year survival rate by 45%. Oregon’s state Medicaid provider sent Wagner a letter saying that her insurance plan would not cover the drug, but would cover other options, including assisted dying. Wagner said:
“I got a letter in the mail that basically said if you want to take the pills, we will help you get that from the doctor and we will stand there and watch you die. But we won’t give you the medication to live.”
Those are her own words, not my words. Recently in Australia, similar cases have been reported of people choosing assisted dying because they were put on too long a waiting list for a home care package. One man said of his mother:
“Her pride wouldn’t allow any of her boys to take care of her or to bathe her so she got approved for the assisted dying”,
and a few months ago proceeded with it.
There are many other situations where everyone would benefit from the panel having broader discretion. Think of one of the cases I talked about earlier—and have done throughout the various Committee sessions—where somebody appears to be a possible victim of coercion, or a case where someone with diabetes, for instance, wishes to bring themselves within the six-month definition by stopping treatment, or someone with anorexia brings themselves within the definition by stopping eating and drinking. The capacity safeguard would not defend them. The courts have found that people have capacity to refuse lifesaving treatment, even if their decision is strongly influenced by other factors.
Hon. Members may worry that giving the panel discretion is too open-ended. The truth is that, in our legal system, discretion is the norm. Whether in sentencing guidelines or in custody cases, the law nearly always recognises that sometimes a general rule has to be departed from. If the panel is compelled to make its decisions only by a checklist with no other option, the Bill is saying that the panel is less trustworthy than the courts. If this panel is to be a safeguard, we should be clear about how it functions. It needs to be open to correcting mistakes. It needs to have a clear standard of proof, which will protect people and not just hastily steer them towards assisted death, and it needs a wide degree of discretion if it is truly to be more than a tick-box exercise. I hope the Committee will agree and support these amendments.
The Chair
It is open to any Member to speak more than once in a debate, as the Committee knows. Naz Shah has indicated to me that, because of the size and complexity of the groupings of amendments, she wishes to speak not once but three times to break her comments into bite-sized chunks. I draw that to the Committee’s attention to put down a marker in case anyone else feels the same way.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Oh no—that’s yours!
Naz Shah
She beats my record for sure. I assure the Committee that my comments on new clause 17(a) will be brief in comparison with my previous speech.
Yesterday, my hon. Friend the Member for Ipswich and I disagreed on a point of detail. In fact, he was right and I was wrong. As he said, a provision in paragraph 4 of new schedule 1 allows the Secretary of State to dismiss a bad commissioner if the circumstances merit it. Although I still maintain my position that too much power is being given to a single person, I thank my hon. Friend both for pointing that out and for the courteous way in which he did so.
The hon. Member for Reigate has spoken very eloquently in defence of her amendment. Just to recap, new clause 17, tabled by my hon. Friend the Member for Spen Valley, would allow a person seeking an assisted death to appeal to the commissioner if a panel refuses their request. However, it would not allow any other person to lodge such an appeal.
By contrast, new clause 17(a) would allow several other parties to lodge such an appeal, including the two doctors who took part in the process, the applicant’s next of kin or relatives, or anyone who took part in the proceedings before the panel or who gave evidence to the panel. I acknowledge that there are genuine arguments against accepting new clause 17(a), and I have listened to them in detail and given them sincere thought. The family members who might appeal against a decision could perhaps have little or no contact with the person on whose behalf they say they are appealing; I note that the hon. Member for Harrogate and Knaresborough made a very honest and personal intervention on that subject yesterday, and I accept that that is a real possibility. As we all know, families are complicated.
There is also a likelihood that allowing more people to appeal against a panel’s decision, both for and against an assisted death, could mean that the commissioner will need considerably more resources. Otherwise. it is very likely that appeals will not be heard within a reasonable period.
Those are genuine arguments, but there are equally strong counterarguments. If the Bill passes, we simply do not know how many coercive or abusive people will seek to drive others towards assisted death. My hon. Friend the Member for Spen Valley spoke about coercion being a criminal offence, but the last figures I have seen show that only 4% of cases result in a conviction. However, it is worth noting that many people with experience in this area are very concerned about the possibility.
We also do not know how many people will opt for an assisted death because their palliative or social care needs are not being met. Again, as I referred to extensively in previous speeches, many people with first-hand experience of this field are extremely concerned about that.
We also do not know how many people will opt for an assisted death partly because they do not want to be a burden on their loved ones. We do not know how many of those loved ones would, in fact, be ready to care for the person who feels like a burden, nor do we know what safeguards, if any, will prove effective against any of those dangers.
One thing we do know is that relatives or carers of someone seeking an assisted death may be able to bring those dangers to light. A family member, a GP or even a paid carer may have seen someone come under coercive control. As new clause 17 stands, they might feel that the panel had made a terrible mistake in ignoring the evidence of that. The hon. Member for Reigate’s amendment (a) to the new clause would give those people the chance to bring their evidence before the commissioner.
I have to say that, as it stands, new clause 17 seems to make some fairly odd assumptions. It would allow an appeal if the applicant’s request for an assisted death were turned down, which means that my hon. Friend the Member for Spen Valley acknowledges that the panels may on occasion get things wrong. But the right of appeal is only one way, which seems extremely odd. It surely cannot be the case that the panels might get things wrong when they turn down a request for assisted dying, but are always right when they accept them.
There surely needs to be an amendment that allows people with knowledge of the situation to appeal if they think the panel has made a mistake in allowing an assisted death. Amendment (a) to new clause 17 would also reduce some of the dangers that we first faced. On that basis, I urge the Committee to support the amendment.
Daniel Francis (Bexleyheath and Crayford) (Lab)
It is a pleasure to serve under your chairship, Sir Roger. I will be speaking to new clauses 14 to 17 and 21, new schedules 1 and 2, and amendments 371 to 373, 377, 378, 381, 388, 390 and 391—although I assure you I will not speak for as long as the hon. Member for Reigate did.
Yesterday, my hon. Friend the Member for Spen Valley referred to the Law Society’s neutral position on the new clauses and new schedules. I will not read out all four pages of its most recent submission on the matter, but, although it is neutral, it does continue to have concerns and queries about the new provisions. I will just read out the headlines.
The Law Society remains concerned about the role of the review, whether it would be accessible and workable for people seeking assistance, and the resourcing required. It seeks clarification on the nature of the functions to be exercised by the commissioner and by panels. It still seeks clarity on how panels will deal with cases and asks us to consider where lawyers may need to play a role and the availability of legal aid. We touched on that matter this morning. I accept that the Law Society’s position was used in evidence on the other side of the argument yesterday and that it is neutral, but I could have read all four pages of its response if I had really wanted. That is its position.
I will oppose some of the new clauses and raise concerns about others, including some of the amendments to new clauses tabled by my hon. Friend the Member for Spen Valley. As we have heard, the new clauses and amendments would replace the High Court judge mechanism in the original draft of the Bill with a three-person panel. As we said yesterday, that fundamentally changes the Bill from what the House voted for on Second Reading last November.
The panel will consist of a consultant psychiatrist, social worker and legal member who would chair it. I concur with those who have said that it would help if those individuals were involved earlier in the process. Several concerns have been raised about the High Court judge mechanism in the evidence that we have received. Although I accept that the new panel mechanism would address some of those, it would also leave some untouched and in some cases it could make the position worse.
During oral evidence, we asked witnesses whether and how the High Court judge system would work. Some said that they did not believe that it would. I credit my hon. Friend the Member for Spen Valley for listening to those points, but our problem and predicament now is that we were not able to seek oral evidence on the panel arrangement now before us, and that a large amount of the written evidence had already been submitted beforehand. I will come to this again later, but if we had gone through the normal process of a Government Bill—I accept that this is not a Government Bill—we would not be in this position now.
As a group, the 23 of us are now debating these schedules and clauses before Report, but we have not had any oral evidence on what is before us, and I would argue that we have also had a lack of written evidence. The panel system has complications, and it will be of life-and-death importance. We should have been able to ask witnesses whether a system would work, and how, but we have not been able to do that.
Danny Kruger
Before the hon. Gentleman moves on, I want to reiterate the value of his point. This is an enormous change to the Bill and totally transforms it, but we did not have the opportunity to hear evidence on it. Is he also aware that many of the distinguished people who gave evidence against the traditional stage, which has now been scrapped, have not endorsed the proposal to change it? In fact, some of them are equally opposed to the new proposal. We have not had confirmation that this is the right system, and we did not get the opportunity to hear proper evidence on it.
Daniel Francis
Yes, I am aware of some of those submissions from those individuals. I will come to this, but clearly even some people who were in support of making changes did not recommend the ones that we have now incorporated.
First, I would argue that people giving evidence to the panels should be doing so under oath. In my 20 long years as a local councillor, I gave evidence under oath to an investigation by a health and safety executive into the demolition of a building. I would say that the demolition of a building and this matter are very different, and therefore I query why this evidence is not being given under oath.
Lewis Atkinson
My hon. Friend is making a thoughtful speech. Has he had the chance to consider the situation with mental health tribunals that I mentioned yesterday, which usually do not take evidence under oath? Clearly, they make very serious decisions regarding sectionings and deprivations of liberty without invoking oath-taking powers.
Daniel Francis
I accept what my hon. Friend says, but there are differences of opinion. I accept that that is a very serious matter, but I would argue that a matter of life and death is more serious, and there are processes that we know. As I said, I gave evidence under oath about the demolition of a building and whether someone had followed the correct health and safety regulations, yet we would not be doing so in this case.
Naz Shah
My understanding is that, at the mental health tribunal, a person would be entitled to legal representation, which would be an officer of the court or a lawyer, so the bar is very different. Does my hon. Friend agree that actually this is like comparing an apple to a pear?
Daniel Francis
Indeed, these are complex matters and these comparisons are made. We have heard a lot about Spain, which I will briefly refer to later, but Spain has a very different legal process from us.
Returning to my comments, currently an individual would not have to give evidence under oath. As I said, the matters discussed by a panel are as important as they can be. In my opinion, people should be giving evidence to the same standards that they do so in a civil or criminal court.
My second concern relates to the procedures for investigating any doubts that the panels may have, and we have heard about that. The panel must hear from at least one doctor and from the applicant under this new set of proposals. They must read the two doctors’ statements and the applicant’s declaration, and then they can decide to ask questions of the applicant and/or one or both of the doctors. The panel can also hear from and ask questions of any other person. How is the panel going to know which people to talk to? Will the panel be asking the right questions of applicants? Applicants will have different circumstances in different cases. Will those professionals also be skilled investigators? I accept the evidence we had on the skills those people have and bring, but it is not clear to me whether they will be acting in a quasi-judicial way. We have heard that it will not be an adversarial system. Although I can see the problems with creating an adversarial system for the panel, there are systems in other countries where that is allowed, and a different appeal system also exists elsewhere.
On the third point, which is about the standard of proof, if the panel finds matters that worries it, but does not find actual evidence of coercion, then it is not clear to me what it does. The panel could find that a patient qualifies for assisted dying on the balance of probabilities, and then approve that request. Three members of the panel could decide that a patient is, on the balance of probabilities, free to make the decision. People have heard my concerns about capacity, and whether the process for determining that is correct. We talked yesterday about how decisions are made in new schedule 2, and particularly subsection 5. There are differing views on the Committee about subsection 5(2), which talks about a “majority vote”, and how that may align with subsection 5(3).
My fourth concern is that there is no provision made in the new schedule or amendments for how the panels will deal with people with learning disabilities. There may be a further amendment to come on that matter. I accept that we agreed to an amendment regarding training for individuals, but I have concerns about how learning disabilities could be judged by the panel. I referred yesterday to how people with learning disabilities could go through this process with no support from friends and family, and then be presented before a panel. Under the Mental Capacity Act 2005 and its code of practice, would the panel have to assist the person in making a decision? That is what, in my mind, the Mental Capacity Act states: that if someone requires help to make that decision, individuals with the power should help them to do so.
There are wide differences in how professionals talk to, listen to and interpret people with learning disabilities. I know that first hand, on a day-to-day basis. The Bill should set out best practice in this field from the start, so that we do not see discrepancies between how panels undertake their work with learning disabilities. I do not think I need to spell out how a bad decision in this field could lead someone choosing assisted death to a place where others may not want to take them.
The fifth area relates to appeals, and that they can only go one way. A person whose application for assisted death is rejected can appeal to the voluntary assisted dying commissioner. The commissioner can then either uphold the decision or allow the person to have an assisted death. We have discussed what happens if a person who knows that that person applying for assisted death has grounds for concern about the case. We have discussed the legal means of people wishing to seek a judicial review, which causes me grave concern. Under the Bill as written, the person known to the person seeking assisted death cannot appeal against a decision. I heard the debate this morning on the amendments tabled by the hon. Member for Reigate. The Bill says that the panel can choose to hear from any person who has a relevant connection, but there appears to be no mechanism for someone to apply to register any concerns with the panel.
In the oral evidence we received we heard concerns from Sir Nicholas Mostyn and Alex Ruck Keene that both sides should have the right of appeal. We heard that from a legal background, from supporters—I hear that Alex Ruck Keene was referred to as an objector, but I think he would say he is neutral in the process. People who have differing views about the process said to us in their oral evidence that both sides should have the right to appeal.
Naz Shah
My hon. Friend is making very important points. Is he aware that Professor Mark Elliott, one of the UK’s leading professors of public law and a former chair of the Cambridge law faculty, has spoken about the
“asymmetrical nature of appeals under the Bill,”
and said:
“At best, suggestions that judicial review is an adequate substitute for families who wish to challenge decisions indicate a fundamental misapprehension about the nature of JR.”
On the suggestion that injunctions might work, is my hon. Friend aware that between January 2017 and 2021, the administrative court has issued only one injunction?
Daniel Francis
I thank my hon. Friend for that statistic, which I was not aware of. It relates back to concerns that I have had through the process, particularly on learning disabilities and how a family member finds out during the process what processes would be open to them. In my opinion, it is unclear how the proposed panel fits into our legal system. Again, there are all kinds of quasi-judicial panels that do fit into our legal system, and they have an appeal process, of course. They would normally see two parties in a case. I hear what has been said this morning about Spain. It was put to us in oral evidence from a supporter of the Bill that we should look at that part of the Spanish model about having both sides of the process, although I accept that Spain has a very different legal system from the United Kingdom.
Kim Leadbeater
I am interested in exploring the characterisation of the two sides referred to, because this is not about two sides. This is about an individual patient with a terminal illness. I am just interested in how we can explore that a little further.
Daniel Francis
I hear that. As my hon. Friend knows, yesterday when there was an amendment on individual autonomy, I voted the same way that she did. But I will put the scenarios that I put in that debate yesterday when I came to my decision. The scenario that I have always considered is: what if the person with a learning disability in their 40s or 50s says, “I want to make the decision to relieve the burden on my parent in their 70s or 80s”, and the parent in their 70s or 80s is not involved in the process, but finds out about the process and there is no way they can intervene in the process? I hear what was said about JR, but there is no way, as is laid out in the Bill, that they can then intervene in the process and say, “There has been a mental capacity assessment, but we think that, given there is a borderline level of capacity, there may have been a position where a doctor has had to, under the Act, assist that decision to be made.” What would be the legal process for the parents in that case? These are the scenarios. As Members know, I am not somebody who opposes the principles of the legislation, but these are the scenarios that have brought me to this place.
Kim Leadbeater
The quick answer is that there would be an injunction. I hope my hon. Friend will also be reassured that the panel is coming towards the end of this very long process. In the situation he describes, the patient would have gone through all the other stages with the doctor. I imagine in that situation, in a psychiatric referral, the doctor would have said, “Would you consider speaking to your next of kin?” There are a lot of other stages prior to getting to this point, which I hope provides some reassurance.
Daniel Francis
I hear that. As my hon. Friend knows, I supported amendment 6, as she did, and other amendments that strengthen the Bill in that way. I accept the right to autonomy. The hon. Member for Harrogate and Knaresborough gave the example of an appeal in Spain, but I do not think the fact that a religious group was funding the appeal in one case is an excuse for taking that right away, because there will be other people in Spain who have genuine concerns and want to go through the appeal process.
Sarah Olney (Richmond Park) (LD)
To pick up on what the hon. Member for Spen Valley said, the multidisciplinary panel comes at the very end of the process. She has talked about the different stages, but they all occur in isolation. There is a doctor, then there is another doctor, and then there might be a psychiatric referral. We heard clearly in oral evidence about the value of the multidisciplinary panel referring to each other and taking evidence collectively. The strength of it would be that it occurred at the beginning of the process. I wonder whether the hon. Member will reflect on that.
Daniel Francis
I think that is the case. As the hon. Member said yesterday, people from those professional fields—in their written evidence, particularly—asked to be included in the process, but I do not think they were asking to be included at the end of the process; I think they were asking to be included earlier.
Danny Kruger
The hon. Gentleman has explained clearly in personal terms why it is important to involve the family, and I concur with the hon. Member for Richmond Park. I want to take the hon. Gentleman back to the rather abstract question of whether there are two sides to these cases. In contradiction to the hon. Member for Spen Valley, I think there are two sides to these cases, as she herself recognises whenever she says that this is a finely balanced judgment. The fact is that a decision can go either way, and it is very important that the decision makers are considering two sides. It is not just the immediate stated wish of the applicant that is the only consideration, as the Bill acknowledges. Does the hon. Gentleman agree that it is important to have the widest possible input into the decision, so that both options—to proceed or not—can be properly considered?
Daniel Francis
I hear what the hon. Member says. My concern has always been the scenario that I described. If this legislation is passed and we push it forward, one death that occurs where somebody has concerns about the process would be one too many. I said that clearly when we debated clause 3, and that remains my principal concern. It is not necessarily about two sides, but in cases where there are concerns, we need to do everything we can to ensure that that does not happen.
I have a query about the resourcing of the panel. Part of the reason why we ended up here was the queries about the resourcing of the judicial role in the process. We would need to find skilled professionals, especially consultant psychiatrists and social workers, to sit on the panel. If we look at the per capita rates in the Australian and American states that have assisted dying, we can estimate that the number of cases of assisted dying each year in England and Wales would be in the low thousands. Any consultant psychiatrist or senior social worker who sits on these panels will have to spend hours on each case. We do not yet know how many hours it would be on average, but for complicated cases, it could be many hours. What analysis has been undertaken of the capacity of consultant psychiatrists and senior social workers? Their professional bodies are beginning to look at that, but again, we were not able to ask them that during oral evidence, and because the written evidence was submitted so heavily in advance of these amendments and new clauses being tabled, we do not have that information in front of us.
We hear about the resourcing of our NHS mental health services and the fact that we do not have enough psychiatrists, so I query whether we have enough senior social workers. A senior social worker visits my house every year, but I have never seen the same social worker twice, because of the turnover issues, capacity issues and the lack of staff.
What will the Government do to ensure that the panels fulfil their responsibilities? We would be dealing with applicants who have very little time left, and being able to properly staff the panels must be a priority. We must not take psychiatrists and social workers away from their other work, while ensuring that people seeking an assisted death do not wait a long time. That is another matter on which we would have benefited from oral evidence from expert witnesses. We would also have benefited from the normal consultation that there would have been on a Government Bill, because we would have been looking at that matter for several months.
In summary, I accept that this set of new clauses and amendments is an effort to fix problems with the Bill, but problems remain, and there are probably some new ones as well. I will therefore not support a number of the provisions.
Jack Abbott (Ipswich) (Lab/Co-op)
It is a pleasure to serve under your chairship, Sir Roger. I rise to speak to several new clauses and to amendment (e) to new clause 21.
There were many comments yesterday about the fact that a number of Members across the House had cited the judicial stage as an important reason why they supported the Bill. I challenge the notion that they voted for it exclusively for that reason, but I recognise the strength of feeling. To be frank, I was not one of them. I was not persuaded, not least because of a number of points made yesterday by my hon. Friend the Member for Rother Valley, that the judicial stage would be anything other than a rubber-stamping exercise. I am certainly not going to go into “good judge, bad judge”. I hugely respect the legal profession, of which there are many representatives present.
The legal profession has a huge range of expertise and experience, but it could not be expected to cover in depth the psychiatric and social care aspects of the process, about which we have being raising concerns for weeks. For that reason, and especially given that we are retaining legal experience on the panel alongside social workers and psychiatrists—a triple-threat approach, as it were—I fail to see how anyone could reasonably argue that this approach is weaker. In my eyes, it is much stronger.
Of course, some people will always say that it does not go far enough; we have heard that several times. As has been acknowledged, we will never convince everybody that an amendment is safe or good enough. An uncomfortable truth that is rarely recognised but is worth mentioning—I am sure that I will shortly be misrepresented on social media for saying it—is that no safeguard that we could put in any Bill, on any subject, will 100% ensure that there will never be any mistakes.
We have to do our level best to ensure that the probability is reduced to an absolute minimum. However, when someone goes into surgery, there may always be complications that cannot be foreseen, and we know that there have been awful miscarriages of justice; as a new Government, we have spoken about them, from the Post Office scandal to infected blood. We also have to rely on the fact that we are entrusting experienced, trained professionals with carrying out this work. Not only more often than not, but in nearly every situation, bar the awful cases of which we are all aware, they do their work to the best of their ability, and we have to be absolutely honest about that.
We should not look at the new clauses in isolation. They are part of a package. A number of amendments have been agreed to, about coercion and about ensuring that medical professionals are trained to the right standard. Like my hon. Friend, I hope we will see further amendments on special educational needs and learning disabilities. Those things are really important, so it is worth recognising that in addition to the new clauses, which in my view ensure a much stronger approach to the final judgment, we have agreed to a number of other amendments.
I want to pick up the issue of whether the process should be adversarial or inquisitive. I am sure that hon. Friends who have served at the Bar will tell me if I am wrong, but in my view an adversarial process is one of competition: it pits someone trying to prosecute an argument against someone trying to defend it. In contrast, an inquisitive approach is about asserting the truth. In my view, people who are not only going through agonising pain but making agonising decisions about what to do with the remaining days of their life should not be on trial. We should approach them from a position not of suspicion, but of support. Of course, that is caveated by all the things we have talked about, particularly on things like coercion. If there is any idea that a person has been coerced into the decision, of course we should investigate that, but the process should not be adversarial.
The connecting element is that we should ensure that we get the balance right between safeguards and safety. We should not add so many barriers and layers that a person can never access the process because it is too cumbersome. I do not want people to spend the remaining days of their life sitting in endless meetings, consultations and an adversarial court process, or whatever it might be. But we absolutely have to have all the right safeguards: as we have said, if there is any suspicion that someone may have been coerced or does not have mental capacity, of course we should go down the relevant routes to ensure that that is not the case.
Part of the reason why people will make the decision is that they want the autonomy to go out on their own terms, plan their remaining months and enjoy experiences with their family. We must ensure that those precious days are spent with their family, not in endless meeting rooms, so we absolutely have to get the balance right. As has been acknowledged, the diagnosis is a really important part of it. We regularly talk about the six-month point in the diagnosis, but we know when many people receive their diagnosis, their final days will be much shorter, so in the main people do not have time to go through a lengthy, difficult process.
Danny Kruger
Is the hon. Gentleman not making a case against a third stage altogether?
Danny Kruger
I would be grateful if the hon. Gentleman could explain that. If his concern is about asking patients to go through a third stage, after the doctor’s assessment—
Danny Kruger
In that case, what is the difference? It is not necessarily the case that the judicial stage has to be incredibly time-consuming, onerous or distressing for the patient. It is about the legitimacy of the process and the rigour that is applied to it. If the hon. Gentleman wants people to be sped through the process without going through the distress of further explanations, surely he should be objecting to the panel too.
Jack Abbott
I thank the hon. Gentleman for that question, but he is entirely misrepresenting my position. I have said that there should be a balance between safeguarding and ensuring that the process works for people. I have just spoken in support of the panel stage, and I think it is important that it is robust. We are including social care workers and psychiatrists alongside legal professionals. I have not for a moment used any language that suggests that I am not in favour of that. I am talking about the idea that it does not go far enough. We have spoken a number of times about adding additional layers beyond the processes that are already in the Bill, which we are debating today.
Danny Kruger
I was not suggesting that the hon. Gentleman opposed the panel. I recognise that he is speaking in support of it. My concern was that he was suggesting that there was a problem with the High Court stage. I now appreciate that he is objecting to some sort of fourth stage that some people might be suggesting on top of the panel. I personally am not proposing that; I think that there should be a multidisciplinary team as part of the assessment process and then a judicial stage, as originally planned.
Jack Abbott
In case I was not clear enough about my misgivings about the judicial stage, I will set them out again. In my view, the people making a High Court judgment probably do not have the breadth of knowledge and experience to pick up a number of the things that we have debated over the past few weeks. One cannot expect legal professionals also to be experts in palliative care, psychiatry or whatever it might be. I was saying that I had misgivings for that reason and that the approach that the panel is taking is more broadly in line with some of the Committee’s misgivings. It is an enormous improvement. I was not saying that we should remove that stage, dilute it or anything else. In fact, I am saying that it is much more robust and that it puts in the right safeguards, while getting the balance between safety and a recognition that people do not want to spend the last days of their life in perpetual meetings.
We have spoken about coercion a number of times. It is an incredibly powerful and important argument. I am sure my comments will be misrepresented, but we have to be clear that in some abusive relationships—which are pernicious, evil and subtle, as an hon. Member has mentioned on a number of occasions—someone might encourage their partner, or whoever it might be, not to go through with assisted dying so as to extend their days in pain and agony. We have to recognise that abuse takes many forms and is endemic in our wider society. That goes back to my point about why it is important to have a wider range of expertise on the panel. It is crucial to have psychiatrists and experts in fields beyond law. It is important to look at new clause 21 not in isolation, but in parallel with other amendments that we have agreed to, such as amendment 21, which specifically refers to coercion, training and so on. It is incredibly important to look at it in the main.
Finally, I will talk broadly about the questions of capacity and burden. We have spoken about not being able to police discussions. I would not necessarily go that far; I recognise that the relationship between the assessing doctors and the patient in the immediate term should approach this in the right way. However, these conversations take many forms and can be articulated in many ways, beyond what we can legislate for.
We have talked about the question of burden. If I, as someone who has just received a terminal diagnosis, have said, “I don’t want to spend my remaining days in absolute agony and fear, and I don’t want my family to go through that either,” that should not preclude my going through the decision-making process. However, I appreciate the nuance and the difference between that and someone saying or hinting that the decision has been taken out of their hands.
Another reason could be depression. I am sorry to put this incredibly glibly, but if I got a terminal diagnosis, I would feel pretty depressed about it; I might also be clinically diagnosed as depressed. Some previous amendments were about whether my past medical history—let us say that I had suffered from depression a number of times in my life—should preclude me from going through with the process.
The argument about family and friends saying, “Actually, Jack has suffered from depression at two or three moments in his life—maybe he should not access this,” although I think I am making the right decision, is powerful. To a degree, we have to rely all the time on a doctor, psychiatrist or anyone else to use their good professional judgment as to whether a person’s depression or otherwise is impairing their fundamental judgment on going down this route. I do not think that we can ever legislate 100% for that. We have to trust and rely on good practice, while giving people the training, skills and safeguards that we need to go down this route.
There is particular interest in the role of the commissioner. It is fairly regular procedure to have individuals being ultimately held to account in their various guises across the board. If there were not that single point of reference, people would be equally upset that no one could ultimately be held accountable for the wider system. It would be the same if the High Court system were retained; people would quite rightly ask who is actually overseeing the process. As well as the commissioner, with safeguards, the people ultimately responsible would be the Prime Minister, the Secretary of State for Health and Social Care or the appropriate authorities.
One question that perhaps my hon. Friend the Member for Spen Valley can answer is what the role is for the commissioner in Wales. Would there be separate commissioners for England and for Wales, or would the Secretary of State appoint one commissioner for both jurisdictions?
Amendment (e) to new clause 21, tabled by my hon. Friend the Member for Filton and Bradley Stoke (Claire Hazelgrove), is on a similar theme to my amendments 414 and 415; I am grateful to my hon. Friend the Member for Spen Valley and the rest of the Committee for supporting them in order to ensure that there is an informed consent procedure in the Bill. The amendment seeks to ensure equity for everyone who otherwise meets the eligibility criteria and who wishes to request assistance as set out in the Bill.
The Bill makes provision that the eligibility panel
“may hear from and question, in person, the person who made the application for the declaration.”
It clarifies that
“‘in person’ includes by means of a live video link or a live audio link.’
That is sensible because, for a number of people, travelling to a specific venue simply would not be possible, owing to their medical condition. However, the challenge around equity arises because several terminal illnesses also mean that people face significant, prolonged and unplanned pain episodes. It may make appearing before a panel via a live link at a specific, booked time slot all but impossible for some people. It would unduly and unfairly delay or at least make more difficult their wish to request consideration for assistance while they are in pain. Further panel appointments may not be straightforward to arrange, because of the number of people who would need to attend. A similar pain episode may happen again. Pain is not plannable, as we all know.
I am sure that none of us in this room thinks that the unintended consequence of excluding people who suffer from such pain episodes is in keeping with the intention of the Bill. This simple but important amendment would ensure that there is provision, where necessary, for otherwise eligible adults to pre-record their answers to the questions set by the panel in advance.
Kit Malthouse
The amendment is very sensible, not least because there are some conditions in which people experience a very significant decline at the end. In a matter of days, they may lose the ability to speak, while retaining capacity, so the ability for people in a small number of cases to give pre-recorded answers is incredibly sensible.
Jack Abbott
I agree wholeheartedly. It is important to emphasise that this provision will apply only in a relatively small number of cases, but it is a very important one. It would be subject to clear guidance developed following the passage of the Bill, as with the schedules and other related items, and would be subject to the same safeguards as the live link provisions already included in the Bill. Essentially, it would provide equity of access to request assistance for all otherwise eligible adults, no matter the pain or any other specifics of their terminal condition. Nobody should have to wait longer because of the pain that they are in.
My hon. Friend the Member for Filton and Bradley Stoke has tabled the amendment based on her experience. A close family member of hers, who has a terminal illness, has been experiencing pain episodes that would make it impossible to plan to join a meeting with a panel at a specific time slot via a live link. To require her to do so would only increase stress and distress at what is already an incredibly difficult time for her and her family. If the Bill becomes law, it would not be right to exclude anyone eligible from being able to request assistance as a result to the impact of the terminal illness itself. I encourage Committee members to join me in supporting the amendment.
I appreciate that bandwidth has come up several times. I admit candidly that it was a small factor in my thinking when I voted on Second Reading. By “bandwidth”, I mean the bandwidth of the professionals we are asking to do this work. By and large, I think we have done very well to keep politics out of this room, which is extraordinary, given the length of time that we have spent in here. However, there were a couple of moments of candour from Opposition Members on the Committee when they expressed concerns about whether the NHS has the capacity—
Terminally Ill Adults (End of Life) Bill (Twenty-third sitting)
Wednesday 12th March 2025
(1 month, 2 weeks ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 March 2025 - (12 Mar 2025)
The Chair
Would everyone ensure that electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We continue line-by-line consideration of the Bill. I remind Members that interventions should be short and raise points of clarification or questions; they should not be speeches in and of themselves. Members who wish to speak should bob, and continue to do so throughout the debate until they are called. When Members say “you”, they are referring to the Chair.
The Chair
Yes, “you” or “youse” should not be used to refer to one another during the debate.
Clause 12
Court approval
Question (11 March) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 371, in clause 13, page 9, line 5, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person, and”.
This amendment is consequential on NC21.
Amendment 61, in clause 13, page 9, line 5, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert
“certificate of eligibility was granted,”.
This amendment is consequential on NC21.
Amendment 62, in clause 13, page 9, line 13, leave out from “the” to “or” in line 14 and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.
This amendment is consequential on NC21.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.
This amendment is consequential on NC21.
Amendment 63, in clause 16, page 11, line 12, leave out “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.
This amendment is consequential on NC21.
Amendment 64, in clause 18, page 12, line 9, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 381, in clause 27, page 16, line 16, leave out sub-paragraph (iii) and insert—
“(iii) a certificate of eligibility,”.
This amendment is consequential on NC21.
Amendment 65, in clause 27, page 16, line 16, leave out from “the” to “under” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 388, in clause 34, page 20, line 40, leave out paragraph (c) and insert—
“(c) a panel has refused to grant a certificate of eligibility;”.
This amendment is consequential on NC21.
Amendment 66, in clause 34, page 20, line 40, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 390, in clause 40, page 23, line 24, at end insert—
“‘certificate of eligibility’ has the same meaning as in section (Determination by panel of eligibility for assistance);”.
This amendment is consequential on NC21.
Amendment 391, in clause 40, page 23, line 24, at end insert—
“‘the Commissioner’ has the meaning given by section (Voluntary Assisted Dying Commissioner);”.
This amendment is consequential on NC14.
New clause 14—Voluntary Assisted Dying Commissioner—
“(1) There is to be a Voluntary Assisted Dying Commissioner.
(2) The Commissioner is to be appointed by the Prime Minister.
(3) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(4) The Commissioner’s principal functions are—
(a) receiving documents made under this Act;
(b) making appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see Schedule (Assisted Dying Review Panels));
(c) making arrangements in relation to such panels and referring cases to them (see section (Referral by Commissioner of case to multidisciplinary panel));
(d) determining applications for reconsideration of panel decisions under section (Reconsideration of panel decisions refusing certificate of eligibility);
(e) monitoring the operation of this Act and reporting annually on it (see section 34).
(5) In this Act “the Commissioner” means the Voluntary Assisted Dying Commissioner.
(6) Schedule (The Voluntary Assisted Dying Commissioner) makes provision about the Commissioner.”.
This new clause provides for there to be a Voluntary Assisted Dying Commissioner.
New clause 15—Referral by Commissioner of case to multidisciplinary panel—
“(1) This section applies where the Commissioner receives—
(a) a first declaration made by a person,
(b) a report about the first assessment of the person which contains a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g), and
(c) a report about the second assessment of the person which contains a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e).
(2) The Commissioner must, as soon as reasonably practicable, refer the person’s case to an Assisted Dying Review Panel for determination of the person’s eligibility to be provided with assistance under section 18.
(3) But where the Commissioner receives a notification that the first declaration has been cancelled—
(a) the Commissioner must not refer the person’s case to such a panel, and
(b) if the person’s case has already been so referred, the Commissioner must notify the panel of the cancellation.
(4) Schedule (Assisted Dying Review Panels) makes provision about Assisted Dying Review Panels.”
This new clause provides for the Voluntary Assisted Dying Commissioner to refer a person’s case to a multidisciplinary panel, to be called an Assisted Dying Review Panel.
New clause 17—Reconsideration of panel decisions refusing certificate of eligibility—
“(1) This section applies where—
(a) a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) to an Assisted Dying Review Panel (“the first panel”), and
(b) the first panel refuses to grant a certificate of eligibility in respect of the person.
(2) The person may apply to the Commissioner for their case to be reconsidered on the ground that the first panel’s decision—
(a) contains an error of law,
(b) is irrational, or
(c) is procedurally unfair.
(3) The Commissioner must consider an application without a hearing.
(4) On the application—
(a) if the Commissioner is satisfied that any of the grounds mentioned in subsection (2) applies, they must as soon as reasonably practicable refer the person’s case to a different Assisted Dying Review Panel for a fresh determination under section (Determination by panel of eligibility for assistance);
(b) in any other case, the Commissioner must dismiss the application.
(5) The Commissioner must give reasons, in writing, for their decision.
(6) The Commissioner must notify the following of the outcome of the application, and give them a document containing their reasons for their decision—
(a) the person who made the application;
(b) the coordinating doctor;
(c) any other person specified in regulations made by the Secretary of State.”
This new clause provides for certain decisions of Assisted Dying Review Panels to be referred to a different panel for reconsideration.
Amendment (a) to new clause 17, leave out subsections (1) to (3) and insert—
“(1) The person applying for assisted dying, their next of kin, any of their relatives (within the meaning of the Family Law Act 1996), the registered medical practitioners who are treating them and anyone who took part in proceedings before the panel or gave evidence to the panel may apply to the Commissioner for the Panel’s decision to be reconsidered.
(2) The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust because of a serious procedural or other irregularity in the proceedings.
(3) The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
New clause 21—Determination by panel of eligibility for assistance—
“(1) This section applies where a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) to an Assisted Dying Review Panel (“the panel”).
(2) The panel’s function is to determine whether it is satisfied of all of the following matters—
(a) that the requirements of sections 5 to 9 have been met in relation to—
(i) the first declaration,
(ii) the first assessment and the report under section 7 on that assessment, and
(iii) the second assessment and the report under section 8 on that assessment;
(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
(d) that the person was aged 18 or over at the time the first declaration was made;
(e) that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person;
(f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration;
(g) that the person is registered as a patient with a general medical practice in England or Wales;
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.
(3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case.
(4) The panel—
(a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both);
(b) must (subject to subsection (5)) hear from, and may question, the person to whom the referral relates;
(c) in a case to which section 15 applies, may hear from and may question the person’s proxy;
(d) may hear from and may question any other person;
(e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.
In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link.
(5) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person.
(6) The panel—
(a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”);
(b) must refuse to do so in any other case.
(7) The panel must notify the following of its decision—
(a) the person to whom the referral relates;
(b) the coordinating doctor;
(c) the Commissioner;
(d) any other person specified in regulations made by the Secretary of State.
Where it grants a certificate of eligibility, it must give a copy of the certificate to each of these persons.
(8) If the panel is notified that the first declaration has been cancelled, it must cease to act in relation to the referral (and, in particular, it may not grant a certificate of eligibility).”
This new clause provides for a person’s eligibility to be provided with assistance under clause 18 to be determined by a multidisciplinary panel (instead of the High Court).
Amendment (d) to new clause 21, in subsection (4), leave out paragraphs (a) to (e) and insert—
“(a) must hear from, and must question, the coordinating doctor and the independent doctor;
(b) must (subject to subsection (5)) hear from, and must question, the person to whom the referral relates;
(c) in a case to which section 15 applies, must hear from and must question the person’s proxy;
(d) must consider hearing from and questioning—
(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to; and
(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness; and
(e) may hear from and may question any other person, including any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
Amendment (c) to new clause 21, in subsection (4), after paragraph (e) insert—
“(aa) if it considers that the matters mentioned in subsection 2(c), (h) or (i) are established on a balance of probabilities but still considers that there is a real risk that they are not satisfied, then the panel must stay its proceedings until such further inquiries it orders are made,”.
Amendment (e) to new clause 21, after subsection (4) insert—
“(4A) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Amendment (a) to new clause 21, in subsection (6)(a), after “satisfied” insert “beyond reasonable doubt”.
Amendment (b) to new clause 21, in subsection (6)(a), after “subsection (2)” insert
“unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,”.
New clause 2—Tribunal authorisation—
“(1) Where—
(a) a person has made a first declaration under section 5 which has not been cancelled,
(b) the coordinating doctor has made the statement mentioned in section 7(3), and
(c) the independent doctor has made the statement mentioned in section 8(5), that person may apply to the First-tier Tribunal (“the Tribunal”) for a declaration that the requirements of this Act have been met in relation to the first declaration.
(2) On an application under this section, the Tribunal—
(a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and
(b) in any other case, must refuse to make the declaration.
(3) The matters referred to in subsection (2)(a) are that—
(a) the requirements of sections 5 to 9 of this Act have been met in relation to the person who made the application,
(b) the person is terminally ill,
(c) the person has capacity to make the decision to end their own life,
(d) the person has relevant and available palliative care options available to them,
(e) the person is not liable to be detained under the Mental Health Act 1983,
(f) the person was aged 18 or over at the time the first declaration was made,
(g) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration,
(h) the person is registered as a patient with a general medical practice in England or Wales,
(i) the person has a clear, settled and informed wish to end their own life, and
(j) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.
(4) The Tribunal—
(a) may hear from and question, in person, the person who made the application for the declaration;
(b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);
(c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the tribunal.
(5) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the Tribunal may also—
(a) hear from and question any other person;
(b) ask a person to report to the Tribunal on such matters relating to the person who has applied for the declaration as it considers appropriate.
(6) In considering an application under this section, the panel must consist of—
(a) a sitting judge,
(b) a medical practitioner, and
(c) a lay person.
(7) In subsection (4)—
(a) in paragraph (a), the reference to the person who made the application includes, in a case where the person’s first declaration was signed by a proxy under section 15, that proxy, and
(b) “in person” includes by means of a live video link or a live audio link.”
This new clause would replace the role of the High Court with the tribunal system.
New clause 3—Tribunals in Wales—
“(1) For the purposes of this Act, the First-tier Tribunal and the Upper Tribunal, in exercising functions under or arising from this Act in relation to Wales, are to be treated as devolved tribunals within the meaning of paragraph 9 of Schedule 7A to the Government of Wales Act 2006.
(2) The Welsh Ministers may by regulations make provision relating to the procedure to be followed by the First-tier Tribunal and the Upper Tribunal in exercising functions under this Act in relation to Wales.
(3) Statutory instruments containing regulations made under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of Senedd Cymru.”
Amendment 67, in schedule 4, page 28, line 32, leave out from “The” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 68, in schedule 5, page 30, line 6, leave out from “the” to “made” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 69, in schedule 5, page 30, line 10, leave out from “the” to end of line and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 70, in schedule 6, page 32, line 3, leave out from “of” to “declaration” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
New schedule 1—The Voluntary Assisted Dying Commissioner—
“Status
1 (1) The Commissioner is to be a corporation sole.
(2) The Commissioner is not to be regarded as—
(a) the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(3) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
General powers
2 The Commissioner may do anything the Commissioner considers appropriate for the purposes of, or in connection with, the Commissioner’s functions.
Deputy Commissioner
3 (1) The Prime Minister must appoint a person to be the Deputy Voluntary Assisted Dying Commissioner (the “Deputy Commissioner”).
(2) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(3) The Commissioner may delegate any of the Commissioner’s functions to the Deputy Commissioner, to the extent and on the terms that the Commissioner determines.
(4) The delegation of a function under sub-paragraph (3) does not prevent the Commissioner from exercising that function.
(5) The functions of the Commissioner are to be carried out by the Deputy Commissioner if—
(a) there is a vacancy in the office of the Commissioner, or
(b) the Commissioner is for any reason unable or unwilling to act.
Appointment and tenure of office
4 (1) A person holds and vacates office as the Commissioner or Deputy Commissioner in accordance with the terms and conditions of their appointment as determined by the Secretary of State, subject to the provisions of this paragraph.
(2) An appointment as the Commissioner or Deputy Commissioner is to be for a term not exceeding five years.
(3) A person may not be appointed as the Commissioner or Deputy Commissioner if a relevant appointment of them has been made on two occasions. “Relevant appointment” here means appointment as the Commissioner or Deputy Commissioner.
(4) The Commissioner or Deputy Commissioner may resign by giving written notice to the Secretary of State.
(5) The Secretary of State may by notice in writing remove a person from the office of Commissioner or Deputy Commissioner if satisfied that the person—
(a) has behaved in a way that is not compatible with their continuing in office, or
(b) is unfit, unable or unwilling to properly discharge their functions.
Remuneration
5 The Secretary of State may pay to, or in respect of, the person holding office as the Commissioner or Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Staff: appointed by Commissioner
6 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(5) The Employers’ Liability (Compulsory Insurance) Act 1969 does not require insurance to be effected by the Commissioner.
Staff: secondment to Commissioner
7 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded.
Staff: general
8 (1) Before appointing staff under paragraph 6 or making arrangements under paragraph 7(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
(2) A function of the Commissioner may be carried out by any of the Commissioner's staff to the extent authorised by the Commissioner (but this is subject to sub-paragraph (3)).
(3) Sub-paragraph (2) does not apply in respect of—
(a) the Commissioner’s function under paragraph 2(1) of Schedule (Assisted Dying Review Panels) of making appointments to the list of persons eligible to be panel members;
(b) the Commissioner’s function of determining applications for reconsideration under section (Reconsideration of panel decisions refusing certificate of eligibility).
Financial and other assistance from the Secretary of State
9 (1) The Secretary of State may—
(a) make payments to the Commissioner of such amounts as the Secretary of State considers appropriate;
(b) give such financial assistance to the Commissioner as the Secretary of State considers appropriate.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 7;
(b) provide premises, facilities or other assistance to the Commissioner.
Accounts
10 (1) The Commissioner must—
(a) keep proper accounts and proper records in relation to them, and
(b) prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(2) The Commissioner must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General—
(a) before the end of August next following the end of the financial year to which the statement relates, or
(b) on or before such earlier date after the end of that year as the Treasury may direct.
(3) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State.
(4) The Secretary of State must lay before Parliament each document received under sub-paragraph (3)(b).
(5) In this paragraph, “financial year” means—
(a) the period beginning with the date on which the Commissioner is established and ending with the second 31 March following that date, and
(b) each successive period of 12 months.
Application of seal and proof of documents
11 (1) The application of the Commissioner's seal is to be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the Commissioner’s seal or signed on the Commissioner’s behalf —
(a) is to be received in evidence, and
(b) is to be treated as duly executed or signed in that way, unless the contrary is shown.
Public Records Act 1958
12 In Part 2 of the Table in paragraph 3 of the First Schedule to the Public Records Act 1958 (bodies whose records are public records), at the appropriate place insert “The Voluntary Assisted Dying Commissioner”.
House of Commons Disqualification Act 1975
13 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying person from membership of House of Commons), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner or the Deputy Voluntary Assisted Dying Commissioner.”
Freedom of Information Act 2000
14 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act) , at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner.”
Equality Act 2010
15 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities subject to public sector equality duty), at the end of the group of entries for bodies whose functions relate to health, social care and social security insert—
“The Voluntary Assisted Dying Commissioner.””
This new Schedule contains provision about the Voluntary Assisted Dying Commissioner and the Deputy Commissioner.
New schedule 2—Assisted Dying Review Panels—
“Introduction
1 In this Schedule—
(a) “referral” means a referral under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) (and similar references are to be construed accordingly);
(b) “panel” means an Assisted Dying Review Panel.
List of persons eligible to be panel members
2 (1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.
Tenure of persons appointed to list
3 (1) Subject to the provisions of this paragraph, persons on the list hold and vacate their appointments in accordance with the terms on which they are appointed.
(2) An appointment to the list is to be for a period not exceeding five years.
(3) A person who has held appointment to the list is eligible for re-appointment for one further period not exceeding five years.
Membership of panels
4 (1) The Commissioner must make arrangements for determining the membership of a panel.
(2) The arrangements must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.
Decisions of panels
5 (1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.
Panel sittings
6 (1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)).
(2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.
Staff and facilities
7 The Commissioner may make staff and other facilities available to panels.
Practice and procedure
8 (1) The Commissioner may give guidance about the practice and procedure of panels.
(2) Panels must have regard to any such guidance in the exercise of their functions.
Reasons
9 Panels must give reasons, in writing, for their decisions.
Money
10 The Commissioner may pay to or in respect of members of panels—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
House of Commons Disqualification Act 1975
11 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying persons from membership of House of Commons), at the appropriate place insert—
“Person on the list of those eligible for membership of an Assisted Dying Review Panel.””
This new Schedule contains provision about Assisted Dying Review Panels.
Amendment (c) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) The Commissioner must ensure that each member of a panel has had training in respect of domestic abuse, including coercive control and financial abuse.”
Amendment (a) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) Each member of a panel must have fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment (b) to new schedule 2, in paragraph 8, leave out sub-paragraphs (1) and (2) and insert—
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
This amendment would require Assisted Dying Panels to follow an adversarial process to test the evidence by appointing an advocate to the panel.
I call Jack Abbott—you left us on a cliffhanger.
Jack Abbott (Ipswich) (Lab/Co-op)
I feel huge responsibility for my “EastEnders”-style ending, Ms McVey. Unfortunately, my speech is not going to be as radical as some may have hoped.
I was discussing the bandwidth or capacity of the professionals involved in the process. We have been very good at leaving party politics at the door, but Opposition Members have mentioned the state of the NHS and the wider healthcare system on a couple of occasions. I could probably go further and mention the huge backlogs in the courts and wider criminal justice system. It is fair enough to consider the Bill in that wider context; I have considered that point deeply, as I know Members from across the Committee have.
We asked earlier whether there is capacity in the system to support the panels—that is, are there enough psychiatrists and social workers? However, it is inconsistent to then also say that we need more psychiatrists and social workers in other areas of the process. I am not sure that we can have it both ways. This is something to consider—the Committee has discussed it—but ultimately it is a matter for Members of the House.
The Committee is not here to debate whether the systems in place can deal with an assisted dying Bill. Whether or not assisted dying is introduced into our healthcare and judicial systems, it will not fundamentally change the challenges that the country faces in these areas. We are here to ensure that we present back to the House a Bill that has the safeguards and balances that I mentioned this morning, so that it can progress. I certainly would not want to produce anything that paralyses the system, but new clause 21 would not do so. In fact, in the long run, the panel approach would help the process along. For that reason, I am not sure that the capacity of professionals provides a valid argument against the panel—if anything, quite the reverse. As I said, that point really was not worthy of an “EastEnders” cliffhanger.
We have had positive murmurings and acknowledgments about amendment (e) to new clause 21. The panel approach represents a huge leap forward. I appreciate that Members in the room and across the House may say that the approach does not go far enough. I go back to my earlier point: for some Members, no amendment, change or safeguard will ever be enough for them to support the Bill. As a Committee, we have to come out with a strong, robust process that puts the patient first, and ensure that we are acting in their interests. We must make sure patients are safe and have the capacity to make these decisions, but I do not want any individual looking to go down this route to be stuck in endless meetings or courtrooms, when they should be spending time with their loved ones. I think this strikes the right balance between safeguarding—bringing in all of the professional expertise that we have been looking to do as a Committee—and making sure this process is fair and equitable. I urge Members to support amendment (e) to new clause 21, but I will also be supporting the new clauses today.
Danny Kruger (East Wiltshire) (Con)
On Second Reading on 29 November, the hon. Member for Spen Valley said:
“Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding.”—[Official Report, 29 November 2024; Vol. 757, c. 1019.]
There can be no doubt that the High Court judge safeguard was presented to the House as globally exceptional, unusually thorough and robust, as compared to other jurisdictions. It was also a prominent feature of the public campaign around the Bill. We were told it was a Bill designed for exceptional circumstances, with robust safeguards—the High Court judge being the pre-eminent one. It was not a trivial detail; it was the centrepiece of a safeguarding regime arranged around a small number of vulnerable people. Over 60 Members of Parliament are on the record as saying that it was this safeguard that helped persuade them to vote in favour on Second Reading.
Kim Leadbeater (Spen Valley) (Lab)
I will stand corrected if this is not true, but my understanding is that Hansard will show a very different story. I do not think that 60 people got up and said on record that this element was why they were voting for the Bill.
Danny Kruger
To be clear, I was not suggesting that they all said so on Second Reading, because not everybody spoke in that debate—nor am I saying that it is only because of this safeguard that MPs voted for the Bill, but there are 60 colleagues of ours who have cited the judicial safeguard as a reason for supporting the Bill. Indeed, I hope the Committee will agree that this was always presented as a very significant aspect of the safeguarding regime, if not the most significant aspect. I suggest it was the most significant, because it enabled people to argue that this was the strongest Bill in the world, given that other regimes do not have a judicial element.
I opposed the Bill on Second Reading and I expect that I will oppose it on Third Reading, but I respect the Committee process enough to accept that the House wanted the Bill debated. Because I respect the process, I have not opposed clauses that concern the heart of the Bill, but we are now going to see the hon. Member for Spen Valley, Government Ministers and their supporters vote against this clause—the essential safeguard in the Bill, and the principal element used to persuade the House that the Bill was safe—standing part of the Bill. It is an extraordinary thing that we are going to see the Bill’s promoter and the Government oppose the centrepiece of this Bill.
Kim Leadbeater
I understand the hon. Member’s framing of this and it might very well be his perspective, but there were 650 MPs who voted on Second Reading that day, so I think it is unfair to represent colleagues who did not have the view that this is the central component of the Bill. There are lots of other components to the Bill that colleagues have certainly spoken to me about, and it is important to acknowledge that.
Danny Kruger
I am happy to acknowledge that there are many other components of the Bill, but many Members, including the hon. Lady, cited this safeguard as an essential element of the safeguarding regime—if not the most essential. Crucially, it was presented to the House of Commons as such, and it is a central clause of the Bill, and the hon. Lady is now proposing to vote against that element. My view is that a change this substantial—a fundamental and radical change to the structure of the process that is being designed—should be presented on Report. The whole House should have the opportunity to discuss and debate properly whether that element should be changed. Every Member should have the opportunity to have a say on this central point.
Tom Gordon (Harrogate and Knaresborough) (LD)
The hon. Gentleman will have to forgive me, because I am a relatively new MP and there are still bits of parliamentary procedure that I have not yet got my head round, but is it not the case that MPs will have a say on Report, when they can table amendments to take the Bill back to how it was? That point could therefore be debated on Report.
Danny Kruger
Of course that is correct: a small number of amendments will be selected for debate and vote on Report, and if somebody wants to table an amendment on this issue it might indeed make it through Mr Speaker’s selection, but the point of the Committee process is to consider the Bill that was passed on Second Reading and come back to the House with the Bill either unamended or amended. This is a very substantial change to the Bill that was presented and voted for on Second Reading. As I say, many Members supported this clause, no doubt including the hon. Gentleman.
Kim Leadbeater
The hon. Gentleman is making a point that we hopefully all agree with. The job of the Committee is to take evidence and look at ways of improving the Bill on that basis. This is a really good example of where we have actually done our job and done it very, very well.
Danny Kruger
I do not think the hon. Lady can say she has done her job very, very well if, after presenting a Bill, and after months and months of work and debate, including many hours’ debate on Second Reading, she suddenly decides that its central part is deficient. She talks about the opportunity for the Committee to take and debate evidence, but we have not had evidence on this new element—these new clauses and the panel process. There were vague suggestions from some of the people we heard evidence from that it might be appropriate, but although we heard evidence on the High Court stage and the deficiencies therein, we have not had the opportunity to properly examine the panel element that is now being introduced.
Kim Leadbeater
I thank the hon. Gentleman for giving way again; I will sit down after this. I will not take it too personally that he thinks I have done a very poor job, but the point is that we heard a broad range of evidence from professionals including legal experts, medical experts, psychiatrists and social workers—lots of different people. We have also had evidence come in over recent weeks and months that has added to that and has talked about these changes. It is important to acknowledge that.
Danny Kruger
The hon. Lady must not apologise for intervening on me. I can hardly be one to object to people intervening. This is a very good forum for the kind of exchanges we are having, so I am very happy to take interventions. She is absolutely right that lots of evidence has been presented. I cite it myself all the time. Further evidence is coming in, and much of it is very critical of the new proposals. That is an absolutely fair point, but my point remains that we invited witnesses and had three days of evidence on a Bill whose core safeguard has now fundamentally changed—well, it has not changed yet, but I suspect it is about to.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
I supported the Bill on Second Reading on the basis of the High Court proposal, but then read very closely the evidence from Justice Munby on the need for a strengthened evidentiary process so that this is not just a rubber-stamping exercise. He said, secondly, that it would be better to replace the High Court with another system because of the position that it would place judges in. Having listened to 50 witnesses, I am satisfied with this proposal; I was persuaded through this cross-party process, which is an incredible example of deliberative decision making. Does the hon. Gentleman agree that our ability to amend the Bill where the evidence shows that we must do so demonstrates the strength of this process, and has enabled us to produce something much better and more in alignment with public opinion?
Danny Kruger
I greatly respect the position that the hon. Lady has come to. She has been persuaded that this is an improvement on the Bill, and I respect that. I recognise that that is what the hon. Member for Spen Valley and others think, but I am afraid I do not accept that the process has been adequate. The hon. Member for Penistone and Stocksbridge cites Justice Munby and others who criticised the High Court proposals. I also have my criticisms of them—I think they were inadequate—but the response to that is not to scrap them all together, but to strengthen them, as Justice Munby suggested. The hon. Lady will know that Justice Munby is not supportive of the new proposals either; he thinks they also fail the essential test of being an effective safeguard. Nor does the new proposal—the panel—provide the opportunity for evidentiary investigation, which would indeed be appropriate if we were to have a proper safeguard at this stage. I respect the hon. Lady’s position, but I am not persuaded.
The Chair
Order. I remind Members that, as I said at the start, interventions should be short, and not speeches.
Lewis Atkinson
The hon. Gentleman says that the way to proceed would have been to strengthen, through amendment, the existing High Court safeguard. I may have missed them, but I cannot see amendments in his name that do that, so will he explain what strengthening of the High Court safeguard he would prefer?
Danny Kruger
I am about to come to that. I am going to suggest how we could have done it better. I take the hon. Member’s point. I do need to answer that question.
Kit Malthouse
I am just intrigued. My hon. Friend is talking a lot about the evidence. Did any evidence on anything in the Bill change his mind on any aspect of it?
Danny Kruger
Thank you, Ms McVey. I do not want to be facetious because it is a serious point, but lots of new points were made in evidence to the Committee, including some in favour of the Bill as it is and some of the amendments that I have opposed. We have had some helpful evidence that has helped to shore up the case made by the Bill’s promoter, as well as evidence that suggested otherwise, and some points in debate have been very well made. I was nearly floored by an intervention by the hon. Member for Chesham and Amersham yesterday, for instance. I do respect the points that have been made in Committee, including at the evidence stage.
My suggestion is that we should be doing this on Report, if we do it at all, because that would reflect the seriousness of the proposal and the fact that the House voted for the clause on Second Reading. There were problems with the High Court stage, as has been acknowledged, and others have referred to it in support of the change. I want to quickly acknowledge, perhaps in response to my right hon. Friend the Member for North West Hampshire, the points made by Lord Sumption, Max Hill, Alex Ruck Keene and Nicholas Mostyn—all senior barristers and judges. It became obvious that there were significant issues, particularly around the power of the court to investigate applications or to hear evidence on them, and about the capacity of the judicial system to cope with the demand.
It was clear that further thought was needed on the High Court stage. Indeed it was apparent that further thought was already under way. There is an interesting exchange in the record of the evidence sessions between the Justice Minister, the hon. Member for Finchley and Golders Green, and those witnesses, particularly Max Hill, who said that he was quite close to the construction of the Bill. That clearly shows, in my view, that there already was thinking under way behind the scenes that have led to these changes.
My view is that, rather than ditching clause 12, we should be seeking to make it work in ways that many hon. Members have proposed. I am afraid we just skipped over those proposals in earlier groupings on the clause because there was no point—we were obviously proceeding to the stand part debate and to eliminate the involvement of the court all together.
There were things the Committee could have set itself to address, but we have not done that. I hope you will excuse me, Ms McVey, for making what might be a cynical observation: I think the High Court stage was recognised as popular and as useful to the campaign to get the Bill through the House of Commons. It was predicated specifically on the point, which was clearly communicated and understood by the public, that this measure of assisted dying is intended for very few people. It is for the most exceptional cases: people at the very end of their life, in desperate circumstances, in desperate pain and suffering. Very few people need it. However, I believe this change is predicated on the real intent of the Bill: far wider eligibility than just that tiny group.
We have seen that through the rejection of a series of amendments that would have restricted eligibility specifically to that group—a group for whom we all understand the case for an assisted death; again, the public support it in those specific cases of people at the very end of their life, who are suffering intolerably. The Bill is not restricted to that group only, and that is why we need to redesign the system to enable this larger group to make use of it.
Kim Leadbeater
The hon. Gentleman is been very generous with his time. I am interested in how he can conclude that the eligibility criteria have somehow been expanded by adding an expert panel with a psychiatrist and a social worker.
Danny Kruger
I am sorry; I did not intend to give that impression. That is not what I am suggesting. What I am saying is that we have seen the rejection of a series of amendments that would have restricted eligibility, or ensured that only certain people would be eligible: those for whom we all understand the reason for the case for assisted death. Whether our amendments related to the burden, the pain, or questions around capacity and coercion, our amendments would have restricted access to only the most desperate people.
On that basis, it would have been appropriate to have a High Court stage, because the High Court could have accommodated that lower demand. Given the opportunity that the Bill affords to a larger group of people to gain access to assisted death, it has become obvious—I presume, in the mind of Government and others—that there is insufficient capacity in the court system to accommodate the regime being instituted here.
I think the question of High Court capacity has been driven by the desire for a system that can cope with many thousands of deaths per year. I have seen ranges suggesting between 6,000 and 17,000 deaths per year. If Members have other calculations or estimates, I would be grateful to hear them. In fact, it would be good to know whether the Government have done any estimation of the numbers we are looking at.
It is not simply a case of averting those desperate cases of people who help their relatives to die by going to Switzerland or who assist them in committing suicide in other ways—we heard from Max Hill that only a handful of cases cross his desk every year. It is clearly the intention to greatly widen the scope beyond that desperate group. It is unclear what the overall number is, but my strong sense is that we are looking at many thousands, and for that reason, it has been decided that the High Court would not have the capacity to cope with this.
Jack Abbott
We go back to the inconsistency argument. On the one hand, we are saying that we must have more psychiatrists, social workers and palliative care experts in the process. This change is now being proposed, and the hon. Gentleman is using that as a reason to say that there is bad faith here and the sponsors of the Bill just want to widen the scope. I do not think he can have it both ways.
Danny Kruger
I am not suggesting bad faith here. I think there is a genuine view, and it might well come from the Government’s official advice, that the Bill, as drafted and as amended, will allow many thousands of people to gain access to assisted death every year. On that basis, we will need a system that can cope with them. The judiciary clearly communicated that it could not cope, and I understand why it would do so.
Jack Abbott
I appreciate that, but just this morning we heard from the hon. Member for Reigate that, because there are not enough psychiatrists and social workers, this panel is not workable either. Again, there is an inconsistency here. There is either enough capacity in the system or there is not—which is it?
Danny Kruger
I am sorry to disappoint the hon. Member, but I am afraid I am going to have it both ways. I think the Bill is profoundly flawed, particularly if large numbers of people will be going through this system. Whether they are going through a judicial system or a panel system, there will be huge capacity constraints on the professionals involved, and we have transferred that responsibility and that problem from the judiciary to psychiatry and social work—unless, of course, it is a rubber-stamp exercise, which I fear it might be, but even then, we are still involving psychiatrists and social workers in a rubber-stamp exercise.
Jack Abbott
But that demolishes the central argument that the hon. Gentleman is making. On the one hand, he says that we are expanding access, but on the other, he says that the panel system will not be able to expand it. If the motive of the promoter of the Bill was to expand the system to make more people eligible, the hon. Gentleman has just said that the constraints of the panel will mean that that does not happen anyway. He is conflating different things and being totally inconsistent.
Danny Kruger
All right. I regret my failure to assuage the anxieties of the hon. Member.
Let me explain why it was so important that we had a judicial stage. My complaints were never against the principle, but always against the practicalities, for the reasons I have just given and will go on to say more about. The value of a judicial stage is that it gave the doctors certainty and, indeed, protection for the process they were responsible for.
I want to cite the evidence from the Medical Defence Union, which provides doctors with insurance against claims of medical negligence. Responding to the suggestion that judicial involvement could be replaced by some other decision-making body, it stated:
“The MDU strongly rejects this assertion. The involvement of the judiciary is essential. Its absence leaves doctors unduly exposed. Media reports suggest that an alternative safeguard is being mooted. No ‘independent panel’, however so constituted, can replace the legal authority of a course of action sealed and ratified by a judge. Doctors deserve that certainty when relying upon this Bill to provide the very best for their patients at the most delicate moment of their duty of care.”
I will also cite the evidence that we received from Ruth Hughes, a senior barrister with 17 years of experience in mental capacity law. I cannot say that she is a King’s counsel because she does not become one until later this month—congratulations to her. She stated in her written evidence that
“if there is no judicial declaration because the judicial safeguard is not enacted, then there is a risk that the estates of persons who have been assisted to die will be sent into turmoil. This is due to the possibility of arguments being made that beneficiaries of the estate have ‘influenced’ the person into obtaining the assisted death.”
She said that
“even if there is no conviction but another person asserts there was ‘influence’…not undue influence”—
and certainly not coercion, which is banned by the Bill—
“but a lower standard of ‘influence’ by a beneficiary of the estate…then the personal representatives will be advised to obtain directions from the Court as to how to administer the estate.”
Her point is that, even if the bar for the assisted death is met, in terms of influence, coercion and so on, the testamentary or probate challenges that the estates will then go into are considerable.
The fact is that somebody has to be the judge—somebody has to take legal responsibility for the decision that is made. In the common law system, we do not give powers of life and death to panels; we give them to legally constituted bodies with judicial authority. To cite the MDU again:
“To put it plainly, without judicial involvement someone will have to take responsibility for the legality of the action.”
Dr Simon Opher (Stroud) (Lab)
Again, I thank the hon. Member for quoting all this, but does it mean that he supports the original clause 12?
Danny Kruger
I will be voting for clause 12 to stand part, because I think it is an essential safeguard, but it is not strong enough. There are all sorts of problems with it around capacity and the way it is constituted, and I will come on now to how I think it can be improved.
Danny Kruger
The hon. Gentleman does not seem impressed by my straight answer to his straight question. Yes, I do support clause 12. I think we should strengthen it, in the ways that I will now explain. We do need a court, and I think Parliament was right to demand this, or to support it. We have a comparable model in the Court of Protection, which applies when there are disputed decisions about whether to withdraw life support. By the way, I mention to hon. Members who have referred to this—just to go back to an earlier debate—that, with the Court of Protection, one is obliged to notify the family. So even there, when there is a decision to withdraw life support, the family is notified, but we have decided not to notify the family under this Bill. But anyway, the Court of Protection does provide an appropriate comparison.
Whether we are talking about the Court of Protection or the High Court, either would work if the system was set up right. The crucial thing, in my view, is that it needs a proper adversarial arrangement so that the judge can actually judge. The way that judges work in this country, under the common law system, is that they hear arguments and then make decisions. It has been suggested that there could be a role for the official solicitor in acting “for the state”, as it were—or indeed “for society”, perhaps, or however we would want to put it—to perform the role of challenging the application and taking responsibility for presenting any alternative pieces of information that the judge should consider.
Jack Abbott
I do not want to make implications about what the hon. Gentleman might be saying, but am I correct that, with the adversarial position that he is supporting, a person coming to the end of their life, who had gone through this process, would essentially have to argue their case in front of a judge?
Danny Kruger
No, I do not think it is necessary for the applicant to come to court and present their case—that might be completely impossible or inappropriate—but a case does need to be made to the judge about why it should proceed, which is part of the original proposal. Indeed, that is what is proposed under the panel system as well: the case is made for whether it should go ahead.
My suggestion is that there needs to be representatives of the applicant—who may want to appear themselves—but there also needs to be somebody who is putting the other side of the story: “Maybe this isn’t the right thing to do. Has the judge considered these parts of the evidence, or this aspect of the report from the assessing doctors?” That would be an appropriate procedure, which is completely consistent with how these important decisions are taken in other aspects of our system.
Jack Abbott
There is a difference between an adversarial system and an inquisitorial system, which is what I believe is proposed for this panel. The panel would take not an adversarial but an inquisitive position. I do not think that is a million miles away from what the hon. Gentleman is saying, but there is a distinct difference. If he is arguing for the panel to take an adversarial position, that is very different from where the panel currently is.
Danny Kruger
Yes; it would be inappropriate to ask a panel to operate in an adversarial system. It would be inappropriate to ask a psychiatrist and a social worker to act as a judge. We need a proper court system, as we always do with other important decisions in which two sides make arguments. Let me try to explain. I agree that what is being proposed is an inquisitorial system through a panel, which is completely alien to the British common law model of making important decisions. That is what is being suggested, but I do not think it is appropriate.
I do not believe in assisted dying; I think it is the wrong thing to do. But if we were to do it, we should have a proper multidisciplinary team at the outset—I sort of feel that that is where we have got to through these debates, and if the debates had happened properly and prior to the Bill being drafted, something more like this system might have been proposed. Perhaps a doctor does the first declaration as proposed, but we then go into a proper multidisciplinary team, rather than just having the options to refer to psychiatrists if appropriate or to maybe consult palliative care specialists.
The involvement of all the appropriate specialists in assessing capacity and coercion, making clear the alternatives that the patient has, making a proper diagnosis, and hearing from family members—all the appropriate processes that should be followed in a case like this—should happen at the very beginning of the process. There is no need for a lawyer at that stage on the multidisciplinary team that we have created; it will be a proper combination of clinical and social work professionals. Their reports would then feed into the judicial process, which would be the second or third stage, if we have a doctor at the beginning. The judge would then hear arguments from, as it were, both sides. That need not be a distressing or time-consuming process, but it would be an appropriate one under British law to make decisions of life and death. That court would clearly hear arguments made by both sides.
Kit Malthouse
To be clear, does my hon. Friend envisage that I would either be in the hearing, or lying in my bed listening to the hearing—the fungating tumours in my neck restricting my ability to breathe—having gone through all the eligibility criteria, but having to listen to someone argue that I should go through a death that I am trying to avoid, by arguing that I do not have capacity? Does he not see that that could be profoundly distressing to someone who is in the closing moments of their life? In many ways, it might actually be cruel and traumatic for me to hear somebody arguing, frankly, that I should endure the pain, in their opinion.
Danny Kruger
I regret that my right hon. Friend is making that argument. The fact is that the panel is already going to consider whether it is appropriate. There might not be some professional who is there with the purpose of suggesting that there are other things that the panel should consider, but the patient is already lying there waiting for powerful people in another room to make a decision about whether they are going to get an assisted suicide or not. That process is already going on.
On my right hon. Friend’s point that it is intolerable for somebody to hear the case made against their assisted death, let me put to him an alternative hypothesis. Rather than somebody in the situation that he describes, let us imagine somebody who is the victim of years of coercive control, who has undiagnosed mental health conditions, who is feeling a burden on their family and whose relatives want their money. None of that has yet been fully identified through the initial doctor’s stage of the process, but it has been commented on in some of the evidence that the multidisciplinary team heard. That person might hope that somebody is there making the case for them, as might their family.
It is totally appropriate for a court to hear that this procedure should not go ahead because of those other factors, which are only now being properly understood by the decision maker. That decision maker is doing so openly, not in a private session. The decision is being made not by people who are committed to the procedure and process of assisted suicide, but by an independent judge, sitting in their judicial capacity in open court, with all the safeguards and accountability that the judicial system has. That feels to me like a perfectly appropriate safeguard, and I suggest that it is, in principle, what the House of Commons thought they were getting when they supported this.
Sarah Olney (Richmond Park) (LD)
I am just reflecting on the right hon. Member for North West Hampshire’s intervention. Does the hon. Gentleman not agree that the purpose either of the panel or the High Court judge is to establish beyond all doubt that if a person is assisted in their death, no crime is being committed, and that in order to establish that, we need to apply the highest standards of evidence? Whether an adversarial or an inquisitorial process is used to collect that evidence, there must be some sort of process. That may be uncomfortable for the patient but it is necessary for their friends, relatives and the doctors being asked to assist. That is really what we are trying to achieve.
Danny Kruger
I am grateful to the hon. Lady for making that absolutely central point. This is a judicial process, and a decision is being made. I recognise that the hon. Member for Spen Valley has correctly abandoned the claim that this is a judge-led process—because it is not—but the function of this panel will be essentially judicial, not least because the decision to proceed with an assisted death entails the people involved in administering it being exempt from criminal law and not being liable to prosecution under the Suicide Act 1961. We have made an exemption for what is otherwise a crime, and if they do not get the go-ahead from this panel, they will be committing a crime if they proceed. So in all essence, a judicial decision is being made, and it is right that we have the protections of a court.
Let me make a couple of brief points about the practicalities, and they have partly been made by others. The central point is that we do not know whether the professionals who will be required to take part in this panel have the capacity to do so. We know that the judges do not have the capacity under the current design of the law, which is an essential flaw—or we think they do not, because that point has been comprehensively argued by the judiciary and I suspect by officials at the Ministry of Justice. What we do not know is whether the psychiatry and social work professions have adequate capacity. There has been no impact assessment, and we have had a lot of comments from representative bodies expressing anxiety about the capacity of these professions to supply the panels.
The point I am trying to make is that we cannot, and should not, legislate in the dark. We should not draft laws in ignorance of these basic facts. We need to know whether the law before us is workable in the real world, and I would be grateful for clarification on that from Ministers when they speak to this clause. In my view, we need robust and clear data on how many professionals might take up the posts, and more importantly, we need the clearest and earliest warning of where there might be deficits that would compromise the entire system, particularly around the capacity of psychiatrists. We have a central problem with ignorance around capacity, but my strong view is that we do have a problem with capacity.
An important point was made by Alex Ruck Keene in evidence around the judge-led process, which we discussed earlier. His point was that it would not be possible for the judge to decline an assisted death on the basis of what he calls service denial—that is, there is not enough social care treatment or medical treatment available for the patient. If the reason why the patient were to receive an assisted death was that the local authority would not provide them with improvements to their home or funding, or that they could not get the medical treatment they wanted early enough, that would be a legitimate reason, or would not be a reason not to proceed with an assisted death. That is a very grave concern to us, and it is what happens in other countries. We heard this morning about evidence that when a patient is denied the medical or social care that they need to carry on living and living well, they are offered an assisted death. In those circumstances, I would really hope that the decision maker would conclude that it is wrong that we offer an assisted death, and that we in fact need to insist that they get the support they need to live well. I reference that because, as I understand it, there is no opportunity in the new clauses for the panel to decline an assisted death on grounds that it is being sought only because of the inadequacy of the wider care system.
It has been suggested that the judicial option remains, through the judicial review system. Other hon. Members have responded to that point, so I will not labour it. However, I want to make the point that new clause 17 makes judicial review less likely because it offers the opportunity for a sort of appeal. It is an appeal only in one direction—against a refusal—but there is a sort of appeal process in the system. As my hon. Friend the Member for Reigate said, if there is a JR, it is likely to take a long time. There is nothing about whether legal aid will be arranged. The state has proposed to pay for people to go through the assisted dying process, but is not prepared to pay anybody to challenge it, so they would have to raise their own money. It would also take a long time. It would be much simpler and better, whether it is a panel or a judge, to set up the system in a way that allows both sides to be told and that does not rely on a cumbersome judicial review system.
I reiterate that I support the multidisciplinary team. It is a very good thing that the hon. Member for Spen Valley has decided to introduce a proper stage at which a psychiatrist and a social worker will have to consider the application properly. I have concerns about how it would actually work, which I will come on to, but having a multidisciplinary team is in principle the right system. I stress that the professionals who made the case for multidisciplinary teams as part of the assessment process have not endorsed the new clauses. They are not saying that we have adequately met their concerns about the process.
Kim Leadbeater
I am not entirely sure who the hon. Gentleman is referring to, but it is fair to say that there is a range of views across a range of professions. It is important to acknowledge that.
Danny Kruger
I apologise; the hon. Lady is absolutely right. No doubt there are representative bodies, whether it is patients’ groups or bodies representing professionals, that are satisfied with the new proposal. I do not know which—genuinely, I just have not come across them—but I have no doubt that there are some.
Kim Leadbeater
To clarify, the point that I am making is that there is a range of views across a range of organisations—many of which are neutral on the issue of assisted dying, full stop—and a range of views within each profession. We heard evidence from people working in palliative care with different views, and from medical people with different views. It is important to acknowledge that.
Danny Kruger
Yes, a number are neutral. I will be grateful if the hon. Lady can tell the Committee if there are any representative bodies working with the professionals who administer end-of-life care that have endorsed either the Bill as it was or the Bill as it is. I do not believe there are.
Danny Kruger
The hon. Lady is going to check. My understanding is that all the bodies that represent palliative care professionals and end-of-life specialists are opposed to the Bill as it was and as it is. I think there are straightforward reasons for that.
Everybody agrees that there is value in the multidisciplinary team approach. The British Association of Social Workers provided evidence setting out what it thought was needed, namely an MDT working at the assessment stage. This is not that. It is very important that we do not confuse the provisions made under the new clauses with a multidisciplinary team operating at the appropriate moment in the process. We have to have public confidence in the process. It is very important that the composition of the new proposed panels is not conflated with the separate matter of a multidisciplinary team model. It would be very unfortunate if that confusion obtained.
The Bill, as drafted, rejects the involvement of a multi-professional team model for the conduct of the assessments, preferring two doctors working alone without input from a multidisciplinary team. I recognise that there are opportunities for them to hear from other professionals, but it is not a multidisciplinary team in any recognisable sense of the term.
Danny Kruger
I will in a moment. I was going to finish by saying that it is not correct or accurate to give the impression that Dr Cox or the Association for Palliative Medicine supports the proposed approach.
Kim Leadbeater
It is really important to be clear about this. I do not think anyone is suggesting that what is in the Bill will replace existing good practice. That is really important. We probably all have family and friends who are being treated for cancer now, and they are looked after and cared for by a multidisciplinary team. That team does not suddenly disappear, to be replaced by what is in the Bill; it can continue. The assisted dying option involves the two doctors, and I struggle to envisage any situation in which they would not work with the multidisciplinary team and add on, where appropriate and necessary, psychiatric intervention, social care and healthcare professionals. I always come back to the point that I do not think the two things will operate independently.
Danny Kruger
The hon. Lady does always come back to that point, and I respect it. She imagines that the good practice that is prevalent in the system will obtain automatically, in all cases, under the assisted dying regime, even though that regime is completely new. She says that she cannot envisage a scenario in which the doctors would not hear from all the professionals we all think should be consulted at this stage of the process. I have two points to make on that. First, why not make it explicit that that is required? Secondly, I am afraid that I can envisage scenarios in which for doctors—perhaps some years down the line, once this model of death has become normalised, as it has in Canada and elsewhere, with up to 10% of deaths coming through assisted dying—it just becomes a procedure.
Again, we have not ruled out the possibility—the likelihood, in fact—of independent clinics establishing themselves with a business that is about providing the support for people who want to end their life. There will be doctors who are happy to conduct the assessments; to take at face value what they hear from the patient; not to involve a wider multidisciplinary team in their consultations; and to expedite the process as the Bill, as drafted and amended, allows. I am afraid I do foresee a scenario in which the good practice in which all believe does not happen. My concern, and I expect the hon. Lady’s is the same, is to prevent that.
Rebecca Paul (Reigate) (Con)
My hon. Friend is making a powerful point. One of my concerns is about what happens if someone seeks assisted dying privately through a clinic. I see risks with multidisciplinary teams involving social workers continuing in that instance. Does my hon. Friend share my concern?
Danny Kruger
I certainly do. That is exactly the scenario that I fear, and I fear it within the NHS too. Let us not imagine that every NHS doctor has all the time and the access to the wider specialisms that they would wish. Under the Bill in its current form, there will be a very strong incentive and a very strong personal instinct for compassionate doctors, who believe in the autonomy of patients and in respecting the patient’s wishes, to take at face value what they are told and not to seek the expertise that would happen automatically if there were a proper multidisciplinary team at that stage of the process.
My point is that we do need a multidisciplinary team, but what is in the Bill is not it. At best, it is half a multidisciplinary team. There is no doctor on it. There is a lawyer, pointlessly. There is a sort of quasi-MDT—a duo-disciplinary team—but it is in the wrong place, and it will not assess, which is the job it should do, but judge. It will not diagnose or advise in the way that a clinician should; it will simply decide whether the criteria have been met for an assisted death. That job was rightly given to judges in the Bill that the House of Commons voted for, but this Bill does not have the powers, the safeguards, the accountability or the independence of a tribunal, let alone that of a court.
As the hon. Member for Spen Valley candidly says, the panel is not a judicial entity in any sense. It is a weird creature, neither one thing nor the other: a quasi-multidisciplinary team, at the wrong stage in the process, for the wrong purpose. I have said that it is not a multidisciplinary team, but it is not really a judicial entity either, as the hon. Lady has mentioned. It is certainly not “judge-plus”, as was originally suggested. There is no judge, just a legal member—not a judicial member but a legal member, who might be a lawyer.
Kim Leadbeater
There is a judge—it may be a retired judge—who is the commissioner, who heads up the entire assisted dying commission, and there is a legal expert on the panel as well, as the hon. Gentleman said. That could be a retired judge, so there is legal expertise there. I think the hon. Gentleman also made the point that there is not a doctor on the panel. My understanding is that psychiatrists are doctors, but I will stand corrected if that is not true.
Danny Kruger
The hon. Lady is absolutely right; I do apologise. There is indeed a doctor—a psychiatrist—but not a doctor specialising in their condition.
Danny Kruger
No, we have had a couple of GPs. We have not had a doctor who is a specialist in their condition.
Danny Kruger
If needed, there is the opportunity to refer to one. It is perfectly possible that the whole process of an assisted death could be done very well under the Bill—that is good news—but there is a very great risk that the process will not be done well, because there are huge gaps through which bad practice can creep. My specific concern about this stage is that we do not have the appropriate expertise on the panel.
On the hon. Lady’s point about there being a judge in the process, there is a distant judge who sits above a quango that appoints the panels. They take a view on a specific case only if there is an appeal against a refusal. They are not directly judging on the case, as the House of Commons was told would happen.
Kim Leadbeater
The reports for the case would go to the commissioner, so he or she would see the reports.
Danny Kruger
Yes, but he or she will consider a reconsideration only on the basis of an application to reconsider made by the applicant. There is only one opportunity for an appeal and it can happen in only one direction: against a refusal. I will come on to the role of the commissioner in a moment, but in the great majority of cases there will not be a judge involved in the decision. There might be a retired judge on the panel, but that is extremely unlikely; it is more likely to be a lawyer. It is a judicial exercise that is being conducted, so it would be appropriate for it to be a judge sitting properly in a court.
Naz Shah (Bradford West) (Lab)
Does the hon. Member share my concern that the Bill does not say that the panel can call people and ask them to swear under oath, unlike a mental health tribunal?
Danny Kruger
The hon. Lady is absolutely right. Having said that the panel is not a proper multidisciplinary team, I agree that it is not a proper judicial entity either. It is a panel with judicial power to approve life-or-death decisions, but it is without a judge or the normal judicial processes that would happen in a tribunal or court. There is no oath being taken by members of the panel or by witnesses; there is no independent appointment process, so the members of the panel will be appointed by the commissioner; there is no power to order the disclosure of information to the panel; there is no power to investigate wills, financial records or anything like that; and there is no requirement to meet the doctors or even to discuss the case with the patient themselves, if the panel considers that appropriate.
There is also no appeal against an approval, just a one-way appeal against a refusal. That appeal goes not to an independent judge sitting in a court, but to a commissioner—an appointee of the Government, who has been set up to facilitate the whole system.
Let me turn to the role of the VAD commissioner, or the Vader as I think of it; I will not labour the point. They can be a sitting judge, which is good, but I suggest to the Committee that it is highly unusual for sitting judges to be appointed to other public functions that are unrelated to a judicial role. I would be interested in the Minister’s view on that. Judges can be appointed to a second judicial job, such as chairing the Sentencing Council, but I am not aware of many examples in which a sitting judge sits in a non-judicial function.
Having looked into it, I discovered that there are three exceptions to the rule. First, the Master of the Rolls holds a number of sinecures in relation to the keeping of the public archives and the payment of the national debt, so that is a non-judicial function that a judge carries. Secondly, the chair of the Law Commission is a sitting High Court or Court of Appeal judge. Thirdly, and exceptionally, with permission of the senior judiciary, sitting judges can be asked to conduct public inquiries. A singular public inquiry, which is time-limited and essentially judicial in its purpose of determining what happened, and which will of course operate in an adversarial way, hearing proper evidence from counsel, is the only exception. However, that is not comparable to the model being set out here, in which a sitting judge is being asked to chair a permanent quango—a Government body.
Kim Leadbeater
Does the hon. Gentleman agree that that is exactly the point? This is a unique situation, and therefore we need a unique system. That is the perfect opportunity to use the skills that a judge or retired judge has.
Danny Kruger
Throughout this debate, the hon. Lady and others have frequently made the case that we should stick with the existing systems, such as the Mental Capacity Act 2005 and the use of doctors to make decisions about healthcare. Now the opposite point is being made: that we have a unique system and we therefore need to tear up the current way of working. In this one case, I think we need to stick with the current way of working: in the British judiciary, the High Court of England is the appropriate body to make decisions about life and death. That is how it works in other major decisions of life and death. These are questions that go to court.
On the point about the VAD commissioner being a sitting judge, even when it comes to inquiries that judges conduct outside their role as sitting judges in court, my understanding is that the Executive do not pick whichever sitting judge they want for the role. Instead, they request that the Lady Chief Justice make a judge available, and the Lady Chief Justice will select the appointee. What is proposed here is that the Prime Minister should pick from the bench of judges his or her preferred candidate. That feels like the use of a judge simply to fulfil a role that, frankly, does not need to be carried out by a judge.
For clarity, I emphasise that I am very much in favour of judges deciding on cases, but I do not see why a judge should fulfil the role of chief quangocrat for the administration of the regime. When we look at the functions the commissioner will have, it is quite right that, under the previous version of the Bill, most of those functions were given to the chief medical officer, because most of the required functions have to do with the administration of the medical aspects of the Bill. The collection of data and the monitoring of the operation of the Act are best left to a medic with experience of our healthcare system, rather than to a judge. These are not judicial functions.
The only function carried out by the commissioner that would require one to be a judge, or that is in a sense judicial, is the review of panel decisions, because a judicial decision is being made. Under new clause 17(2), the test is limited to an error of law, irrationality or procedural unfairness; those are the grounds for judicial review. If we did not have new clause 17, the ability for judicial review of panel decisions would remain. It could be argued that the new clause would actually limit judicial review by only allowing the person concerned to apply for reconsideration.
I understand that some courts in Canada, which has a comparable judicial and common law system to ours, have held that family members do not have standing to judicially review decisions to authorise medical assistance in dying. The suggestion has been made that families who are concerned that an error has been made in a decision to approve a death should be able to quickly get an injunction through a JR. I hope that that will be the case, if this law passes as proposed, but it certainly is not the experience elsewhere and I fear it might not be the experience here.
I am afraid that we have a dog’s breakfast of a system: all the problems of the High Court system that have been aired, but without any of the benefits. I will finish by quoting Sir James Munby. I know he has been cited regularly, but the hon. Member for Spen Valley said yesterday that, having listened to Sir James, she set herself the task of designing a system that would satisfy a former president of the family division. I am afraid to say that she has not succeeded in her task. I will quote a few points that Sir James made in response to the proposals in these new clauses. He stated:
“The process…is simply not apt to enable the panel to perform its function…The panel is given an extraordinary degree of discretion in relation to the process it is to adopt”.
He suggested that the panel is
“little more than a rubber stamp providing a veneer of judicial approbation”—
I do not think that rubber stamps provide veneers, but his point is well made and I respect it—
“and that is fundamentally unacceptable”.
Finally, he said:
“If the panel is to perform its function effectively and do more than just ‘check the paperwork’—if it is to be the real safeguard intended by its proponents—then its processes must be much more thorough than is currently proposed…All in all, in relation to the involvement of the panel in the process, the Bill still falls lamentably short of providing adequate safeguards.”
Kim Leadbeater
Many of us have quoted Sir James Munby, for whom I have a huge amount of respect, but there are a number of other views from ex-judges and very highly-regarded legal professionals that conflict with what Sir James says.
Danny Kruger
It would be very helpful if the hon. Lady could—not now; it need not be in the course of these deliberations—publish the evidence of that assertion. Which senior judicial figures have endorsed the new plan? It would be very helpful to hear from them.
We heard many criticisms of the previous regime. In my view, those objections prompted the change of heart that the new clauses derive from. From what I have seen, the weight of evidence indicates that we still have many of the problems that the High Court system had: a lack of effective powers and questions around capacity. We also have a whole new load of problems to do with the essential illegitimacy of a quasi-medical panel of people making an essentially judicial decision without the opportunity to hear in a meaningful way from all the different stakeholders who should be consulted.
Danny Kruger
I think the hon. Member for Spen Valley said yesterday that we had to grapple with this confusion, which is that there is a judge not sitting as a judge. It is slightly like a Minister not sitting as a Minister; the Bill has provided all sorts of interesting hybrid creations of people who inhabit split personalities and dual roles.
The hon. Member for Bradford West is, I think, right. From the evidence we have heard from the hon. Member for Spen Valley, although there will be a judge, which satisfies the cosmetic need to present this as some sort of continuation of the High Court stage that the House of Commons voted for, they will not sit as a judge. It is rather like having a hobby or a second job. I am not sure judges do that, but it is like chairing a football club on the side. Their status derives from their judicial role, but they are sitting as the commissioner in a lay capacity—I think I have that right.
Kim Leadbeater
We have already talked about this, and I think the hon. Gentleman mentioned it himself: there is a similar situation with public inquiries, on which a judge sits because of their skillset and who they are, but not necessarily in a traditional judicial capacity.
Danny Kruger
It will be interesting to hear from the Minister, who is more equipped than the rest of us to opine on this. My understanding is that a judge sitting as chair of a judicial inquiry might not be sitting in court, but they are there because they are a judge; their function, as the chair of the inquiry, is essentially judicial. That is the only comparison and it is essentially different, because the exercise of a public inquiry is time-limited and specific to a particular case, which is to determine the truth or otherwise of what happened in whatever situation it is being asked to inquire into.
Here, we are setting up a quango—an arm’s length body of Government—that will sit in perpetuity and oversee a bureaucracy of state. That is something that no judge does in our system and, in my view, would be completely inappropriate for a sitting judge to do, even if we could find a sitting judge prepared to fulfil that function, which I think might be challenging.
The other key difference is that a judge chairing a public inquiry is appointed by the Lady Chief Justice; they are essentially judicial in their appointment and work. The judiciary appoints one of its own to fulfil a judicial function as the chair of an inquiry. It is being proposed here that the Government—the Executive, not the judiciary—appoint the chair of the commission from the Bench of judges.
Naz Shah
What the hon. Gentleman has said creates another concern for me. If we do have a judge, and if the expectation is that they sit in a judicial capacity, does that not raise concerns that an appeal is allowed one way—if an assisted death is refused—but not the other way, if someone wants to appeal against an assisted death? By definition, does that position not become compromised?
Danny Kruger
I am afraid that that is absolutely right. There is an essential problem with the role of the commissioner as the backstop—the Court of Appeal, as it were—for what are effectively judicial decisions made by the non-judicial panel. The fact that appeals can be heard only against a refusal and not an approval confuses the whole question of appeal and judicial review. It is plainly unjust, and does indeed compromise the idea that the judicial figure has the independence that a judge should properly have. I agree with the hon. Member for Bradford West.
Naz Shah
I want to speak to amendment (c) to new schedule 2, tabled by my hon. Friend the Member for Lowestoft. The amendment requires members of the panel to have undertaken training in respect of domestic abuse, including coercive control, and financial abuse. It extends the principle of amendments 20, 21, and 22, also tabled in the name of my hon. Friend, which require the medical practitioners involved in the assisted dying process to have undertaken similar training.
Kim Leadbeater
A strong argument has been made to me that the professionals on the panel would have the skills and training to fulfil their role, but it is important, particularly given the time we have spent discussing this issue, that they do have it, so I am happy to support that amendment.
Naz Shah
I appreciate that. None the less, I will speak briefly to the amendment as I still have concerns. The amendment provides an absolutely necessary safeguard and I welcome the fact that my hon. Friend has accepted it. I am pleased that it extends to panel members, but it does not meet the safeguarding needs when it comes to people of ethnic minority backgrounds, coercion, cultural competence and so on. People and organisations have raised concerns about that.
The truth is that the Bill is very gendered: the analysis by women’s organisation The Other Half has found that if the Bill passes, and trends follow those of Australia, 1.65% of all deaths in this country could take place via assisted dying. If so, as many as 1,400 domestic abuse victims could die each year through that process. It is vital that Members on both sides of the debate are conscious that we are opening up a new avenue for domestic abuse through the Bill. That is what the amendment speaks to. To save the Committee time, I will not go over the detail because it was covered during our discussions of the previous three amendments.
Kit Malthouse
I rise briefly to amplify a couple of points from the excellent speeches by the hon. Members for Rother Valley and for Ipswich. First, in clarification, I understand that there are situations where judges can sit in essentially supervisory positions—not least, for example, on the BBC board—and they can of course be Cross Benchers in the House of Lords. They are allowed to undertake other charitable trustee roles, although they are restricted in their activities.
Danny Kruger
I think this is important. Those roles are what those judges do in their spare time—they could also chair a football club or something as well. The point is that they are being asked here to fulfil a function on behalf of the Government in their working hours, explicitly because they are a judge—yet they are not sitting as one. Surely my right hon. Friend acknowledges that that is essentially unprecedented.
Kit Malthouse
No, I do not acknowledge that at all. Over the years we have started to use judges relatively flexibly—even, for example, for non-statutory inquiries; my hon. Friend has referred only to statutory inquiries—and that is so much the better. I am not a lawyer myself but I believe in the rule of law, so I think that having judges opining on our freedoms or otherwise is generally good for the country.
I want to amplify a couple of points. On Second Reading, I made the case for the High Court to be involved. I agree with my hon. Friend the Member for East Wiltshire: at that stage, I was very happy for there to be effectively a scrutiny and authorisation third layer to the Bill. My understanding of judicial opinion was that, certainly in Lord Sumption’s view, that level was unnecessary; I think he referred to it being a profoundly intimate conversation that really should just be between the patient and the doctor. However, I think my hon. Friend the Member for East Wiltshire is right that the weight of the moment and opinion in the House then was that there should be that third layer of scrutiny and opinion.
I also dismiss the argument about the capacity of the judiciary to absorb this. I fear that if we start to accept that argument, we go down a very difficult road for Parliament—not least, for example, because we should then have opposed the Bill that went through the House on Monday night, because of its greater impositions. As many will know, the Crime and Policing Bill went through without a vote. It will impose new burdens on the judiciary and the police, as will the new offence of spiking. No doubt the immigration Bill coming through will also put significant extra burdens on the police and the courts.
There are two separate questions here: one is what Parliament does, and the other is the capacity of the public sector to absorb that. The answer is not to say, “Well, I am afraid all you people have to go through a death you do not want to go through”; it is to say that we do not have enough judges and to recruit more judges, if that is required. In my personal view it is not, but at the time my view was that if as a footballer I could show up in the middle of the night and get an injunction to stop The Daily Mirror from publishing unpleasant stories about me, then the judges should be able to find time in their schedule to accommodate the requirements of my death.
Danny Kruger
My right hon. Friend is absolutely right. If Parliament decides that we should proceed, then we should, and the public sector will be obliged to make accommodation and provide the necessary resources. Does he agree that, on that basis, it would be appropriate for the Government to have clarified by this stage what the resource requirements of the new system would be, to make clear that there is the capacity in the system to do it? Does he share my regret that that has not been done?
Kit Malthouse
No, I do not share that regret, because until today, and until we all vote on it, the Government do not actually know what they are facing. They have undertaken that they will produce exactly the assessment that my hon. Friend is talking about between the end of this process and Report, so we can all have a look at what it will be.
At that point, Members can put a price on other people’s death and other people’s pain if they want to, but there are lots of situations where the House of Commons decides about things on the basis of moral principle and public interest, and then we ask the public sector to absorb it. If that causes operational problems, then we solve those separately. In my 10 years in the House, I cannot remember anybody ever standing up and saying, “We shouldn’t do this because the public sector can’t cope.”
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I recall being on the Domestic Abuse Bill Committee. We heard time and again from public sector representatives that bringing in changes such as a domestic abuse register would bring extra work and be difficult. It is their job to flag up those points, but it is our job to assess what is the right thing to do in legislation.
Kit Malthouse
The hon. Lady puts it exactly right. These are two separate questions, and we should not conflate them. Certainly, we should not allow the House of Commons to be constrained by those capacity constraints from doing what it thinks is the right thing. We should do the right thing, and then put pressure on the Government to provide the facilities that we think are required.
Daniel Francis (Bexleyheath and Crayford) (Lab)
On that point, in our oral evidence we were not able to hear from witnesses about the changes to the clauses, because we did not understand what the repercussions would be at this stage.
Kit Malthouse
As I recall it, there were a number of questions at the oral evidence stage about the notion of there being a panel, specifically when we had the panel of lawyers. We asked about that. But the hon. Gentleman is right; the issue was an emerging one at the time. That is the nature of the kind of iterative policymaking, or legislative process, that we are going through at the moment. The Government have said that they will produce an impact assessment, so we can all have a look. It will not be long—three or four weeks—and then we will all be able to make a judgment.
Lewis Atkinson
I rise to respond to some of the points made by the hon. Member for East Wiltshire. I looked back on the Hansard report of the Second Reading debate and his position there, and I am somewhat confused. In his speech in that debate, he was entirely dismissive of the judge as a safeguard, but now, in Committee, he seems to have had a Damascene conversion in favour. That gets to the question of whether, as others have asked, there are any safeguards that would satisfy opponents of the Bill in principle.
I entirely respect the position of principled opponents to the Bill.
Danny Kruger
I look forward to hearing the hon. Member’s substantive remarks, but in explanation I should say that there are no safeguards that I think will make an assisted dying Bill adequate. I will oppose the Bill whatever happens because I think it would be dangerous for people however we do it. But if we are going to do it, let us do it as safely as we can. There are definitely ways in which we could improve the safety of the Bill, which have been suggested in the many amendments I have supported.
On the point about the judicial stage, I am very critical of clause 12 as it stands because it does not provide sufficient rigour and there are major questions about the capacity of the judiciary, as has been discussed. But the principle is absolutely right. It is important that, if we are going to do this, we have a judge to make the final decision. I was not satisfied with the Bill as presented, but I think we should be building on it, rather than reducing the judicial safeguard.
Lewis Atkinson
I thank the hon. Member for that point, but when someone cannot describe any version of safeguards that would be possible, and in the light of some of the other conversations we have had, one is led to believe, entirely respectfully, that some people are opposed to the Bill in principle in any instance.
The point that my hon. Friend the Member for Spen Valley made on Second Reading that this was the safest model in the world was not just about the fact that there was a judge, but about the fact that there was a third tier. That is not something that is in place in Oregon, or even in Australia, as we heard in evidence. Now, not only are we going to have a third tier of scrutiny, but we are going to have three professionals who must unanimously accept that the strict conditions for eligibility have been reached. I absolutely refute the suggestion that amending away from a High Court model and towards a panel model means that we have to recant any suggestion that this is the strongest model in the world.
Lewis Atkinson
I am going to continue this point, if I may.
The hon. Member for East Wiltshire asked what the purpose of the panel is. As is set out very clearly in new clause 21, it is about determining eligibility for assistance, with reference to the stringent rules and conditions that we will lay out in the Bill. The hon. Gentleman went on to ask about the purpose of the judge and suggested that it is a bureaucratic role. As new clause 14(4)(c) makes clear, the commissioner’s role is making arrangements for panels, and new schedule 2 is clear that the commissioner has powers to give guidance about the “practice and procedure” of those panels. Clearly, the commissioner will be a judicial figure with experience of proper process and procedure, and it is absolutely right that that person, who will set out the procedure for each of the panels, is a judge.
The hon. Gentleman made a point about MDTs. I am not sure whether he has worked in or around healthcare, as I and other members of the Committee have, but I say gently that the suggestion that individuals at the end of their lives are not in contact with multiple professionals is highly implausible. We are blessed in this country that we have some of the best cancer nursing in the world, and that we have palliative care social work. He previously asked which bodies had come out in support of this change. Well, the Association of Palliative Care Social Workers says:
“The inclusion of social workers as core members of these panels shows that Kim Leadbeater and her colleagues have taken on board our arguments that social workers are uniquely qualified and equipped to undertake the complex and sensitive tasks of assessing mental capacity and safeguarding individuals who may be subject to any form of undue influence or coercion.”
Lewis Atkinson
No, I am in a flow, so I am just going to keep going. I am mainly rebutting at this point, and I do not want to open the debate that much wider.
Invariably, we already have individuals at the end of their lives with multidisciplinary input that is appropriate to them, and we have heard already how the independent doctors and the panels will rightly seek input from all those involved in care.
It has been some time since the hon. Member for East Wiltshire and I had an exchange on our difference on the ventilator test, but I know that we have a fundamental, philosophical difference on that. I believe that a dying person saying, “Please, doctor, turn off my ventilator; I want to die,” is not fundamentally different from that person saying, “Please, doctor, let me take that medicine; I want to die.” I assert that the person in the street is closer to my view of that situation than to his, although I respect that people have different philosophical opinions about it. However, let us not forget that we sometimes conduct this debate about the correct oversight of the third tier in a theoretical manner, as if these people were not dying anyway, and as if deaths relating to refusal of treatment, and suicide, were not happening anyway.
Danny Kruger
Let us not rehash the argument about whether there is a difference between withdrawing treatment and actively killing somebody or giving them the opportunity to kill themselves. On the point about withdrawal of treatment, does the hon. Member acknowledge that when there is dispute over whether somebody should have their treatment withdrawn, it goes to a court and there is representation from both sides of that argument about whether the treatment should be withdrawn? If he is saying that these measures are essentially identical in principle, surely we should have the same mechanism to resolve disputes.
Lewis Atkinson
I thank the hon. Member for his intervention, but I am afraid he is confused. It goes to the Court of Protection when the individual is not capable of making that decision and there is a dispute about what the best-interests decision may be for that individual. That is entirely different from the dying person saying, “Please turn off my ventilator.” In that case, the Mental Capacity Act 2005 applies, as we have discussed at length in the Committee, but there are no further checks for coercion, capacity or motivation in the way that has been described. With the three panel members, we will now have at least five professionals, who must all be satisfied that there is no coercion. How many individuals should there be?
I see speculation, including on social media, about the number of people who might seek an assisted death and who may be subject to coercion. How many people who refuse treatment at the moment, without any of those checks, are subject to coercion? How many people who go to Switzerland, or who end their own lives, are subject to those checks? We do not know because we have no robust oversight of those instances. While I have absolute sympathy with the points raised by my hon. Friend the Member for Bexleyheath and Crayford, who made a very thoughtful and personal speech, as he always does, the exact same instances that he described would be permissible right here and now.
The hon. Member for Reigate shared some upsetting stories, I think from Canada, about the impact on family in speaking to the amendments on that subject. First, I point out that Canada’s system is nothing akin to the one that we are proposing, because it does not have the third-tier protections that my hon. Friend the Member for Spen Valley proposes in the Bill.
However, it is also important that we bring the debate back to talking about dying people here in the UK, and that we have some of their voices and experiences, and their families, in the room. We know that already, 650 terminally ill people end their own lives each year in the UK. Anil Douglas’s dad, Ian, took his life the day before his 60th birthday. He was in the terminal stages of multiple sclerosis, and he ended his own life without notifying his family, because he felt he had to protect them, due to the state of the current law. He managed to obtain opioids from the dark web and subsequently overdosed. In his final note, he wrote:
“I would like to have to put on record that had we had more sympathetic assisted-dying laws in this country, in all probability I would still be alive today.”
I will give one more example. On returning home from a trip to London, Peter Wilson discovered his wife, Beverly, dead in their home. She had terminal oesophageal cancer and had taken her own life, alone at their home in Nottinghamshire, when she knew that Peter would be 120 miles away. Even though Peter could prove that he was not present at the time of death, he was questioned by police for seven hours, and he was fingerprinted and photographed within hours of her death. That is the current situation that families—those we have discussed maximising care for—are facing in the UK. That is why we need a change in the law that includes robust, third-tier oversight.
Naz Shah
I will speak to amendment (b) to new schedule 2, but before I do, I will address some of what my hon. Friend the Member for Sunderland Central just talked about. To clarify something for the record, Glyn Berry, co-chair of the Association of Palliative Care Social Workers, of which there are 200 members—there are 200 social workers for palliative care in the country as it stands—has not given an endorsement, and has categorically said that the association does not support the panel structure, as it fails to support what the Bill is intended to do on assisted dying. I am happy to send my hon. Friend the reference for that.
The right hon. Member for North West Hampshire referred to panels in particular. I tried to intervene and ask him about this directly, but I will mention it now and I will be happy to give way should he wish me to. He told the Hansard Society that he was not supporting palliative care specialists at an earlier stage, simply because the issue of palliative care would be addressed in the structure of the panels, but that has not happened. I just wanted to put those concerns on the record before I moved on to my substantive speech.
Amendment (b) to new schedule 2, tabled by my hon. Friend the Member for Derby North (Catherine Atkinson), would amend the new schedule, tabled by my hon. Friend the Member for Spen Valley, to ensure that the Official Solicitor will nominate a person to represent the applicant before the panel. As it stands, the new schedule does not require the commissioner to give guidance about the practice and procedure of panels. However, if guidance is given, the panels, under paragraph 8(2),
“must have regard to any such guidance in the exercise of their functions.”
Amendment (b) would remove the relevant sub-paragraphs and replace them with the following:
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
What effect would this have?
I refer hon. Members to the written evidence submitted by Ruth Hughes, a senior barrister due to be appointed King’s counsel on 24 March. The written evidence number is 161. Ms Hughes notes that she has
“17 years’ experience of specialising in mental incapacity and the law in relation to vulnerable adults”
and that she has
“advised the Ministry of Justice on capacity related issues.”
She describes herself as
“one of the most experienced barristers specialising in the property and affairs of persons who lack mental capacity in the country.”
In this context, it is particularly noteworthy that Ms Hughes has frequently appeared in court instructed by the Office of the Official Solicitor and the Office of the Public Guardian. She says:
“In my professional experience, financial abuse of the vulnerable and those who lack mental capacity, or are approaching the borderline, is depressingly common.”
Ms Hughes is not someone who opposes the Bill at all costs; she seeks to strengthen its safeguards for those at risk of coercion. She states in her evidence that
“whilst I do not oppose the Bill, I am highly concerned that the safeguards proposed are insufficient to protect vulnerable people from exploitation for financial gain. I suggest it would be profoundly disturbing and wrong for Parliament to enact legislation which put vulnerable people at risk of being killed for financial gain without creating adequate safeguards to protect them.”
Those are very strong words from someone who I suspect is not in the habit of crying wolf. If we hear that kind of warning from a senior lawyer with Ms Hughes’s specialised knowledge of protecting at-risk adults, we should certainly listen.
Ms Hughes was a strong supporter of the use in the Bill as drafted of a High Court judge as the authority who would decide on assisted dying applications. She wrote:
“I suggest that the judicial safeguard is fundamentally important.”
She recommended, however, that the Bill should be amended to include five additional safeguards. I am pleased to say that my hon. Friend the Member for Spen Valley has accepted one of the five proposed protections: the requirement to hear from the person who wishes to die. Ms Hughes’s fifth recommendation bears directly on the amendment we are discussing. She says that the Bill should be amended to include an advocate who would
“ensure that the evidence in support of a claim is appropriately tested.”
Ms Hughes made that recommendation when my hon. Friend was still advocating for a High Court judge, rather than a panel, as the arbiter, but I do not see that the change from court to panel has in any way weakened the argument she made for an independent advocate. Explaining why she wants to increase safeguards, she says that in the Bill as drafted
“there is likely to be significantly less scrutiny of a decision by the Court in relation to assisted dying than there is for example currently in relation to a decision of the Court of Protection to withdraw life-sustaining treatment from a person, or even a decision as to where a person lacking capacity should live or with whom they should have contact.”
Ms Hughes said that one problem was that
“importantly, there is no person appointed to assist the Court to consider and test the evidence before it. Our Court system is inherently adversarial. Generally, two or more parties to a dispute will present evidence and argument to the Court and the Court will make findings of fact on the evidence and come to decisions on the law in accordance with those arguments. The Court is not hidebound, but equally it is not set up to obtain evidence itself. A scheme which does not provide for an independent party to consider the evidence and present arguments against an application will be unlikely to be robust and will not be well designed to identify, for example, a lack of capacity or the existence of coercion or pressure.”
This part of Ms Hughes’s evidence seems to be particularly important:
“Doctors, for example, may not be well placed to identify coercion, pressure or control. In my experience they are often missed by solicitors taking instructions for the making of gifts or wills. The best solution, perhaps the only good solution, to this problem would be to require the Official Solicitor to act as advocate to the Court in cases brought under the proposed legislation.”
It would be helpful if we explained the term “advocate to the court.” The Ministry of Justice published the following explanation of what an advocate to the court is and what they do, based on a 2001 memorandum agreement between the Attorney General and the Lord Chief Justice. The Ministry said:
“A court may properly seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney General may decide to appoint an Advocate to the Court…It is important to bear in mind that an Advocate to the Court represents no one. Their function is to give to the court such assistance as they are able on the relevant law and its application to the facts of the case.”
We should all see the advantage of being able, through the Official Solicitor, to give the panel the assistance of specialist lawyers. We should particularly see the advantage of the Official Solicitor being able to appoint barristers who are experienced in cases where capacity was in doubt or where people were possibly being coerced.
The Ministry of Justice explanation goes on to say:
“An Advocate to the Court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts.”
The word “normally” is important in this context. The advocate will perhaps not carry out these functions when acting to advise assisted dying panels, but we should note that the Ministry’s guidance does not state that they will never carry out such functions. As we have remarked more than once, we are in unmarked territory here.
I will end by quoting some more of Ms Hughes’s evidence, because it is clearly written by an expert in their field. She says:
“In my experience it is not uncommon where a vulnerable person is controlled or is lacking capacity for the person to be apparently expressing wishes in a clear and forceful manner. This can easily be mistaken for a person acting freely and with capacity.”
That statement is a powerful counterpoint to some of the confident claims we heard from witnesses about it being relatively easy for doctors to detect coercion. Some of the witnesses from Australia and California were particularly noteworthy in that regard.
Ms Hughes goes on:
“In short, the risks of the Bill are real and substantial. The challenge for Parliament is how to mitigate them. The current drafting is inadequate.”
That is evidence we should not ignore. It comes from a distinguished lawyer who is not an opponent of the Bill but who fears that, as drafted, it will not protect the vulnerable. She has offered us what seems to be a workable solution to the problem that concerns her: create a mechanism to involve the Official Solicitor. Amendment (b) to new schedule 2, tabled by my hon. Friend the Member for Derby North, would allow us to put that into practice. I hope that all Committee members can support the amendment and increase the protection that the Bill offers to vulnerable people at risk of coercion.
Sean Woodcock (Banbury) (Lab)
It is a pleasure to have you here this afternoon, Ms McVey. I did not intend to make a contribution, but given the number of contributions that have been made, I wanted to respond to them. It has been a really interesting and important sitting.
My hon. Friend the Member for Ipswich is right. I see the panel as a genuine attempt to respond to the evidence we heard in the witness sessions and improve the process. I take that absolutely as read, particularly in respect of the evidence from Rachel Clarke, whose view was that coercion is happening and that we should take the NHS as it is, not as we would like it to be. I see the attempt at introducing a panel as a response to that.
The right hon. Member for North West Hampshire is absolutely right to state that if there is a moral imperative to do something, Parliament should look at passing it and then the public services should figure out how they implement it afterwards. He is right in that. There is obviously a question about whether there is that moral imperative, but he is right to point that out.
Although I take the panel as a sincere attempt to strengthen the Bill, I feel that, as put before us, it is not strong enough. That is why I spoke yesterday to amendment (d) to new clause 21, tabled by my hon. Friend the Member for Derby North, which would ensure that the process was done properly and robustly. Nobody wants to see people dragged in front of a court when they are unwell, but there is the matter of safeguarding, and we do have a concern over coercion. It is integral to ensure we have public trust, so I urge the Bill’s proponents to consider those concerns again.
Jack Abbott
My hon. Friend makes a really good point, especially on the issue of coercion. Amendments on coercion training have been agreed to. Does my hon. Friend think the court system as it stands can deal with his concern about coercion, or will the panel be more able to deal with that kind of concern?
Sean Woodcock
That is my next point—and it is a good question. As I said, the panel is done with the right intention and would improve the process in many ways. My view is similar to that of the hon. Member for East Wiltshire—it is possibly one aspect on which we are in agreement—in that I think it comes at the wrong part of the process. If it was earlier in the process, it would improve things. Court capacity is an issue, but I take the point made by the right hon. Member for North West Hampshire that if we want the courts to do it, they need to get on and do it.
I keep coming back to the issue of what we are asking the state to do. Implementing the wishes and autonomy of the patient is important, but we also need to take very seriously what we are asking the state to allow to be done in its name. There is also the crucial matter of public trust, the condition of the national health service and the issue of capacity in the courts. As my hon. Friend the Member for Ipswich touched on, there is considerable disquiet and concern about how robust this process is going to be. Even though I think having the panel at the start of the process would improve what was put to the House on Second Reading, having judicial oversight at the very end would provide reassurance to the vast swathes of the public who are concerned about this, as well as to Members.
Danny Kruger
The hon. Gentleman is making an important point and I completely agree. Does he agree that the hon. Member for Spen Valley recognised the problems with the lack of a multidisciplinary team in the process and the problems of court capacity, and through her attempt to address both those problems we now have a multidisciplinary team instead of the judicial role? What we really need is both: we need a properly constituted multidisciplinary assessment at the beginning, and then we need the final process to be an approval by a judge. Does the hon. Gentleman agree that that would be a better process?
Sean Woodcock
Having thought about it, that would be my preference. I am in a difficult position in that there is a lot to be said for the panel, and it would improve the process in many ways, but I cannot get around the fact that the judicial aspect was put strongly before Parliament, and ensuring that we would have those safeguards provided reassurance to Members. When I have been out on the doorstep talking to people who are in favour of the Bill—people who wanted me to vote in favour of it—they have said to me that they think the proposal is safe because it includes two doctors and judicial oversight. That does come up, which is why I think we need to keep judicial oversight in the Bill. I do, though, I recognise the very genuine attempt by my hon. Friend the Member for Spen Valley to introduce the panel to improve on some aspects and address the concerns expressed in the witness testimony.
Naz Shah
If I may, Ms McVey, I will speak to the issue of the judicial oversight of the panel and the whole of new clause 21. I would like to understand something, and perhaps the Minister or my hon. Friend the Member for Spen Valley could help me. We have been talking a lot about judicial oversight. My concern is that even if we had judicial oversight, there is no liability if something goes wrong. We would have had judicial oversight, but now we have panel oversight—non-judicial oversight—of the decision. Even then, what if somebody went down the assisted dying route and an issue was raised afterwards? What recourse would anybody—family members and so on—have to hold anybody liable if they did something wrong, including, potentially, the commissioner?
The Minister of State, Ministry of Justice (Sarah Sackman)
It is a pleasure to serve under your chairship, Ms McVey.
As my hon. Friend the Minister for Care and I have made clear throughout debate, the Government continue to remain neutral on the Bill and do not have a position on assisted dying. Once again, my remarks will focus on the legal and practical impacts of the amendments, with a view to assisting Committee members. I will first speak to amendments 371 to 373, 377, 378, 381, 388, 390 and 391, new clauses 14, 15, 17 and 21, and new schedules 1 and 2, all tabled by my hon. Friend the Member for Spen Valley.
In executing our duties to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley in relation to the amendments, which propose the voluntary assisted dying commission and the panels. They reflect my hon. Friend’s intent to replace the court approval process that is currently set out in the Bill. I confirm that this change was driven not by capacity concerns from within Government, but by the Bill promoter’s policy intent. Let me be clear: the High Court stage could be made to work, but if the Committee and Parliament elect for the commissioner and panel model, the state will work to deliver that.
New clause 14 and consequential amendment 391 would provide for the establishment of a voluntary assisted dying commissioner. In keeping with other appointments of this significance, the commissioner would be appointed by the Prime Minister, and the individual in post must hold or have held office—so it is not sitting judges, but could be a retired judge—as a judge of the Supreme Court, the Court of Appeal or the High Court.
New clause 14 sets out the central functions of the commissioner, which will be detailed further in new clauses 15 and 17 and new schedule 1. The commissioner would receive documents, including the reports from the co-ordinating doctor and declarations under the legislation, make appointments to the list of persons eligible to sit on assisted dying review panels, and refer cases to those panels, which would replace the role of the High Court in the original draft of the Bill. In addition, the commissioner would have the responsibility for monitoring the Bill’s operation and reporting annually to Parliament, which we will no doubt come to in clause 34. It is important to pause there, because that is one aspect in which the commissioner model is distinct from that of a court or tribunal. It will serve multiple functions, not least the monitoring of the Bill’s operation and reporting on that annually to Parliament.
New schedule 1 contains practical arrangements for the office of the voluntary assisted dying commissioner, as established in new clause 14. In practice, we anticipate that the commissioner’s office will be a non-departmental public body. The establishment of such an office to support the Government-appointed chair or commissioner is common practice for roles of this nature. One such model is the Investigatory Powers Commissioner, which is chaired by a person who is holding or who has held high judicial office. The schedule also introduces the role of a deputy commissioner, who, like the commissioner, must have been appointed by the Prime Minister and hold or have held office as a judge of the Supreme Court, the Court of Appeal or the High Court.
Both the commissioner and deputy commissioner would be appointed for terms of five years, with their remuneration set by the Secretary of State. The commissioner would have the ability to appoint their own staff, having obtained approval from the Secretary of State in regard to the number of staff, the remuneration and the terms, as well as providing an annual statement of accounts. In the ordinary way, such a public body would be subject to other statutory provisions, not least the Equality Act 2010.
New clause 15 would establish the mechanism for the referral by the voluntary assisted dying commissioner to an assisted dying review panel. When the commissioner receives a first declaration from the person seeking assistance, and reports from the co-ordinating and independent doctors as to their assessments of the person—including a statement by those doctors as to the person’s eligibility for assistance—they would be required to refer the case to a panel as soon as reasonably practical. In practice, the task of organising the work of each panel would fall to the commissioner’s office. The co-ordinating doctor would be required to inform the commissioner where a first or second declaration is cancelled. Where the commissioner is informed of the cancellation of the first declaration, they must not refer the case to a panel, or must inform the panel to disregard the application if already referred.
Amendments 371, 372, 373, 377, 378, 381, 388 and 390 are all consequential amendments on new clause 21, and together establish the mechanism for the consideration of cases by the assisted dying review panels in place of the High Court. Panels would be required to review each case and issue a certificate of eligibility where they are satisfied that all requirements set out in the Bill have been met.
Sarah Olney
I seek clarification. As drafted, in clause 12(1)(c), the High Court would give
“a declaration that the requirements of this Act have been met”,
but in new clause 21(6)(a), the panel is required to issue a certificate of eligibility, to which the Minister just referred. I seek the Minister’s guidance on whether it is the Government’s view that the High Court declaration has equal weight in law to the certificate of eligibility set out in new clause 21. I ask particularly because that certificate will be relied on for the purposes of suspending the Suicide Act 1961, under which a criminal offence would otherwise have been committed. The certificate of eligibility will need to be relied on to demonstrate that no criminal offence has been committed under that law. Is it the view of the Minister and the Government that a High Court direction, as originally required, can now be fully replaced by, and have equal weight with, a certificate of eligibility?
Sarah Sackman
As I understand it, everything has to be internally coherent in whatever the final draft of the Bill is. Within this structure, because in this case it is a panel that issues the certificate, it is its own sui generis certificate appropriate to this process. The declaration that was referred to in the earlier draft is one that the High Court would normally do. Given that this is on the face of the Bill, and will be in primary legislation, it would have legal force and would, if it were internally coherent with the rest of the legislation, have the legal effect of operating coherently with the criminal offences and, indeed, with the suspension of the Suicide Act, as the hon. Lady just asked. That is my understanding.
Sarah Olney
My original question was more about whether it has the same legal force as a High Court direction.
Sarah Sackman
My understanding is that it would, yes. If I am wrong about that, I will obviously come back to the Committee and correct it, but my understanding is that it would. They are two different things—one is called a certificate of eligibility and one is a High Court declaration—but in terms of how they operate within this legal scheme, my understanding is that they would have the same legal effect, and they are intended to.
Under new clause 21, the panel must hear from, and may question, the person seeking assistance and the co-ordinating doctor, or the independent doctor, or both. The panel may also hear, and may question, the person’s proxy if that is relevant, and any other person, including those appearing to have relevant knowledge or experience. This could include family members, or other individuals with an interest in the welfare of the person, as well as other experts. The new clause is explicit that the panel must not grant the certificate of eligibility if it is not satisfied that all the requirements have been met. Further consequential amendments introduce references to the certificate of eligibility throughout the Bill. Once the panel has made a decision, it will be required to notify the person seeking assistance, the co-ordinating doctor, the commissioner and any other person specified in the regulations.
As others have pointed out, the amendments tabled by my hon. Friend the Member for Spen Valley do not spell out every step of the process or the procedure that the panels would be expected to follow. That is left to secondary legislation, and it will be for the commission and the commissioner to produce their own guidance on how the panels and the panel procedure are intended to be governed and regulated. That is in line with the approach to legislation more broadly, with main objectives typically set out in primary legislation, and secondary policy issues and technical and administrative matters, dealt with through secondary legislation, regulations and guidance.
Sarah Sackman
I believe it is in there. Let me find the relevant provision so that I can refer my hon. Friend to it.
Sarah Sackman
It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:
“Decisions of a panel may be taken by a majority vote”.
Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:
“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”
That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.
Danny Kruger
I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.
Sarah Sackman
That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.
Daniel Francis
I was once on a planning committee in which one member of the committee voted in favour and all the other members abstained, so the recommendation went through one to zero. Technically, given the way in which new schedule 2 reads to me, that could happen, because one member could vote in favour and two could abstain, and that would therefore be considered unanimous. Will the Minister comment on that?
Sarah Sackman
We are discussing how to construe the provision in paragraph 5 of new schedule 2. I should reiterate that, obviously, it is the promoter’s intent to have—hon. Members may call it what they will—the safeguard of unanimity behind that provision. If there is any feeling that the drafting does not fully reflect that intent, it can be tightened up. However, under of the Bill, there is clearly an intent to have unanimity in respect of the final decision about certification.
Kim Leadbeater
It absolutely is the policy intent that there should be a unanimous decision of the panel. If there is any lack of clarity, I am very happy to look into working with official draftspeople to tighten that up.
Sarah Sackman
I thank hon. Members for their interventions.
In respect of the standard that would be applied in order for the panel to be satisfied, in practice, as I was saying, the panel would establish a case on the balance of probability in those circumstances only on the basis of strong evidence. In other words, the more serious the issue to be determined, the closer the scrutiny and the stronger the evidence required.
Introducing a requirement for the panel to be satisfied beyond all reasonable doubt at this stage would create a difference to, or a divergence from, the standard applied by professionals earlier in the process, such as by the doctors in the first and second assessments, and—I think the hon. Member for Reigate acknowledged this in her speech—to ascertain whether, among other things, the person has capacity to make the decision to end their own life, whether they have a clear, settled and informed wish to do so, and that they have not been pressured or coerced. Such a requirement would create the problem of making the application of the Bill incoherent because, of course, if a civil standard has been applied earlier in the process, the higher, criminal bar could never be satisfied at the panel stage. The principal decision is what standard should be applied and, as I have said, the civil standard is used in other end-of-life decisions, but there is also a question of the internal coherence of the Bill.
Rebecca Paul
I thank the Minister for the very clear way in which she is explaining everything. I completely acknowledge what she has just said. As she rightly said, I alluded to the fact that I tried to make the change at an earlier stage, but was unsuccessful, and I am now trying to put it through here. Can the Minister comment on the meaning of “satisfied”? If we are not going to have “beyond reasonable doubt”, can she expand a little on the meaning of “satisfied” and whether she is comfortable that that is clear enough for these purposes?
Sarah Sackman
The answer is yes. I, on behalf of the Government, am satisfied that that would be commonly and well understood by those applying it, and any court construing it, that the standard to be applied is the civil standard. That would be understood by not just the commissioner in terms of laying down the rules for the panels, but the panels themselves. It is important to recall that as Lord Bingham, one of the most distinguished judges that this country has ever produced, once said,
“The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved”,
and there is no doubt, based on what Parliament has debated, about the utmost seriousness of these issues. To answer the hon. Member’s question, the answer is yes, I think it is clear. That is the Government’s position.
Amendment (b) to new clause 21 would give the panel discretion to refuse to grant a certificate of eligibility where the requirements stated in the Bill are met if it believes there are
“particular circumstances which make it inappropriate for the person”
to be provided with assistance. The Government’s view is that this could risk unpredictability and inconsistency in the panel’s decision making and reduce legal certainty for the person seeking assistance, as well as for the panel.
Amendment (c) to new clause 21 concerns three specific requirements under subsection (2):
“(c) that the person has capacity…(h) that the person has a clear, settled and informed wish to end their own life”
and
“(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person”.
The amendment would mean that despite finding that those criteria had been met on the balance of probabilities, the panel could stay proceedings when it believed there was a real risk that they have not been satisfied. As with amendment (b) to new clause 21, this could result in uncertainty for the applicant and in terms of what is required of the panel in its decision making.
As I referred to earlier, in a lot of these decisions, the question of whether somebody has capacity or is being coerced is ultimately a binary decision for each panel member. The person has capacity or they do not. In applying the civil standard with the rigour that Lord Bingham spoke about in the most serious cases in circumstances when the panel or its members identify that there is a real risk, one would expect them to exercise their discretionary powers to seek more evidence to remove that risk and doubt, and if that persists, to refuse and make the binary choice that the person does not have capacity or is being coerced, or vice versa.
Amendment (d) to new clause 21 would require the panel to hear from and question both assessing doctors, as opposed to the requirement that the person must hear from, and may question, one of the doctors, and may hear from and question both. The amendment would also require the panel to hear from and question the person seeking assistance and the person’s proxy when clause 15 applies. Under new clause 21, the panel must hear from and may question the person seeking assistance and would have the ability to hear from and question their proxy.
The amendment would also make it explicit that the panel must consider hearing from and questioning parties interested in the welfare of the person and those involved in the person’s care. Under new clause 21, the panel would have the ability to hear from any other person, which could include family members, caregivers and whomever else it deems appropriate.
Naz Shah
I appreciate that, under the new clause, the panel can hear from anybody. Can the Minister confirm that the panel is unable, unlike a mental health tribunal, to summon people to appear before them or insist that witnesses appear, and to make them swear under oath when presenting their evidence?
Sarah Sackman
My hon. Friend is absolutely right. Under the Bill as drafted, a panel and the commission are not invested with powers of summons, and the evidence that is heard and requested is not conveyed under oath. It is not a court or a tribunal. Those provisions do not apply, so she is absolutely right. They can make the request, but they cannot compel someone to attend.
Amendment (e) to new clause 21 would make it explicit that, when considered appropriate for medical reasons, the panel would be able to use pre-recorded audio or video material when considering evidence for the purposes of determining a person’s eligibility for assistance. Panel procedure would be set out in guidance issued by the commissioner, which would detail the processes governing the panel process in general, but also for the use of that form of evidence.
New schedule 2, which was tabled by my hon. Friend the. Member for Spen Valley, builds on the new clause 21. The new schedule further details the composition and the intended proceedings of the assisted dying review panels. As we have heard, panels would be formed of three members, including a legal member sitting as chair, a psychiatrist and a social worker.
Thanks to the hon. Member for Richmond Park, we have dealt with the provision on decisions to grant the certificate of eligibility and how they will be determined by members of the panel. We heard from the promoter herself, my hon. Friend the Member for Spen Valley, that the intention is that such decisions are unanimous.
The commissioner would be responsible for making appointments to a list of persons eligible to sit as members of the multidisciplinary panels, and for establishing those panels. Under the schedule, the legal member as chair of the panel must hold or have held high judicial office, be one of His Majesty’s counsel—that is a KC—or have been authorised as a temporary judge in the High Court. The psychiatrist member must be a registered medical practitioner and a practising registered psychiatrist, and the social worker member must appear on the register maintained by Social Work England or Social Work Wales.
Sarah Sackman
I think the hon. Lady is right that that is not specified as a requirement. All three panel members would be drawn from the relevant professions and would therefore be subject to the standards pertaining to those professions. In the legal profession, they will be practitioners who are experienced in analysis and reaching decisions based on facts and law. The professional standards for all three regulated professions place a high value not just on integrity, but on impartiality. For the commissioner and for any judges on the panel, the “Guide to Judicial Conduct” makes the principles explicit.
Naz Shah
The Minister mentions impartiality. As things stand, the doctors who take part in the process will have made the choice to do so. Would the same yardstick be applied to the panel, or would its members just be appointed? Could they choose not to participate in the process?
Sarah Sackman
I anticipate that members of the professions will apply to be members of the panel. There will have to be a recruitment process, which is something that the commissioner, who is appointed by the Prime Minister, will undertake. I emphasise the point that all the professions, in their different ways—I am obviously most familiar with the legal profession, particularly the Bar—are governed by professional standards that specify the need for and place a high value on not just integrity, but impartiality.
Sarah Sackman
There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.
One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.
Danny Kruger
I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?
I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?
Sarah Sackman
The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.
On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.
Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.
Kim Leadbeater
It is important to acknowledge that it will be a number of years before this law will be implemented. Hopefully, the Government will continue the fantastic job that they are doing to improve capacity in our courts, so that even if capacity is an issue now, a few years down the line it will not be.
Sarah Sackman
I thank my hon. Friend for that encouragement. The Government’s position throughout the entire process, in so far as we have worked with her on these amendments and others to give effect to her intent, is to ensure that they are workable and operable. If this were not workable, we would not be here discussing it.
There are several examples across Government of judges or senior lawyers and KCs sitting on decision-making panels or in organisations or bodies that sit outside the framework of His Majesty’s Courts and Tribunals Service. We have discussed some examples, such as public inquiries. I say this as the Minister for courts: it speaks to the trust and public confidence in both judges and KCs that when there is a public policy challenge to which many of us as politicians struggle to find a resolution, we so often turn to judge-led and KC-led inquiries to establish either what has happened or how systems can be improved. That is partly because of the impartiality and integrity that they bring to that work. I offer the example of the judicial commissioners who operate on behalf of the Investigatory Powers Commissioner and who provide independent authorisation of application for the use of the most intrusive investigatory powers.
We have mentioned inquiries; I have also mentioned Parole Board panels as an example of inquisitorial rather than adversarial panels. They are often multidisciplinary, and many of their members are current or retired judges. They sit and hear issues of the most complex nature, assessing the risk that prisoners may present to the public on release.
Danny Kruger
I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?
Sarah Sackman
I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.
The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.
Sarah Olney
I am trying to clarify this for my own benefit, because I am not familiar with some of these procedures. Is there a difference between a High Court judge leading an inquiry or sitting on a panel, using their legal experience to provide advice or recommendations or give an opinion, and having a judge sitting in the High Court, who, under the original wording of clause 12, would be giving a direction? If there is a difference, have we not crossed from one role to the other by introducing a panel rather than a High Court direction? Does that matter for the purposes of the legislation?
Sarah Sackman
To be absolutely clear, what we are discussing reflects the intent of my hon. Friend the Member for Spen Valley. It is important to break it down. We have a judge in the role of the commissioner, and the commissioner will set up the framework and guidance for how the panels will operate and will lend their expertise. Our judges often sit on the Civil Procedure Rule Committee, developing the appropriate practice to govern the process in question. In this case, it would be the process of providing the third layer and the assessment whether the eligibility criteria have been met.
The commissioner would also—and this is where the role is distinct from that of a court or tribunal—provide a monitoring and reporting function to Parliament on the operation of the Act. That is a fundamental distinction from the model that we will have if we pursue clause 12, because in that case each application for an assisted death would go to whichever High Court judge happened to be sitting on that day. There would be no requirement for particular expertise on the part of the High Court judge, and that judge would not have to report on the operation of the Act. It is a different model that my hon. Friend has elected.
Liz Saville Roberts
The situation exists already in Wales. For example, people are prepared to travel in order to facilitate Welsh-medium coroner inquests. There are local authorities such as my own, Gwynedd, that have a requirement that all social workers be able to work in the medium of Welsh. The requirement will already be there, but this is a process of acknowledging those psychiatrists who are able to meet it. It is critical for the Bill, if we are to put the person and their needs first.
I urge the Minister to consider the amendment. We are already familiar with this matter in relation to digital technology and the operations that we already need to put in place to allow people to use their language in Wales. The amendment recognises the dire situation. It recognises the absolute urgency of people who are at the most stressful time in their life being able to use the language that they prefer.
Sarah Sackman
I want to reassure the right hon. Lady about the provisions that will apply even if her amendment is not accepted. The Welsh Language Act 1993 requires public bodies that are either named in the Act or named by Welsh Ministers, and which provide services to the public in Wales, to prepare a Welsh language scheme setting out the steps that the body will take in relation to the use of the Welsh language while providing those services. As I understand it, this approach is used all the time in legal proceedings in Wales.
In an instance in which a party wishes to speak in Welsh at the proceedings, section 22 of the 1993 Act will apply. Any party to the legal proceedings can express themselves in Welsh, at which point a Welsh interpreter would be commissioned to facilitate the discussion. That will happen. That will be the status quo—the backstop, if you like—without the amendment. Requiring all members of the panel to speak fluent Welsh would, in the Government’s view, be a significant operational challenge that could lead to undue delay at the end of life.
Tom Gordon
I speak only one language and it is definitely not Welsh, even though I did have a stint working in Wales. With any language, things can be lost in translation. When we are talking about something like assisted dying, does the Minister acknowledge that even with very skilled interpreters, there would have to be a suitable level of training to make sure that everything was fully thought through and there were no cracks—that nothing would slip through the net. That is not covered under the Welsh Language Act currently, and that is why the amendment has been tabled. Does she appreciate the severity of that?
Sarah Sackman
]The right hon. Member for Dwyfor Meirionnydd and the hon. Members for Chesham and Amersham and for Harrogate and Knaresborough have all put their case incredibly powerfully. In emphasising the operational difficulties that the Government have identified, I will make this point. The approach under section 22 of the Welsh Language Act is that the ability to speak in Welsh and have interpretation services is adopted in very serious legal proceedings indeed. The hon. Gentleman is right: we are talking about nuances that can determine civil or criminal liability; those are very serious issues indeed. I am not saying that that is quite as serious as matters of life or death, but getting right the sorts of things that interpreters need to ensure they are getting right, as well as vindicating the person’s ability to express themselves in their mother tongue or their preferred tongue, is something that happens already and would happen under the operation of this legislation.
Liz Saville Roberts
I wonder whether the Minister appreciates that when it comes to Welsh speakers using their language in the face of the majority language, English, with its status, what we are doing here is putting another barrier in their way: “I am making a nuisance of myself; I have to ask a favour and get interpreters.” That is not what we should be doing with this legislation. We should be putting those people first and making sure that they can express themselves at this most emotional time as effectively as possible. Interpreters should not be in the room with the assisted dying panels. That is fundamentally against the nature of the Bill.
Sarah Sackman
I appreciate the passion and force with which the right hon. Lady makes that point. I have set out the Government’s concerns about deliverability—the operational challenges around delivering what has been suggested. This is a case of applying section 22 of the Welsh Language Act to the commissioner, who under the promoter’s new schedule 2 would be able to give guidance to panels on how exactly they should facilitate exactly what the right hon. Lady is seeking—the ability of the dying person who is seeking an assisted death to express themselves through the Welsh language within those most sensitive of proceedings. There could be facilitation by the commissioner in order to commission an interpreter and assist the person to speak in Welsh.
I appreciate that the right hon. Lady feels that that would create a barrier that is not appropriate to this context, but I think it is a reflection of the fact that certainly the Government are not seeking to stand in the way of people expressing themselves in Welsh. We want to vindicate that. It is in line with our wider commitment to devolution and to working with the devolved Governments in the context of the Bill. The right hon. Lady has made her point forcefully, and no doubt the Committee will come to vote on this amendment, but I have to, on behalf of the Government, acting responsibly, lay out some of the challenges that it would mean to the operability and deliverability of the Bill.
Sarah Green (Chesham and Amersham) (LD)
I accept that the Minister is in a difficult position, because she is presenting the case for the Government’s position and cannot take a position herself. I will just gently ask whether she accepts the weariness of Welsh language speakers and campaigners over generations, who have been faced time and again with the same argument—of operational challenges, whatever that issue may be. I suggest to her that perhaps it is time that the Government stopped using that excuse.
Sarah Sackman
I thank the hon. Lady for that intervention. She has heard the Government’s position on the operation of the Bill. As I said, it is important that, in the event that this amendment is not taken forward, the points and the force with which they are made are fed into the commissioner’s modus operandi in order, as far as possible and within what resources allow, to allow people to express themselves in the Welsh language. As I said, I want to put on record our continued commitment to devolution in that context, and to working with the Welsh Government to resolve in a thoughtful and constructive way any of the outstanding legal, technical and constitutional issues that may arise.
Liz Saville Roberts
Surely many of the constitutional issues that we are discussing should be decided by the Senedd and the Welsh Government. It is a matter of urgency now that we discuss the “appropriate authority”, which is a term used in other legislation. I believe that in the Crime and Policing Bill, “appropriate authority” is used in relation to England and Scotland. We need to have clarity on these decisions as we move ahead.
Sarah Sackman
The right hon. Lady is absolutely right that we do need clarity. As my hon. Friend the Member for Spen Valley has made clear, the intention is for the legislation to apply across both England and Wales, and the model being proposed under these provisions is a single commission. We need to ensure close working to resolve those technical and legal issues.
Amendment (b) to new schedule 2 deals with the issue of the Official Solicitor. It seeks to establish a process through which a person nominated by the Official Solicitor acts as an advocate to the panel. It is important to remind ourselves of the role that the Official Solicitor typically plays. They act as a litigation friend, and where they do act as an advocate to the court, the purpose of that function is to assist courts on a difficult or novel point of law. The focus of the Official Solicitor is in representing adults who lack mental capacity, and children. Both groups are plainly out of the scope of the Bill. The Bill applies to someone who has capacity and who is applying for an assisted death.
The amendment would require a significant and radical change in the function and focus of the Official Solicitor. Under new schedule 2, assisted dying review panels would have their own powers to determine whether the requirements of the Bill had been met, including the ability to hear from and question any other person.
Naz Shah
The Minister is being very generous in giving way. I want to understand something. She says that the Official Solicitor is there to help with adults who lack capacity, but in the cases before the Court of Protection of the girls who had anorexia, the judges took a decision that they should not continue to be force-fed. The judges concluded in nine of 10 cases that they lacked capacity, and yet accepted that these girls were inevitably going to die. In that case, would the role of the Official Solicitor not be helpful as a further safeguard?
Sarah Sackman
It is important to look at this issue in the context of what my hon. Friend the Member for Spen Valley is setting out to do through the legislation, and what the panel’s function is, which is the function that was discussed in the debate. This is not a trial or an inquiry. That is not what is being undertaken by the panel. The panel’s purpose is to ensure that the eligibility criteria process has been followed in a correct, lawful and safe way. As others have pointed out, it is not adversarial, and will not be described as such in the Bill.
All that I am saying on behalf of the Government is that the Official Solicitor’s role is most frequently to assist in court with a difficult or novel point of law when the person cannot do it themselves. Well, we do not have that here. We are not determining points of law; we are determining whether this person has met the eligibility criteria. Secondly, the Official Solicitor’s role is for when individuals lack capacity. In the Bill, by definition, the person who is applying has already satisfied two doctors that they have capacity. Of course, the question of capacity may be something that the panel wishes to explore further—it has the three panel members and the ability to draw on its powers to seek further information to test that—but it is not clear, without altering the current role that the Official Solicitor plays within our legal system, what role they would be serving.
Naz Shah
I appreciate the Minister’s position and am grateful for her explanation, but it does not address the central point, which is that nine girls were deemed not to have capacity. Despite all the amendments that have been tabled and the letter from all the charities about anorexia, that has not been addressed. In absence of any impact assessment on one of the issues that most frustrates me, how do the Government conclude that the workability of the Bill is sufficient? Will it work, given that we do not have the protection for those girls who may have anorexia? There is precedent for such girls who did not have capacity. How will the Government safeguard those girls in particular?
Sarah Sackman
I thank my hon. Friend for her intervention. She has brought up that case a number of times in various debates on the Bill. In this context, part of the provision—in terms of the design and operation of the commissioner and the panels to which the various cases are referred—is the development of guidance. If the commissioner deems specific processes appropriate to the consideration of applications for assisted death where anorexia is an issue, that guidance can be developed. Again, that is a matter for the promoter of the Bill, but one might have thought that having a dedicated body in relation to assisted death—which also has the monitoring function that we will come to in clause 34—means the development of expertise in dealing with cases, in particular those especially difficult cases of the nature my hon. Friend the Member for Bradford West raises. From a Government point of view, that would not necessarily flow—it is hard to see why it would at all—from the High Court, if we revert to that. That is a distinction between the two models that the Bill’s promoter has explored.
Kim Leadbeater
That is another important argument for having the panel. Where a terminally ill person with an eating disorder has been deemed to have capacity by two doctors and—I surmise, as we now have the compulsory referral—a psychiatrist, we will have on the panel another psychiatrist and a social worker. The panel does help to address concerns about capacity. Does the Minister agree?
Sarah Sackman
My hon. Friend has developed her thinking, and the Government have worked with her to reflect that policy intent. I think she is right that the panel is capable of doing just that and it could operate in that way.
Amendment (c) to new schedule 2 relates to the issue of domestic abuse training. It would make the voluntary assisted dying commissioner responsible for ensuring that all panel members had received training on domestic abuse, including coercive control and financial abuse. Persons appointed to the list of eligible panel members would already be qualified in the field of law, psychiatry or social work, and would have done all the training that pertains to receiving a professional qualification in those fields.
In addition, under new schedule 2 tabled by my hon. Friend the Member for Spen Valley, the commissioner would be able to give guidance to the panels, which could include training requirements, and the panels must have regard to that guidance in the exercise of their functions. That is all I propose to say about that. It might be seen as an example of something that would typically—I am not saying it has to—be left to regulation or the guidance, rather than being in primary legislation.
Amendment (d) to new schedule 2 relates to the panel sitting in private or in public. It seeks to ensure that panels sit in private by default.
Kit Malthouse
I am not sure that my amendment (d) was selected—unfortunately, I missed the deadline—so the Minister does not need to cover it.
The Chair
I did not wish to say that, but the Minister did. We will come back at 5.10 pm.
Terminally Ill Adults (End of Life) Bill (Twenty-fourth sitting)
Tuesday 18th March 2025
(1 month, 1 week ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 March 2025 - (18 Mar 2025)
The Chair
Will everyone ensure that all electronic devices are turned off or switched to silent? Tea and coffee are not allowed in the Committee Room.
We are continuing line-by-line consideration of the Bill. I remind Members that interventions should be short and raise points of clarification or questions; they should not be speeches in themselves. Members who wish to make a speech should bob and continue to do so through the whole debate in which they wish to speak, until they are called. When Members say “you”, they are referring to the Chair. “You” should not be used to refer to one another; the debate should be through the Chair.
Clause 13
Confirmation of request for assistance: second declaration
Amendment proposed (12 March): 457, in clause 13, page 9, line 17, after “made,” insert
“and have not voluntarily stopped eating and drinking”.—(Sarah Olney.)
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 471, in clause 13, page 9, line 27, leave out from “if” to “that” in line 28 and insert
“the coordinating doctor is satisfied (immediately before witnessing it)”.
This amendment removes wording which would suggest that a second declaration is made before it is witnessed.
Amendment 316, in clause 13, page 9, line 36, at end insert—
“(5A) If, when making the statement under subsection (5), the definition of “second period of reflection” under subsection (2)(b) applies, the coordinating doctor must make refer the person for urgent specialist palliative care.”
This amendment will ensure that there is an immediate referral to a specialist in palliative care due if the patient is likely to die within a month of the declaration from the Court.
Amendment 374, in clause 13, page 10, line 2, at end insert—
“(8) Where the coordinating doctor has—
(a) witnessed a second declaration, or
(b) made or refused to make a statement under subsection (5),
the doctor must notify the Commissioner and give them a copy of the second declaration or (as the case may be) any statement under subsection (5).”
This amendment requires the coordinating doctor to notify the Commissioner of witnessing a second declaration, and of having made or refused to make a statement under clause 13(5).
Naz Shah (Bradford West) (Lab)
As we heard from the hon. Member for Richmond Park, her amendment concerns the second period for reflection under the Bill as drafted. The second period of reflection would take place after the panel had approved a person’s application for assisted death. The Bill states that that period would be 14 days, unless
“the coordinating doctor reasonably believes that the person’s death is likely to occur before the end of the period of one month beginning with the day that declaration was made”;
in that case, the second period is shortened to 48 hours.
Some people who have a strong desire to hasten death might wish to avoid the second period for reflection. If they refused food, there would be a strong possibility that their physical condition would deteriorate, so that a doctor would indeed believe that they were likely to die within one month. That is not a hypothetical possibility. We know that there are people who do refuse food to the point where they become gravely ill with malnutrition.
The right hon. Member for North West Hampshire said something that I think is relevant here. He was asking questions of a witness before this Committee, Professor Nicola Ranger of the Royal College of Nursing, on 28 January. To quote Hansard, the right hon. Gentleman said:
“At the moment, within palliative care and palliative nursing generally, you are already dealing with patients who are electing to refuse treatment, food and water, or are supporting patients following an advance directive.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 59, Q70.]
On the same day, the right hon. Gentleman said something similar to another witness, Dr Sarah Cox:
“I want to pursue that point a little with you, Dr Cox. My understanding is that your profession is already taking these decisions, or supporting patients to take these decisions—for example, the withdrawal of ventilation for an MND patient towards the end, or if I decide to decline treatment or food and water to end my life as quickly as I can.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 74, Q91.]
In other words, it is not some remote possibility that patients who are already ill may decide to refuse food. That is one thing I hope that the right hon. Gentleman and I can agree on. We also know from the survey undertaken by a group of specialists in eating disorders that, in countries that have assisted dying laws, at least 60 people have qualified for assisted death because they suffered advanced malnutrition.
Some people who are seriously ill and who wish, in the words of a psychiatric witness, to “hasten death”, may see the 14-day period as intolerable. An alarming possibility is that they might stop eating in order to worsen their physical condition and qualify for the 48-hour period. Amendment 457 would remove that possibility. I strongly recommend that hon. Members support it.
People would qualify for a shortened period for reflection only if they
“have not voluntarily stopped eating and drinking”.
That word “voluntarily” is important. I understand the reason that the Bill’s drafters included a provision for a shorter, second period of reflection, but as with much of the rest of the Bill, I am sorry to say that I do not think that they have provided strong enough safeguards. This is a well drafted amendment that would tighten those safeguards. I urge Members to support it.
Danny Kruger (East Wiltshire) (Con)
I will speak briefly to amendment 316 in the name of the hon. Member for York Central (Rachael Maskell). She has tabled a sensible suggestion that if a patient makes a statement after the second period of reflection, there should be an automatic referral to palliative care. We have heard how expected and usual that is anyway, and the hon. Member for Spen Valley has frequently made the point that people who are having an assisted death, or going through the process, are likely to be in palliative care anyway—it is not an either/or. It is important that we clarify that expectation.
It will obviously be the case that the patient is not required to take up the referral, and if the referral already exists, that case is dealt with, but let us be absolutely clear that the decision to take an assisted death is not a fork in the road, as would be my concern. If that is not the case and that, in fact, palliative care and the assisted death process go hand in hand and will be seen as part of an integrated package of support for patients, my view is that we should specify clearly that in the event of a decision to proceed down the road to an assisted death, a palliative care referral should be made.
Bluntly, I want to make this as clear as we can, although I am not sure that we will ever be able to do that fully. It really has to be very plain to healthcare commissioners and managers that there is to be no cost saving as a result of an assisted death referral. I very much doubt that a single commissioner or manager would have that at the forefront of their mind; nevertheless, incentives apply in healthcare decisions. Ultimately, we have a ration system, and resource allocation necessarily is the job of commissioners.
If, as we are saying, a decision to proceed with an assisted death will be in parallel with palliative care, let us make that plain, so that if indeed it is the case that the patient requires the investment of palliative care services—hospice treatment or otherwise, even though, as we know, hospice care is inadequately funded through public money—nevertheless, there is a resource requirement. It is important that we specify to everybody in the system that an assisted death is not a way of avoiding the expense of proper end-of-life care.
I hope that Members will recognise that amendment 316 is consistent with the arguments that have been made consistently by advocates of the Bill, which is that there is not an either/or between palliative care and assisted death, and that, in fact, it is appropriate for patients to be on both tracks simultaneously.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Ms McVey.
The purpose of amendment 457 is to exclude a person who has less than one month to live from being eligible for the shorter second period of reflection of 48 hours if that person has voluntarily stopped eating and drinking. That person would instead be required to comply with a second period of reflection of 14 days under clause 13(2)(a). The amendment could create uncertainty as to the required length of the period of reflection. It is unclear, for example, if “voluntarily” would include where someone’s appetite has naturally declined as they approach the end of life, and therefore whose decision to stop eating or drinking may not be deliberate.
As I have said previously, the Government have worked with my hon. Friend the Member for Spen Valley on certain amendments to bolster the legal and workability sides of the Bill, and the purpose of amendment 471 is to clarify that the co-ordinating doctor needs to be satisfied that, immediately before witnessing the second declaration, the criteria set out at subsection (4) are met, and not at any time before. That also ensures consistency with the duty on the co-ordinating doctor in respect of the first declaration.
Amendment 316 would require that where the co-ordinating doctor reasonably believes that the person seeking assistance has less than one month to live from the court declaration, they must refer that person for urgent specialist palliative care. As the referral must be made whether the patient wants that referral or not, this may result in unwanted referrals. The effect of this amendment is unclear.
As drafted, clause 13(2)(b) sets out that where the person’s death is likely to occur within one month, the period of reflection is then 48 hours. Amendment 316 sets out that the referral to urgent palliative care must be made alongside the co-ordinating doctor making the statement, which is the last step to be completed before the provision of assistance under clause 18. That would mean that in some circumstances, there may be insufficient time to make a referral before the person is provided with assistance to end their life.
Kit Malthouse (North West Hampshire) (Con)
I want to emphasise that at the moment the patient reaches that point, they will have had their palliative care options explained to them extensively, under the Bill, and it is highly unlikely at that point, as my hon. Friend the Member for East Wiltshire said, that anyone would not be in receipt of palliative care, given the very late stage of their disease.
Stephen Kinnock
I happened to be at a hospice in Stafford yesterday on a ministerial visit and was extremely impressed by the work that the hospice staff were doing on family counselling, and advice and engagement both with the patient and family and loved ones, so the right hon. Gentleman is right that the hospice sector, among others, plays a vital role in that holistic engagement with patients throughout the process.
Amendment 374 requires that the co-ordinating doctor must notify the voluntary assisted dying commissioner where they witness a second declaration and where they make or refuse to make the supporting statement under clause 13(5), and that the commissioner must be provided with a copy of the second declaration and any statement. I hope that those observations were helpful to the Committee.
Kim Leadbeater (Spen Valley) (Lab)
It is a pleasure to serve under you this morning, Ms McVey. My amendments 374 and 471 serve to clarify that the second declaration must be made before it is witnessed—it is a drafting amendment—and to bring clause 13 in line with the reporting requirements elsewhere in the Bill. For the functions of the commissioner to be carried out effectively, including supervising the assisted dying panels and making annual reports on the legislation’s operation, it is essential that all relevant details and reports are made available.
I am unable to support amendment 457, in the name of the hon. Member for Richmond Park. As I said when we started discussing the amendment, I do not fully understand why it has been positioned at this stage in the process. The shorter period of reflection is a recognition that a person’s death is expected within a month, so they literally have a few weeks left of life.
Sarah Olney (Richmond Park) (LD)
That was the hon. Member’s response when I made my speech on the amendment in the previous sitting. I have reflected on that over the weekend. I still think that the issue of the voluntary stopping of eating and drinking is a very serious one that ought to be reflected somewhere in the legislation, but she is correct that, at this particular point, we are talking about the second period of reflection already being at an end, so it cannot be hastened in any way by such a measure. Therefore, I will be withdrawing the amendment.
Kim Leadbeater
I appreciate that; that is helpful and I thank the hon. Member. As the Minister said, a person whose death is approaching may have stopped eating and drinking for a number of reasons. They may simply be too ill. They may be unable to digest food. It may be that they have lost their appetite, or that they will be even more ill if they eat and drink, so it would seem particularly cruel to intervene on that basis at that point, but I appreciate her comments.
Amendment 316 in the name of my hon. Friend the Member for York Central seeks to mandate the action a doctor must take if a patient is likely to die within one month. Like other amendments, it goes against the basic principles that underlie the Bill—that the wishes of the person seeking assistance should be respected. Surely that is even more important than ever as they face their final weeks. As the right hon. Member for North West Hampshire said, palliative care will have been discussed at length throughout the assisted dying process. It is also worth noting, as the hon. Member for East Wiltshire said, that evidence from other jurisdictions with similar laws—Australia and America—shows that between 80% and 90% of people who have gone through the assisted dying process are already receiving palliative care, so I am not minded to support the amendment.
Sarah Olney
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 207, in clause 13, page 9, line 20, leave out “Schedule 4” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a second declaration is to be set out in regulations (rather than in Schedule 4).
Amendment 470, in clause 13, page 9, line 26, at end insert—
“(3A) Regulations under subsection (3)(a) must provide that a second declaration contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) contact details for the person’s GP practice;
(iv) specified information about the certificate of eligibility;
(b) the following further declarations by the person—
(i) a declaration that they have made a first declaration and have not cancelled it;
(ii) a declaration that they understand that they must make a second declaration in order for assistance to be provided under this Act;
(iii) a declaration that they are making the second declaration voluntarily and have not been coerced or pressured by any other person into making it;
(iv) a declaration that they understand that they may cancel the second declaration at any time.
In this subsection “specified” means specified in the regulations.”
This amendment provides that regulations about the form of a second declaration must make the provision mentioned in paragraphs (a) and (b).
Amendment 471, in clause 13, page 9, line 27, leave out from “if” to “that” in line 28 and insert
“the coordinating doctor is satisfied (immediately before witnessing it)”.
This amendment removes wording which would suggest that a second declaration is made before it is witnessed.
Amendment 208, in clause 13, page 9, line 38, leave out “Schedule 5” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations (rather than in Schedule 5).
Amendment 472, in clause 13, page 9, line 41, at end insert—
“(6A) Regulations under subsection (6)(a) must provide that a statement under subsection (5) contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) the coordinating doctor’s full name and work address;
(iv) specified information about the certificate of eligibility;
(b) the following declarations by the coordinating doctor (in addition to a declaration that they are satisfied of all of the matters mentioned in subsection (4)(a) to (d))—
(i) a declaration that they are satisfied that a certificate of eligibility has been granted in respect of the person;
(ii) a declaration that the second declaration was made after the end of the second period for reflection;
(iii) if the second declaration was made before the end of the period mentioned in subsection (2)(a), a declaration that they have the belief mentioned in subsection (2)(b);
(iv) a declaration that they are satisfied that neither the first declaration nor the second declaration has been cancelled.
In this subsection “specified” means specified in the regulations.”
This amendment provides that regulations about the form of a statement under subsection (5) must make the provision mentioned in paragraphs (a) and (b).
Amendment 374, in clause 13, page 10, line 2, at end insert—
“(8) Where the coordinating doctor has—
(a) witnessed a second declaration, or
(b) made or refused to make a statement under subsection (5),
the doctor must notify the Commissioner and give them a copy of the second declaration or (as the case may be) any statement under subsection (5).”—(Kim Leadbeater.)
This amendment requires the coordinating doctor to notify the Commissioner of witnessing a second declaration, and of having made or refused to make a statement under clause 13(5).
Clause 13, as amended, ordered to stand part of the Bill.
Clause 14
Cancellation of declarations
Kim Leadbeater
I beg to move amendment 375, in clause 14, page 10, line 9, at end insert—
“(1A) Where notice or an indication is given to the coordinating doctor under subsection (1)(a), the doctor must as soon as practicable notify the Commissioner of the cancellation.”
This amendment requires the coordinating doctor to notify the Commissioner of a cancellation of a first or second declaration.
The Chair
With this it will be convenient to discuss the following:
Amendment 376, in clause 14, page 10, line 12, after “doctor” insert “and the Commissioner”.
This amendment requires a practitioner other than the coordinating doctor to notify the Commissioner (as well as the coordinating doctor) of a cancellation of a first or second declaration.
Clause stand part.
Kim Leadbeater
I hope that these are a couple of nice, simple amendments. The right of the patient to cancel at any time is obviously really important. It is also important that, for the purpose of monitoring and reporting the process, the commissioner, as proposed, is kept informed at every stage. I hope that the whole Committee can see the necessity of these amendments.
Danny Kruger
The hon. Lady is quite right that there is nothing to object to in these amendments or the clause. It is worth stating at this point, though, that in the context of the debate we are having in this Committee, we are moving at some pace. The likelihood is that there will be opportunity for only a five-hour debate on Report—maybe more, but possibly not. This Committee is the time we have to consider in detail the content of the Bill. My concern is that moving too quickly and trying to do too much too soon means that we will miss the opportunity to debate very important aspects of the Bill.
The hon. Lady says that these are “nice, simple” amendments, as if the only thing being discussed here is the paperwork around the declaration. What should we say to patients who decide to cancel their declaration? My concern—I am unaware of any other point when we could appropriately discuss this question—is what happens in the event of a cancellation. What duty of care do doctors have to patients who have decided not to proceed with an assisted death? The Bill does not currently address that question: it imposes no obligation on doctors to follow up in any way after a declaration has been cancelled.
Danny Kruger
Before I give way to my right hon. Friend, I want to posit the hypothesis of a private provider that has been established explicitly for the purpose of facilitating the assisted death procedure for patients. If that provider steps back when the patient decides to cancel their declaration, the provider is required to notify the GP as soon as practicable, whatever that means—the timeframe there is clearly at the convenience of the provider, not the patient. My concern is what happens when the patient’s GP is not quickly informed that they have decided not to proceed with the assisted death and they are sitting in limbo. Obviously, there are significant concerns about their wellbeing, given their decision and the state they are in. It is not yet fully clear to me what the obligations on the doctors would be at that stage.
Kit Malthouse
I am not entirely certain that my hon. Friend’s remarks are germane to the amendments, but nevertheless. As we discussed when debating clause 13, at the stage he is talking about, the patient will have had all their options—“all appropriate”, as I think we have amended the Bill to say, services that will be available to them—explained to them. If they are cancelling, the presumption has to be, in respecting their autonomy, that they are choosing one of the alternative paths that has been laid out to them. It is quite hard to legislate for a negative.
Danny Kruger
I am speaking to the group as a whole, which includes clause stand part. I have no objection to the amendments. My right hon. Friend is absolutely right. As I said, the expectation is that the medical professionals involved in the person’s care will have laid out their options clearly. We are to a certain degree trusting in that because amendments to insist on it have been rejected, although I recognise that it will be the clear expectation. He is right that it is hard, as it were, to prove a negative.
Nevertheless, the purpose of my speech at this point is to tease out from the advocates of the Bill what their expectation is. My right hon. Friend has clearly explained his expectation, which is that we are dealing with somebody whose mind is clear, rational, uncluttered by other concerns and entirely free of any undue influences or anxieties about the different choices they might make. Having previously decided in the fullness of their autonomy that they wanted to go through the procedure, they have now decided in the fullness of their autonomy that they want to do the opposite, and we should say, “Fine. We have no further interest in your decision making. It is your choice—you’re on your own.” I am very concerned about the implication of my right hon. Friend’s comments about the sorts of patients who might be involved in the process of assisted dying.
Kim Leadbeater
To allay those fears, perhaps the fundamental answer to the question is that those people do not stop being patients—sadly, they do not stop being terminally ill patients. They have just chosen to cancel the declaration, and they will already have wraparound care. To some degree, the hon. Gentleman answered his own question when he said that doctors have a duty of care. That duty of care does not stop because the person has chosen to take this course of action. They will still be cared for by the professionals looking after them.
Danny Kruger
Well, we certainly hope so. Nevertheless, that is inconsistent with the doctrine of absolute patient autonomy, which in this circumstance allows a patient to withdraw from the medical treatment, or at least from the support of the medics who had been facilitating their assisted death. They are rightly under no obligation to receive any other sort of care.
Of course, one would assume that in most cases medics will be closely involved in looking after these patients, because they are likely to be very ill. Nevertheless, the Bill has nothing more to say about patients who have just stepped back from the brink of suicide; the medics will have no further obligation to ensure that they will be looked after—except by the GP, as soon as it is practicable for the provider who has just been denied the business of looking after the assisted death to get round to emailing them. If that is seen as sufficient to ensure that those patients will be properly looked after, I beg to differ.
Kit Malthouse
I am not sure what compulsion there is in wider legislation for there to be a duty of care to patients who do not choose assisted dying in the first place. For thousands and thousands of patients who die, there is no legislation that imposes certain duties on medics or others to look after them; we rely on the professional standards and overall atmosphere of the healthcare system, as we would in the case of these patients.
As my hon. Friend knows, overseas experience shows that a large proportion of the people who obtain the right to an assisted death—up to a third—do not cancel but do not exercise it. As we have said before, for many people assisted dying is an insurance card that they may choose to use if and when they think their life becomes intolerable.
Danny Kruger
I recognise that, but that is not germane to the debate that we are having, which is about the actual cancellation. There is a question about why there would have been a cancellation. My right hon. Friend is right that there is no obligation to proceed once a patient passes a particular hurdle. Many will not, but when someone decides actively to renounce their decision, a big question should be asked: what is going on, and what further help is needed?
My right hon. Friend suggests that we do not step in and ensure that care is provided—that, in other circumstances, there is no additional obligation in relation to patients. I am afraid to say that he has, as ever, a coldly rationalistic vision of healthcare and of the sorts of patients we are dealing with. As I have said to him, these patients will be acting much as I imagine he would imagine—I think from a position of health and self-confidence—himself acting in that circumstance. In fact, we are dealing with people who have decided to renounce their decision to proceed, and so are by definition in some turmoil.
I crave the indulgence of the Committee, because I am talking at length about a set of amendments that I do not intend to oppose, and I recognise the value and necessity of the clause. However, I draw to the Committee’s attention that we are dealing not simply with a bit of paperwork, but with a human being who, having made one enormous decision—to die—is now making an enormous decision to live, and we are treating it as if it is only a bureaucratic question.
I finish with a question to the hon. Member for Spen Valley or to the Minister, to help me understand something that confuses me in the clause.
Naz Shah
I have not given this matter as much thought as the hon. Member has. My interest is very much in the issue of domestic violence. Does he agree that this could be somebody who has experienced domestic violence? Or children could be at risk. This person may then decide not to take the option, even though they wanted to, because of obligations elsewhere.
Danny Kruger
The hon. Lady is right, and her point goes to the question that runs through all of these clauses: why? As a Committee, we rejected the obligation on the doctors to ask, “Why are you doing this?” It was suggested by one hon. Member that it was nobody’s business why somebody was trying to take their own life and that if that person qualified, they should be able to summon the agents of the state to provide them with lethal drugs without any question about their motivation.
I agree with the hon. Lady. There is an equal expectation in my mind that doctors should ask the question, “Why are you changing your mind?” I would expect that. The clause could clarify what further referrals would need to be made, if they had not already been; as we have acknowledged, we would expect appropriate care to be provided by doctors anyway.
I conclude with a factual question. Clause 14(1) lets a patient cancel a first or second declaration, but subsection (4) says only that the duties of the doctor stop when a first declaration is cancelled. I would be grateful if the hon. Member for Spen Valley would explain what happens if the patient cancels a second declaration. It strikes me that there would be a need for urgency because if a patient decides to change their mind at that point, that is arguably a more dangerous situation. What would be the obligations on the doctor at that point? Should we read across from subsection (4) that their duties stop in the same way? Perhaps that could be clarified in later drafting, if necessary.
To conclude, my general point is that the issue of a cancelled declaration is about more than the paperwork. Although, of course, we respect the autonomy of a patient to make their own decision to cancel a declaration—obviously, I would insist that that right should be in the Bill—it nevertheless raises a question in my mind: why is that happening, and what should we expect the patient’s medical team, or others, to do in that circumstance?
Stephen Kinnock
The Government have worked with my hon. Friend the Member for Spen Valley on amendments 375 and 376. The amendments require that where the co-ordinating doctor, or any registered practitioner from the person’s GP practice, receives a notification or indication from the person seeking assistance under the Bill that the person wishes to cancel their first or second declaration, the doctor or practitioner must inform the voluntary assisted dying commissioner as soon as practicable. Where a registered practitioner from the person’s GP practice has received a notification or indication from the person to cancel their first or second declaration, they must also inform the co-ordinating doctor. I hope those observations are helpful to the Committee.
Kim Leadbeater
I repeat what I said earlier about what will happen to the patient if they choose to cancel: their care will continue. From a medical practitioner perspective, it is inconceivable that those patients would be abandoned, as the hon. Member for East Wiltshire is suggesting. That would not happen.
I understand that cancellation of the second declaration does not need to be included in clause 14(4) because of when in the process it would happen. The first declaration comes much earlier, so clauses 7 to 9 would be applicable; the second declaration comes further down the process, so does not need to be included. However, I am happy to look at that in further detail and come back to the hon. Member on that, if necessary.
Amendment 375 agreed to.
Amendment made: 376, in clause 14, page 10, line 12, after “doctor” insert “and the Commissioner”.—(Kim Leadbeater.)
This amendment requires a practitioner other than the coordinating doctor to notify the Commissioner (as well as the coordinating doctor) of a cancellation of a first or second declaration.
Clause 14, as amended, ordered to stand part of the Bill.
Clause 15
Signing by proxy
Daniel Francis (Bexleyheath and Crayford) (Lab)
I beg to move amendment 321, in clause 15, page 10, line 33, at end insert—
“(d) the reason why the person was unable to sign their name.”
The Chair
With this it will be convenient to discuss the following:
Amendment 431, in clause 15, page 11, line 1, leave out paragraphs (a) and (b) and insert
“the donee of Lasting Power of Attorney for Health and Welfare decisions, who has the ability to give or refuse consent to life-sustaining treatment, as registered with the Office of the Public Guardian.”
This amendment would restrict proxies to donees of Lasting Power of Attorney for Health and Welfare decisions, including to give or refuse consent to life-sustaining treatment.
Amendment 473, in clause 15, page 11, line 3, leave out from “person” to end of line and insert
“of a description specified in regulations made by the Secretary of State.”
This amendment provides that persons of a description specified in regulations (rather than persons “of good standing in the community”) may be proxies.
Amendment 253, in clause 15, page 11, line 3, at end insert—
“(6) For the purposes of this section “declaration” includes the cancellation of a declaration.”
This would allow a cancellation of the first or second declaration to be signed by a proxy.
Clause stand part.
Daniel Francis
It is a pleasure to serve under your chairship, Ms McVey. Amendment 321 will mean that the proxy’s declaration must also include the reason why the person was unable to sign their name. That would add a vital safeguard for the person and for the proxy.
In this Committee, we have consistently discussed the need to safeguard vulnerable people from being coerced into choosing assisted dying; for those who need a proxy, the risk of coercion might be higher. As the Bill currently stands, the person needs to tell only their proxy the reason why they are needed. I would like to make it clear why the amendment is important. The Bill does not currently specify that the patient’s declaration of the reason for needing a proxy has to be heard by anyone other than the proxy themselves.
I am conscious that, since my amendment was tabled, my hon. Friend the Member for Spen Valley has also tabled amendments about the relationship and who the proxy could be, but I do not believe that amendment 321 would be a burden or cause any unnecessary complication. As the Bill currently stands, when a proxy signs the declaration they already have to include their full name and address, the capacity in which they qualify, and a statement that they have signed in the capacity of a proxy.
As we have said before, it is vital to safeguard vulnerable people at every stage of the process; adding the reason why the proxy was required allows other people during the process, including if there were allegations later, to understand why that was required. If the first declaration is signed by a proxy, then the co-ordinating doctor—the independent doctor—would be able to examine that reason, so including the reason for someone being unable to sign their own declaration would improve transparency around the process. I hope that hon. Members will agree that we need to be able to monitor how those requests are made and the reasons that people are giving.
In written evidence, several experts raised the importance of collecting good data to ensure that the assisted dying process is properly monitored, and amendment 321 would assist that; I believe that it would protect both vulnerable patients and proxies. I absolutely appreciate and understand that people may have a very good reason for requiring a proxy—if they are very ill during the process, for example. The amendment would simply mean that, if there were to be concerns or allegations at a later stage, the reason why the proxy was required would be written down.
Kim Leadbeater
My hon. Friend is making a really sensible point and a fair argument, and I am very happy to support the amendment.
Daniel Francis
I welcome my hon. Friend’s acceptance of the amendment, and I think she sees the point behind it. It was meant not to be awkward—I do not think I have been at all awkward during this process—but simply to state that, if there were concerns later, the reason why the proxy was required should be there in a transparent way. I commend amendment 321 to the Committee.
Danny Kruger
I am grateful to the hon. Gentleman and I very much support his amendment; it is good to hear that the Bill’s promoter, the hon. Member for Spen Valley, will as well. The hon. Member for Bexleyheath and Crayford has made his points very powerfully, and it is good that we are in agreement.
I also support amendment 431, tabled by the hon. Member for York Central, which would restrict proxies to donees of lasting power of attorney. The point is that somebody who has been through the process of taking on power of attorney has been properly vetted and approved; they are required to demonstrate their fitness for the role and undertake a meaningful duty of care to the person for whom they are a proxy. That strikes me as an appropriate suggestion from the hon. Lady.
Amendment 411, tabled by the hon. Member for Broxtowe, suggests that the phrase
“a person who is of good standing in the community”
should be deleted. I think she is absolutely right to suggest that. I made the point on Second Reading that—
Danny Kruger
I think the hon. Lady is about to say that her own amendment addresses that point.
Danny Kruger
Okay. I am grateful to the hon. Member for Spen Valley, if so. I regret it, because I think amendment 411 had a good suggestion. It would have been my preference if we were just amending the provision, although removing the whole question of a proxy might be the safest thing. Nevertheless, if we are proceeding with the proxy arrangement, it strikes me as dangerous to include a person of good standing in the community. While it sounds like an old-fashioned and sonorous expression, as if it has genuine meaning and recognition, I do not think it is an acknowledged concept and does not appear in English law much, if at all. It obviously begs the question of what on earth it means, and who is to determine who is of good standing.
I labour the point even though the amendment might have been withdrawn, because amendment 473 in the name of the hon. Member for Spen Valley proposes to delete that phrase and give the responsibility for who the proxies could be to the Secretary of State. That is another important instance of a running flaw in the Bill, and particularly the amendments tabled in Committee, which is the transferring of important decisions beyond the Committee and Parliament to the Government and the Minister of the day.
That matters, because we are trying to ensure that when the Bill passes—if it passes—it is safe, but a blank space is being left on the important question of who can determine who the proxies are. The proxies have enormous power to do the paperwork and to answer the questions—to essentially act on behalf of the patient who, in the scenario envisaged, would be silent. It matters who the proxy is.
The decision of the hon. Member for Spen Valley is not to resolve that question here in Committee but to pass it on to a future Minister. My concern is that the same ambiguity or openness that is currently in the Bill about this person of good standing—a serious-sounding but actually vacuous concept—could be replicated in the regulations specified by the Secretary of State.
I am worried about where we are going here. Instead, I wish that we could restrict the proxy to somebody known to the patient, without the inclusion of the person of good standing or, if we are to do without that phrase and imagine that there will be other criteria and other individuals judged appropriate to be the proxy, that we had the will to determine that now. The hon. Member for Spen Valley, working with the Government, may well have concluded that they did not have enough time to come up with such a list or to think through the various complications involved in deciding who the proxy should be. Again, if that was the case, I regret the pace at which we are moving. I do not see why the decision has to be delayed until the Secretary of State comes up with a plan in a couple of years’ time and why it is not being resolved in the Bill now.
The Chair
I confirm that amendment 411 has been withdrawn. I see no other Members bobbing; I call the Minister.
Stephen Kinnock
Amendment 321 would require a proxy to record, when signing the declaration on behalf of the person, the reason why the person they are acting as a proxy for is unable to sign their own name. The recording of the reason may make the use of a proxy more transparent. It may also assist others involved in the scrutiny of the process to understand why a proxy was used.
Amendment 431 seeks to restrict who can be a proxy under the Bill to attorneys with a lasting power of attorney, or LPA, for health and welfare decisions—that is, those people who are able to consent to or refuse life-sustaining treatment. The amendment raises significant practical issues. First, not everyone has an LPA. Secondly, where a person has made an LPA, they will have decided whether to give the attorney the authority to refuse or consent to life-sustaining treatment. That is not automatic and means that not all attorneys would be able to meet the eligibility requirement of the amendment. Thirdly, the Mental Capacity Act 2005 enables an attorney to exercise power under an LPA only if and when someone has lost capacity.
Kit Malthouse
Does the Minister agree that, unfortunately, my hon. Friend the Member for East Wiltshire seems to be labouring under the misapprehension that there is some reputational test in becoming an attorney? In truth, I can appoint anybody I want to be my attorney. There is no verification or otherwise until there is some form of dispute around the exercise of the power of attorney. In fact, the regulations may mean that we have stronger verification of the bona fides of the person who is a proxy than we would have through the LPA route.
Does the Minister not also find it slightly sad that, given the type of Conservative I know my hon. Friend the Member for East Wiltshire is, he thinks the concept of being of good standing in society is somehow meaningless?
Stephen Kinnock
I am not a lawyer, but thankfully I am sitting next to a very eminent and distinguished one—my hon. and learned Friend the Member for Finchley and Golders Green—who has confirmed that everything the hon. Member for East Wiltshire said was correct from a legal standpoint, so I shall leave it at that.
Clause 15(5) of the Bill defines a proxy as
“(a) a person who has known the person making the declaration personally for at least 2 years, or
(b) a person who is of good standing in the community.”
Amendment 473 would remove subsection (b) from the definition of proxy, instead introducing a regulation-making power to specify the persons who may act as proxy. That would avoid any ambiguity around the meaning of a person who is of good standing in the community and retain flexibility to amend the specified list in regulations.
Danny Kruger
Will the Minister confirm that the Secretary of State could simply reintroduce that ambiguous term at their own discretion? If they are being given the freedom to decide who can be a proxy, they might decide that it should be a term of equal ambiguity. My right hon. Friend the Member for North West Hampshire is absolutely right that I have great respect for the concept of “standing”; nevertheless, I do not believe that the Government have yet been able to define exactly what that means. Does the Minister agree that there is still the opportunity for ambiguity? We are just leaving it completely blank at this stage and hoping that some future Secretary of State will have more clarity than we do.
Stephen Kinnock
I would not want to pre-empt the regulations, because clearly that is the point of the process. If this Bill gets Royal Assent, we then move on to making regulations, and I have confidence in the good offices of parliamentary counsel, legal advice and the drafting process. I absolutely agree with the hon. Gentleman, however, that the purpose of those regulations must be to remove ambiguity, not to increase it. I am confident that the system will produce regulations that address his concern.
Kim Leadbeater
Does the Minister agree that it will be on the record that we have had this conversation, and that many of us—including myself—have expressed our concerns about the concept of good standing in the community? I would like to think that that will be taken into consideration.
Stephen Kinnock
I am acutely conscious that every word we say in this Committee is on the record. My hon. Friend makes a valid point in that context.
The purpose of amendment 253 is to clarify that a person acting as a proxy can both sign and revoke a declaration on behalf of a person seeking assistance under the Bill. This amendment would extend the provisions under clause 15 to a person who is acting as proxy to the person seeking assistance under the Bill, enabling the proxy to act on behalf of the person to cancel their first or second declaration if they are unable to sign their own name by reason of physical impairment, being unable to read or for any other reason. I note that the cancellation of a declaration is governed by clause 14, and the cancellation may be given orally, via writing, or
“in a manner of communication known to be used by the person”.
It does not require the signature of the person seeking assistance under the Bill, so a proxy may not be required for some people in relation to revoking a declaration, even if they have been required under clause 15.
Naz Shah
On the point made by the Bill’s promoter, my hon. Friend the Member for Spen Valley, should the issue of proxy end up before a court, what will be relied on—the conversation that we are having here and the intentions stated in Committee, or a future statutory instrument and what the Secretary of State puts in the guidance?
Stephen Kinnock
The regulations will have primacy, and will be shaped by a range of inputs, including the conversation we have just had in Committee. The process is that the Bill gets Royal Assent, then the regulations are drawn up based on a range of consultations and inputs—including the Hansard. The regulations then become the basis on which this proxy process is managed, enforced and executed.
Stephen Kinnock
The Bill, once it becomes an Act, places a legal duty on the Secretary of State to produce those regulations. The Secretary of State would be in breach of the law if he were not to enforce the conclusions of the Act.
Kim Leadbeater
I will speak first to my amendment 473. It is important to be clear that the role of the proxy is very specific and would be used only in a very limited number of cases, where the patient is not able to sign their own name. That is, however, important when we are talking about terminally ill people who may be physically impaired, as my hon. Friend the Member for Bexleyheath and Crayford alluded to.
Danny Kruger
I am sorry to interrupt the hon. Lady so soon into her speech. Nevertheless, the clause says that someone can use a proxy when they are unable to sign their name
“by reason of physical impairment, being unable to read or for any other reason”.
Does the hon. Lady acknowledge that that is tantamount to saying that somebody can have a proxy for any reason at all? There is literally no restriction in the clause on the reason for why somebody could have a proxy—anybody could have one.
Kim Leadbeater
That is why amendment 321 in the name of my hon. Friend the Member for Bexleyheath and Crayford is really important. We have to put the reason down for why there is a proxy. It depends on personal circumstances and what that patient is going through, so we have to have a bit of flexibility, but they have to be unable to sign their name and they have to explain why they are unable to sign their name.
Danny Kruger
I hope that this does not appear pedantic, but we are talking about life and death after all. The patient’s inability to sign their name could be psychological; it is not as if they will have to do a writing test. They simply have to say that they are unable to sign their name, unless the hon. Lady is proposing that there could be some sort of test for that.
I entirely support amendment 321 in the name of the hon. Member for Bexleyheath and Crayford about the proxy being obliged to state the reason why—it is good to finally have the question “Why?” being asked in the Bill. Nevertheless, there is no obligation for anything to be done about that reason; someone could give a reason that would be regarded as irrelevant. I respect the intention behind the amendment, but it does not clarify the point that literally anybody could effectively get a proxy to sign their name, having said to the assessing doctor, “I want my friend to sign for me.”
Kim Leadbeater
That is the sort of thing that the doctor would explore with the patient. It would happen in a very limited set of circumstances. We have to accommodate people who are physically impaired as a result of their terminal illness, and we have to include that there are a range of circumstances where this might apply. The proxy is being asked not to make any kind of judgment or assessment, but merely to act as an intermediary for the patient if they are unable to sign for themselves. They would have to explain why they are unable to sign for themselves, and the proxy has to be satisfied that the person understands the nature and effect of the making of the declaration.
I thought long and hard about who should and should not be accepted as a proxy. As always, I try to imagine how it would be seen by someone with a terminal illness. As we know, no two people are the same, nor are their circumstances. The hon. Member for East Wiltshire said that surely it should be done by someone the patient knows. The clause defines a proxy as someone the patient has known for two years, which is an important inclusion, but not everyone might have known for two years a person who they are comfortable asking to undertake that role.
I also appreciate the challenges with the wording
“of good standing in the community”.
I will let the hon. Member for East Wiltshire and the right hon. Member for North West Hampshire fight that out among themselves. I am sure we all have our own version of what that means.
I have explored various options and, contrary to the suggestion of the hon. Member for East Wiltshire, I have spent a huge amount of time on this question, because it is very important. Looking at different lists, there is the list of people who can sign the back of someone’s passport. I do not think that would be appropriate, so I moved away from that. I have also looked at much shorter lists. I do think that this question would be part of a consultation; it is really important to get it right, which is why we must have it as part of a consultation. I am content that having the Secretary of State put it in regulations is the right thing to do.
As I said, I am happy to support amendment 321 in the name of my hon. Friend the Member for Bexleyheath and Crayford. It is a sensible amendment that makes the reasons for the use of the proxy more transparent. If amendment 253 in the name of my hon. Friend the Member for Filton and Bradley Stoke (Claire Hazelgrove) is moved, I am happy to support that too. As the Minister said, a cancellation need not be in writing; it can be made orally or through any other form of communication.
Amendment 321 agreed to.
Amendment made: 473, in clause 15, page 11, line 3, leave out from “person” to end of line and insert
“of a description specified in regulations made by the Secretary of State.”—(Kim Leadbeater.)
This amendment provides that persons of a description specified in regulations (rather than persons “of good standing in the community”) may be proxies.
Amendment made: 253, in clause 15, page 11, line 3, at end insert—
“(6) For the purposes of this section “declaration” includes the cancellation of a declaration.”—(Sean Woodcock.)
This would allow a cancellation of the first or second declaration to be signed by a proxy.
Clause 15, as amended, ordered to stand part of the Bill.
Clause 16
Recording of declarations and statements etc
Amendments made: 209, in clause 16, page 11, line 8, leave out paragraphs (b) and (c) and insert—
“(b) a report about the first assessment of a person is made under section 7;
(c) a report about the second assessment of a person is made under section 8;”.
This amendment is consequential on Amendments 420 and 421.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.—(Kim Leadbeater.)
This amendment is consequential on NC21.
Kim Leadbeater
I beg to move amendment 474, in clause 16, page 11, line 17, at end insert—
“(1A) In this section ‘recordable event’ means an event mentioned in a paragraph of subsection (1).”
This amendment is consequential on amendments 209 and 377.
The Chair
With this it will be convenient to discuss the following:
Amendment 475, in clause 16, page 11, line 19, leave out from second “the” to “in” in line 21 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 476, in clause 16, page 11, line 24, leave out from “the” to “, and” in line 26 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 477, in clause 16, page 11, line 27, leave out from “the” to “in” in line 29 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 478, in clause 16, page 11, line 30, leave out from second “a” to end of line 32 and insert
“declaration, report or statement within subsection (1) must include the original declaration, report or statement.”
This amendment is consequential on amendments 209 and 377.
Clause stand part.
Kim Leadbeater
The amendments are designed to streamline the drafting of the Bill. Taken together, they create a new definition of a recordable event, namely those events set out in clause 16(1), where declarations and statements are required at any stage of the process. We can all agree that record keeping is essential, so it is necessary to define the events that should be recorded. I commend the amendments to the Committee.
Danny Kruger
I very much respect the hon. Lady’s intention, and I support the amendments. On clause 16, however, I must take the opportunity to express a certain concern. The clause applies if, under subsection (1)(b), the co-ordinating doctor
“refuses to make…a statement”
to be entered into the person’s medical records. That is good but, as I understand it, a statement could be made that complies with the Bill but does not put on record, in relation to subsection (2), which requirements the co-ordinating doctor did not believe were satisfied. We have missed an opportunity to have more clarity about which exact requirements have not been met. There is also the eternal question about the co-ordinating doctor’s reasons for reaching that conclusion. I just note the missed opportunity to be a little safer with the drafting.
My more general point is about the importance of effective record keeping and declaration. I thank the hon. Member for Spen Valley, who throughout the whole Bill process has stressed the importance of good data collection and record keeping, which will be vital so that in later years, if the Bill passes, we can judge whether it is working as intended.
I am concerned about going on the evidence of other countries, which is frequently adduced in support of the Bill, particularly in respect of the absence of evidence of coercion, questions around capacity, proper administration of drugs or the support that patients receive. It is often said that concerns are exaggerated or inappropriate, “because look at what happens in other countries”, but let me briefly run through some evidence from abroad.
The fact is that no other country does adequate record keeping. One ambition of the hon. Member for Spen Valley that I really do share is to have a better system of keeping data than in other countries. In Oregon, the most recent annual report demonstrates a whole series of failures in record keeping. Ingestion status was unknown for 25% of the patients prescribed the drugs, so we do not know whether they took the drugs or what the process was. In 72% of cases, it was unknown whether there were complications; we have been talking about how exaggerated my concerns and those of other Members are about complications, but in 72% of cases in Oregon we do not know. In 30% of cases, it was unknown whether a healthcare provider was present. In 44% of cases, the duration between ingestion and death was unknown.
I very much recognise that the intention of the Bill is not to have those sorts of mistake. Indeed, the intention is to ensure that some of them should be impossible, because a doctor should be present and so on. Nevertheless, there is evidence that in other countries that have inspired the Bill, the data is inadequate. I will give a few more examples.
British Columbia has poor documentation, incomplete assessments, recurrent and excessive delays in reporting. In the debate on the last group of amendments, we spoke about the necessity that a doctor be informed if a declaration is cancelled; I am very concerned that that will not happen quickly and that people could fall through the gaps. That is what happens abroad. We have seen evidence from the former Attorney-General of Victoria, Australia, of all sorts of irregularities, with doctors falsely certifying that patients had signed statements and so on.
Kim Leadbeater
I do not know the details of the individual cases that the hon. Member speaks about, but he makes a powerful point and we absolutely agree on the importance of recording and monitoring. I know that he voted against the changes at clause 12, but I hope he gets some reassurance from the changes that the commission would bring in. Having the commission and the panels would ensure robust monitoring and reporting. I hope he agrees that that is a positive step.
Danny Kruger
I absolutely recognise that the hon. Lady has every intention of insisting that the system works well, that doctors do their job and that good record keeping happens. My concern throughout has been that we have not been robust enough in ensuring that all of that happens.
A huge amount of faith is being placed in the good professional conduct of doctors. Patient autonomy has been stressed, but it often translates into doctor autonomy. We are relying enormously on doctors doing their job well, and we are giving them significant latitude to do their job properly. As we see in other jurisdictions, particularly when assisted suicide becomes normalised and services are established explicitly to provide assisted suicide, we get into a dangerous area in which adequate documentation and reporting might not happen.
I will conclude with evidence from Canada, which is a very comparable country; it has a slightly different mechanism for delivering assisted suicide, but its legal framework is very similar to ours. The Health and Social Care Committee in our last Parliament received evidence from an academic in Canada, Dr Kotalik, who stated that federal regulations had been
“mandating a collection of data from MAID providers”,
just as the Bill will do. However, he noted that
“those legal and regulatory efforts have yet to produce evidence that the program operates as intended. We have no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected and that the Criminal Code has not been transgressed.”
It is fine for us, in this Committee and in Parliament, to specify that all doctors should do their job properly and that all data should be appropriately collected, transmitted and recorded. Nevertheless, as we all know from our casework, the reality is often one of bureaucratic mistakes being made, albeit not with any ill will. Given the volumes that we may well be dealing with, I think it is appropriate to raise significant concerns about the operation of the Bill and the data collection that we seek.
Sojan Joseph (Ashford) (Lab)
Record keeping is a huge issue in our healthcare system. A huge number of coroners’ reviews have identified that record keeping has been an issue. By specifying only that clinicians need record a “recordable event”, we are leaving it as the responsibility of individual clinicians to decide what a recordable event is.
It is important that a good record be available to prevent future incidents and learn good practice. Leaving it open to a clinician to decide whether something is a recordable event could lead to most issues not getting recorded. For example, if a clinician has identified that there was coercion, it will be for the clinician to decide how much documentation to do. In my view, if they have identified a coercion, that should be recorded as an incident and further investigation should be done, but the Bill leaves it up to the clinician to decide. There is no standard for record keeping across the healthcare system, so a care home’s may be different from an NHS ward’s. I think it is for the Committee to look into what “recordable event” actually means.
Stephen Kinnock
The purpose of amendments 474 to 478 is to improve the drafting of the Bill by creating a new definition of “recordable event”. Recordable events are the events set out in clause 16(1) related to the recording of declarations and statements.
The amendments would also make consequential changes to clause 16, which refer to the occurrence of the recordable event, as per the new definition, and include reference to a report in addition to a statement or declaration. The reference to a report is consequential on the amendments already agreed by the Committee to clauses 7 and 8.
Kim Leadbeater
I have nothing further to add.
Amendment 474 agreed to.
Amendments made: 475, clause 16, page 11, line 19, leave out from second “the” to “in” in line 21 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 476, in clause 16, page 11, line 24, leave out from “the” to “, and” in line 26 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 477, in clause 16, page 11, line 27, leave out from “the” to “in” in line 29 and insert
“occurrence of the recordable event”.
This amendment is consequential on amendments 209 and 377.
Amendment 478, in clause 16, page 11, line 30, leave out from second “a” to end of line 32 and insert
“declaration, report or statement within subsection (1) must include the original declaration, report or statement.”—(Kim Leadbeater.)
This amendment is consequential on amendments 209 and 377.
Clause 16, as amended, ordered to stand part of the Bill.
Clause 17
Recording of cancellations
Kim Leadbeater
I beg to move amendment 479, in clause 17, page 11, line 37, leave out “at” and insert “with”.
This amendment clarifies that a cancellation may be given to a practitioner with the person’s GP practice.
Kim Leadbeater
The amendment, which would clarify the drafting, speaks for itself. The important point is that the record of cancellation be with the GP practice as soon as is practicable. It is not necessary for that to take place physically at the practice, as that could potentially delay its delivery.
Stephen Kinnock
Clause 17(2) provides that where a notice or indication regarding a cancellation of a first or second declaration is given to a registered medical practitioner “at” the person’s GP practice, that practitioner must record the cancellation in the person’s medical records as soon as possible. Amendment 479 seeks to clarify that the requirement to record the cancellation applies not just where the cancellation is given to a registered medical practitioner physically at the GP practice, but where the cancellation is given to a registered medical practitioner “with” the person’s GP practice, irrespective of whether the notice was given at the GP practice. I hope that that explanation is helpful.
Kim Leadbeater
I commend the amendment to the Committee.
Amendment 479 agreed to.
Clause 17, as amended, ordered to stand part of the Bill.
Clause 18
Provision of assistance
Amendment made: 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.—(Kim Leadbeater.)
This amendment is consequential on NC21.
Danny Kruger
I beg to move amendment 462, in clause 18, page 12, line 20, at end insert—
“(3A) When providing a substance under subsection (3) the coordinating doctor must explain to the person that they do not have to go ahead and self administer the substance and they may still cancel their declaration.”
The Chair
With this it will be convenient to discuss the following:
Amendment 463, in clause 18, page 12, line 34, leave out paragraph (c).
Amendment 497, in clause 18, page 13, line 9, leave out “decides” and insert
“informs the coordinating doctor that they have decided”.
This amendment provides that the duty to remove the approved substance arises on the coordinating doctor being informed that the person has decided not to self-administer the substance.
Amendment 498, in clause 18, page 13, line 10, leave out
“that the substance is not”
and insert
“to believe that the substance will not be”.
This amendment clarifies the circumstances in which the coordinating doctor is under a duty to remove the approved substance from the person.
Danny Kruger
This group of amendments contains two sub-groups that I shall deal with separately. Amendment 462, in my name, and amendments 497 and 498, in the name of the hon. Member for Spen Valley, concern the information given at the provision of assistance and decisions around that. My amendment 463 concerns the question of assistance in the final act.
This is a rather sombre moment in the Bill, because it is somewhere in clause 18, between subsection (9)(a) and subsection (9)(a)(i)—between the self-administration and “the person has died”—that the death happens. The amendments are about making sure that we understand what is happening here and whether it is safe.
Amendment 462 would require the doctor to make it clear to the patient at the final moment that they do not have to proceed. Of course, this is clearly the implication of the Bill. We have stressed autonomy all along. Everybody who is helping us to draft the Bill, all colleagues in the House and all doctors understand that of course the patient is not obliged to proceed at this point. The reason for the amendment is to think about the patient: to put ourselves in the mind of the person who has gone a long way down the road, who has summoned multiple professionals to endorse a decision that they have made and who has, we hope, involved their family and other people in their life, all of whom will be aware of what is about to happen and will, we also hope, be supportive of that decision or at least neutral about it.
That person finds themselves suddenly at the moment when the drugs are due to be set up for self-administration, a point that we will come on to. That is the final opportunity that they have to decline to proceed. Throughout the Bill, hurdles and gateways have been introduced through which a patient must proceed. In many respects I do not think them adequate, but it is acknowledged by the framers of the Bill that it is necessary to pass through certain hurdles and, in what might appear to be quite a formulaic way, require the patient to confirm and reconfirm that they have a clear, settled and informed wish.
What we do not have at this vital moment—in a sense, the only moment that matters, because everything up to this point has been preliminary; it is at this point that they step through the final gateway—is an obligation, expectation or requirement for any conversation to take place. The doctor is expected to satisfy himself or herself that the patient
“has a clear, settled and informed wish to end their own life”
and must be prepared to swear to that. Nevertheless, there is no expectation that they will have a conversation. We can pretend, imagine, hope or surmise that some kind of conversation would happen at that point—“Do you want to proceed?” “Yes, I do”—but we are not requiring it.
I raise this point in the clear and certain knowledge that many people do, at that moment, have second thoughts. We know that from the number of people who contemplate and get very close to the act of unassisted suicide and step back, literally, from the brink. I want to insist that there is an opportunity here to step back from the brink, just as our suicide prevention strategy seeks to ensure that at the moment when and in the places where many people tragically do take their own life, on bridges or on Beachy Head, there are signs saying, “Call the Samaritans” or “You are not alone”. I want to specify clearly that this is that moment, rather than it being assumed that the train has left the station and the person is just on it now. I think it would be a helpful amendment.
I cite written evidence from Dr Philippa Youd, writing in a personal capacity:
“I have witnessed ‘post-euthanasia regret’. I was 18 when my mother took her own life due to ‘interminable suffering’. She knew what she was doing—she had tried before. Just before she slipped into a coma, she told me she was sorry and that she regretted it. The inquest therefore deemed her death an ‘open verdict’. It was suicide, but it was suicide that was regretted, despite true intent and interminable suffering”—
and no doubt capacity and a lack of coercion. Dr Youd continues:
“No one can EVER be sure they want to die until the moment of death. They may still change their mind and then it is too late. No one can know what patients will truly face, emotionally and cognitively, at the point of death. I have witnessed firsthand the tragic circumstance of someone changing their mind after choosing to die. There is no peace in that.”
I hope that hon. Members will not consider that this amendment is unnecessary embroidery or that requiring a simple statement to be made is some kind of imposition on the autonomy of doctors or patients. Someone should still be able to turn back and change their mind at this point.
Kim Leadbeater
The hon. Gentleman is making a powerful speech, and I thank him for the respectful way in which he is doing so. He has given an example of a very personal story; it is also important to remember the other personal stories we have all heard. We have with us today in the Public Gallery family members who have lost loved ones. Catie’s mum went to Dignitas in Switzerland for an assisted death, and her daughter could not go with her. As a family they have suffered to this day as a result of that experience.
We need to be really careful about the language we use around suicide. We have spoken about this before. The cases we have heard of are not people who want to die. They are people who want to live, but they are terminally ill. We need to be really sensitive to that, having heard so many examples of families who have been through these really difficult situations. But the hon. Gentleman makes a very good point, and I am minded to support his amendment because I think it comes from a good place.
Danny Kruger
I am grateful to the hon. Lady. I hear what she has said; we have had this conversation before. I am afraid that I do insist on my right to use the English language accurately. What is proposed in the Bill is a carve-out of the Suicide Act, so I regret to say to the hon. Lady that I will continue to describe it in terms that are appropriate to it. I hope I do so with absolute sympathy and respect for the many families who have suffered from the trauma of seeing their loved ones die badly—loved ones who would have wished for an assisted death under the terms of the Bill. I am very glad to hear that the hon. Lady supports my amendment. I do not think it would be any sort of imposition on families for the doctors to let the patient know at the last moment that they have the opportunity to turn back.
Sean Woodcock (Banbury) (Lab)
The hon. Gentleman is making a really powerful speech, and I am minded to support the amendment on the basis that there will be a small but significant group of people who, having gone through the whole process, will feel they have been a burden on the people who have gone to all the effort, through every stage, to get to the end, so if they have doubts at the end, they may be reluctant to change their mind. It will be a very small group, but I do think it is significant. I see it as the re-establishment of autonomy for the patient, which we all believe in; does the hon. Gentleman agree?
Danny Kruger
That is absolutely right. We have to think about the no doubt quite turbulent emotions that people will have as they approach the end of their life, and to reiterate their genuine autonomy. They are not on a conveyor belt that they cannot get off until the very last moment—until they have passed through this gateway. The amendment seeks to remind them and, indeed, their families of that. I am afraid we do hear terrible stories of people who have arranged their assisted death: often family members have flown in from abroad, doctors have been summoned and so on, and then they feel they have to proceed because, as the hon. Gentleman says, they feel a burden as it is and do not want to be an annoyance at the end by making everybody wait. I am afraid that is indeed the reason for the amendment. I am pleased to hear that it sounds like it will be accepted, and I am grateful to Members who will support it.
Amendment 463 is the other, more substantial, amendment in my name in this group. It would leave out paragraph (c) of clause 18(6), which says that the doctor can assist the patient
“to ingest or otherwise self-administer the substance.”
Here we are in a lot of difficulty and a grey area. Let me try to unpack the reasons for objecting to paragraph (c). The hon. Member for Spen Valley argued in an interview that there is a “very clear line” between the Bill and euthanasia, which is someone else doing the deed. She said that the act
“has to be the decision of the individual, and it has to be the act of the individual”,
which
“creates that extra level of safeguards and protections”.
I agree with her—it is right that we introduce the additional safeguard of insisting that the patient performs the final act themselves.
I recognise that there is a distinction between euthanasia and assisted suicide, and I support the hon. Lady’s attempt to insist on that distinction in the law. It is another safeguard. But the fact is that there is a blurred line between the two, and I can also understand why many people object to the exclusion of euthanasia—of the fatal act being administered by other people. A doctor from Canada said it was inherently ableist to require the patient to self-administer, and I think that is unarguable. If that is the case, the logical provision would be to enable euthanasia, if one believes in the autonomy of the patient.
I am afraid my strong belief is that the reason why euthanasia has not been proposed in the Bill or by the campaign, which has been led by an organisation that used to call itself the Voluntary Euthanasia Society, is because the campaign has concluded that such a Bill would not pass Parliament and believes—I think correctly—that Members of Parliament and members of the public would object to euthanasia. But the logic of the Bill and of the campaign is actually for euthanasia, if one believes genuinely in autonomy, in equal rights and in not discriminating against people who are physically unable to perform the act themselves.
Despite my efforts, hon. Members have not been able to conceptualise the difference between withdrawing a medical treatment that affects a particular medical condition on the one hand, and administering drugs that annihilate the person on the other. There is a meaningful and important difference between those two things. One is a person declining to use a shield, and the other is the person using a sword against themselves. I think there is a difference there, and I regret that colleagues do not see it.
Where I do not see a difference, however, is between a person injecting themselves and asking someone else to inject them. There are two versions of the death of Saul in the Bible. I think this is the only reference to the Bible that I will make in this whole debate, and I make it partly to show that there is an inconsistency in the Bible—there is not a single Biblical view of these matters. In one account of the death of Saul, having been defeated by the Philistines, he asks his servant to run him through with his sword, but his servant refuses, so he falls on his own sword and kills himself. In the other version, he gets a passing soldier to run him through—to kill him.
To me it does not matter: the inconsistency in the story is interesting historically, but conceptually, logically and morally I do not see the difference. Whether you fall on your own sword or ask someone else to do it to you, it is still a sword, you are still actioning it and you are still responsible, if we recognise that the individual has autonomy. But there is a practical difference. We are talking about assistance to die and the role of another person who supports your decision and helps you to fulfil it, but that results in an obscuring of the practical difference. In practice, as we see in clause 18(6), the assistant comes very close to euthanasia. The role of the assistant, in my view, is closer to that of the soldier who kills Saul than of the servant who refused to do it.
Kim Leadbeater
The hon. Member is making an interesting philosophical point with his biblical references. I think the point he may be making is that there might not be any difference for the individual, as the result is sadly the same, but I put it to him that there is quite a significant difference for the other person. If we think about the autonomy of the medical professionals we ask to be involved in the process, there is a strong argument that it would be very different for them to be more involved in the process. Does that makes sense?
Danny Kruger
I am grateful—I really do thank the hon. Lady, because the effect of this process on the medical professionals who will be involved is a very important consideration, and one that we have perhaps not given enough attention to. That is why we will come to the conscience clause in due course, although we have discussed it a little already. The hon. Lady is absolutely right that there is a difference for the medics in the extent to which they are involved in the administration of the death. I am afraid I do not see a major moral difference between providing the wherewithal—setting things up for, or indeed helping, the patients to ingest or otherwise self-administer the fatal drug—and people performing the act themselves. The distinction is very obscure; there is a significant grey area there.
On the hon. Lady’s point about appropriate consideration of the feelings of the medical profession, if she believes in doctor autonomy, she should believe that doctors ought to have the autonomy to decide for themselves whether to perform euthanasia, if euthanasia were legal. That is what happens in other countries. In Canada, doctors can decline to take part, or they can participate.
Given the question of autonomy, it is worth noting that in countries where euthanasia is legal, it is the overwhelming choice of the patients, as I think it would be for me. If I were facing that terrible moment and choice—we will come in due course to the question of the drugs involved and the process of taking them, but swallowing all these pills is not a pleasant process—it would be far easier, more humane and less painful for a doctor to administer the drugs intravenously. I visited Canada and met a doctor who had been responsible for over 300 deaths, which she herself has performed, because that is the overwhelming choice of the patients. As I am sure the hon. Lady would agree, that doctor is acting with full professional discretion and autonomy.
To go back to my point, I am afraid this is one of the impossible dilemmas that the Bill and the whole concept of assisted dying set up: whether we allow the doctor to do it to us. My concern is that if the stress on self-administration is genuinely felt—not, as I cynically believe, because this is the only way to get assisted dying through the House of Commons—because the Bill’s authors recognise the need to be absolutely sure that the act is voluntary, and if the reason why we insist on self-administration is because we want to be sure that the act is voluntary, what does that say about all the so-called safeguards that exist up to this point? We have been told that those safeguards are sufficient to ensure that we have absolute confidence about the person’s clear and settled wish.
If we are sure that people at this stage in the process have a settled, informed and free wish to end their lives, why should they not be able to ask a doctor to do it to them? The only answer to that question can be that we do not genuinely believe that we are completely sure. We want, subsequent to death, to be sure—in terms of our own moral propriety and sense of amour-propre—that those people did it themselves. It was not our choice; it was not us doing it to them—they did it.
Kit Malthouse
I am a little confused by my hon. Friend’s logic. He has literally just proposed an amendment for the doctor to ask, at the last, whether the person still wants to proceed. Surely self-administration is the ultimate act of consent, which his own amendment requires a doctor to establish right at the last moment.
Danny Kruger
My right hon. Friend is absolutely right. I support the distinction between self-administration and euthanasia. I am in favour of all possible safeguards and every possible opportunity to give the patient the chance to step back from the brink. The point I am making is that I do not recognise the logic of the distinction that the Bill insists on. Indeed, in the provision that I am concerned about, subsection (6), the distinction in fact does not apply.
If we believe in autonomy and in giving people the opportunity for assisted suicide, we are, naturally enough, concerned that that should be available to people who cannot physically perform the act themselves. I am not trying to argue in favour of euthanasia; I am saying that we will get to euthanasia if we let the Bill through. Even in the Bill as it stands, we are halfway to euthanasia with subsection (6). I am confident that, in due course, the campaign for it will grow. In fact, it already exists: people already object to the restrictions implied in the Bill. The campaign will grow to widen the opportunity for assistance to ensure that we can have physician-administered suicide, as happens in Canada and elsewhere, very logically. Once we have crossed the Rubicon of assisted death, it is a straight road to euthanasia. [Interruption.] I am sorry that the hon. Member for Stroud is amused.
Sojan Joseph
Will the hon. Gentleman clarify something? He is making a valid point, and I have been thinking about it. As a nurse who has worked in many areas, I know that a disabled person may not be able to take medication by themselves, and sometimes a nurse has to administer it with a spoon. There may be occasions on which a person’s medication comes back out and they have to do it a few times. Is that something the hon. Gentleman is concerned about—actually pushing the medication into the person?
Danny Kruger
Once again, we are in an extraordinary no man’s land between medical treatment and something else that we cannot find a word for. The hon. Gentleman is absolutely right. Of course, it is appropriate in medical treatment for a nurse or doctor to assist in the administration of a treatment. As he suggests, if the person found it difficult to raise a cup to their lips, the nurse would help them. Indeed, if they found it difficult to perform an injection, it would be expected that that would be done by the nurse or doctor anyway. But here we are setting up a strange new method of administering a so-called treatment in which the patient has to perform the physical act themselves.
It is apparent from the clause that it is very unclear what assistance actually looks like, so yes, I absolutely imagine that if the patient were struggling to raise the cup to their lips, a nurse or doctor who was present at the final act in an assisted suicide would help them to do so. Similarly, if the patient were finding it difficult to put their finger on the syringe, it would be appropriate—normally, one would expect—for the medical professional to lift the patient’s finger and put it in the right place. What happens next? Do they then apply a little pressure if the patient is finding it difficult to depress the plunger on the syringe? If the cup is at the lips, do they tip it up and let gravity take its course? These very complicated questions about where assistance ends and autonomy begins are, I am afraid to say, impossible to specify in the Act; therefore, it is apparent that we have a grey area.
I conclude with some evidence that we received from Iain Brassington, professor of applied and legal philosophy at Manchester University. He says:
“how are we to determine how the ‘final act’ of self-administration is to be differentiated from the penultimate act, in which the doctor may assist? How would helping a patient lift the cup to her lips be distinguished from helping her ingest its contents?”—
the hon. Member for Ashford referred to that. He goes on to say that
“the definition of the ‘final act’ is unclear, especially granted the wording of”
subsection (6)(c), and:
“The proposed law says that a doctor may not administer a substance with the intention of causing death, but also that a doctor may help a person self-administer. But how should we draw the boundary between helping a person self-administer, and playing a role in administration?”
I come to the penultimate point—not the final act—of my speech. There is some odd phrasing in subsection (7), and I wonder whether the hon. Member for Spen Valley or the Minister can help to parse the English. It says that
“the decision to self-administer the approved substance and the final act of doing so must be taken by the person”.
We understand about the decision being taken by the person, but the phrasing is that the final act “must be taken” by the person. I am not familiar with that construction. Does one take an act? Is that English? You perform an act—an act is not taken, it is done, by a person acting autonomously. The question of whether this is an active or a passive concept runs to the heart of my concern about the clause, and we need to think about redrafting, at least in deference to the English language.
Somewhere in this clause there is a magic moment when assistance gives way to autonomy, and the penultimate act by the doctor yields to the final act, which is supposed to be by the patient. We cannot tell when the responsibility for the action passes from one to the other. In proper medicine it does not matter because the medic works with the patient, but here it does matter. We are insisting that there is a difference between a doctor setting up a death, and the patient performing the action of suicide.
I will end by referencing the case of R v. Kennedy in 2007, a case on which Lord Bingham opined, about the culpability of someone who died from a heroin overdose. Was the person who gave him the drugs and tied the tourniquet around his arm responsible? Was it murder, or indeed assisted suicide? The judge decided that it was not, but made this point:
“It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection.”
Given that ruling, we are in a world of difficulty with the suggestion that it is legally possible for a doctor to assist a patient to ingest or otherwise self-administer. To assist someone to self-administer is tantamount to administering. I welcome suggestions from other Members, the Minister, or the hon. Member for Spen Valley about whether it is possible to provide guidance that gives greater clarity on what the clause means, or whether subsequent amendments will help to resolve the problems that I have, but I am afraid I do not think it will be possible to make an adequate distinction between assisted suicide on the one hand—in which full responsibility, not just for the decision but for the performance, rests with the patient—and euthanasia on the other. I do not think there is an adequate logical difference, and the practical difference we are attempting to enshrine here will be very quickly obscured.
Naz Shah
I thank the hon. Member for East Wiltshire for his amendment, and for speaking in the powerful, sensitive way that he did. I also thank my hon. Friends the Members for Spen Valley and for Banbury, who made interventions.
I did not intend to speak to this amendment, but having heard the hon. Member for East Wiltshire speak so powerfully and sensitively, it is important for me to share a few things. My hon. Friend the Member for Spen Valley has said a couple of times that the difference between people who commit suicide and those who will take this route is that the patients have been given less than six months to live, and that was not a choice. I was a Samaritan for years, because I had two failed suicide attempts in my early years, and since then I have battled with mental health demons all my life because of my experiences. To suggest that there is a difference between someone who gets a terminal illness and wants to take this act and people who want to commit suicide, and to suggest that they are doing it out of choice, is wrong. I felt really emotional when that exchange was happening. The reason why I think it is wrong is that, at the time that I wanted to commit suicide, I did not feel that I had a choice. I could not see a way out.
When I was on those Samaritans phonelines, speaking to people who rang in to unpick their feelings about what was driving them to feel suicidal in that moment, it was not because they want to die, but because they were in circumstances that drove them to feel that they had no option but to commit suicide. In some instances, it takes an amount of courage and bravery to even contemplate that option. To diminish that, which I feel is what has, intentionally or unintentionally, happened on occasion, is really wrong, because I have been there, and it was not easy and it was not because I wanted to die.
Kim Leadbeater
My hon. Friend makes a powerful point. I certainly have not heard anyone try to diminish the experience of suicidal people. We probably all have our own stories of loved ones who we have either lost to suicide—I know that I do—or who had very severe mental health issues. The point I would make is that the families I have met who have lost loved ones through assisted dying or a harrowing terminal-illness death have said that they desperately wanted to live. That is the distinction I would make, but I appreciate that my hon. Friend is absolutely right that people with suicidal tendencies and ideation also want to live—they just do not feel they have a choice. It is a very delicate debate to have, but please be assured of my sensitivities to it.
Naz Shah
I am genuinely grateful for my hon. Friend’s intervention, because I do not want the Committee—or our constituents—to feel that there is an equivalence. There is not. People who are in that space, who ring the Samaritans helpline to speak to them, all desperately want to live a brilliant life. That is what brings us here: each and every one of us wants to make this place the best it can be, so that our country is the best it can be and all our communities, people and constituents—all members of society—thrive. It is a sensitive debate, but let us be careful not to draw a parallel where there is not one. It was important for me to put that on the record.
I will support the amendment tabled by the hon. Member for East Wiltshire because we have already voted down an amendment requiring doctors to simply ask the question why. This speaks to the point that my hon. Friend the Member for Banbury raised: I know, through my experience at the Samaritans, as somebody who has attempted suicide and as somebody who has gone on to chair a charity that leads mental health interventions, how difficult it is for a patient has gone through the process of having had that conversation with their family, who might not necessarily agree, and having convinced them that they are going to take this option because they want autonomy, and fear losing it.
I cannot imagine what it must be like for those people, at that moment, saying their final goodbyes, and the level of potential pressure they face right at the last minute, having spoken to everybody and put their family members, and indeed themselves, through the process. Would they not feel internal pressure on themselves to go through with it? Would they really have the option, and not feel, in a sense, obliged to say, “Yes”? Do we really not want to ask that question?
When we debated the amendment requiring doctors to ask the question why, my hon. Friend the Member for Stroud said that doctors would ask it anyway, but that argument would not work in this instance because doctors would not do this anyway. They would not say, “I am about to give you something—have you changed your mind?”, because by that point they are in a process. The drug, in whatever form it takes, is in the process of being, or will have been, handed over to the person who wants to take that option, so it is not the same. I genuinely hope that the Committee will support the amendment, because it is our last option to make this intervention.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Ms McVey. I will speak briefly to this group of amendments, setting out why I support amendments 462, 497 and 498, but oppose amendment 463. My hon. Friend the Member for East Wiltshire set out very eloquently the reasons behind amendment 462. On the one hand, there is a cogent argument that it is not strictly necessary in the light of the provisions set out in subsection (4)(b) and (c), which set out that the individual wishing to have an assisted death must have
“a clear, settled and informed wish to end their own life”
and is
“requesting provision of that assistance voluntarily”.
However, it appears to me a logical and entirely appropriate extension of the intentions behind clause 18(4) to express that in slightly more explicit terms in the Bill by adopting my hon. Friend’s amendment 462. It strikes me that, after doing so, the Bill would provide a further check and balance that creates no greater onus on either the individual seeking an assisted death nor the co-ordinating doctor who is assisting them. In those circumstances, it appears eminently sensible to improve the Bill in that way. From the indications we have already heard, it appears that there is significant support for that amendment.
I struggle with amendment 463, which would remove paragraph (c) from clause 18(6). The effect would be to prohibit the co-ordinating doctor from providing assistance to the person seeking an assisted death, either through ingestion or other self-administration of that substance, in any circumstance. In my view, the amendment would make the operation of the Bill, were it to become an Act, unnecessarily restrictive. Clause 18(7) already stipulates that
“the decision to self-administer the approved substance and the final act of doing so must”—
I stress the word “must”—
“be taken by the person to whom the substance has been provided”.
On any interpretation of the construct of that, it is clear that the person seeking an assisted death must be the active participant in the process; it is mandatory. There is no discretion in that, by virtue of the word “must”.
Were we to remove clause 18(6)(c) and the Bill passed into law, it would have the effect, in what is an entirely legal process, that a doctor would be unable to aid a patient in any circumstance. For example, they would not be allowed to hold a glass or steady a straw as a patient moved towards it to imbibe a substance. Those are circumstances that are entirely foreseeable, when through the ravages of an illness, somebody is limited in what they are physically able to do. Of course, assistance could be provided in alternative ways—for instance, through assistive technology, which we have seen being used in other jurisdictions. The Swiss, for example, use a significant amount of assistive technology in administering and assisting the process of self-administration at the end of life.
Danny Kruger
My point is that it is very difficult to draw a line here. I recognise the scenario that my hon. Friend raises: why should a nurse not be able to hold a straw for a person to drink from? I might say that should be acceptable; however, I do not think it should be acceptable for the nurse to tip the pills into the patient’s mouth. Does he think that scenario would be acceptable? Or to give another one, would it be acceptable to actively provide force on top of a patient’s finger to press a syringe? Would he regard that as acceptable assistance?
Dr Shastri-Hurst
That is why clause 18(7) is so important: the final act must be undertaken by the person seeking an assisted death. The example my hon. Friend gives of tipping tablets into a mouth is a final act. Pushing a syringe is a final act. There is a significant distinction between an individual or practitioner holding a cup with a straw and the person seeking an assisted death moving their mouth towards the straw, sucking from it and imbibing the substance and the passive act of a substance being raised to that individual’s lips and poured in without any movement by the individual seeking an assisted death themselves.
Danny Kruger
When we talk about this in future debates, it might be appropriate for this conversation to be referenced. I think my hon. Friend is suggesting that it should be acceptable, and that assisted death would be legal, as long as the patient moved their head towards the straw and cup, and that it would be illegal, according to my hon. Friend’s definition, were a doctor applying a cup to a patient’s lips and the drugs fell in by gravity. Is that right? Is that how judges in future should determine whether assistance has crossed the line?
Dr Shastri-Hurst
It is very clear from subsection (7) that this must be an active step taken by the individual. There is a risk that we go down a rabbit hole in terms of—[Interruption.] I am sure my hon. Friend would like me to finish my point. We risk going down a rabbit hole in drawing examples. I raised the example of a cup, but of course there are much wider assistive technologies that can be used and are used in different jurisdictions. I gave the example to illustrate the point that this is an active act, not a passive act.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
The hon. Gentleman mentions subsection (7). Subsection (8) states quite clearly that it
“does not authorise the coordinating doctor to administer an approved substance to another person with the intention of causing that person’s death.”
I think the passive and active roles are quite clear between the two subsections.
Dr Shastri-Hurst
I agree entirely with the right hon. Member’s interpretation of the Bill.
There is a further unintended consequence of the amendment tabled by my hon. Friend the Member for East Wiltshire, which I am sure is not his intention but would sadly be the effect: were an individual to qualify under the Bill, should it pass and were the amendment to be adopted, they would inevitably be forced to take the final decision at an earlier stage. If there is a restriction that they can have no assistance whatsoever in performing the act, they will end up making the decision when they know that they have the entire physical strength available for them to do it, and that actually brings forward the point at which they choose to die to an earlier stage.
Kit Malthouse
After 10 years of campaigning on this issue and spending so much time with people whose family have gone to Switzerland, one of the things they consistently say is that people went to Switzerland much earlier than they wanted to because they had to go while they were still physically able. I think this is a critical point that people have to realise. We should not compel people to do this earlier than they would otherwise wish to simply because of these restrictions.
Dr Shastri-Hurst
My right hon. Friend makes an important and powerful point. I think there is a consensus among the Committee that there is no desire for people to take this ultimate step at an earlier stage than is absolutely necessary for them. My very real fear is that, were we to adopt this amendment, we would bring forward that point of decision.
Danny Kruger
The logic of that argument is to allow physician-administered suicide, because there will be a point at which people are physically unable to perform the act but have capacity, and their autonomy should be respected—
Terminally Ill Adults (End of Life) Bill (Twenty-fifth sitting)
Tuesday 18th March 2025
(1 month, 1 week ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 March 2025 - (18 Mar 2025)
The Committee divided: - Ayes: 3 / Noes: 18 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 16 - Question accordingly negatived.
The Committee divided: - Ayes: 17 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 16 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 15 - Question accordingly negatived.
The Chair
Good afternoon, ladies and gentlemen. Given the fluidity of matters on the Floor of the House today, my personal view, although it is only my view, is that I should not suspend the sitting at 5 o’clock. Hon. Members may leave the room at any time for a comfort break, but as there is likely to be an interruption and as the Committee may not want to sit too late, my view is that we should bash on, or rather that you should bash on. Mr Dowd will take the Chair at 5 o’clock, so I shall be able to escape. You have your own escape routes.
The Chair
Yes, there may be an escape committee.
Clause 18
Provision of assistance
Amendment proposed (this day): 462, in clause 18, page 12, line 20, at end insert—
“(3A) When providing a substance under subsection (3) the coordinating doctor must explain to the person that they do not have to go ahead and self administer the substance and they may still cancel their declaration.”—(Danny Kruger.)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 463, in clause 18, page 12, line 34, leave out paragraph (c).
Amendment 497, in clause 18, page 13, line 9, leave out “decides” and insert
“informs the coordinating doctor that they have decided”.
This amendment provides that the duty to remove the approved substance arises on the coordinating doctor being informed that the person has decided not to self-administer the substance.
Amendment 498, in clause 18, page 13, line 10, leave out
“that the substance is not”
and insert
“to believe that the substance will not be”.
This amendment clarifies the circumstances in which the coordinating doctor is under a duty to remove the approved substance from the person.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Sir Roger. My hon. Friend the Member for East Wiltshire was mid-intervention when the Committee adjourned this morning, and I would not want to pull the rug from underneath him. Does he wish to intervene again?
Danny Kruger (East Wiltshire) (Con)
I am grateful to my hon. Friend. I was simply asking what causes him to object to physician-administered assistance to die. If he supports the principle of assisted suicide and believes in doctor autonomy, why does he not think that doctors should be able to administer the fatal dose?
Dr Shastri-Hurst
This gets to the root of how the law has operated in another jurisdiction, Switzerland, where Dignitas has managed this scenario over the past 40 years or so. The key—these are the words that its own guidance uses—is ensuring that the power of control remains with the person seeking the assisted death. That provides the individual who is making the choice with the ultimate autonomy at the end in controlling the circumstances and the manner in which they pass.
I have set out why I feel that although amendment 463 arises from good intentions, it would not achieve what is intended. There is a real risk that the constraints that adopting the amendment would create would lead to the regrettable unintended consequence of individuals being forced to have an assisted death at an earlier stage than they would otherwise have wished.
I can deal with amendments 497 and 498 in short order. They would tighten up the Bill by providing greater clarity around the circumstances in which the substance would be removed from the presence of the individual who had previously indicated a wish to have an assisted death. Amendment 497 specifies that the individual would need to set out to the co-ordinating doctor that they no longer desired to go through with the process. In my view, that is eminently sensible. Amendment 498 elaborates on the Bill to provide greater clarity to those who will be operating it. It will make it a much more workable piece of legislation. I support both amendments.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Sir Roger. Before I speak to amendments 497 and 498, on which the Government have worked with my hon. Friend the Member for Spen Valley, let me address amendments 462 and 463.
Amendment 462 would amend clause 18 to require the co-ordinating doctor to explain to the person that they do not have to proceed and self-administer the approved substance, and that they may still cancel their declaration. Although it is not specified, it is presumed that the amendment refers to the second declaration that the person will have made. The Committee may wish to note that there is already a requirement in clause 18(4)(b) that,
“at the time the approved substance is provided”,
the co-ordinating doctor must be satisfied that the person
“has a clear, settled and informed wish to end their own life”.
The purpose of amendment 463 is to limit what the co-ordinating doctor is permitted to do in relation to providing the person with an approved substance under clause 18. As the clause stands, subsection (6) sets out the activities that the co-ordinating doctor is permitted to carry out in respect of an approved substance provided to the person under subsection (2). It states that the co-ordinating doctor may
“(a) prepare that substance for self-administration by that person,
(b) prepare a medical device which will enable that person to self-administer the substance, and
(c) assist that person to ingest or otherwise self-administer the substance.”
Additionally, subsection (7) provides that
“the decision to self-administer the approved substance and the final act of doing so must be taken by the person to whom the substance has been provided.”
Amendment 463 would remove subsection (6)(c), which would result in the co-ordinating doctor being unable to assist the person
“to ingest or otherwise self-administer”
the approved substance. The co-ordinating doctor would still be permitted to prepare that substance for self-administration and to prepare a medical device to enable the person to self-administer the substance. This could mean that a co-ordinating doctor may not be able to provide assistance such as helping the person to sit up to help with swallowing, or explaining how the medical device for self-administering the substance works. This could result in practical difficulties in self-administration of the substance and/or place the co-ordinating doctor in a difficult position.
Sojan Joseph (Ashford) (Lab)
Does the Minister think that it is confusing for health professionals when we say that they can assist the patient to sit up or hold a cup of water or put the medication into their mouth? Is it not confusing for medical professionals that we are giving contradictory statements?
Stephen Kinnock
One of the fundamental principles of the Bill, which my hon. Friend the Member for Spen Valley has prioritised, is self-administration. It is not for me as a Minister to opine on that; it is simply there in the Bill. Once that fundamental principle is established, it is about defining what “assistance” means, compared with what “self-administration” means. As I was setting out, I think “assistance” can mean things like helping the patient to sit up; it does not mean actually administering the substance to the patient. It is about the dividing line between assistance and self-administration—hence the term “assisted dying”, I suppose, which is very different from the doctor actually administering the substance.
Rebecca Paul (Reigate) (Con)
I am going to read subsection (6)(c) again. It says:
“assist that person to ingest or otherwise self-administer the substance.”
I would interpret that slightly differently from the Minister. It talks about ingesting, which suggests the substance entering the body, so I would not suggest that sitting someone up would qualify. That in itself shows that perhaps there is some ambiguity here. The Minister has set out something that I had not read into the Bill. Will he comment further on that?
Stephen Kinnock
I will pretty much repeat what I have just said to my hon. Friend the Member for Ashford. There is a dividing line, as the Government see it, between assistance and administration. There is a dividing line between making the patient comfortable, enabling the procedure to take place, and the doctor actually putting the substance into the body of the patient. From the Government’s point of view, simply from the position of having a picture of the process in our mind, that dividing line is clear enough in the drafting of the clause.
Danny Kruger
I am grateful that the Minister is allowing us to push him on this, because it is crucial. This is the moment beyond which there is no return. He thinks that helping a patient to sit up would be within the scope of the clause. Does he think that holding the patient’s hand and tipping a cup of pills into their mouth would be consistent with the clause?
Stephen Kinnock
My interpretation is that it would not be, because if someone were actually tipping the pills into the mouth of the patient, they would be going through the act of putting the substance into the patient. This Bill is founded on the principle of self-administration. However, there are acts such as helping the patient to sit up that are not direct administration but assistance enabling it to take place. That is where the distinction lies.
Danny Kruger
That is helpful, but if the patient were holding the cup and the doctor held their hand to help them tip it into their mouth, it is not clear to me at what point assistance would end and self-administration would begin. I would be grateful if the Minister could explain that. What about the scenario in which the patient’s finger is on the plunger of a syringe and the doctor assists by putting their finger on top of the patient’s and assists them to press the button, adding a little force to that being given by the patient? Does he regard that as within the scope of self-administration, or does that cross the line into directly administering the procedure?
Stephen Kinnock
I thank the hon. Member for that intervention. The hon. Member for Solihull West and Shirley pointed out earlier that the scenario that he has just described would constitute more than assistance; it would be moving into administration by the doctor, rather than self-administration. I think that that aligns with the Government’s view, so I refer the hon. Member for East Wiltshire to those comments from the hon. Member for Solihull West and Shirley, who has far more clinical experience than I do.
Danny Kruger
I am grateful for that, and I will leave it there, but does the Minister agree that it is incredibly difficult to distinguish who is administering the treatment in that scenario? If both their hands are on the instrument, whatever it is—a cup, a syringe or a button on a computer screen—it is very hard to know who has actually delivered the final act.
Stephen Kinnock
What is hard to do in this Committee is imagine and agree on how many different scenarios there can be. Every circumstance and every individual experience will be different, so it is difficult for us to envision all the different scenarios. Nothing about this is easy, of course. We would not have been sitting in this Bill Committee for hours on end if it were all easy, but from the Government’s point of view there is a clear enough distinction between assistance and self-administration. As long as we are clear on those basic principles, we feel that that gives enough safety to the Bill and enough clarity around the process.
Kit Malthouse (North West Hampshire) (Con)
Does the Minister agree that my hon. Friend the Member for East Wiltshire is perhaps unintentionally creating a lack of clarity where there is clarity? Surely there is complete clarity in the distinction between assisting a patient to be in a position to carry out their final desire and act, and performing or even jointly performing that final act with them. Is it not the case that in overseas jurisdictions there is quite a lot of assistance with technology? It needs to be prepared and put in place, but it can put even those who are the least physically able in a position in which the final act of administration can be clearly theirs. In many ways, our life is made easier by modern technology in that regard.
Stephen Kinnock
The right hon. Member sets out clearly the difference between self-administration—the concept at the heart of the Bill—and the performance of the act either jointly or by the doctor. The latter is not permitted under the terms of the Bill; the former is. That is where we are.
Dr Simon Opher (Stroud) (Lab)
The lack of an ability to assist in the final process would put medical professionals in a very difficult position. Would carrying the medicine to the room where the patient is count as assistance? I think we have to have assistance in the Bill, but I also feel that, as the Minister has outlined clearly, someone can help a person to self-administer but cannot administer. That is quite clear to me.
Stephen Kinnock
I thank my hon. Friend, who speaks with considerable clinical expertise. It is about exactly that difference between self-administration and administration. If we cleave to those two principles, that is the basis on which we will achieve the stated aim of my hon. Friend the Member for Spen Valley.
Sojan Joseph
Does the Minister agree that assisting a person to ingest is different from assisting a person to self-administer?
Stephen Kinnock
In order to ingest, there has to be self-administration. The self-administration is the precondition for ingesting the substance. That is my reading. I hope that that satisfies my hon. Friend.
Rebecca Paul
The Minister is being incredibly patient with our questions. The question from the hon. Member for Ashford raises exactly the point with which I am uncomfortable. To me, the phrase
“assist that person to ingest”
means something else. I am really concerned that it could be interpreted differently from how the Minister has laid it out. I want to place that on the record and raise that issue, which I believe the hon. Member was also raising.
Stephen Kinnock
The hon. Member’s concerns are absolutely noted. I completely understand that hon. Members are not comfortable with this, but what I am trying to do is set out the Government’s view on the workability of what my hon. Friend the Member for Spen Valley is seeking to achieve and the basic principles on which that is built.
Amendment 497, on which the Government have worked jointly with my hon. Friend, would amend clause 18(11), which states:
“Where the person decides not to self-administer the approved substance, or there is any other reason that the substance is not used, the coordinating doctor must remove it immediately from that person.”
Under the clause as it is currently drafted, there could be difficulties in relation to the duties of the co-ordinating doctor where the co-ordinating doctor does not know what the person has decided. Amendment 497 seeks to resolve that ambiguity by clarifying that the duty on the co-ordinating doctor to remove the approved substance applies where the person
“informs the coordinating doctor that they have decided”
not to self-administer the approved substance.
I turn to amendment 498. At present, clause 18(11) provides that the co-ordinating doctor has the duty to immediately remove the approved substance where the person decides not to self-administer the approved substance, or there is any other reason that the substance is not used. The amendment clarifies that the duty to remove the substance arises when the co-ordinating doctor believes that the substance will not be used. I hope that those observations have been helpful to the Committee.
Kim Leadbeater (Spen Valley) (Lab)
The Minister has covered my amendments 497 and 498 very clearly, so I will not speak to them.
I am happy to support amendment 462, tabled by the hon. Member for East Wiltshire, about which we had a conversation this morning. I only make the observation that there is already a requirement in clause 18(4)(b) that, at the time the approved substance is provided, the co-ordinating doctor must be satisfied that the person has
“a clear, settled and informed wish to end their own life”.
Nevertheless, I am happy to support the amendment, because the hon. Member made a very valuable point this morning.
I cannot support amendment 463, however. The Bill states that the patient must self-administer the drugs. Clause 18(7) states that “the final act” of self-administering the substance
“must be taken by the person to whom the substance has been provided.”
That is very clear. The hon. Member for Solihull West and Shirley, with his medical background and expertise, has been clear and helpful on this point: it is a question of passive versus active. We have to be clear that the patient must have an active role in self-administration.
Danny Kruger
I propose to press both my amendments to a vote if necessary.
Amendment 462 agreed to.
Amendment made: 496, in clause 18, page 12, line 28, after “professionals” insert “, and such other persons,”.—(Kim Leadbeater.)
This amendment provides that the coordinating doctor may be accompanied by such persons (other than health professionals) as the doctor considers necessary.
Danny Kruger
On a point of order, Sir Roger. I am sorry if I missed it, but are we not going to debate amendment 496?
The Chair
I put the Question and nobody spoke. I am afraid the moment has passed. Under this Chairman, you have to be fleet of foot.
Danny Kruger
Clearly! Fair enough.
Amendment proposed: 463, in clause 18, page 12, line 34, leave out paragraph (c)—(Danny Kruger.)
Question put, That the amendment be made.
Tom Gordon (Harrogate and Knaresborough) (LD)
I beg to move amendment 350, in clause 18, page 12, line 34, at end insert—
“(d) subject to subsection (6A), provide additional assistance to administer the substance in the presence of an independent witness.
(6A) The coordinating doctor may provide the additional assistance under subsection (6)(d) when—
(a) the coordinating doctor is satisfied that the person is permanently and irreversibly unable to self-administer the substance due to—
(i) significant risk of choking as a result of dysphagia, or
(ii) the loss of use of the limbs; and
(b) the person has authorised that the additional assistance be provided.”
This amendment would define the eligibility criteria for those who are permanently and irreversibly unable to self-administer the substance and are therefore eligible for additional assistance to administer the substance.
The Chair
With this it will be convenient to discuss the following:
Amendment 351, in clause 18, page 12, line 35, after “substance” insert
“or to authorise additional assistance to be provided”.
This amendment would ensure the decision to administer the approved substance remains with the person but would allow those who are unable to self-administer the substance to receive further assistance.
Amendment 352, in clause 18, page 12, line 40, at end insert
“, unless the criteria in subsection (6A) are met.”
This amendment would authorise the coordinating doctor to provide additional support with administration for those who are unable to self-administer the substance.
Tom Gordon
It is an honour to serve under your chairmanship, Sir Roger. I speak in support of this group of amendments, which address the issue of fairness and accessibility in the Bill. The amendments seek to ensure that those who are physically unable to self-administer the approved substance due to their condition are not excluded from the choice of an assisted death.
The principle at stake here is equity: making sure that this opportunity would be available to not only those with the physical ability to self-administer but all eligible individuals, regardless of their condition. The Motor Neurone Disease Association made it clear in its written evidence that conditions like motor neurone disease can be cruel, devastating and progressive, locking people inside their own failing bodies. More than 80% of people with MND lose the ability to speak. Many lose all limb function, leaving them unable to lift even a glass of water, let alone self-administer medication.
There is a common theme here that relates to a point I made in an earlier sitting, when we debated the period of time for eligibility. For these individuals, the Bill in its current form creates a barrier. It states that the final act of ingesting or administering an approved substance must be taken by the person themselves. For someone with advanced MND, that may simply not physically be possible. The MND Association’s evidence highlights that in other jurisdictions, such as Queensland in Australia, allowances have been made for people unable to swallow or self-administer. If we fail to include such provision here, we risk excluding some of the most vulnerable people or, even worse, creating a perverse incentive for them to seek an assisted death earlier, possibly abroad, when they may still have physical function.
These amendments are not about lowering safeguards in any way, shape or form. As we know, the Bill has robust safeguards, which these amendments would maintain. It would only be applicable in instances where doctors deem it necessary, and it would not be open to more than those with conditions restricting their ability to self-administer. If the Bill is about compassion, then we must ensure that that compassion extends to everyone; if it is about choice, then we should not deny that choice to those with severe physical limitations; and if it is about justice, then we should not allow injustice to be written into the law.
Naz Shah (Bradford West) (Lab)
I rise to oppose amendments 350 to 352, tabled by my hon. Friend the Member for Gedling (Michael Payne). They would allow the co-ordinating doctor to provide additional assistance to administer the substance in the presence of an independent witness, in some circumstances. Those circumstances would be when, as amendment 350 says, the doctor determines that the person is
“permanently and irreversibly unable to self-administer”
the lethal substance because of an inability to swallow or the loss of use of the limbs. The amendments do not spell out what the additional assistance would be, but I think it is reasonable to believe that it refers to the doctor injecting the lethal substance into a person’s circulatory system.
My hon. Friend’s amendments comes from genuine concern about the situation that some people may well find themselves in. Some people who might otherwise qualify for assisted dying under the Bill might be unable to swallow or inject the lethal drugs. We should all respect the feeling that lies behind the amendments, but we should reject them. If we pass them, we will have accepted that doctors can help people who have qualified for assisted dying to prepare to inject themselves with lethal drugs or swallow them. The Bill does not say that doctors can do that. I do not know whether the House would have voted for the Bill on Second Reading if it had, but that is beside the point—it was not part of the Bill. If we were ever to consider taking such a radical step, we should only do so after hearing as much evidence as possible on why and how this might be necessary. I urge the Committee to oppose the amendment.
Danny Kruger
It is a pleasure to follow the hon. Lady; I very much agree with her points. I also pay tribute to the hon. Member for Harrogate and Knaresborough, who spoke with his now customary intellectual clarity and moral constituency. He believes in autonomy, and he is doing what he can to resolve the essential contradiction in the Bill, which is designed to enable people to end their lives at their own discretion. He recognises that some of the safeguards in the Bill, which of course I do support, nevertheless represent barriers to what we are now suggesting is a human right, and that that human right will be restricted to a limited number of people, according to the Bill.
It is my view that the pressure, momentum or inherent direction of travel that the Bill sets us on will necessarily result in these sorts of amendments to the legislation in due course, whether in the form of subsequent amendments passed through legislation, the guidance that is issued, or indeed the practice of doctors. As I tried to explain in my comments on the previous group, my concern is that the Bill allows for quite a wide degree of discretion, naturally and necessarily enough, in the form of doctors interpreting their ability to assist in ways that respect the autonomy of patients, but are, in fact, a step beyond what the Bill—quite rightly, in my view—seeks to allow.
Tom Gordon
The hon. Member mentioned that down the line the Bill could be changed through guidance. I do not think there would be any scope or ability to do that. Does he agree that that point might be a little bit beyond what we all think might be possible under the terms of guidance?
Danny Kruger
I hope the hon. Gentleman is right. Nevertheless, one of my concerns about the Bill is that we are leaving enormous areas of clinical practice, and regulated conduct for the professionals involved in assisted suicide, to be performed under guidance that is still to be set out and that it is the job of future Ministers to determine.
I pay tribute to the hon. Gentleman, because he has correctly identified a group of patients for whom the drafted Bill may present obstacles to the fulfilment of their wish for an assisted death. My belief is that the ability to assist will probably cover almost anybody who wants it and has found a doctor who wants to help them, but the hon. Gentleman is right that there are some groups for whom that might be more of a challenge than others. I think the answer we are going to get—it is one made by hon. Members in the debate already—is that technology will fix it, and I fear it will, because I think we are going to find ourselves in a world in which it is perfectly possible for the administration of death to be enabled through some kind of technological device, which somebody with the most limited physical mobility will nevertheless be able to activate.
I fear the insistence that we have on self-administration. Although we can all acknowledge, as referenced in the previous debate, the conceptual difference between administration and self-administration, we do have this idea that we are individuals cut off from each other and that there is an essential gap between us and other people. At the very end of life, though—in the moments that we are considering and legislating for—that distinction is void, because we are intimately connected with other people, as per the clauses that we are debating. I fear that we are going to find ourselves in a world in which a laptop will be set up and even a movement as small as the blink of an eyelid by the patient will be enough to trigger what will be called “self-administration” of the fatal dose.
I oppose this group of amendments, moved by the hon. Member for Harrogate and Knaresborough, because I do not believe in assisted suicide. I do not understand why other supporters of the Bill are not following the hon. Gentleman’s lead, and acknowledging that if we believe in autonomy and assisted suicide, of course we should enable patients to have the final act performed upon them, rather than insisting on this arbitrary distinction that it is possible to insist on self-administration in all cases.
Rebecca Paul
It is clear that the hon. Member for Harrogate and Knaresborough is trying to create equity, which we all understand. We need to think about the patient on the one hand, but also the doctors, nurses and medical practitioners involved. Does my hon. Friend agree that we need to think about the obligation and impact of such amendments on them?
Danny Kruger
Yes. We discussed this briefly this morning. There is an important consideration about the effect on medical staff involved in the administration of assisted suicide, and we have to make sure that those who do not want to participate are properly insulated from any sort of obligation, which I know is the intention of the Bill’s promoter, the hon. Member for Spen Valley. Nevertheless, I am concerned about the knock-on effect of participation in assisted suicide spreading across a practice. I agree with my hon. Friend that we have to be mindful of the impact on doctors. The more we widen the scope—as logic compels us to do, as the hon. Member for Harrogate and Knaresborough suggests—the more it is about not just discretion, but an obligation on doctors to approve.
We need to think about the conversation that doctors will be required to have with patients who are expressing that wish. If the Bill is widely drawn, as it would be if we were to accept these amendments, there is more opportunity for a doctor to feel compelled to assent to a request.
Sean Woodcock
The hon. Member for Harrogate and Knaresborough is clearly trying to right what he believes to be an inherent injustice in the Bill, but is the hon. Member for East Wiltshire concerned, as I am, that if the amendment were to pass, it would take the debate from a place of being about assisted dying towards what many people would term euthanasia? That is not something that the House in any way endorsed by voting for the Bill on Second Reading.
Danny Kruger
I am absolutely certain that if the amendment had been in the original Bill, the Bill would not have passed Second Reading, because it would have validated the argument that many of us made that the implication of assisted suicide is euthanasia. The distinction between them, while valid in the abstract, does not apply in practice, and that distinction will be quickly overridden in time. I agree with the hon. Gentleman.
Dr Shastri-Hurst
Although I have certain sympathies with these amendments, I do not feel that they are necessary or desirable. They are not necessary because of the provisions that are already stipulated in clause 18(6)(b), which provides the co-ordinating doctor with the ability to prepare
“a medical device which will enable that person to self-administer the substance”.
That subsection, in effect, negates the scenario that is put forward in amendment 350 around dysphagia or the loss of a limb. It would permit, for example, the use of a nasogastric tube or a percutaneous endoscopic gastrostomy feeding tube to be used for the administration of the substance in the case of dysphagia. In the case of the functional loss of limbs, as was discussed in the debate on the previous group, a range of assisted technologies are available that would remove the barriers that that would present.
Beyond the necessity, or lack of necessity, of these amendments, I fear that they create legal uncertainty, which is clearly undesirable and, in this instance, could have a serious and significant unintended consequence through the amendments’ interaction with clause 24. Subsection (3) of that clause inserts proposed new section 2AA of the Suicide Act 1961, which is an exemption to that Act in respect of the assistance provided under this Bill. In effect, proposed new section 2AA disapplies sections 2(1) and 2A(1) of the Suicide Act where the provision of assistance is done in accordance with the Bill. Those sections specifically relate to an act
“capable of encouraging or assisting the suicide or attempted suicide of another person”.
Introducing the concept of additional assistance, as these amendments would, creates a legal uncertainty. The word “additional” creates a further concept that is beyond assistance but is, thus far, ill defined. Would it go as far as, for example, the clinician taking full control of administering the substance? It is entirely unclear. It would therefore place the clinician in an invidious position as to what it would mean for them to provide additional assistance in such circumstances. As I read the interplay between the Suicide Act and the proposed legislation, the clinician would not then be exempt by virtue of clause 24(3), leaving them open to prosecution under the Act.
Danny Kruger
I am grateful for that; I particularly respect my hon. Friend’s concern to protect the doctors from any confusion in the law they might be operating under. Just to take him back to the question of technology resolving what I regard as an insuperable problem—the difference between assistance and administration—is it my understanding that my hon. Friend would oppose a patient’s being able to ask a doctor to administer a lethal drug to him or her, but that he would support a patient’s being able to ask a computer to administer a lethal drug to him or her? Would he accept the computer performing the act at the patient’s request?
Dr Shastri-Hurst
My hon. Friend hits the nail on the head, because it is the patient who is driving the decision. They are making that act by activating the electronic device—the computer or whatever it may be in terms of assistive technology—but they have the power and control over that decision-making process, which is completely distinct from a clinician doing that act. It is distinct because it is activated by the patient—by the person making that decision—and that is why I draw the distinction. My hon. Friend may not agree, but that is my rationale for drawing a distinction between the two.
Dr Opher
I agree with all the hon. Gentleman’s points. In terms of assistance, what we are talking about, potentially, if the technology arrives at that, is that the doctor may be able to put a Venflon into the patient’s vein, but they would not put the drug through the Venflon into the vein. That would enable the patient to have control. That is the type of assistance that could be quite useful in this scenario, but it would not involve the doctor actually delivering the drug.
Dr Shastri-Hurst
I am grateful for that helpful and thoughtful intervention.
For the reasons I have set out, I consider that the amendments create unnecessary and highly undesirable legal confusion, so I shall not support them.
Stephen Kinnock
Currently, clause 18(6) permits the co-ordinating doctor, in respect of an approved substance provided to the person under subsection (2), to undertake the following activities: prepare the approved substance for self-administration; prepare a medical device to enable self-administration of the approved substance; and assist the person to ingest or otherwise self-administer the substance. Furthermore, subsection (8) expressly provides that subsection (6)
“does not authorise the coordinating doctor to administer an approved substance to another person with the intention of causing that person’s death.”
Amendment 350 seeks to enable the co-ordinating doctor, in the presence of an independent witness, to provide “additional assistance” to the person to administer the approved substance. Such assistance can be provided only where the person has authorised it, and where the person is
“permanently and irreversibly unable to self-administer the substance”
due to a significant risk of choking due to difficulty swallowing—dysphagia—or loss of the use of their limbs. The term “additional assistance” is not defined in these amendments.
Amendment 351 is consequential to amendment 350 and would require any decision to authorise additional assistance for the self-administration of the substance to be made by the person to whom the substance has been provided. Amendment 352 would create an exception to the condition in clause 18(8), and would have the effect of permitting the co-ordinating doctor to administer an approved substance to another person with the intention of causing that person’s death where the criteria introduced in amendment 350 are met—that is, where the co-ordinating doctor is satisfied that the person is permanently and irreversibly unable to self-administer the substance, and that the person has authorised that the additional assistance be provided.
Our assessment is that the amendments would enable the co-ordinating doctor to administer the approved substance to the person, rather than merely assisting the person, in the limited circumstances provided for in clause 18(6), to self-administer. That would be a significant change to one of the fundamental principles of the promoter’s Bill—that the final act of administering the approved substance must be taken by the person themselves, and not by a co-ordinating doctor. That is a policy matter and a decision for the Committee.
However, should the amendments be accepted, further amendments may be needed to ensure that this provision is fully legally coherent and workable in several areas. First, amendment 350 does not define who qualifies as an independent witness—for example, whether this would have to be a health professional or whether it could be a family member. Secondly, it does not address whether anyone would be disqualified from being an independent witness, as provided for through clause 36, which is entitled “Disqualification from being witness or proxy”.
Finally, as drafted, amendment 350 does not detail how authorisation of the additional assistance must be obtained and/or recorded in order to be valid. It also does not require that any details about the independent witness be recorded. This could lead to difficulties in complying with and/or evidencing that the requirements to provide the additional assistance have been met. By extension, there will be a lack of clarity over when and how the criminal provisions are to apply. I hope that those observations were helpful.
Kim Leadbeater
I completely understand where these amendments are coming from. In many jurisdictions where assisted dying laws are in place, this would be an accepted part of the process. However, as I have said repeatedly, our Bill stands in its own right, and its safeguards are stronger than those anywhere else in the world. One of those safeguards is that the line cannot be crossed between a person shortening their own death by administering the drugs themselves and by having another person—in this case the doctor—do it for them.
While I am hugely sympathetic to the argument, that is a line that I do not believe the Bill should cross. I concur with the comments of my hon. Friend the Member for Bradford West about Second Reading and what the House voted for, and with those of the hon. Member for Reigate about medical profession levels, which we discussed this morning. I also agree with the Minister’s comments about the concept of an independent witness, and with the comments from the hon. Member for Solihull West and Shirley about the concept of additional assistance. On that basis, I will not be supporting the amendments.
Tom Gordon
I will keep it short and sweet. I had not intended to push the amendments to a vote and will not be doing so. A lot of important points have been raised. Irrespective of whether the amendments were going to be pushed to a vote or would have been successful, it is important that we listen to and take into account the voices of people with different diseases who might wish to access an assisted death. We must also take into account the evidence that organisations have submitted, because it is important that those voices are heard too. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Danny Kruger
I beg to move amendment 435, in clause 18, page 13, line 6, at end insert—
“(9A) Where the procedure has failed, the coordinating doctor must escalate the care of the person by making the appropriate referral to emergency medical services.”
This amendment would require the doctor to escalate the care of the person in cases in which the procedure fails.
The Chair
With this it will be convenient to discuss the following:
Amendment 429, in clause 18, page 13, line 7, leave out subsection (10).
Amendment 436, in clause 18, page 13, line 8, after “provided” insert—
“(10A) If complications occur as a result of the provision of assistance the coordinating doctor must—
(a) make a detailed record of the complications in the patient’s medical records,
(b) make a declaration on the final statement issued under section 21, and
(c) make a report to the relevant Chief Medical Officer and the Voluntary Assisted Dying Commissioner.”
This amendment would require the coordinating doctor to record any complications in the patient’s medical records, to make a declaration on the final statement issued under section 21, and make a report to the relevant Chief Medical Officer and the Voluntary Assisted Dying Commissioner.
Amendment 464, in clause 18, page 13, line 8, at end insert—
“(10A) If the person loses consciousness and it appears to the coordinating doctor that the procedure is failing, the coordinating doctor—
(a) must not do anything with the intention of causing the person’s death, and
(b) must seek to revive the person.”
Amendment 532, in clause 18, page 13, line 12, at end insert—
“(12) The Secretary of State must by regulations make provision about what the coordinating doctor is legally permitted to do if it is determined by the coordinating doctor that the procedure has failed.
(13) The regulations under subsection (12) must include what specific actions can legally be taken by the coordinating doctor if—
(a) there is a greatly prolonged time to death,
(b) the person has been rendered unconscious, or rendered unfit to make a second attempt at self-administration, but has not died, or
(c) the person is otherwise undergoing complications.”
Amendment 533, in clause 18, page 13, line 12, at end insert—
“(12) For the purposes of subsections (2) to (11), the Secretary of State must, by regulations, specify where the provision of assistance under this Act may take place.
(13) Before making regulations under subsection (12), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(14) The persons to be consulted under subsection (12A) may include—
(a) persons requesting or considering requesting assistance to end their own lives, and
(b) professionals working in palliative and end-of-life care, including hospice staff, and
(c) persons from disadvantaged and marginalised communities, and
(d) registered medical professionals and other healthcare professionals.”
Amendment 430, in clause 30, page 18, line 30, at end insert—
“(da) responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails;”
Amendment 255, in schedule 6, page 32, line 13, at end insert—
This would add the means of administration to the final statement set out in Schedule 6.
Danny Kruger
I am supportive of all the amendments in this grouping, including amendment 255 in the name of the hon. Member for Filton and Bradley Stoke (Claire Hazelgrove) about the importance of recording the means of administration of the substance. We have discussed that a bit, and I think it is important to include it. The amendments tabled by the hon. Member for Bexleyheath and Crayford are also important, as they insist on the actual physical presence of a doctor while the treatment is being carried out. His amendments also suggest that there should be a code of practice about what should happen when things go wrong; I want to go further than that, but I do approve of that measure.
On amendments 532 and 533, tabled by the hon. Member for Ipswich, I again support in principle the requirement—although there is a little too much regulation by the Secretary of State, in my view—that we be clear about where the act should take place and make provision about what the co-ordinating doctor is legally permitted to do if they determine that the procedure has failed. That is the point I really want to discuss; the amendments tabled by the hon. Member for York Central (Rachael Maskell), and the amendment that I tabled, would impose an obligation on the co-ordinating doctor to provide assistance if the procedure fails.
Let me take a moment to explain to the Committee how important it is that we recognise the genuine risk of that eventuality in the case of assisted suicide being performed. There is significant evidence—even given the lack of adequate data collection and the paucity of record keeping, with over half of assisted deaths not properly recorded at all in many places—that in places such as Oregon, which is one of the worst offenders when it comes to data collection, there are significant rates of complication. These can be difficulty with ingesting the drugs, regurgitation and seizures. As I said, 72% of deaths do not record whether complications have occurred, but among the quarter that do, there are significant rates of complication.
Sometimes death can take days, and there can be a long time of unconsciousness. The Committee has heard from me and others in previous debates about the extent to which there is real concern about the actual experience of the administration of assisted death. But it is striking how ill-defined the current Bill is on the point about complications, compared to jurisdictions where such laws are in operation. In other countries, there is clear guidance in law for what should be done. In the Netherlands, euthanasia is recommended when assisted suicide seems to be failing; in Canada, doctors are likewise given licence to administer the death themselves if it fails. The Committee has decided not to proceed down that road. Nevertheless, the question arises as to what on earth patients should do.
To the point that we are talking about a small or non-existent population group—those we might have to worry will experience complications after the administration of fatal drugs—I refer back to a previous debate, when the hon. Member for Stroud, referring to me, said:
“The hon. Gentleman is bringing up lots of rather horrible stories about assisted death. That is why, in Australia, Switzerland and Holland, they have decided, instead of using the regime that he is talking about, to use pentobarbital…One of the reasons why Dignitas uses it is that it is so effective and it does not have those effects.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 11 March 2025; c. 925.]
Having looked into the issue and consulted other medics, I am afraid that the fact is that the safety of pentobarbital is highly contested. It has been debated in litigation in the United States because of its use as a death penalty drug. The executioners who used it said that the deaths were peaceful and akin to falling asleep, but lawyers for inmates on death row have said that
“pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.”
That is evidence from professionals who have examined the effect of pentobarbital on deceased people.
The anesthesiologist Joel Zivot of Emory University hospital in the United States testified to the Canadian Senate on the subject of assisted suicide drugs. He said that when he researched the autopsies of those executed by lethal injection, he stumbled on an alarming discovery:
“When I looked at the autopsies, to my surprise, I found that, in most of the cases, the individuals who had been executed by pentobarbital had fluid congested in their lungs. The lungs of these individuals were twice the normal weight, full of water. Now, the only way that this could have happened would have been as a direct consequence of the pentobarbital that was injected into these individuals.”
What is the relevance of that for assisted dying?
Kim Leadbeater
I am not aware of the situation in America, but is the hon. Gentleman not reassured that the evidence from Dignitas, which we all now have access to, says that there have been
“no cases of failure at Dignitas using this medication”?
Danny Kruger
Let me come on to that, because I am not aware of any evidence from Dignitas that disputes the assertion that is being made—certainly none that would meet the concerns raised by the genuine evidence of the effect of pentobarbital on death row patients. Again, the absence of evidence is not evidence of absence. I do not think that Dignitas has supplied evidence to contradict the point that I am making.
Kim Leadbeater
For the hon. Gentleman’s reference, I believe that the evidence is TIAB 425.
Danny Kruger
I am grateful to the hon. Lady. Let me let me look that up later. I am happy to exchange data, because this is clearly something we should be trying to get right.
Nevertheless, I want to try to explain why I am suggesting that we have a problem with the drugs that are used in assisted dying and that it has been suggested we use here. Let me continue the quote from Dr Zivot:
“When one watches an execution, it’s not clear that this is happening”—
meaning that it looks like a peaceful, painless death. He continues:
“There is not much to see. Executions, like, I imagine, medical assistance in dying, are a rather bloodless event; not much can be seen outwardly. But the autopsies revealed a very disturbing and surprising finding.”
He makes the point that that is particularly disturbing, given that assisted dying often uses a paralysing drug, which induces the impression of peace and calm in the patient, when in fact something else might be going on below the surface.
To conclude my quote from Dr Zivot, he says:
“To claim that this is a death that is peaceful, well, it can be nothing else because now a person is unable to move in any way, but whether or not they have any conscious experience of what is happening is unknown…it should be clear to the Canadian public that the kind of death that they will experience…will be something other than the way it is represented. It could be exceedingly painful and more akin to drowning.”
I cannot judge whether Dr Zivot is right, but we should be very wary of any claims that there is a simple answer to the question surrounding lethal drugs. To the point made by the hon. Lady, and I think by the hon. Member for Stroud, there is no evidence in the many reports from Dignitas, which has a regime very similar to the one we are imagining here—I will certainly look at the evidence mentioned made by the hon. Lady—that contradicts the concerns raised by Dr Zivot.
Sojan Joseph
Does this not show that clinical documentation is very important? We debated the issue in Committee earlier, when we talked about professionals being required to complete all relevant documentation. Maybe we are missing certain data because these things are not clearly documented in other places. Should we not take from that the learning that if we go ahead with this proposal, we should have proper documentation and make it clear to the clinician what they should and should not document?
Danny Kruger
I entirely agree that there is great concern about the lack of evidence in countries on which we are constantly relying for evidence of why this proposal is safe. I have suggested that, from the quite limited evidence we have, that it may not be safe. The hon. Gentleman is absolutely right that if we are to proceed, we need to be extremely strict about data collection.
To the hon. Gentleman’s point about making it clear to clinicians what drugs they are permitted to use, we also need to have a proper regime of clearing and approving those drugs. In earlier clauses, we debated the imperative on the NHS, the Medicines and Healthcare products Regulatory Agency and the Department of Health to properly authorise the specifics of what drugs will be used. It is not clear at the moment what those would be, and I very much agree that we need to be clearer on that.
I finish with a reference to an earlier debate, in which it was suggested, on the basis of the Australian example, that there is no evidence of complications. The hon. Member for Stroud talked about horrible stories from the United States and Canada. He also referred to Australia, where there is apparently no evidence of problems. In fact, I understand that of the six states, only Western Australia records complications, and it does so in relation only to practitioner administration—when the doctor administers the drug—which we do not propose to do here. It does not record complications in relation to self-administration, which is what the Bill proposes. In Western Australia, complications have been reported in 4.3% of cases involving practitioner administration. Again, we are dealing with the great mystery and enigma of how death happens with assisted suicide, and it is certainly unclear what we should do about it.
Naz Shah
Following the intervention of my hon. Friend the Member for Spen Valley, I have just looked at some of the evidence, and it does not cite any papers. In effect, the evidence says the effect can be seen in three documentaries. Nor does it explain why Dr Zivot’s concerns are scientifically accurate. Does the hon. Gentleman want to speak to that?
Danny Kruger
There is great anxiety about the validity of much of the evidence in this space. I have great respect for the work of Dr Zivot, because nothing else gets us close to understanding the actual effect of these drugs, once somebody has died.
Kim Leadbeater
In response to the intervention of my hon. Friend the Member for Bradford West, the evidence from Dignitas is really clear: there have been no cases of failure when using this medication.
Danny Kruger
My strong suspicion is that this is because the evidence is not being accurately collected or reported. With Dignitas and in all these jurisdictions, as the hon. Lady has acknowledged, there are significant failures of data and record keeping. Obviously, it is very much in Dignitas’s interest not to collect and certainly not to publicise evidence of things going wrong. However, that clearly happens in jurisdictions where data is properly collected.
Naz Shah
I recognise that the written evidence, particularly TIAB 425, says there have not been any failures at Dignitas, but it does not cite any published, let alone peer-reviewed, research, nor does it challenge the analysis of scientists such as Dr Zivot. That remains a grey area.
Dr Opher
Actually, if we did an autopsy on any person who has died, pulmonary oedema would almost certainly be found because that is what happens in death—the heart stops and the lungs fill with fluid. I would also like to correct the idea that there is neuromuscular paralysis with pentobarbital. There is no way that barbiturates act in that way. All they do is sedate and put the person to sleep, and death comes afterwards.
Danny Kruger
I was not suggesting that pentobarbital has a paralytic effect. Often in assisted dying, a paralytic is administered first as part of the cocktail of drugs. Subsequently, we discover that while the patient may have appeared entirely calm, sleeping peacefully, significant trauma may have been occurring beneath the surface.
I defer to the hon. Member’s knowledge, but my understanding from the scientific evidence I have read, and that medics have given to me, is that the extent to which people executed by lethal injection, by pentobarbital, have their lungs fill with fluid is peculiar—it is remarkable. They effectively drown beneath their peaceful exterior.
I intend to press amendment 464 to a vote, and I intend to support other amendments in this group. Although I support the aspiration of amendment 532 to make provision for what to do in the event of a procedure’s failure, I think it gives too much leeway to the Secretary of State, so I will oppose that amendment. I think the amendments that the hon. Member for York Central and I have tabled are preferable.
To make the obvious case for those amendments, and as I said in a previous debate, there are three choices in the event of failure. The first is to ignore the plain signs of distress, of things going wrong and of the patient suffering, which is clearly a failure of the doctor’s duty of care. The second is to expedite the death, which we have decided would be illegal under the Bill. Therefore, the only option is to revive the patient and escalate treatment, rather than actively or passively facilitate their death.
I hope Members will agree that, on the rare occasions when assisted suicide goes wrong, it is right that the patient is immediately revived and taken to hospital, or for the doctor to take whatever action is necessary. I am interested to understand why those amendments should not be supported.
Daniel Francis (Bexleyheath and Crayford) (Lab)
It is a pleasure to serve under your chairship, Sir Roger. I will speak to amendments 429 and 430 in my name. During oral evidence, we discussed the issues in subsections (9) and (10) of clause 18 and whether there is a contradiction. Subsection (9) states that the co-ordinating doctor
“must remain with the person”
and subsection (10) says:
“For the purposes of subsection (9), the coordinating doctor need not be in the same room as the person”.
We also discussed how that works in other jurisdictions. My amendment 429 would deal with that conflict. If the Bill were to become law, that conflict could be queried.
We also need to consider the possibility of complications. Clearly, if there are complications and the doctor is not in the same room, they would not necessarily be aware of those complications. I accept that, in some normal circumstances, doctors and medical professionals are not present in the room at the time of death; at other times, they are present. The amendment would mean that if something were to go wrong and someone was having a painful reaction to the drugs, the doctor would be there to see and help.
I do not understand what the Bill means when it says the doctor does not have to be in the same room. How far away would the doctor have to be? One subsection says the doctor has to remain with the person, and the following subsection says they do not have to be in the same room. If the Bill were to pass, we would be asking doctors to do something that is unprecedented. If the person were to suffer complications such as seizures or vomiting, or if they were exhibiting signs of distress, it appears that the doctor should be present. Members may think this could encroach on a patient’s privacy, but I think there is a discrepancy between the two subsections.
On amendment 430, I am conscious that my hon. Friend the Member for Ipswich has tabled a similar amendment. The intention of my amendment is to ensure there are regulations in responding to any unexpected complications that arise in relation to the administration of the approved substance, including when the procedure fails. I am conscious that if a doctor intervenes, they could end up in breach of the Suicide Act 1961. I therefore left the wording in that vein, as I understand that we will receive more information in due course.
Again, we received oral evidence from a number of people that what a doctor is meant to do in the event of unexpected complications is a matter of concern from both a legal and a medical perspective. We know from the evidence received from other jurisdictions that—I accept in a small minority of cases—there can be complications or the death can take much longer than expected. We also received evidence that, on rare occasions, death can take days.
Amendment 430 would show we have thought about those circumstances and provided for them by giving doctors a code of practice to refer to, rather than being left in the dark if a difficult situation arises at the time of death. We must not find ourselves in a circumstance in which doctors and patients are unprepared. It is important for us to think through, provide for and safeguard against all possible scenarios, however rare they might be. Of course, we would not want them to happen, but in some circumstances they might, and we would not want there to be a legal hole. Accepting the amendment would mean the Secretary of State has the opportunity to provide a code of practice for such circumstances. I hope hon. Members will be able to support the amendments in my name.
Sarah Olney (Richmond Park) (LD)
It is a pleasure to serve under your chairmanship, Sir Roger. I support amendment 429, tabled by the hon. Member for Bexleyheath and Crayford.
I do not understand how subsection (9) can require the doctor to remain with the person until they have self-administered and died, or until they have decided not to self-administer, while subsection (10) states that the doctor need not be in the same room. The Bill becomes even less coherent when we consider subsection (11), which requires the doctor to remove the substance immediately if the person decides not to self-administer—how can the doctor do so if they are not in the same room? Amendment 429 would make the scheme more coherent and I support it for that reason.
I accept that there are downsides to having the doctor present, especially before the administration, as people have a normal desire for privacy, but that needs to be balanced against the risk of someone else taking the substance or something going wrong in the process of self-administration. In Australia, there is no requirement for the doctor to be present, which has led to some cases of abuse. I understand why the Bill’s promoter has chosen not to go down the Australian route, but the position arrived at in subsection (10) lacks coherence and is unclear.
What does it mean to remain with the person without being in the same room? Does it mean being in the corridor just outside the room, but with the door open? What if it is closed? What if, as a result of the door being closed, the doctor is no longer within earshot? I am not the only one who is confused, as so are the doctors who will have to apply the legislation. For example, Dr Janet Menage, a retired GP, told us in written evidence—TIAB 182—that the provisions
“are mutually exclusive: doctor ‘must remain with the patient’ but ‘not in the same room’…This makes no sense. In any case, if the attending doctor is not in the same room there could potentially be an intervention by another person to the patient’s detriment. Or the patient may wish to cancel the suicide at the last moment and be unsupported in voicing that decision.”
With or without subsection (10), I would like to know whether the Minister has made an assessment of the workforce impact of such a requirement for the doctor to be present. As Dr Rebecca Jones told us:
“As the death may take many hours, I’m uncertain of the practicalities of this”.
Sean Woodcock
The hon. Lady is making an important point about the lack of coherence that amendment 429 is trying to sort out. Throughout these weeks of debate in Committee, we have heard about the importance of clarity for practitioners. This provision introduces severe doubt as to exactly what a practitioner is meant to do. I understand that we do not want to say, “You have to do this and this, and in this order”, and that amendments have been rejected on that basis, but this clause opens a massive loophole in the law and practice, which concerns me. Does the hon. Lady share my concern?
Sarah Olney
The hon. Gentleman is absolutely right. It is fundamental that, with this legislation, we provide very clear guidance to the medical practitioners who will be engaged in assisting patients with this matter. This is not only for their peace of mind that what they are doing is acceptable under the law, and accords with what Parliament has decided, but for the protection of patients. It is incumbent on us to be really clear about what we mean, and I do not believe we are as the Bill is currently drafted.
Sojan Joseph
We repeatedly talk about doctors, but nurses, healthcare assistants and other professionals will definitely be involved in a hospital environment. The Bill does not talk about other professionals. Furthermore, within a hospital environment, NHS wards may be bays without individual bedrooms. Does the hon. Lady think we need to be clearer on the procedures that will happen in those areas?
Sarah Olney
I am grateful for the hon. Gentleman’s professional experience, which is extremely helpful. He is absolutely right. Following the point made by the hon. Member for Banbury, we cannot define the circumstances in which a patient will find themselves when this is taking place. That is why it is incumbent on us to make sure we provide very clear guidance on precisely what Parliament intends.
As Dr Rebecca Jones told us in written evidence:
“As the death may take many hours, I’m uncertain of the practicalities of”
doctors remaining with the patient
“for many doctors…have competing demands on their time.”
In written evidence, Dr Chris Ainsworth asked how this will work in cases where death takes several days, as has happened in Oregon, while Dr Trevor Stammers wrote:
“If the doctor is required to be present until the patient’s death, this may require hours of practitioners’ time to fulfil and is unlikely to be adhered to in many cases if the dying process is protracted.”
Dr Rachel Fisher said in her written evidence that for Australian doctors, who are not required to be present at the final act, each assisted death requires around 60 hours of professional time. For British doctors, we will need to add the time it takes for the self-administration to result in death. Dr Fisher also raised the real impact on doctors, writing,
“imagine the practicalities of those who must deliver it. The GP, motivated by a deep desire to preserve life and relieve suffering arrives at the home of the patient with a cocktail of powerful drugs. What if the patient has symptoms? Who will collect their child from nursery or school if the patient takes a long time to die? How will they know when to decide the death was unsuccessful? Will there be counselling for GPs observing and feeling complicit in a potentially drawn out and symptomatic death?”
Finally, Dr Paul Shaw asked in his written evidence:
“How will this service be funded? What support will be required from the NHS when things go wrong or death takes longer than expected? Will this be a 0900-1700hrs service? What will be the out of hours arrangements?”
A lot of the written evidence touches on the practicalities of a doctor being required to remain with the patient until they die. Amendment 429, in the name of the hon. Member for Bexleyheath and Crayford, seeks to clarify whether “being with the patient” requires the doctor to be physically present in the room.
Sarah Olney
The hon. Gentleman gives me an opportunity to conclude my remarks. I support amendment 429 because it is important to provide clarity that when we say “with the patient,” we mean in the room. However, I invite the Minister to expand further on the resource requirement of assisted dying. I want the doctor to remain with the patient, which I think is critical. That is why I support amendment 429, but the implication of the Bill is a considerable resource requirement, particularly for GPs, and I would like the Minister to respond to that.
Jack Abbott (Ipswich) (Lab/Co-op)
I rise to speak to amendments 532 and 533, standing in my name, and in support of amendments 429 and 430, tabled by my hon. Friend the Member for Bexleyheath and Crayford. I appreciate that my amendments are similar to amendment 430. They go a little bit further, but probably not as far as we have previously discussed in the Committee.
I totally understand the concerns about the Bill being overly prescriptive about the regulations that could be passed down to the doctors making such decisions. However, it is important that we enable the Secretary of State to provide guidance, in addition to GMC regulations, on what the co-ordinating doctor must do if the procedure has failed. At the moment, the Bill simply states:
“The coordinating doctor must remain with the person until”
that time. However, I appreciate that amendment 429, if passed, would cover that issue.
Clause 9 states:
“The assessing doctor must…discuss with the person their wishes in the event of complications arising in connection with the self-administration of an approved substance under section 18”.
However, the Bill as drafted is not clear about what a doctor is legally permitted to do in the event of such complications. That is particularly important, as the Bill expressly states that the final act of administration must be taken by the person themselves. Therefore, the Bill as it stands stipulates that the doctor must discuss the patient’s wishes in the event of complications without stipulating what actions the doctor can take in such an event and thus what the patient’s options actually are.
There is a gap in the Bill and a lack of clarity on that critical issue, which has been raised frequently in both written and, to an extent, oral evidence. Dr Alexandra Mullock argued that, as
“the Bill would only permit”
a doctor only to assist in the patient’s self-administering a substance,
“administering drugs to end the life of a patient who might be unconscious (but not dying) is not permitted.”
She also raised the possibility that a patient might regain consciousness, but
“be too ill to make a second attempt”
at self-administration. What should a doctor do if that occurs? Unless the Secretary of State clarifies what a doctor can do in that situation—my amendment would not do that; it would merely give the Secretary of State direction to do so—the co-ordinating director could be placed in a difficult position.
Professor Alex Ruck Keene argued that the Bill as it stands could lead to the potential for medical professionals to be “required to stand by”, yet without being able to take steps to respond to complications so as to ensure that the process is completed. I fully appreciate that all doctors would use their good training, common sense and years of extensive practice to make a best-case judgment, and we would always support them in that, but the Bill has the unintended consequence of not giving doctors true cover in that area.
Dr Mullock also asked what should occur if the patient survives a procedure, “but is badly affected”. What treatment should be provided? Should the patient be moved to hospital? Should the patient be sedated or made comfortable until a natural death occurs, or should the doctor be able to take steps for the patient to die following the initial failed attempt? We need answers to those questions. Amendment 532 does not seek to answer them, but it would stipulate that the Secretary of State must do so at a certain point.
Danny Kruger
The hon. Gentleman is making an excellent speech, setting out the gap at the heart of the Bill. Does he agree—I think that he does, as he has just explained it—that there are quite straightforward choices: to expedite a death, which is illegal; to do nothing, which is inhumane; or to treat, revive or resuscitate? Why does he think that should not be clearer in the Bill? Why does he want to leave it for the Secretary of State to determine that in the future? Why do we as Parliament not get to decide what the right options should be?
Jack Abbott
I appreciate the hon. Gentleman’s question. In short, the answer is because we are not medical professionals. [Interruption.] Well, some members of the Committee are medical professionals, but not all of us are. I do not think that it is for the Committee to make a judgment on whether to put that in the Bill. I am happy and comfortable to leave such a directive and further recommendations, in addition to the GMC guidance, as further work to do in the coming months and years ahead of the Bill’s implementation. I think that is a healthy and strong thing to do. This is an important compromise to some of the conversations we have had in this Committee over the weeks. The amendment seeks to give a clear direction that these sorts of regulations and procedures should be stipulated at some point down the line.
Danny Kruger
The hon. Gentleman suggests that this is something that should be left to the medics. Nevertheless, here we are legislating for medics to be able to administer lethal drugs to people; we are responsible for what happens subsequent to the administration. Let me put this another way: does the hon. Gentleman foresee any scenario in which the guidance from the Secretary of State could be anything other than that the patient should be revived and helped to live in the circumstances where there are clearly complications under way? What else could be the appropriate direction given by the Secretary of State?
Jack Abbott
I appreciate the point that the hon. Gentleman is trying to make. We have discussed this point at length, across a range of subject areas, but we cannot legislate for every single permutation that could possibly happen. That could be about the initial conversations, when the patient is given a terminal diagnosis. Where do those conversations leave us? Clearly there will be a number of different scenarios, which could occur to various degrees.
I do not think it is possible to legislate for every single eventuality. I do not believe that whether to revive or not revive will be so black and white; it will completely depend on the scenario at that particular moment in time. Therefore, further work would need to be done over the coming months and years before the final introduction of the Bill. I believe that it is important to allow the time for that work to happen alongside the existing guidance as it stands.
I do not seek in my amendment to stipulate exactly what every single permutation might be—indeed, that could run to many pages and beyond. The amendment seeks to empower the Secretary of State and the Department to make sure that those eventualities, and the concerns that the hon. Member for East Wiltshire has raised, are covered by regulations over time.
In my view, the failure to provide a clear answer to these questions is an oversight. Data from Oregon shows that it is unfortunately not totally uncommon for patients to suffer complications following the administration of a lethal substance. In 2023, of the 102 patients for whom we have data on whether they suffered complications—out of a total of 367 patients who died by assisted death in Oregon in that year—10 suffered complications. That is just under 10% of the patients we have data for.
Of those 10, eight had difficulty ingesting the substance or regurgitated it. One suffered a seizure, and for one we have no data of what complications occurred. If I may say so to the hon. Member for East Wiltshire, that goes back to the variances that I referred to. It is not as simple as whether to resuscitate or otherwise. There are a number of different factors. Although that is a relatively small sample size, it shows the diversity of the challenges ahead.
In Oregon, information about complications is reported only when a physician or another healthcare provider is present at the time of death, which means that we evidently have less data on this issue than is desirable. However, despite the small sample size, that data would put the complication rate at one in 10. It would not be a completely uncommon occurrence for patients to experience complications following the administration of a lethal substance, although it would be rare.
Kim Leadbeater
My hon. Friend is referring to Oregon. Obviously every jurisdiction has its own methodology when it comes to assisted dying. Is he reassured somewhat by the evidence from Dignitas that for not one person did the procedure fail? A survey from Victoria in Australia showed that 1,076 deaths from the self-administration process took place, and 86% of patients died within one hour. There are different models, and it is important to look more broadly at this if we can.
Jack Abbott
I fully accept my hon. Friend’s points, and I agree. To reiterate, complications are not a regular occurrence by any means. They are relatively uncommon. In saying that, there are still 10% of people who did experience them. As she says, these complications are not huge, but there were issues with being able to ingest the substance or with regurgitating it. The figure of 86% that my hon. Friend refers to is absolutely correct, but that would suggest that for 14% of people it took longer than an hour. In my view, that is a relatively high percentage for what we are talking about here.
As I say, my amendment does not seek to stipulate in the Bill exactly what measures have to be taken in every single scenario. I am not suggesting for a moment that we have to legislate about what we must do in the event that, for instance, someone has difficulty ingesting the substance; I am sure that will come naturally with the GMC regulations. I fully appreciate the points made about how this will probably naturally occur, but it is important to provide a reassurance that we are looking at the long-term effects in such scenarios.
Sojan Joseph
Does my hon. Friend think that 10% is a high number? Does he also think that if we informed patients about the side-effects of those medications from the beginning, the number of patients opting out would probably be higher?
Jack Abbott
I thank my hon. Friend for the question; I agree that 10% is a statistically reasonable figure and should be noted, which is part of the reason for my amendment. However, this is still relatively uncommon from the small sample sizes we have. For example, while it is important to refer to the Oregon example, the sample size is only 100 people, so we should always keep that in context. Will fewer people choose to go down that path because they feel, for example, there is potentially a small chance they might struggle to ingest the substance? To be perfectly honest with my hon. Friend, that will completely be their personal choice, and it is really important that, in every stage of the process, we are very clear with those looking to go down this path about what those eventualities might be.
Everyone will take their own personal opinion about that, but we want to be very clear about any risks that might come about, and we have already stipulated that this will be part of the process. Everyone should be very clear about the process—what it will look like and the associated risks. Many people will look at this and still say, “This is the path for me”, but that of course will be their own judgment.
Danny Kruger
I wonder whether, in the hon. Gentleman’s view, it might be appropriate for the Secretary of State, when framing the guidance he requests, to leave it to a doctor’s discretion. Would that be an appropriate outcome that he would be happy with? My concern is that we will end up with a Bill that has a blank space when it comes to what should be done in the event of complications, as it does currently, and that the Secretary of State might find it equally confusing and unclear and might be reluctant to specify too precisely what should be done in the range of different circumstances that the hon. Gentleman has mentioned. Will we not end up with a further passing of the buck to clinicians to make that decision? Given that, is it not even more appropriate at this stage for us to give a direction to the Secretary of State stipulating that, whatever the guidance will be, it is entirely inappropriate for a doctor to expedite the death of the patient in any way?
Jack Abbott
In the case of this Secretary of State, he is more than happy, as we have seen in the last week or so, to take decision making back in-house and make them himself as well, although that is perhaps a separate political point.
Jack Abbott
Absolutely, I know. I am sure the Committee supports him as well.
I would also point the hon. Gentleman to proposed new subsection (13), which my amendment 532 would introduce, saying what “specific actions” can legally be taken, for example, if
“there is a greatly prolonged time to death”,
the person has been “rendered unconscious” or
“the person is otherwise undergoing complications.”
That quite clearly states that we expect the Secretary of State, through this amendment, to take specific co-ordination actions on that. Under proposed new subsection (12) alone, the Secretary of State would have to make provision on that, which could lead to what the hon. Gentleman is alluding to. However, what I propose in proposed new subsection is very clear: that we would expect specific actions from the Secretary of State in that area.
Naz Shah
My hon. Friend is making an important speech. He talked about percentages earlier. Is he aware of a study in the Netherlands that concluded that 21 people—18% of the cases in the study—were assisted with lethal injection? In five of those cases, that was because the person could not swallow, but in the rest, they were unable to complete.
Jack Abbott
I have used the statistic of 10%; we might find additional statistics from different jurisdictions that put that figure slightly higher or slightly lower. The point I am trying to make is that this is a relatively uncommon occurrence; none the less, this is an area of the Bill that we can make stronger with additional provisions.
I will make some progress on amendment 532. I have made the basis of my point and want to get on to amendment 533. As I have said, amendment 532 seeks to provide clarity on what doctors can do if the procedure fails or is failing by stipulating that the Secretary of State must specify in regulations what actions the co-ordinating doctor can legally take if there is a prolonged time to death; if the person has been rendered unconscious or unfit to make a second attempt at self-administration, but has not died; or if the person is undergoing complications following the initial attempt.
While there is existing GMC guidance, if no further guidance comes forward in the coming years, we risk placing some doctors in an incredibly difficult position. We always say that we should abide by good practice and the experience of many doctors, but additional cover is no bad thing. We need to say what doctors are legally permitted to do in the event of a patient undergoing severe complications. Leaving aside the doctors, that presents a risk to the patient, who may suffer needlessly and intolerably because the co-ordinating doctor does not know what they are legally allowed to do and is thus seeking to avoid legal ramifications of actions. We do not want them to take steps to respond to those complications or support the patient to die in a painful manner.
I will speak briefly to my amendment 533, which is about where assisted dying can take place. The Committee has already touched on that, and I do not want the Bill to be too prescriptive, which is why I have not stipulated exactly where the locations should be. However, this question was raised a number of times in the submitted written evidence. It is incredibly important that we address this question to ensure that assisted dying takes place at a certain location and does not have a detrimental effect on that location or community, and that the implementation of assisted dying does not exacerbate existing healthcare inequalities or deepen the mistrust of the healthcare system that exists among some ethnic minority communities in particular.
We have a duty to ensure that anyone seeking an assisted death under the Bill feels that it is safe to do so, is able to experience the positives of assisted dying and is not traumatised or retraumatised by the process. That is not possible if assisted dying takes place in settings in which people feel unsafe, which they feel unable to control or in which they have no agency. The amendment seeks to ensure that the question of where assisted dying can take place is properly addressed and that the possible impacts of assisted dying taking place at any particular location are fully considered. Only then can we address and mitigate its possible detrimental impacts.
That is a particularly important point because the criterion in the Bill that the doctor must remain with the patient until they have died realistically precludes assisted dying taking place at home, as there may be a prolonged time to death. As my hon. Friend the Member for Spen Valley said, 86% of patients in Western Australia died within the hour, but 14% took longer than that. To use another comparison, in Oregon, 87.7% of those who died via an assisted death in 2023 did so at home. If we are essentially precluding assisted dying from taking place at home because of the stipulation that a doctor has to be in attendance, we must answer the question of where it can take place.
In written evidence, Sue Ryder and the National Care Forum cited concerns about the impact on the wellbeing of staff and the other residents of hospices and accommodation-based services, should assisted dying take place within those communities. Dr Jamilla Hussain, in arguing that the question of where assisted dying could take place needed to be addressed, stated that her consultations with
“ethnic minority groups across Bradford highlighted the risk that AD could significantly deepen mistrust in healthcare services, including but not limited to palliative care.”
She argued that that needed to be considered when determining where assisted dying would take place, and because of that it would be preferable to avoid
“healthcare settings that these communities rely on, such as hospitals and hospices.”
Again, amendment 533 does not seek to specify where assisted dying should take place—I think further work is possibly needed over the coming months and years before this policy is potentially implemented—or to prohibit any particular location, I must add. The rationale behind the amendment is to ensure that through extensive consultation with relevant parties, the possible impacts of assisted dying taking place at any particular location are fully and comprehensively considered, and thereby any potential harm is addressed and mitigated against.
Jack Abbott
I was just finishing, but the hon. Gentleman has timed it perfectly, so I will.
Danny Kruger
I think the hon. Gentleman is right about this one. Does he agree that the hospices that have written to us have a very valid point of concern that they might be required to facilitate assisted dying on their premises, even if many members of staff or other residents do not wish that to happen? Does he agree that it is important that we protect hospices from having to have anything to do with assisted dying?
Jack Abbott
I appreciate that point. Throughout this process we have spoken about the absolute need to ensure that very good palliative care options are being presented to everybody along this pathway. I do not think you can separate care homes and hospices from the Bill, but I fully appreciate and sympathise with what the hon. Gentleman is saying. As I have said, there may be some hospices that are simply not appropriate for this, so although amendment 533 does not seek to put that on the face of the Bill in terms of precluding any particular areas of our healthcare system, it would require the Secretary of State, through consultation, to make sure that the legislation is used properly, and make suitable recommendations.
Naz Shah
I rise to speak to amendment 436, tabled my hon. Friend the Member for York Central. The amendment concerns what would happen after a patient has suffered complications while going through the administration of lethal drugs. Let me stress that we know that people suffer complications when they are undergoing assisted deaths. Unfortunately, one thing we do not know is how common those complications are. Another thing we lack is data that would allow researchers to investigate whether certain drugs, perhaps in combination with certain medical conditions, were more likely to cause complications.
The reason that we do not know those things is because of the many gaps in the data collected in places that have assisted dying laws. It has been mentioned before, but very much bears mentioning again, that the Australian states’ reports on assisted dying do not publish data on complications suffered by patients who self-administer drugs, and that is the overwhelming majority of assisted deaths in Australia.
Western Australia’s most recent report does tell us how frequently there were complications in the cases that involved practitioner administration of lethal drugs—4.3% of those deaths were affected. I understand that the Bill does not allow practitioner administration, but that is not the relevant point. What is relevant is that first, the Australian data shows that some people given lethal drugs suffer complications, and secondly, those complications were ones that we would not wish on someone in their last minutes or hours of life. For example, five out of 198 practitioner administration deaths involved “other complications”, which included people coughing and/or reporting a burning throat after they were helped to swallow drugs,
“hiccups with gastric reflux, involuntary muscular contractions, and delayed loss of consciousness.”
Western Australia could be much better than other states on average in avoiding complications, or it could be worse. I am afraid that we really do not have the robust data that would allow us to make those comparisons. I repeat: the Australian state does not publish data on complications affecting the majority of assisted dying cases. They do not because they cannot, since no one is mandated to stay with the patient and observe their condition. We do not know, therefore, how common those complications are.
Record-keeping in other jurisdictions is also concerning. This House’s Health and Social Care Committee examined the records kept by the state health department in Oregon while inquiring into assisted dying. They found that Oregon authorities kept very poor records into how many patients suffered complications and what those were.
Amendment 436, tabled by my hon. Friend the Member for York Central, would take a very different approach. Under this amendment, the doctor attending the person having an assisted death would have to make “a detailed record” if the person suffered complications. They would then have to declare that the person had suffered complications, on the final statement concerning that case. Finally, they would have to make a report, to both the chief medical officer for either England or Wales and the voluntary assisted dying commissioner.
Dr Opher
I am glad to serve under your chairmanship, Sir Roger. First, I will briefly address the whole area that we are talking about. GPs who are involved in terminal care will go and see a patient as they are slowly dying; we do not know at any point what will happen, and almost anything can happen. I have sat with people who may at any point have a massive pulmonary haemorrhage and drown, for example, or they may just quietly go to sleep—or they may start vomiting.
What those of us in terminal care do is react to what is happening with the patient. For example, if they start to be sick, we would give them an anti-emetic; if they start to become very agitated we would then give them midazolam. What I am saying is that this is normal medical care. We have to be very careful not to stipulate in the Bill what is actually normal medical care.
I understand that what we are proposing is a new option that has not been there before, and we know that there are complications. But in a terminal situation, there would be no occurrence where we would call an emergency ambulance and take them to hospital, for example.
Sean Woodcock
My hon. Friend speaks with a lot of knowledge, and every time he contributes I learn something about the medical profession. My challenge to him is that while he is right that at the end of someone’s life GPs and doctors are used to looking after somebody, and there are lots of different complications from medical treatment, in the situation we are talking about the treatment—if we can call it that—is to end their life. That is a distinct difference. Something has gone wrong if their life has not ended suddenly or peacefully, as they were hoping. That means that they might die hours or days later, potentially in agony, or they will linger on, potentially also in agony. The amendment is to try and clarify what then happens, because I would suggest that this is very different from a normal medical procedure.
Dr Opher
I thank my hon. Friend for his sensitive and clear worry. But it is important to note that we would not in any circumstances try to do something that would finish someone’s life after they had been given their self-take medicine, because that is against the law. In the Bill we have made a clear distinction between the doctor—a euthanasian, if you like—taking the life, and the patient taking medicine that finishes life. What we need to do is simply support the patient. If, as my hon. Friend suggests, they are in pain we would give them a morphine drip, which is in common use in terminal care. I absolutely respect what he says, but the same treatment principles would be in place as in terminal care.
Danny Kruger
Even in terminal care, when it is understood that a patient is close to death, doctors would surely not overlook a patient for whom an assisted death is clearly failing. The hon. Gentleman suggests that it would be inappropriate to—and that he would never—call an ambulance, or send a patient to A&E; I wonder whether he also means that he would never seek to revive a patient or bring them back to life, as it were, if they were experiencing complications. To his often-repeated suggestion that there is no difference between this and normal medical treatment, there is an enormous difference. Doctors administer lethal drugs to a patient, and are then also supposed to be somehow caring for the patient in the traditional way that doctors should. These things are inherently incompatible, and there is a choice between the two : is the doctor helping the patient to die, or is he helping them to live? That questions remains, and does he not acknowledge that there will be circumstances where it would be appropriate to revive the patient, and seek to support them as if they were living?
Dr Opher
I almost agreed with the hon. Gentleman earlier, when he asked at one point, should we not just leave this to doctors?
One of the key things the hon. Gentleman said is that the doctor administers the drug. This is self-administered, first of all, so that is a very clear line. However, also, in a case of terminal care—this is what I am trying to get across to the Committee—we know the patient is dying, and therefore if they are becoming worse we simply do things to make them comfortable, and we do not try to revive them, because they are dying. It is important that we realise that this is a very different medical situation from normal care, and that it actually needs very different skills as a doctor. Here, a doctor is not trying to prolong life, but trying to make a death as comfortable as possible.
That is why I support the Bill—because I think it will enhance a comfortable death. I wanted to make it clear that that is normal practice now in terminal care: we do not revive a patient with a terminal diagnosis who is in terminal care, but we make them comfortable.
Sojan Joseph
This is a very good discussion, and with a clinician as well—maybe my hon. Friend can help here. Are we leaving the Bill to professionals to administer, who might be confused and not clear about what they should be doing? In normal current practice, when somebody has a poor prognosis and is very fragile; we use “do not resuscitate” or “do not attempt CPR” decisions. Why do we not build that into the Bill—that everyone who is going through this process should have a DNR or DNACPR in place?
Dr Opher
I thank my hon. Friend for his experience in a clinical setting. I would remind everybody that in the Bill we are trying to help people die in a comfortable way, and I do not feel it is the Bill’s job to define exactly how we treat nausea or abdominal obstruction and so on. What we would like to do here is ensure that a patient has a pain-free death, and a death that they are in control of.
Dr Opher
I will make a little progress and will then take my hon. Friend’s intervention.
On amendment 436, all medical practitioners are required under their code of practice to record any event they come across. I feel there should be better data and I agree with the hon. Member for East Wiltshire that we need to collect data. We are actually very good at doing that in the NHS. Under clauses 21 and 22 there are provisions for the Secretary of State to collect data on complications. I am therefore not sure that particular amendment tabled by my hon. Friend the Member for York Central is necessary. I think I have covered amendment 464, from the hon. Member for East Wiltshire.
On amendment 429, about the doctor being in the same room, I totally understand the anxieties presented by my hon. Friend the Member for Bexleyheath and Crayford, but I feel that whether the doctor is there should be the choice of the family and the patient. There may be some confusion about this, but to me, what the Bill implies—I am interested to hear the Government’s opinion—is that the doctor should deliver the medicine to the patient, check that the patient is willing to take the medicine as per amendment 462 from the hon. Member for East Wiltshire, give the medicine to the patient, and then ask the family whether they want them to be there or in the next room. They need to be available, but do they need to be in the same room? I think that should be the choice of the family.
Daniel Francis
I hear what my hon. Friend says, but the wording of clause 18(9) and (10) is ambiguous. Subsection (9) says that the co-ordinating doctor must remain with the person until “the person has died”, but subsection (10) says that the doctor
“need not be in the same room”.
I do not want to get into measuring metres, but where exactly is that place? Is it in the same room or is it in the same building? If it is in the same building, you cannot possibly be with the person until they die. Does my hon. Friend have comments on that?
Dr Opher
I am interested to hear what the Government say about the wording around that amendment and whether it is safe. I would defer to the Minister on that.
Amendment 430 from my hon. Friend the Member for Bexleyheath and Crayford, about a code of practice that must address complications and failures, is quite a strong amendment and I am willing to support it. If as doctors we have a code of practice about how we handle this type of thing, the amendment would potentially help, and perhaps answer some of the questions from my hon. Friend the Member for Banbury.
I do not believe that amendment 255 from my hon. Friend the Member for Filton and Bradley Stoke is necessary. I believe it should be dealt with under clause 21.
I believe that the very well put amendments 532 and 533 from my hon. Friend the Member for Ipswich could be covered by amendment 430.
Dr Opher
I am in two minds about the doctor being present until the patient dies. In the circumstances, we need to encourage this to happen at home predominantly, because I think that is where most people would prefer to do this action. We perhaps need to look further at whether the doctor needs to stay, in the rare situation where the patient goes on.
Let me conclude by saying that I know that the amendments all come from a good place, and that this is an anxious time, but terminal care is an anxious time for doctors, for patients, for everyone, because we do not know exactly what is going to happen. The Bill allows someone a way of dying, when they have a terminal illness, that has a bit more exactitude than normal practice.
Jack Abbott
I fully understand and am very sympathetic to my hon. Friend’s point about the family having privacy and space in the last moments. However—this is a genuine question—what happens if things start to go wrong? Although it is uncommon, we know it is possible. Do we expect the family members who are going through the last traumatic moments to have to go out of the room to find the doctor, albeit they might just be behind the door? I do not know that that would necessarily make it less traumatic, and for some people it could make it worse if the doctor is not there and present next to their bed.
Dr Opher
I think there is some truth in that, to be fair, but I believe we should leave it open to the family’s discretion, with the proviso that the doctor should be close at hand, whether that means outside the door or whatever. We need Government advice on whether amendment 429 is safe. I have nothing further to say.
Lewis Atkinson (Sunderland Central) (Lab)
It is a pleasure to serve under your chairship, Sir Roger. I will cover a few of the amendments, and follow on from my hon. Friend the Member for Stroud, whose points I broadly agree with.
When it comes to the location and, actually, a lot of the elements, I fear we are trying to over-specify practical matters. As in so many cases, this is not about capacity, coercion, assessment and so on; it is about the practicalities of death, and it is right that we allow the healthcare team for dying people and their families to operate with the professional skill with which they currently operate.
On amendment 429, on the doctor being in the same room, I can think of many instances in healthcare in which a healthcare professional is in an adjoining room, potentially even with a door open so there is a line of sight, and that is entirely appropriate. I think of observations, for example, in various settings. That provision is absolutely necessary and allows an appropriateness of proximity without intrusion. I am sure the doctor will be in the room at the point at which the substance is taken, but if someone then goes into unconsciousness fairly quickly, as would happen in the vast majority of cases, and then takes half an hour or so to die, it is entirely unnecessary for a doctor to be standing there in the same room, towering over the family, when they could be near at hand. I just do not think we need to specify that in the Bill.
I have some sympathy with amendments 532 and 533, tabled by my hon. Friend the Member for Ipswich, on the Secretary of State setting out regulations, but I fear the hon. Member for East Wiltshire did an excellent job of persuading me that they should not be accepted, because when a “must” is included in that way, we get into saying, “The Secretary of State must tell a doctor exactly what they must do in every situation.” The legal parameters are clearly set out in the Bill as drafted. There is no administration by a doctor on a person’s behalf; it must all be self-done. Additionally, we have not yet mentioned the existing provisions in clause 9(2)(c), which requires, at the point of assessment, a conversation between the assessing doctor and the patient about their wishes in the event of complications or any sort of delay.
Jack Abbott
I appreciate what my hon. Friend is saying about the Secretary of State not stipulating every dot of every i and cross of every t in the regulations, but we are talking about something that has not been practised in this country, so we do not have existing guidance anywhere about what to do in this event. My hon. Friend may correct me, but I think it is really important that the Secretary of State has to give some direction through regulations on what a doctor is able or not able to do in these situations. I appreciate that there must remain room for a doctor’s best-case judgment in certain situations but, from a legal perspective and otherwise, the Secretary of State and the Department will have to give some thought to exactly how the regulations work.
Lewis Atkinson
To me, amendment 430, tabled by my hon. Friend the Member for Bexleyheath and Crayford, strikes the right balance. Under clause 30 the Secretary of State “may” make provision for codes of practice on these matters if that is required; I am uncomfortable with saying that the Secretary of State “must” do so, when it is likely that it will be more appropriate for the GMC or some other body to make those regulations. We get into a difficult precedent if the Secretary of State must specify the reaction in certain medical circumstances but we routinely leave that to medical regulation and practice more widely. I think a “may” power, as set out in amendment 430, would allow that backstop provision, but would not get into the issue of “must”. It is also likely to be more respectful of the conversations as outlined in clause 9.
Sarah Olney
I am listening to what the hon. Gentleman is saying, and a lot of what he is talking about in terms of giving doctors discretion makes a lot of sense in a routine medical intervention, but this is not a routine medical intervention. This is a very serious point, and the doctor’s judgment in this case could well fall either side of what is permissible by the law. That is why it is so important that it is really clear. Whether we decide in Committee that it must be on the face of the Bill, or whether we want, as per the hon. Member for Ipswich’s amendment 532, to leave it to the Secretary of State, it must be clear and specific.
Lewis Atkinson
I think the Bill is very clear on the legal parameters. A doctor may not act, in terms of administering the substance, in a way to hasten death. Within that, we are back into the realms of normal medical practice, as my hon. Friend the Member for Stroud set out. I am sure that there will be legal guidance, whether that be from the GMC or elsewhere, if and when the Bill were to pass. The Secretary of State would have the powers anyway under clause 30, but for the avoidance of doubt, amendment 430 strikes the right balance in giving backstop permissions to the Secretary of State to clarify anything if needed.
Kim Leadbeater
On the hon. Member for Richmond Park’s point, which a couple of people have made, I do not think anyone is saying that this is not a new situation—of course it is, as we are all aware. My hon. Friend the Member for Stroud’s point was that a doctor being with a patient who is dying is not a new situation. That is the important distinction.
Lewis Atkinson
My hon. Friend is absolutely right and articulated that better than I was managing to.
Danny Kruger
We are not necessarily talking about someone who is dying right here and now in consequence of the drugs they have taken—we could be talking about someone who is many months away from their death. The scenario we are envisaging is that fatal drugs —poisonous drugs—have been administered to the patient’s body and we are asking doctors to be normal doctors in that scenario. In a genuinely normal scenario of doctors being doctors, they would attempt to revive the patient and to save their life in that circumstance. If the parallel is with the last moments of someone’s natural death, the doctor’s job is simply to make them comfortable, but that it is not the scenario. The scenario is some months away from their natural death, when they have months to live. They may not even be exhibiting extreme illness—they may just have a terminal disease. If they have been given fatal drugs, what on earth is the doctor to do in the scenario where the drugs are not working? Surely that is a question for all of us, rather than just leaving it up to the doctors.
Lewis Atkinson
I disagree. As clause 9 makes clear, the doctor will have had a conversation with the patient about their wishes in advance, in exactly the same way as a surgeon would have a conversation with a patient in advance of high-risk surgery—
Lewis Atkinson
I am not going to take any further interventions; I am going to answer this point and make some progress.
The surgeon would say, “If this procedure fails, would you wish me to attempt resuscitation? Would you wish to be put on a support system?” The hon. Gentleman misunderstands current practice on consultation with patients, in advance of procedures, about their wishes, which is where there is significant established evidence.
Lewis Atkinson
I am going to finish on this point.
On amendment 533, tabled by my hon. Friend the Member for Ipswich, I suspect that, in dealing with a later clause, we will have a conversation about issues around hospices and care homes, but again I find the requirements under the amendment unduly onerous. As my hon. Friend the Member for Stroud and others have said, often people’s preferred place of death is at home. Are we really saying that the Secretary of State would specify addresses or the nature of places where these procedures should take place?
Jack Abbott
No, is the short answer to that question. Because a doctor has to be present, are we saying that doctors have to go to someone’s home to administer this? Would the Secretary State say, for example—this is not my personal view; it is for discussion—that it would have to take place in a medical facility, or could people choose to have an assisted death at home? The amendment stipulates that the Secretary of State would have to give that guidance at the time. I do not see how we can have doctors going out to individuals’ homes to assist the process.
Lewis Atkinson
It is by no means clear that doctors would not go out to people’s homes, but my hon. Friend asks whether doctors would have to do that—there are no powers of compulsion anywhere in the Bill, because the entire model is an opt-in model at every stage, including the example he gave in respect of hospices. It is a matter between the resident of the home and the treating medical practitioner.
In reality, healthcare procedures do not happen ubiquitously: they happen in appropriate places with appropriate cultural sensitivity. We do not specify in primary legislation for that to happen. Health professionals, and those involved in the management and commissioning of health services, currently have ample opportunities to co-ordinate and consider such matters.
Jack Abbott
I appreciate my hon. Friend giving way again. For people in the Committee and our colleagues across the House, there has to be clarity. Perhaps it is a question for the Bill promoter’s and the Government. As I said, I have no personal problem with it, but is there an expectation that assisted dying will take place at home as well as in medical facilities?
Lewis Atkinson
I cannot speak for the Bill’s promoter or for others, but a significant number of people wish to die at home.
Kim Leadbeater
I can help my hon. Friend out on this point. There is an expectation in the jurisdictions where assisted dying happens that it happens in different locations, very much centred around the patient’s wishes, which is the approach we should take.
Lewis Atkinson
That is exactly right. That will quite possibly include people’s individual homes as well as not in their homes, in places of appropriate care and peace and tranquillity.
Kit Malthouse
The hon. Member might be interested to know that many hospices and, in fact, the hospice movement have developed what they call hospice at home, which is for people in the advanced stage of illness who want to die in their own home. Services are provided to them to palliate them as they reach death at home.
Lewis Atkinson
The right hon. Gentleman is absolutely right. Another point we have not yet mentioned is that the Care Quality Commission regulates healthcare on the basis of location of delivery. Hospice services cannot just be provided from a random place: the place has to be registered with the CQC as suitable for the provision. I am sure that regime would continue in this instance.
Stephen Kinnock
Amendment 435 would require the co-ordinating doctor to escalate the care of an individual to the appropriate emergency medical services if the assisted dying procedure has failed. Requiring the co-ordinating doctor to make a referral may engage article 8 of the European convention on human rights—the right to family and private life—if the person has indicated that they do not wish to be referred to emergency services or do not wish to be resuscitated. In a situation where the procedure has failed, doctors would, as in their normal duties, support a person in line with their professional obligations and their understanding of the person’s wishes. This could include the involvement of the emergency services, but it would be unusual to specify a particular approach in legislation.
As currently drafted, clause 18(9) provides that:
“The coordinating doctor must remain with the person”
once the approved substance has been provided, until either
“the person has self-administered the approved substance and…the person has died, or…it is determined by the coordinating doctor that the procedure has failed”,
or, alternatively, until
“the person has decided not to self-administer the approved substance.”
Amendment 429 would remove the clarification currently provided for in clause 18(10) that the co-ordinating doctor does not have to be
“in the same room as the person”
once the approved substance has been provided. However, clause 18(9) requires the doctor only to
“remain with the person”.
It may still be possible that the co-ordinating doctor could remain with the person but in a different room if they decide that is more appropriate.
Amendment 436 would increase reporting obligations on the co-ordinating doctor in cases where complications have occurred. It is not clear in the amendment what would be considered a complication and therefore trigger the reporting requirement. It is also not clear what details should be set out in the person’s medical records or in the report to the chief medical officer and voluntary assisted dying commissioner.
Naz Shah
I am struggling with this. When amendments were tabled last week, there was a concise direction from the Minister that he understood the intention of the amendments. Could that approach not be applied to these amendments—that there is an understanding of the intention, and they can be tidied up in the wash-up process to make them tight? Could that not happen?
Stephen Kinnock
My job and that of my hon. and learned friend the Justice Minister is to defend the integrity and coherence of the statute. The concern that we have with the word “complication” is that it is a wide-ranging term and concept, and its inclusion could potentially undermine the integrity of the legal coherence of the Bill and how it could be interpreted in terms of its implementation. I am simply flagging the risk that if the Committee chooses to accept the amendment, there could be a muddying of the waters in terms of its meaning in law.
Rebecca Paul
Following on from the point made by the hon. Member for Bradford West, has the Minister taken into account the guidance on private Members’ Bills? It says exactly what the hon. Member has just set out: the spirit of amendments should be taken, and it is for the Government to ensure that the integrity of the statute is respected with the final version. That is to allow a free-flowing discussion and to ensure that we capture everything we need to in the Bill, in the light of the fact that many of us are not lawyers or experts.
Stephen Kinnock
Absolutely, if the Committee chooses to accept the amendment, it goes into the Bill. If the Bill gets Royal Assent, it becomes the responsibility of the Government to ensure that the Bill, as passed by Parliament, is implemented in the best possible way.
The hon. Lady is right that the Government’s responsibility is to take on whatever passes through Parliament and implement it to the best of our ability. My job in this Committee is to raise concerns about risks of amendments that could potentially muddy the waters more than other amendments, or more than the Bill as it currently stands. It is a balanced judgment about whether we are better off with the Bill as it currently stands, whether the amendment would improve the Bill, or whether it could lead to concerns about the integrity of the statute if it were included.
Rebecca Paul
I thank the Minister for that explanation. I suggest it would also be appropriate for him to set out the changes that could be put in place in order for the amendment to work in that way. To my mind, that would give the true neutrality that he is seeking to achieve. Rather than set out why something does not work, he could set out how it could work in order to deliver the spirit of the change.
Stephen Kinnock
I think what I am saying is that the word “complication” contains a multitude of potential interpretations and meanings. The work that would need to be done by the Government to unpack it and understand what it means certainly could be done if the amendment passes, but the Government are saying that, as it stands, it is not clear. The drafting of the amendment is so ambiguous that it causes the Government concerns about its inclusion.
Naz Shah
This is a genuine question because I continue to struggle with this. What kinds of complications would we envisage if a lethal drug is being administered to a patient who has chosen assisted dying? What kinds of examples are there? Can the Minister help me understand?
Stephen Kinnock
With all due respect, I think it is more the responsibility of those who draft and table amendments to draft and table them in a way that leaves no room or as little room as possible for ambiguity. I think my hon. Friend would be better off addressing her question about the potential complications to somebody with clinical expertise, who could list off a series of potential physical manifestations. I am not qualified to do that. I do not have a clinical background so I am not able to answer her question.
Amendment 464 would impose a duty on the co-ordinating doctor not to do anything with the intention of causing the person’s death and to seek to revive the person if it appears to them that the procedure is failing. It is unclear what “appears to be failing” would mean, and what criteria would need to be met for the co-ordinating doctor to consider the procedure to be failing. It would be unusual for primary legislation to seek to mandate a clinical course of action in the way proposed by the amendment. In addition, the amendment could potentially create conflict for the co-ordinating doctor if the person has a “do not attempt cardiopulmonary resuscitation” order or a legally effective advance decision is in place, as the doctor would have to resuscitate them even if they had stated wishes to the contrary. That could give rise to engagement of article 8 of the European convention on human rights on respect for private and family life.
Amendment 532 would introduce a new duty on the Secretary of State to make regulations setting out what the co-ordinating doctor is legally permitted to do if they determine that the procedure under clause 18(2) has failed. Under the amendment, the regulations would also include specific actions that the co-ordinating doctor can legally take if there is a greatly prolonged death; if the person is unconscious and unable to make a second attempt at self-administration; or if the person has other complications. If specific actions that the co-ordinating doctor can legally take are set out, there is a risk that, when complications arise, they would be unable to take actions that are not listed. That may lead to uncertainty and restrict what the doctor can do, using their professional judgment, to respond to particular circumstances. It is unusual to set out a particular clinical approach in primary legislation.
Amendment 533 places a duty on the Secretary of State to make regulations specifying where the provision of assistance under the Bill may take place. It sets out a requirement on the Secretary of State to
“consult such persons as the Secretary of State considers appropriate”
prior to making such regulations, including certain specified groups.
I turn to amendment 430, which would broaden the Secretary of State’s power to issue codes of practice under clause 30 of the Bill. It would explicitly enable the Secretary of State to issue a code of practice in connection with
“responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails”.
Naz Shah
I respectfully point out that the Minister says that it is not for him to make interpretations and that he has not got the clinical expertise. I genuinely appreciate that, but I am also trying to understand why he accepts provisions that are not clear in the Bill. Why is he okay with those but not with the amendments?
Stephen Kinnock
My hon. Friend will have noted that a number of amendments have been drafted in collaboration with the Bill’s promoter, my hon. Friend the Member for Spen Valley. I think that demonstrates that when the Government have seen a lacuna, a lack of clarity or ambiguities in the Bill, officials, along with the Justice Minister, my hon. and learned Friend the Member for Finchley and Golders Green, and I, have worked with my hon. Friend to table amendments to tighten up the Bill. We are doing that in areas where we feel that ambiguity exists. However, when we feel that the Bill, as drafted, does not give rise to such concerns, our position on the amendments is according to our position vis-à-vis the current wording of the Bill.
Danny Kruger
The Minister said that the Government find it impossible to understand the word “complications” —that it is too complex and full of ambiguity. Yet in clause 9 of the Bill, we have that very word. The suggestion is that the doctor should
“discuss with the person their wishes in the event of complications”.
Is that unclear? If not, what is the difficulty with specifying “complications” in clause 30?
Stephen Kinnock
The challenge with amendment 436 is that the policy intent is not as clear as it is in clause 9. That clause is about conversations in advance of decisions about committing to the procedure, whereas when it comes to complications that have arisen in a rapid and fast-moving situation, the view of the Government is that it is adequate to rely on the professional judgment of the medical practitioner to take the decision that best suits that situation.
One is a conversation that can be explored between the clinician and the patient in advance, in a managed environment; the dialogue can take place in a considered manner. The second situation is one in which there is a particular physical manifestation and it is up to the clinician to take a rapid position and to decide, according to all the elements that they usually use, such as the GMC’s “Good medical practice”, other codes of practice and their own professional judgment.
Danny Kruger
The Minister suggests that it is appropriate for the patient to give some advance indication of what should be done in the event of complications, but that it would not be right for Parliament, too, to give advance direction of the sorts of responses that would be appropriate in the circumstances.
I am afraid that I do not understand the Minister’s distinction. Either it is possible to set in advance the sorts of responses that would be appropriate in the event of complications—the word “complications” is already in the Bill, so is clearly acceptable—or it is not. In the event of complications arising when the patient has not given clear instructions in advance, surely it is appropriate for the doctor to be able to rely on guidance, whether that is in the Bill or set out by the Secretary of State subsequently.
There needs to be clarity about what to do because, to repeat the point, this is not normal medicine—a fatal drug has been introduced into the body. That is not a normal medical situation in which a doctor just uses their clinical judgment; the only appropriate clinical judgment in such circumstances is to attempt to save the patient’s life, because that is what doctors are supposed to do. But we are telling them that they have been allowed to help a patient to die artificially. In that circumstance, what are they supposed to do when that is clearly not working?
Stephen Kinnock
How amendment 436 is drafted makes for a real challenge, because it is not clear what detail should be set out in the person’s medical records or in the report to the chief medical officer and the voluntary assisted dying commissioner. There is ambiguity in the drafting of the amendment.
Kim Leadbeater
To try to tie this together, I should say that there seems to be consensus that something has to be recorded in the event of complications. It feels to me as though what the Government are saying is that this is not the best crafted way of doing that—that is the worst sentence ever; I apologise. We have to look at the best way of achieving the intention of a number of amendments. I am looking at amendment 430, which I think achieves the objective. This feels as though it is a drafting issue, rather than necessarily a policy issue. I might be wrong.
Stephen Kinnock
Of course, if we can find ways to improve the Bill, we should—that is what this Bill Committee is for. But the input from my officials and parliamentary counsel legal advice have raised red flags about the amendments because of how they are drafted and the ambiguity that they give rise to. Clearly, it is up to the Committee to decide whether it wants to include the amendments or whether those issues could be looked at later—either on Report or when the Bill is going through the other place.
Naz Shah
We cannot have things both ways. I have re-read amendment 436 and I am not convinced that the issue is the drafting. It is very clear:
“If complications occur as a result of the provision of assistance the coordinating doctor must…make a detailed record of the complications…make a declaration…and…make a report”.
I am struggling to differentiate between having a conversation about it and it actually happening—it is still a complication, so why the resistance? Can the Minister agree that the Government will look at this and, perhaps in the wash-up, tidy it up—if that is the issue, and they agree in that instance?
Stephen Kinnock
Fundamentally, the role of the promoter of the Bill is to decide whether the Bill, as passed through this Committee, meets the policy intent that she wishes to achieve. Our job as Ministers is to work with her to deliver that objective. If the promoter of the Bill comes to the view that any of the amendments should be considered and added to the Bill, we will of course work with her to enable them to be delivered. My job at the moment is simply to say that there are concerns about these amendments due to the issue of ambiguity.
Kim Leadbeater
As a matter of clarity, although I appreciate the power that the Minister has just given me, which amendments we vote for is actually the job of the Bill Committee—rather than just my job, I would hope.
Stephen Kinnock
Absolutely, it is the job of the Committee to decide which amendments pass, but my hon. Friend’s role as the promoter of the Bill is to define the policy intent of the Bill—its fundamental objectives, the fundamental safeguards issues and its architecture in that sense. It is absolutely the responsibility of the Bill Committee to decide whether to amend the Bill.
Sarah Olney
I hope the Minister can answer a question for me. I hear what he is saying about concerns with the amendments themselves, which makes a lot of sense, and the policy objectives of the hon. Member for Spen Valley. What I am concerned about is that in the Bill as drafted, notwithstanding that various amendments have been tabled, it is not clear what the doctor should do in the event of complications. There may well have been an earlier conversation with the patient, but the patient’s request may still leave the doctor in the position of committing a criminal offence.
I would like to know whose responsibility it is to ensure that doctors are not left in that position, which could come about either because the Bill as drafted is not clear or the amendments do not make the appropriate clarification. The hon. Member for Spen Valley has done a marvellous job, but in terms of policy intention the Bill does not cover this aspect. The Minister is saying that it is his job only to ensure that the amendments are appropriate. I am still very concerned that there is a big gap here and that we are potentially leaving doctors in the very difficult position of not knowing whether or not carrying out the patient’s intentions would leave them in the position of breaking the law. I would like to know whose responsibility it is to ensure that doctors are not left in that situation.
Stephen Kinnock
The hon. Lady will know that we rely on medical practitioners to make professional judgments all the time. My hon. Friend the Member for Stroud has set out the range of things that medical practitioners can do when they are dealing with end-of-life care. That happens all the time.
In these circumstances, it is the view of the Government that we should continue to rely on the skill, judgment and expertise of medical practitioners, underpinned by the various codes of practice—the GMC, or good medical practice, being probably the most obvious one. There is an understandable desire to use primary legislation to address issues of this kind, but it is important to point out that that could prove to be counterproductive and that we could end up with a Bill that becomes less workable and therefore potentially less safe—what one might call the law of unintended consequences.
Sarah Olney
The Minister is talking about somebody making a medical judgment, which would obviously be the right thing to do in the normal course of events, but we are talking about a doctor being left in a position of not knowing whether to take a further step that would end somebody’s life or to take the step that would be natural for a doctor—to try to revive the patient. This is about what the legal position is in that case—it is not a matter for medical judgment.
Stephen Kinnock
My response would be to refer the hon. Lady to clause 30(1), which sets out that the Secretary of State will produce a code of practice. Amendment 430, which my hon. Friend the Member for Spen Valley has said she is minded to support, would also ensure that the code of practice includes guidance on the matter that the hon. Lady raises. I think there is a commitment to a code of practice, and if amendment 430 passes then it would be explicitly in the Bill that that code of practice should include the issue that she raises.
Amendment 533 places a duty on the Secretary of State to make regulations specifying where the provision of assistance under the Bill may take place. It sets out a requirement on the Secretary of State to consult such persons as the Secretary of State considers appropriate prior to making such regulations, including certain specified groups.
Amendment 430 would broaden the Secretary of State’s power to issue codes of practice under clause 30. It would explicitly enable the Secretary of State to issue a code of practice in connection with responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails.
I understand that amendment 255 is no longer relevant as it relates to schedule 6, which is going to be changed—I think that is right—so, in that sense, the amendment is null and void. I hope that those observations were helpful.
Kim Leadbeater
I thank colleagues for a thorough discussion of a group of interesting and important amendments. Amendment 429, tabled by my hon. Friend the Member for Bexleyheath and Crayford, would require the doctor to remain in the same room as the person. I respectfully disagree with my hon. Friend on that point. If a person is literally in the last few minutes and moments of their life, it should be up to them to decide who is in the room with them. In some cases, that might be the doctor, but I suspect that in many cases it would be loved ones and close family members.
We have had a thorough discussion of the range of amendments that look at how we deal with complications. My view is that amendment 430 would do what needs to be done. We need the Bill to show that this has been considered, and the logical place for that would be clause 30, on codes of practice. I am happy to support that amendment when the time comes to vote on it.
Danny Kruger
The Minister suggested that there will be a code of practice, but clause 30 says that there “may” be a code of practice. Does the hon. Member accept that there might not be one and that, even if there were, the only obligation on professionals would be to have regard to such a code? There is a big difference between that and a stipulation in the Bill.
Kim Leadbeater
I believe that amendment 447, tabled by my hon. Friend the Member for York Central, would change the “may” to a “must”. I am minded to support it for that very reason.
Amendment 532, tabled by my hon. Friend the Member for Ipswich, comes from a good place as is meant to be a way of trying to help the doctor, but I worry, as medical colleagues have commented during our deliberations, that it could create more of a problem for the doctor in that it would remove flexibility and the use of their clinical judgment and expertise. It always worries me when we are considering putting that level of detail in the Bill.
Jack Abbott
I appreciate what my hon. Friend is getting at in terms of what might happen down the line, but the amendment would not restrict any doctor’s flexibility at all or bind them in any way. All it would do is ask the Secretary of State to form a set of regulations.
Kim Leadbeater
The challenge would be in whether the co-ordinating doctor would be able to take actions that were not listed. I worry that a list would be quite restrictive. Amendment 430, which would look at the code of practice, would achieve something in a less restrictive way, which is why I am minded to support it.
We have had a really interesting discussion about amendment 533, and we will probably come further down the line to discuss where patients should have the choice to have an assisted death. I am not entirely sure how the amendment would work, which is why I am not minded to support it.
I am slightly concerned about the terminology and am not sure what the definition of “disadvantaged and marginalised communities” would be for the purposes of the amendment. I refer my hon. Friend the Member for Ipswich to new clause 8—the duty to consult—bearing in mind that there will be a long period of consultation before the Bill, if it passes, is enacted.
The Minister referred to amendment 255, which I think will fall as it refers to a schedule that has been removed from the Bill.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I am satisfied that the matters arising from clause 18 have been fully debated. I therefore do not propose to have a stand part debate.
Question put, That the clause, as amended, stand part of the Bill.
Kit Malthouse
On a point of order, Sir Roger. Is there any chance somebody could attend to the heating? I do not know whether I am the only Member who is starting to feel a bit cold. As the evening wears on, we are likely to get colder. If we could have it turned up slightly, that might assist our proceedings.
The Chair
I was under the impression that cold concentrated the mind, but we will see what we can do. I speak as one who will not be in the room. The point has been taken.
Clause 19
Authorising another doctor to provide assistance
Sarah Olney
I beg to move amendment 408, in clause 19, page 13, line 18, after “provided” insert “has been consulted and”.
The amendment ensures the person has been consulted before they have given consent for another medical practitioner to be authorised to provide assistance.
The Chair
With this it will be convenient to discuss the following:
Amendment 210, in clause 19, page 13, line 22, at end insert—
“(2A) Regulations under subsection (2)(b) may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”.
This amendment enables regulations under subsection (2)(b) to provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.
Amendment 499, in clause 19, page 13, line 25, at end insert—
“(3A) Where a registered medical practitioner who is authorised under subsection (1) is not satisfied of all of the matters mentioned in section 18(4), they must notify the coordinating doctor immediately.”
This amendment provides that where a practitioner authorised under clause 19(1) is not satisfied of all of the matters mentioned in clause 18(4), they must immediately notify the coordinating doctor.
Amendment 22, in clause 19, page 13, line 32, at end insert—
“(5A) Regulations under subsection (2)(b) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”
This amendment would require that, in the event of the coordinating doctor authorising another registered medical practitioner to provide assistance under the Act, that other registered medical practitioner must also have undertaken training on domestic abuse, including coercive control and financial abuse.
Clause stand part.
Sarah Olney
Amendment 408 seeks clarity on a critical aspect of the legislation. Clause 19 allows a co-ordinating doctor to authorise another registered medical practitioner to carry out their functions, providing that the patient consents and that the replacement has completed training, qualifications and experience as specified by the Secretary of State. This is a facilitation clause to smooth the process, and in some cases it might seem like something that we should just nod through. If the co-ordinating doctor becomes unwell, takes leave or faces an emergency that prevents them from fulfilling their duties, they might delegate to ensure continuity of care for the patient. If the patient relocates, perhaps to be closer to family, or if the co-ordinating doctor cannot travel to the patient’s location due to the distance or logistics, a local practitioner could be authorised to step in, provided they meet the specified requirements and the patient consents.
Naz Shah
I rise to speak to amendment 499, tabled by my hon. Friend the Member for Spen Valley. Let me outline what the amendment does and why I believe that it provides an inadequate safeguard. Under clause 19, the co-ordinating doctor may authorise another doctor to provide assistance—meaning that they will help the patient to take the lethal drugs. For clarity, I will refer throughout my speech to this other doctor who may step in to provide lethal drugs as the second doctor.
Under clause 18(4), the co-ordinating doctor must be satisfied of three conditions before they proceed to assist the person to take lethal drugs. Those three conditions are that the person has a clear, settled and informed desire to end their life, has capacity under the Mental Capacity Act 2005, and is not subject to coercion. Implicitly, the co-ordinating doctor can therefore end the procedure if they are not satisfied that those conditions apply. Under clause 19(3), the second doctor has the same duty as the co-ordinating doctor to be satisfied of those conditions before the assisted dying procedure can go ahead.
Amendment 499 would impose a new duty on the second doctor: if they suspected coercion, lack of capacity or lack of clear, settled and informed desire, they would have to inform the co-ordinating doctor. I suggest that the amendment does not take things far enough. It is a very serious matter if any doctor, be it the co-ordinating doctor or the second doctor, suspects coercion, lack of capacity or lack of desire. That means that a very serious mistake may well have been made, and that mistake could lead to someone having an assisted death who should not have qualified for it.
There should be several more safeguards in this part of the Bill. First, let us consider a situation where there was no previous suspicion that a patient had been coerced but where the doctor now suspects that they may have been. There should be a proper system of notification for such cases. It is true that doctors have a duty of care for patients, but it is also true that, given our overstressed, underfunded social care, health and policing systems, difficult cases sometimes fall through the cracks. The Bill should have a clear system for an authority to check back with the social care authorities and a person’s GP to make sure that steps are being taken to protect them from potential coercion. Secondly, the report that the second doctor makes in those circumstances should go to not only the co-ordinating doctor, but the voluntary assisted dying commissioner. Thirdly, when that happens, the commissioner should investigate the incident.
To repeat: if a doctor originally assessed a patient as qualifying for an assisted death, but a second doctor could not support that assessment, that is a serious incident that could lead to the assisted death of someone who should not have qualified for it. That does not mean that the co-ordinating doctor was necessarily at fault—not at all. The co-ordinating doctor will have been taking very difficult decisions under considerable stress. However, it does mean that the proper authorities should investigate the initial assessment, whether it was wrong and, if so, why it was wrong.
We see something similar with the Air Accidents Investigation Branch, which investigates not only accidents, but near misses that could have caused serious accidents. It does not assume fault when it investigates near misses. Often, it finds that there has been no human error. However, it has a statutory duty to investigate serious near misses. That is because the law passed by this House recognises that we need to understand why they happened in order to prevent fatal accidents from ever happening in the future.
For that reason, I do not think that my hon. Friend’s amendment is sufficient to fix the problems with this part of the Bill. I hope we can think about how better to address those problems, but I cannot support the amendment.
Rebecca Paul
I rise to speak in support of amendment 408, in the name of the hon. Member for Broxtowe. I also support amendments 499 and 210, in the name of the hon. Member for Spen Valley, and amendment 22, in the name of the hon. Member for Lowestoft (Jess Asato).
Clause 19 states that
“the coordinating doctor may authorise, in writing, a named registered medical practitioner to carry out the coordinating doctor’s functions under section 18…A registered medical practitioner may be authorised under subsection (1) only if…the person to whom the assistance is being provided has consented, in writing, to the authorisation of that practitioner”.
I support amendment 408, which adds that the person must also have been consulted.
I am sure the Committee recognises that, even where someone has basic training and the experience specified, delegating care at the end of life is something that must be done with great care, given the vulnerability of patients. If a co-ordinating doctor has guided someone through this profound and significant process, there are some intrinsic risks that come with delegating the administration of the final approved substance to someone else. I concede that there will be situations where a substitute may be required, but it will not be the doctor that the patient has trusted, confided in and relied on.
A new doctor will of course do the final checks for capacity and consent, but they do not necessarily have any specific detailed knowledge of the patient and may be unable to pick up less obvious cues that someone who knows the patient may be better able to. That gap matters, and history shows that it can lead to problems. The risks of delegation are well documented. If we take the Mid Staffordshire NHS foundation trust scandal in 2005 to 2009, detailed in the Francis report, consultants often delegated tasks to junior staff or nurses without adequate supervision, which contributed to poor care and an estimated 400 to 1,200 excess deaths. Patients suffered from neglect, untreated infections, dehydration and medication errors. That was partly because delegated staff lacked the training or authority to act decisively, and consultants failed to monitor effectively.
In surgical contexts, delegation can also falter. A 2006 Daily Mail report highlighted NHS payouts exceeding £1 million for wrong-site surgeries, where consultants delegated preparatory or operative tasks to trainees or assistants, who then misidentified sites—for example, operating on the wrong leg or tooth. Those errors often stemmed from inadequate briefing or supervision, pointing to a systemic delegation risk. We have to be really aware of this.
Those examples suggest that when consultants delegate, whether to junior doctors or other practitioners, including their peers, things can go wrong if communication breaks down, or if the replacement lacks equivalent expertise or is simply not aware of some of the detailed information. In order to manage some of the risks better, patients must be consulted about who takes over their care, and not just asked to consent after the co-ordinating doctor has decided what will happen.
Dr Shastri-Hurst
Given that valid consent requires a voluntary and informed decision, can my hon. Friend set out why that would not involve being consulted on the matter in any event?
Rebecca Paul
I would like to think that that would naturally happen, and we have had lots of conversations where we have said, “In reality, of course this conversation would happen.” But I always like to be belt and braces, and I would like to have these things covered in the Bill. If Committee members are confident that these things would happen anyway, I am not sure there would be any detriment to accepting this amendment.
I want to finish with a question for the Ministers. I have been worried—perhaps unnecessarily—about the lack of photographic identification in this process, and I can see a situation where allowing another doctor to provide assistance could create a risk. Although it might be less of a risk in someone’s home, because it would probably be clear who the person is, I am worried about a doctor in a hospital or clinic being substituted in at the final hour with no photographic verification of the person. At the point where they assist the patient to take the approved substance, how can the doctor be sure that it is the appropriate person if they have not had any involvement with the patient before? I accept, given some of the deep sighs I can hear, that that may be a rare occurrence, but it is worth thinking about. The simple inclusion of a photographic ID check would address some of that risk. I will not go over old ground, but I have been worrying about that.
Naz Shah
I rise to support amendment 22, in the name of my hon. Friend the Member for Lowestoft. Before I carry on, I am happy to give my hon. Friend the Member for Spen Valley the opportunity to say whether she will accept the amendment, because my hon. Friend the Member for Lowestoft has had a hat-trick of amendments being accepted around training on coercion.
Kim Leadbeater
I am very happy to accept amendment 22 from my hon. Friend the Member for Lowestoft, as it follows the theme of the previous amendments.
Naz Shah
I am grateful for my hon. Friend’s intervention, which will make my speech much shorter—I have repeated it at least three times on all the other amendments. While I welcome the amendment, I hope we can work towards something that strengthens the Bill even further.
Under the amendment, regulations would be made governing the doctors who could fill the role in the clause. Those doctors would have to undergo mandatory training in respect of domestic abuse, including coercive control and financial abuse. Giving doctors that training would not remove the danger that they will overlook evidence of abuse and coercion, but it should decrease it. The doctors we are talking about will spend less time talking to the person seeking assisted death than either the co-ordinating or the independent doctors. None the less, they will spend some time with that person, so I thank my hon. Friend the Member for Batley and Spen—sorry, Spen Valley; I keep going back to Batley and Spen, but we campaigned hard to get her elected there.
Stephen Kinnock
There are some amendments in this grouping—namely, amendments 210 and 49—that we worked on with my hon. Friend the Member for Spen Valley, and I will come to them later in my remarks.
If amendment 408 is passed, the person to whom assistance is being provided would have to be consulted before they consent in writing to another medical practitioner being authorised to carry out the co-ordinating doctor’s functions. All registered medical practitioners must uphold the standards set out in the General Medical Council’s “Good medical practice”, which requires registered medical practitioners to support patients to make informed decisions prior to consenting. Therefore, the proposed amendment may have relatively minimal impact.
Turning to amendment 210, clause 19(2)(b) sets out that a registered medical practitioner may be authorised to carry out the co-ordinating doctor’s functions only where they have
“completed such training, and gained such qualifications and experience, as the Secretary of State may specify by regulations.”
The purpose of the amendment is to provide that the required training, qualifications or experience are to be determined by a person or organisation specified in the regulations. An example of such a specified organisation might be the General Medical Council. Allowing for that to be specified in regulations rather than on the face of the Bill ensures flexibility.
Amendment 499 provides that where a registered medical practitioner who is authorised to carry out the functions of the co-ordinating doctor is not satisfied that all matters have been met, they must notify the co-ordinating doctor immediately.
If amendment 22 is made, regulations made by the Secretary of State on the necessary training, qualifications and experience of the named registered medical practitioner who is authorised by the co-ordinating doctor to carry out the co-ordinating doctor’s functions under clause 18 would need to include mandatory training relating to domestic abuse, including coercive control and financial abuse. The Committee has already made equivalent changes to requirements on training for the co-ordinating and independent doctors, so this amendment would bring the clause into line, should the co-ordinating doctor change, for the purposes of clause 18. Should this amendment be accepted, it would require setting up training mechanisms to equip registered medical practitioners with the knowledge and skills needed to identify domestic abuse, including coercive control and financial abuse.
On clause 19—sorry, I was going to refer to clause 19 stand part. That is the end of my observations.
Kim Leadbeater
Clause 19 applies when the co-ordinating doctor may not be available to provide assistance. They may be out of the country or unavailable due to other personal circumstances, as the hon. Member for Richmond Park articulated beautifully—I associate myself with her comments. Of course the doctor who steps in has to be trained appropriately, and if they are not satisfied of all the matters mentioned in clause 18(4), they must immediately notify the co-ordinating doctor. That is what my amendments 210 and 499 cover.
On amendment 408 in the name of my hon. Friend the Member for Broxtowe, who sadly is not with us today, it could be argued—and I take on board the comments by the hon. Member for Solihull West and Shirley—that it is unnecessary because it would be common practice by practitioners to consult. However, I also take on board the fact that the word “consultation” does some heavy lifting, and I think that is an important point, so I am happy to support amendment 408.
I have mentioned already in response to my hon. Friend the Member for Bradford West that I am happy to support amendment 22, for the reasons I have given previously in relation to similar amendments.
The Chair
Just before we move on to Sarah Olney to wind up the debate, I think I heard the Minister say, “No, that’s stand part.” Stand part is part of this grouping. Did the Minister wish to comment on stand part?
Stephen Kinnock
I did not wish to comment. That is why I sat down. I have said quite enough; I am sure everyone would agree.
The Chair
It was something else you were pre-empting yourself with—that is fine. I call Sarah Olney.
Sarah Olney
I have nothing to add.
Amendment 408 agreed to.
Amendments made: 210, in clause 19, page 13, line 22, at end insert—
“(2A) Regulations under subsection (2)(b) may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”
This amendment enables regulations under subsection (2)(b) to provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.
Amendment 499, in clause 19, page 13, line 25, at end insert—
“(3A) Where a registered medical practitioner who is authorised under subsection (1) is not satisfied of all of the matters mentioned in section 18(4), they must notify the coordinating doctor immediately.”
This amendment provides that where a practitioner authorised under clause 19(1) is not satisfied of all of the matters mentioned in clause 18(4), they must immediately notify the coordinating doctor.
Amendment 211, in clause 19, page 13, line 31, leave out subsection (5).—(Kim Leadbeater.)
See the statement for Amendment 187.
Amendment made: 22, in clause 19, page 13, line 32, at end insert—
“(5A) Regulations under subsection (2)(b) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”—(Naz Shah.)
This amendment would require that, in the event of the coordinating doctor authorising another registered medical practitioner to provide assistance under the Act, that other registered medical practitioner must also have undertaken training on domestic abuse, including coercive control and financial abuse.
Amendment made: 212, in clause 19, page 13, line 33, leave out subsection (6).—(Kim Leadbeater.)
See the statement for Amendment 188.
Clause 19, as amended, ordered to stand part of the Bill.
Clause 20
Meaning of “approved substance”
Danny Kruger
I beg to move amendment 409, in clause 20, page 13, line 35, leave out from “specify” to “for” and insert—
“two or more drugs or other substances with different techniques of administration”.
The amendment requires that the Secretary of State specifies two or more drugs or other substances, which have different techniques of administration.
The Chair
With this it will be convenient to discuss the following:
Amendment 465, in clause 20, page 13, line 36, at end insert—
“(1A) A drug may only be approved under this Act if it has been approved by the Medicines and Healthcare products Regulatory Agency for that purpose.”
Amendment 466, in clause 20, page 13, line 36, at end insert—
“(1A) A drug may only be approved under this Act if the Secretary of State is reasonably of the opinion that there is a scientific consensus that this drug or combination of drugs, is effective at ending someone’s life without causing pain.”
Amendment 437, in clause 20, page 13, line 38, at end insert—
“(2A) The doses and types of lethal drugs specified in any regulations made under subsection (1) must be licensed by the Medicines and Healthcare products Regulatory Agency.”
This amendment would require that any drugs and doses to bring an end to someone’s life under the Act be licensed by the Medicines and Healthcare Products Regulatory Agency.
Amendment 438, in clause 20, page 13, line 38, at end insert—
“(2A) The doses and types of lethal drugs to bring about the person’s death must be recommended by either the National Institute of Clinical Excellence or the All Wales Medicines Strategy Group in Wales’ guidelines as appropriate prior to licensing.”
This amendment will require the doses and types of lethal drugs must be recommended by either the National Institute of Clinical Excellence or the All Wales Medicines Strategy Group in Wales as appropriate.
Amendment 467, in clause 20, page 13, line 38, at end insert—
“(2A) Regulations under subsection (1) are subject to the affirmative procedure and when tabling the draft of the statutory instrument the Secretary of State must at the same time lay before both Houses of Parliament a report setting out all relevant information on the likely time to death, complications and likely side effect.”
Amendment 482, in clause 20, page 13, line 39, leave out “negative” and insert “affirmative”.
Clause stand part.
Danny Kruger
I rise to speak primarily to the amendments in my name and those in the name of the hon. Member for York Central with respect to the regulations for the approval of the approved substances—the drugs that will be used in the procedure of assisted death.
My amendment 465 states:
“A drug may only be approved under this Act if it has been approved by the Medicines and Healthcare products Regulatory Agency”.
Amendment 437 in the name of the hon. Member for York Central would achieve a similar objective. My amendment 466 would require that the drugs
“may only be approved under this Act if the Secretary of State is reasonably of the opinion that there is a scientific consensus that this drug or combination of drugs, is effective at ending someone’s life without causing pain.”
I also support amendment 482 in the name of the hon. Member for York Central, which would move the approval of the regulations to the affirmative procedure.
Those who support this Bill argue that death through the administration of lethal drugs offers dignity and the avoidance of suffering. If that is to be the case, the drugs used must be effectively regulated and life must be ended effectively and without pain. The amendments I have mentioned specify the role of the Medicines and Healthcare products Regulatory Agency; in my view, to leave this entirely in the hands of the Secretary of State, as clause 20 does, is quite an extraordinary step. It feels remarkable that the Bill as drafted leaves this enormous question to the Secretary of State.
[Peter Dowd in the Chair]
Good afternoon, Mr Dowd; it is a pleasure to serve under your chairmanship.
Throughout the Bill, important questions are left to regulations made subsequently by the Secretary of State. I think that is inappropriate here. When patients are prescribed medicines, in most cases the medicine will be licensed by the MHRA for use for the treatment of the particular condition. Patients can be assured that the medicine has been evaluated by the MHRA to ensure that it meets safety and efficacy standards. The MHRA reviews clinical trial data, inspects manufacturing facilities, monitors post-market safety and conducts independent quality testing so that there is regulation of medicine.
I have two concerns with my own amendments here; they might have occurred to other hon. Members, too, if they are paying attention. First, I do not accept that the procedure we are debating here is in fact healthcare. The question then arises, “Why are you proposing that the healthcare regulator would oversee the administration of the drugs?” My response to that is, “Well, somebody’s got to do it.” In fact, we are talking about substances that might be used in a medical setting, that would be appropriate in other medical settings, and that will have an effect on the body comparable to that for which they are licensed for medicine. Obviously, the intention is the direct opposite: they are licensed for genuine medicine and healthcare in order to preserve life and treat symptoms, but the intention here is to eliminate life without reference to symptoms.
Nevertheless, the only appropriate authority in our country is the MHRA—unless we were to conceive of another new body that would have that specific responsibility. However, that body would have the same obligations that the MHRA does to ensure that the substance is safe, paradoxically, in the sense of not causing unwanted side effects or distress to the patient.
The second objection—there is no reason why hon. Members present would know about it, but I have spoken in the main Chamber before about my concerns about the MHRA—is that, while I have just cited all the work that the MHRA is supposed to do in the regulation of medicines and healthcare products, I am afraid it does not do that job well. I do not want to give the Committee the impression that I think we have a perfect regulator; I think we have a very imperfect regulator in all sorts of ways.
In fact, the hon. Member for Stroud and I have participated in debates on the regulation of antidepressants and addiction-forming prescribed drugs, an important debate in which he and I are on the same side. There is genuine concern about the way the health regulator operates—we will not get into covid vaccines and other things at this moment; we have enough on our plate.
Nevertheless, despite the problems with the MHRA and the fact that I do not want to give the impression that I am concluding that assisted suicide is in fact healthcare, somebody has to do this. We cannot allow a situation in which the patient takes an overdose of a drug with no controls to ensure that the drug meets quality standards and does the job that it is meant to do. A tablet that is licensed for prescription or sale would need to have a minimum level of purity of the active substance, and to be free from other substances and contaminants that might cause unpleasant side effects or reactions. Without regulation, there is a risk that the drug may fail to work as intended or may induce unwanted side effects, such as those that we are all concerned about.
The question is: what safety standards should apply to an approved substance used for the purpose of assisted dying? A drug used to bring about death is not curing or preventing disease, or alleviating symptoms to improve death.
Sojan Joseph
We had some discussion earlier about how we will potentially be assisting dying in people’s own homes—that was not previously known to us; we thought it would be always in clinical settings—so medication will be transported from where it is stored as a controlled drug, in a hospital setting, to the patient’s home. Does the hon. Gentleman think that it is important that we have clear guidance as to how we store this medication?
Danny Kruger
I entirely agree. The regulations need to specify not only what drugs may be approved, but, as the hon. Gentleman suggests, how they should be stored and transported. I would expect that to be part of the package of regulations under the Bill.
As I have stated, I do not accept that we are talking about healthcare here; nevertheless, we are using products that are comparable to health products. The MHRA would need to significantly adapt its work in order to identify the most effective drug to cause what we currently perceive as harm—namely, the death of a patient. I recognise that that would be a significant change of remit and work for the MHRA, but we need to do it. One of the reasons that we need regulation of approved substances is to help ensure that falsified versions of the drug—drugs that do not have a licence for use in assisted dying—cannot enter the market. Such drugs may not be effective and could cause distress to those ending their lives and their families. I would be grateful if the Minister could clarify whether, in his view, clause 20 is sufficient to establish the necessary regulatory regime, or whether further legislation will be needed.
We had evidence from Greg Lawton, and other pharmacists, who wrote to the Committee to suggest that the approved substances would not legally come within the definition of a “medicinal product”, so medicines law, the protections associated with medicines and the MHRA licensing process might not apply. If that is the case, what do we do about it? We need a new licensing regime to ensure that the MHRA is able to properly regulate the substances, or, potentially, another regulatory agency would need to be established to do the job.
The Committee needs to make sure that there is a process that applies to approved substances used for assisted dying. It is not necessarily the case that a product licensed for treating a medical condition could not be used to bring about death—it is not the case that we cannot use any drug that is currently used for genuine health treatment—but it would not be being used as a medicine, so medicines law may not apply to its use for that purpose. There is an ambiguity, and I would be grateful for clarity on it.
The amendments that I am supporting would ensure that the MHRA had approved the drug for the specific purpose of ending someone’s life, and that there was scientific consensus that the drug would be effective for that purpose. The MHRA, in the marketing authorisation for the approved substance, would define the dosage of the drug required to bring about death. It would also ensure that specific considerations and warnings were placed in the product licence.
For example, some patients have allergies to certain drugs. If they decide to end their own life, that should be brought about as a result of the effect of the drug, not an unintended allergic reaction to it. Some patients would not be able to take drugs orally and might need to have the drug administered through a tube into the stomach, so different formulations would need to be available. Some drugs may need to be administered by injection. Patients may be unable to do the injection themselves, as we have discussed. Even if the patient is physically capable, injection techniques require proper training, and that needs to be considered when licensing drugs for assisted dying if the patient is responsible for self-administration.
There will be further considerations when deciding what drugs can be used. Patients will have a right to know what to expect. If they take the drug orally, how long will they have to wait before they die? Will they lose consciousness first? If so, how long will that take? Could there be some side effects or reactions after taking the drug, such as seizures or choking, that the family or carers will have to deal with? Can the drug be taken at home—that relates to the point that the hon. Member for Ashford made—or must it be used in a clinical setting? We have suggested that it could be used at home, so questions about transportation arise. Is a combination of drugs required? If so, in what order should they be taken? What happens if the patient passes out before taking the entire concoction of drugs? Has the drug formulation been optimised for the purpose of assisted dying, so that it reaches maximum blood levels as quickly as possible?
All these sorts of questions are appropriate for medical regulators. The MHRA could ensure that the patient information leaflet, and the warnings associated with it, given with the drug when it is prescribed prompt doctors to think about what drugs are most suitable for the patient and to provide information to the patient about what to expect.
Parliament must have oversight. It must bear responsibility for the kinds of deaths that it approves. Both Houses of Parliament should approve the statutory instrument. To inform that decision, the Secretary of State should provide all relevant information on the likely time to death, and on complications and side effects. When the state is creating a regime that will end lives, there must be maximum transparency and accountability, yet the Bill provides that this will be done by a negative statutory instrument. In other words, Parliament will get a say on the regulations only if the Leader of the Opposition prays against them—that is the process for a negative SI. That is the only circumstance under which the Government would make time for a debate and a vote on a negative SI. Given that this is an issue of conscience, I find it inconceivable that the Leader of the Opposition would want to take a position on it and so pray against it to trigger a proper debate. I think it is highly likely that Parliament would never get a say on this crucial issue because of the use of the negative procedure.
That situation has been recognised repeatedly as being unacceptable. When Lord Falconer introduced his Assisted Dying Bill to the House of Lords in 2014, it too provided for a negative SI power on this matter. The highly respected House of Lords Delegated Powers and Regulatory Reform Committee—we do not have an equivalent Committee in the Commons, but it sits over Parliament—said that it did not consider either the power or the procedure in the Falconer Bill to be appropriate, yet that is the procedure that we are being presented with here.
In 2021, when Baroness Meacher introduced her Assisted Dying Bill to the House of Lords, the Delegated Powers and Regulatory Reform Committee again issued a report, in which it said:
“In the interests of clarity and transparency on such important issues of public policy, the matters that are in due course to be dealt with under clause 4(7) by negative regulations should in our view be spelled out in detail on the face of the Bill from the outset. Accordingly, the Bill should contain a definitive list of medicines, and details of the manner and conditions under which such medicines are to be dispensed, stored, transported, used and destroyed. The power to amend such matters should be a matter for regulations subject to the affirmative procedure.”
We then come to Lord Falconer’s 2024 Assisted Dying for Terminally Ill Adults Bill, which he withdrew following the introduction of this Bill by the hon. Member for Spen Valley. That Bill in part took on that feedback from the Lords Committee. Although it did not provide a list of medicines, it did at least provide that the power to specify the drugs would be through the affirmative procedure.
The Hansard Society, which is non-partisan and neutral on assisted dying, has issued a critical report on this power. It says:
“MPs may wish to enquire why Kim Leadbeater has chosen not to adopt the scrutiny procedure set out in the 2024 bill, but has preferred that proposed in the 2014 and 2021 incarnations of the bill, despite the advice to the contrary of the Delegated Powers Committee.”
I would be grateful to learn from the hon. Lady why she has chosen this procedure.
It might be objected that the list that I am requesting might need to be modified quickly and that the affirmative procedure—having a parliamentary vote—would be an obstacle to doing that. The Hansard Society anticipated that objection. It said that
“this could be addressed by making provision for the use of the ‘made affirmative’ procedure in urgent cases where the Secretary of State wishes to remove a substance from the approved list and is of the opinion that it is necessary to do so immediately in order to prevent adverse medical events or failed assisted deaths. This would mean Ministers could act expeditiously but Parliament would have to debate and approve – albeit retrospectively – the change in the list. Whilst not perfect it would provide more opportunity for oversight than that offered by the negative scrutiny procedure.”
It seems to me that there is no justification for this vital matter to be regulated under the negative procedure. Too much power and responsibility is being given to Ministers subsequent to the passage of the Bill— if that is what happens. My amendment 467 would ensure that Parliament has a meaningful say, through the affirmative procedure, and that a report is published as part of that process setting out the expected efficacy of the drugs that will be used. I hope that the Committee will support it.
Rebecca Paul
My hon. Friend the Member for East Wiltshire eloquently covered most of the things I would have said.
We have probably not spoken enough to date about the impact on pharmacists, but we are getting to the point in the Bill where it is really important that we take on board the written evidence and feedback that we are hearing from them. The Royal Pharmaceutical Society said:
“In dispensing a prescription, a pharmacist assumes a proportion of the responsibility for that prescription and therefore must be assured that all legal requirements are in place and that it is entirely appropriate for the patient. The link to the clinical assessment of eligibility criteria is essential and therefore the prescriber should always be one of the assessors. In addition to the usual practice of checking that the prescription fulfils the necessary legal requirement, pharmacists must have full access to the patient’s diagnosis and assisted dying care plan.”
That raises a few valid and interesting points that we need to take on board to ensure that pharmacists can do their jobs in line with the regulations and laws they are subject to, which are ultimately there to maintain patient safety.
I support amendment 466, tabled by my hon. Friend the Member for East Wiltshire, which would ensure that the Secretary of State must be of the opinion that there is scientific consensus that the drug is effective without causing pain. I am of the view that the Secretary of State is probably the right place for that responsibility to sit. One reason for that, which my hon. Friend spoke about, is that I am not sure that the MHRA is the right regulating body for that. I am no expert on this, and I am open to hearing the debate, but the MHRA’s remit covers medicines and healthcare products, so there is a question about whether legally the responsibility falls to it. If it does not, do we set up another body, or do we adjust its remit so that it is covered? I have reservations about doing anything that would merge assisted dying into normal healthcare, but I have laid that out many times over the weeks, so I will not go over that.
My understanding is that, on top of all the things my hon. Friend set out, the MHRA’s role is to give marketing authorisation for the promotion and advertising of medicine. Once that has been given, reams of regulations and compliance must be done, including in respect of the labelling of medicine. I believe it would have to be put on packaging that a medicine could be used for assisted dying. We need to get clarity on that from experts in the field, so that we fully understand it. If that is the case, how do we feel about making it clear that said medicines, potentially out in the market, could be used for assisted dying? I suggest there could be some significant downsides to such clear labelling. That is something for us all to think about. I wanted to raise those important points.
Naz Shah
I rise to speak in support of amendment 465, tabled by the hon. Member for East Wiltshire. It is a pleasure to follow the hon. Member for Reigate, who has made some powerful contributions. As we have heard, the amendment states that a drug may be approved under the Bill only if it has been approved by the Medicines and Healthcare products Regulatory Agency for that purpose.
Danny Kruger
The hon. Lady puts her finger on the tension—my hon. Friend the Member for Reigate and I expressed it as well—about whether it is appropriate to give the health regulator responsibility for regulating a product that is about not health, but death. Does the hon. Lady agree that no other agency would be appropriate, given the skills she has set out? The purpose of these lethal drugs is to kill the patient; nevertheless, it is appropriate that we consider them in terms of not only that objective but their potential side effects. The purpose is not one of healthcare, but the product is very close to a healthcare intervention. Therefore, despite all our anxieties, it feels appropriate for the healthcare regulator to oversee this.
Naz Shah
I absolutely agree and share those concerns. This is important. I appreciate that we have had this debate for many days now. Is this a healthcare intervention? Is it a treatment? What words should we apply? In this instance, when it comes to drugs, there are potential side effects. We have seen that they do not work everywhere and that they create complications. We have just debated whether a doctor should be in the room, outside the room or round the corner, as well as whether they should be visible or able to see what is going on. Ultimately, this is about the drugs. Having looked at the issue, I genuinely cannot imagine anything but the MHRA in this role. Are we really going to set up something completely new, outside our health service, that regulates drugs, their side effects and the potential implications?
Dr Opher
The matter of unlicensed drugs sounds very alarming, but we cannot regulate a drug through the MHRA if it unlicensed, and we would be looking for therapeutic effect, which would not apply in this case. More importantly, many other regulatory bodies, like the pharmacy framework and the General Pharmaceutical Council—
The Chair
Order. Remember that an intervention should be a sketch, not an oil painting. It should be a question or should seek clarification; it should not be a mini-speech.
Naz Shah
My hon. Friend clearly speaks with expertise. There are other regulators, but the reason why I support amendment 465 is that the MHRA is an institution that we trust and that has the expertise. My understanding—my hon. Friend might be able to tell me differently—is that, of the regulators, the MHRA is the body that does the ultimate rubber-stamping and gives our country confidence in the national health service.
Danny Kruger
The hon. Lady is right that there is no other agency that is appropriate. The difficulty is that the MHRA is itself highly conflicted—we will come in due course to discuss the role of the profit motive in this mooted procedure—and the big problem is that it is overwhelmingly funded by the pharmaceutical companies. We have to ensure that there is no hint of corruption in the system, but I agree with the hon. Lady that the only way to do this is through that agency, but perhaps after reform.
Naz Shah
I thank the hon. Member for his intervention.
We should be using the world-class pharmaceutical regulator we already have to oversee the drugs that will be used for assisted dying, and I urge all Committee members to support the amendment, which is a very important safeguard.
Stephen Kinnock
It is a pleasure to serve under your chairship, Mr Dowd.
The Government’s assessment of amendment 465 is that it would significantly impact the legal and operational delivery of the Bill. The Government anticipate that all substances used for assisted dying will have existing licences from the Medicines and Healthcare products Regulatory Agency for other indications, but the amendment would require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying. That would require additional powers or provisions to ensure consistency with the current legal framework. The Bill does not currently provide for that, so the amendment would create significant issues for the Bill’s operability.
Amendment 466 would require there to be scientific consensus regarding the efficacy of the substances to be used in assisted dying under the Bill. The availability of scientific evidence related to the substances used for assisted dying is limited and varied across international jurisdictions. Although expert advice from clinicians and scientists will be fundamental to agreeing a list of approved substances for this purpose, in any area of medicine it would be challenging to achieve consensus on the medicines or substances to be used. The amendment may therefore open up the regulation-making process to legal challenge on the basis that there is not unanimity, and that might extend the implementation process. In addition, there may be variations in product availability and in clinical practice among countries, and that may require different substances or combinations of substances to be used.
Secondly, the amendment would narrow the scope of the duty, focusing on the drug’s efficacy in eliminating pain as a priority impact over other factors that may be considered. Our assessment is that the experience of pain is subjective. The amendment may limit the ability of a doctor to make an appropriate clinical decision on which approved substances to prescribe for their patient. The decision on an appropriate approved substance would be a clinical decision between the doctor and the person seeking assisted dying, having regard to the needs of the relevant person, including that person’s experience of pain.
Kim Leadbeater
My view is that this is very clearly a matter for the Secretary of State, but with expert clinical and medical guidance. These are the people who should be making the decisions about such drugs. The evidence about this type of medication exists. As part of the commencement period and the consultation period, I anticipate there will be wide consultation about the drugs that are available. I think it is best left with the Secretary of State, so I would leave the clause unamended.
Danny Kruger
I will press amendments 465 to 467, but not amendment 409. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
Before we continue, let me make a point about the process for tonight. We are not far off a vote in the main Chamber: it may happen in the next half-hour. There may be four or five votes, including a potential Division on Third Reading of the Children’s Wellbeing and Schools Bill. No doubt people will need a comfort break, so my intention is that when the Division bell rings, we will suspend for an hour and 15 minutes. I am not saying that that will absolutely the right period, but it is as good as we can judge at this stage.
Amendment proposed: 465, in clause 20, page 13, line 36, at end insert—
“(1A) A drug may only be approved under this Act if it has been approved by the Medicines and Healthcare products Regulatory Agency for that purpose.”—(Danny Kruger.)
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 379, in clause 21, page 14, line 10, at end insert—
“(3A) The coordinating doctor must, as soon as practicable, give a copy of the final statement to the Commissioner.”
This amendment requires the coordinating doctor to give the Commissioner a copy of a final statement.
The Chair
With this it will be convenient to discuss the following:
Amendment 500, in clause 21, page 14, line 10, at end insert—
“(3A) Regulations under subsection (3)(a) must provide that a final statement contains the following information—
(a) the person’s full name and last permanent address;
(b) the person’s NHS number;
(c) the name and address of the person’s GP practice (at the time of death);
(d) the coordinating doctor’s full name and work address;
(e) the date of each of the following—
(i) the first declaration;
(ii) the report about the first assessment of the person;
(iii) the report about the second assessment of the person;
(iv) the certificate of eligibility;
(v) the second declaration;
(vi) the statement under section 13(5);
(f) details of the illness or disease which caused the person to be terminally ill (within the meaning of this Act);
(g) the approved substance provided;
(h) the date and time of death;
(i) the time between use of the approved substance and death.”
This amendment provides that regulations about the form of a final statement must make the provision mentioned in paragraphs (a) to (i).
Amendment 439, in clause 21, page 14, line 20, at end insert—
“(7) The relevant body must supply—
(a) full medical records,
(b) court records, and
(c) all documentation relating to the assessments and procedures,
relating to bringing about the death of the person in accordance with this act must be made available to the Chief Medical Officer and the Assisted Dying Commissioner.
(8) For the purposes of subsection 7 the ‘relevant body’ is—
(a) the coordinating doctor, if they are a practitioner with the person’s GP Practice;
(b) in any other case, the person’s GP practice.”
This amendment would require full medical records, court records and all documentation relating to assessments and procedures to be supplied to the Chief Medical Office and Assisted Dying Commissioner.
Clause stand part.
Kim Leadbeater
Amendment 379 would ensure that the co-ordinating doctor provides the commissioner with a copy of their final statement in cases in which the person has successfully been provided with assistance to end their life in accordance with the Bill. That is an important part of the reporting procedures and of the role of the commissioner. If agreed to, the amendment will ensure a robust recording and monitoring process for assisted dying.
Amendment 500 provides that regulations about the form of the final statement must make the provision mentioned in paragraphs (a) to (i) of proposed new subsection (3A). It builds on my amendment 214, which would amend subsection (3)(a) to require that the form of the final statement must be set out in
“regulations made by the Secretary of State”.
This is another way of ensuring robust and thorough reporting.
Danny Kruger
I thank the hon. Lady for explaining the purpose of the amendments. Amendment 500 specifies the information that a final statement must contain. Will she clarify why there is no requirement to record any details of what happened once the drugs were administered, other than the time between the use of the approved substance and death?
In this debate, we have acknowledged the importance of record keeping. If the intention is to maintain public confidence in the system, should there not be some provision to record whether complications happen and what complications there were? This skirting of the issue of complications is concerning. We have ruled out explicitly informing patients of the risk of complications.
Kim Leadbeater
I do not think that anyone has ruled out discussing complications. Clause 9 makes it clear that the doctor has a very clear discussion with the patient about what will happen if they proceed with an assisted death.
Danny Kruger
I am sorry; I mis-spoke. I should have said that we have ruled out clarifying the expectations of what doctors should do in the event of an assisted death, and whether or not that is specified by the patient.
Earlier today, the Committee again ruled out specifying what the obligations on doctors are if complications arise, whatever the patient has discussed earlier. With this amendment, we now seem to be ruling out gathering any information about what happened, which is surely vital not just for safeguarding but to develop good practice in the operation of the Bill, a point that the hon. Member for Ashford made earlier. There is too much silence in the Bill, between the taking of the substance and death, on what happens if there are complications, what is permitted and, now, what is recorded. Amendment 439, in the name of the hon. Member for York Central, attempts to address that point. I hope that the Committee will accept it.
Naz Shah
I rise to speak to amendment 439, tabled by my hon. Friend the Member for York Central, which would amend clause 21 such that the relevant body would provide the chief medical officer and the commissioner with the full set of documents relating to a person who had undergone assisted dying. The relevant body would be the co-ordinating doctor if that person were a practitioner with the person’s GP practice. If the co-ordinating doctor did not meet that condition, the person’s GP practice would have the responsibility of sending those documents.
Those documents would be the person’s full medical records, court records and all documentation relating to assessments and procedures relating to the person’s assisted death. I note that “court record” refers to the Bill before we agreed to the amendments and new clauses that replace the High Court procedure with a panel system. We should be able to slightly tweak the wording to reflect that when we tidy up the Bill. That is what the amendment does. Let me say a little about why it does so and how it would make the Bill stronger.
The key aim is to ensure proper public oversight of any assisted dying scheme. The Bill creates the role of the voluntary assisted dying commissioner, who will look at and report on the workings of the system, appoint panel members and be the final court of appeal, so to speak. Those are far too many powers to give to one person, but if we are giving the commissioner a duty to report on how the system works, they should have the best possible information. It is only right that the information also be sent to the chief medical officer for England or for Wales, as appropriate; they are both very senior public officials and experienced doctors.
My hon. Friend the Member for Spen Valley has tabled amendment 382, which, to quote the explanatory statement,
“provides for monitoring, investigation and reporting functions under Clause 34 to be carried out by the Voluntary Assisted Dying Commissioner (instead of the Chief Medical Officers for England and for Wales).”
I will have more to say on that amendment when we come to it, but removing the chief medical officer from the monitoring, investigation and reporting functions is not a good idea.
What use could the commissioner and the chief medical officers make of the data provided under amendment 439? Let me give some practical examples. If there were reported instances of a person experiencing discomfort or pain as a result of taking the medication, that would be of interest to the CMO and the assisted dying commissioner. It could trigger a further exploration of the titration of medication used in the procedure. As another example, let us think about what could happen if a family raised concerns about a person receiving assisted dying despite lacking capacity or being coerced. The CMO and assisted dying commissioner could use the information provided to investigate those allegations.
The amendment will ensure that the assisted dying commissioner and the chief medical officer receive detailed qualitative as well as quantitative data on people who have received assisted deaths. It is an important step towards making sure that the assisted dying scheme receives proper, well-informed scrutiny. In turn, that scrutiny will make it less likely that the scheme will allow abuses or ignore serious problems. I urge hon. Members to support the amendment.
Rebecca Paul
I will be very brief. I rise to ask a few questions about clause 21 as a whole. Following our debates on various amendments, I am aware that family and those close to the patient could not be involved in the process, although potentially for understandable reasons. I appreciate that we are not here to deal with the whole operational piece, but we should think about it. For example, what happens with notifying next of kin after death, bearing in mind that “next of kin” has a different meaning after death? That is when we start to get into legal considerations, such as who the executor is—and this could be the first time that they are hearing about it. What would be the process for that, given that the person has potentially died on their own at home with the doctor?
What is the process for handling the next stage? Is there anything that we need to include in the Bill to make it a clearer, simpler and easier process? Who will the medical certificate of cause of death be given to for registration of the death? While all that is going on, what will happen to the body? At that point, we may not have family members to take care of that. Those are some questions arising from clause 21 that are worth reflecting on.
Stephen Kinnock
The amendments relate to clause 21, which applies where the person has been provided with assistance to end their own life in accordance with the Bill and has died as a result. Throughout this process, we have worked with my hon. Friend the Member for Spen Valley. Amendments 379 and 500 have been mutually agreed on by her and the Government, so I will offer a few technical and factual comments.
Amendment 379 would require that, where a person has been provided with assistance to end their life and has died as a result, the co-ordinating doctor must provide the voluntary assisted dying commissioner with a copy of the final statement under clause 21 as soon as practicable. That links to the commissioner’s role in monitoring the operation of the Bill, as set out in new clause 14. Amendment 500 sets out the information that must be included in the form of a final statement, which is to be set out in regulations in accordance with amendment 214.
The effect of amendment 439 would be to introduce a new requirement for the relevant body, defined as either the co-ordinating doctor or the person’s GP practice, to provide full medical records, court records and all documentation related to assessments and procedures relating to bringing about the death of the person in accordance with the Bill to the chief medical officer and the voluntary assisted dying commissioner. The amendment is broad, and it is not clear whether doctors would be able to comply with the duties fully.
For example, GPs do not normally have access to court records, and would need to request them to provide them to the chief medical officer and the commissioner. Currently, a decision to share court records is made at the discretion of the judiciary in most cases. As such, any statutory burden to disclose court records agreed by both Houses would require consultation with the independent judiciary. Depending on the type of record, there could also be data protection considerations.
Kim Leadbeater
I have nothing to add other than to respond to the fair point made by the hon. Member for East Wiltshire about complications. The doctor does have to record the final statement in the medical records, and I am confident that they would also record any complications in the medical records. Similarly, we have talked about the code of practice with regard to complications, so there is scope to include what would happen in those instances there. It is, however, a fair point, and it could be something to look at amending on Report, if the hon. Gentleman wants it to be in the Bill.
Amendment 379 agreed to.
Amendment made: 500, in clause 21, page 14, line 10, at end insert—
“(3A) Regulations under subsection (3)(a) must provide that a final statement contains the following information—
(a) the person’s full name and last permanent address;
(b) the person’s NHS number;
(c) the name and address of the person’s GP practice (at the time of death);
(d) the coordinating doctor’s full name and work address;
(e) the date of each of the following—
(i) the first declaration;
(ii) the report about the first assessment of the person;
(iii) the report about the second assessment of the person;
(iv) the certificate of eligibility;
(v) the second declaration;
(vi) the statement under section 13(5);
(f) details of the illness or disease which caused the person to be terminally ill (within the meaning of this Act);
(g) the approved substance provided;
(h) the date and time of death;
(i) the time between use of the approved substance and death.”—(Kim Leadbeater.)
This amendment provides that regulations about the form of a final statement must make the provision mentioned in paragraphs (a) to (i).
Clause 21, as amended, ordered to stand part of the Bill.
Clause 22
Other matters to be recorded in medical records
Kim Leadbeater
I beg to move amendment 380, in clause 22, page 14, line 25, at end insert—
“(1A) The coordinating doctor must, as soon as practicable, notify the Commissioner that this has happened.”
This amendment requires the coordinating doctor to notify the Commissioner of a matter mentioned in subsection (1).
The Chair
With this it will be convenient to discuss the following:
Amendment 440, in clause 22, page 14, line 34, at end insert—
“(4) For the purposes of subsections (2) and (3)(b), the information recorded must include—
(a) any interventions made by a medical practitioner in response to the procedure failing, and
(b) the timing of those interventions.”
This amendment would specify certain information to be recorded under section 22 when the procedure fails.
Clause stand part.
Kim Leadbeater
The amendment would require that if a person has decided not to take the substance or the procedure has failed, the co-ordinating doctor must, as soon as is practicable, notify the commissioner of that. It is fairly straightforward.
Sean Woodcock
I rise to speak to amendment 440, which stands in the name of my hon. Friend the Member for York Central. It concerns what the doctor must do when they are supervising an assisted dying procedure. It would add a requirement for the medical records to include
“(a) any interventions made by a medical practitioner in response to the procedure failing, and
(b) the timing of those interventions.”
Should the procedure fail and the person start to suffer complications, record keeping will be vital. That is particularly true because the Bill does not provide clear guidance on what doctors should do if a person starts to suffer complications during the assisted dying process; it states that a doctor and the applicant should discuss before the procedure what the applicant’s wishes would be if they suffer complications. We have heard from the Minister that doctors should use their clinical judgment when that happens to a person undergoing assisted dying. Some doctors may commence lifesaving treatment; others may decide to wait and watch while the patient suffers complications in the hope that those complications do not last too long.
Collecting accurate records will enable the authorities, including the Secretary of State for Health and Social Care, to compile information on people suffering complications during assisted dying procedures, however few they are. That in turn would allow for several things. It might allow doctors to compile data on which drug combinations and methods are most likely to bring about complications. It could help doctors and medical authorities to write procedures for responding to patients who suffer such complications. That information could also be used to inform patients about the likelihood of suffering complications if they go ahead with assisted dying.
We have heard from several hon. Members that good record taking is essential to monitoring and safeguarding assisted dying. Unfortunately, in other jurisdictions there are significant gaps in the data on when patients have suffered complications. In Oregon, records are destroyed the year after each annual report, and physicians are not required to be present when lethal drugs are taken, so the reports of complications depend on information provided by whoever was present at the time. Complications are recorded via a form, but in 2023, 72% of complications in cases were listed as unknown.
Simply recording the fact of a procedure failing will not provide enough information for monitoring, review and improvement. We should aim to do considerably better in the data we collect on patients who suffer complications, and that is why I urge Members to support the amendment.
Danny Kruger
I rise to speak to amendment 440, which stands in the name of the hon. Member for York Central. I echo the points made by the hon. Member for Banbury. Surely it is the case that the interventions made by a medical practitioner in response to the procedure failing, and the timing of those interventions, must be properly recorded. Should the procedure fail, the need for record keeping is of significant importance, as with all medical record keeping.
The doctor with the patient should write up the notes, including the times at which they reacted negatively to the procedure, the amount of medication that they consumed, any side effects and any action taken. That is good practice. In other jurisdictions there has been poor record keeping, as I mentioned, when things have not gone according to plan. We do not fully understand what happened in those instances or, more generally, the prevalence of complications in those jurisdictions. That information will be vital if further interventions are required, including emergency care.
Clause 22 deals with two situations: if the person decides not to take the substance or if the procedure fails—the phrase “Other matters to be recorded in medical records” seems a rather innocuous title for a clause that deals with such situations. In fact, I think that is the only mention of the procedure failing in the whole Bill. However, the clause, and amendment 380, simply require the co-ordinating doctor to notify the commissioner that it has happened as soon as practicable. Do we have any sense of when the doctor should judge the procedure to have failed? I would be grateful if the Minister or the promoter could offer a definition of procedural failure. What does that actually mean?
That question arises in other jurisdictions that have assisted dying laws. A 2019 paper by the Canadian Association of MAiD Assessors and Providers said:
“There is no clear cut-off for what constitutes ‘delayed time to death’ or ‘failed oral MAID’.”
At what point does a delayed time to death yield to failure? That question is not just abstract for us; it is a philosophical question in other contexts, but we are required to answer it. That paper goes on to suggest that
“clinicians should decide with patients in advance at what point they will consider inserting an IV and completing the provision”,
which is a rather euphemistic term but we know what it means. That is legal in Canada, but it would not be here, so what happens?
In written evidence, Dr Alexandra Mullock, who is a senior lecturer in medical law and co-director of the Centre for Social Ethics and Policy at the University of Manchester, pointed out:
“The Bill is silent on the precise obligations of the doctor if the procedure fails.”
Clause 18(9)(a)(ii) states that the doctor must remain with the person, but what the doctor should be permitted to do, either in relation to aiding recovery or supporting the person to die after the initial attempt has failed, is unclear. She said:
“During my work with the Nuffield Citizen’s Jury, the issue of what happens if the drugs do not end the person’s life was raised within the evidence presented to the jury, and this became a point of concern for several jurors.”
She also said:
“By not addressing this question within the Bill, it allows doctors to exercise clinical discretion, however, it is arguably legally and ethically preferable to clarify the position and address public concern by including a clause that covers this problem.”
I hope that is helpful.
I will end by referencing the hon. Member for York Central, who tabled amendment 440 and made the case very powerfully. She said that should the procedure fail, the need for record keeping is of significant importance, as with all medical record keeping. I have already said that, but we cannot have too much of the hon. Member for York Central.
Stephen Kinnock
Amendment 380 is one that the Government have worked on with my hon. Friend the Member for Spen Valley. As the Bill currently stands, clause 22 sets out that where a person decides not to take an approved substance provided under clause 18 or where the procedure fails, the co-ordinating doctor must record that that has happened in the person’s medical record or inform a registered medical practitioner with the person’s GP practice. The amendment would require that in those circumstances, the voluntary assisted dying commissioner must also be notified.
I turn to amendment 440. As I have just mentioned, clause 22 provides that the co-ordinating doctor is required either to record in the person’s medical records or inform a medical practitioner registered at that person’s GP practice if the person has decided not to take the substance or the procedure has failed.
The amendment increases the requirements on the co-ordinating doctor to document in such cases any interventions made by a medical practitioner and the timing of those interventions. The requirement on the co-ordinating doctor to record interventions following a failed procedure is open-ended in time, which could lead to operational challenges. For example, the co-ordinating doctor would remain obliged to record the medical interventions made by others in response to the procedure failing, even if those interventions took place weeks or months after the event itself. I hope that those observations have been helpful to the Committee.
Kim Leadbeater
I have nothing to add, other than to say that the complications that have been referred to many times today would be covered by the code of practice that we will introduce by agreeing to amendment 430.
Amendment 380 agreed to.
Amendment proposed: 440, in clause 22, page 14, line 34, at end insert—
“(4) For the purposes of subsections (2) and (3)(b), the information recorded must include—
(a) any interventions made by a medical practitioner in response to the procedure failing, and
(b) the timing of those interventions.” —(Sean Woodcock.)
This amendment would specify certain information to be recorded under section 22 when the procedure fails.
Question put, That the amendment be made.
Terminally Ill Adults (End of Life) Bill (Twenty-sixth sitting)
Wednesday 19th March 2025
(1 month, 1 week ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 March 2025 - (19 Mar 2025)
The Chair
Would everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room.
We will now continue line-by-line consideration of the Bill. I remind Members that interventions should be short and should raise points of clarification or questions; they should not be speeches in and of themselves. Members who wish to give a speech should bob and should continue to do so at the appropriate points throughout the debate until they are called. When Members say “you”, they are referring to the Chair. They should not use “you” to refer to one another; debate should be through the Chair.
Clause 23
No obligation to provide assistance etc
Amendment proposed (18 March): 480, in clause 23, page 15, line 3, leave out subsection (1) and insert—
“(1) No individual is under any duty (whether arising from any contract, statute or otherwise) to be involved, directly or indirectly, in the provision of assistance in accordance with this Act.
(1A) In particular, no individual is under any duty (whether arising from any contract, statute or otherwise) to—
(a) provide information about assisted dying;
(b) participate in an initial discussion;
(c) participate in the request and assessment process;
(d) supply, prescribe or administer an approved substance;
(e) be present at the time of administration of an approved substance; or
(f) dispense a prescription of an approved substance.
(1B) Nothing in subsections (1) or (1A) of this section shall affect any duty to—
(a) signpost someone to where they can obtain information about assisted dying (under section 4(5) or otherwise);
(b) perform acts of a clerical, secretarial, or ancillary nature; or
(c) perform any acts necessary to save the life of or to prevent grave injury to a person.”—(Danny Kruger.)
This amendment would expand the provision of Clause 23(1) to all individuals and clarify the activities in which they are not obliged to participate.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 483, in clause 23, page 15, line 5, after “assistance” insert
“, or in any activity closely related to the provision of assistance,”.
This amendment would widen the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance under the Act.
Amendment 484, in clause 23, page 15, line 8, after “Act” insert
“, or in any activity closely related to the provision of assistance under this Act,”.
Amendment 441, in clause 23, page 15, line 9, at end insert—
“(3) There is no obligation on any care home or hospice regulated by the Care Quality Commission or the Care Inspectorate Wales to permit the provision of assistance under this Act on their premises.”
This amendment prevents there being any obligation on a care home or hospice which is regulated in England or Wales to permit the provision of assistance under the Act on their premises.
Amendment 481, in clause 23, page 15, line 9, at end insert—
“(3) Nothing in subsection (2)—
(a) prevents an employer who has chosen not to participate in the provision of assistance in accordance with this Act from prohibiting their employees from providing such assistance in the course of their employment with that employer, or
(b) prevents an employer from specifying occupational requirements in relation to the provision of assistance in accordance with this Act in accordance with Schedule 9 of the Equality Act when hiring employees.”
This amendment ensures that employees cannot provide assisted dying against the wishes of their employers and that employers can still rely, in appropriate cases, on the occupational requirements of the Equality Act to either require employees to provide or not to provide assisted dying.
New clause 22—No obligation for occupiers and operators of premises—
“(1) Any individual, business, organisation, or association who occupies or operates premises has the right to refuse to permit the self-administration of an approved substance on their premises.
(2) Nothing in subsection (1) confers any right on anyone with an interest in the land but who is not occupying or operating those premises.”
This new clause would mean that the owners or occupiers of premises—but not landlords not currently in occupation—are not obliged to permit the self-administration of approved substances on their premises.
New clause 23—No detriment for care home or hospice not providing assistance—
“(1) No regulated care home or hospice shall be subject to any detriment by a public authority as a result of not—
(a) providing assistance in accordance with this Act, or
(b) permitting such assistance to take place on their premises.
(2) No funding given by a public authority to a regulated care home or hospice can be conditional on that care home or hospice—
(a) providing assistance in accordance with this Act, or
(b) permitting such assistance to take place on their premises.”
This new clause would mean that regulated care homes and hospices cannot be subject to any detriment for not providing or permitting assistance in accordance with this Act, and that their funding cannot be conditional on them providing or permitting such assistance.
Clause stand part.
Lewis Atkinson (Sunderland Central) (Lab)
It is a pleasure to serve under your chairmanship, Ms McVey, fortified as I am now with a touch of breakfast.
I wish to open my comments on this set of amendments by reiterating the importance of respecting people’s beliefs in healthcare and the contribution that people of different faiths, beliefs and positions make, no matter where they come from, in the context of the activities under the Bill.
I accept and recognise that amendment 480, in the name of the hon. Member for East Wiltshire, would do an important job in strengthening the Bill’s provisions. I obviously want to hear what the Minister says, and I note the comments from my hon. Friend the Member for Spen Valley, but I would want to see this sort of expansion in the final Bill when it goes back to the House. If they may not be the exact right words today, I repeat the offer that my hon. Friend has made to work across the divide, as it were, to ensure that such provisions are included in the Bill.
With the benefit of an overnight reflection, I feel that last night we got somewhat muddled around some of the objections on conscience, particularly when we go beyond the individual. Amendment 480 and equivalent amendments deal very clearly with individuals not having an obligation to carry out acts that would offend their conscience in the provision of these services. I think we can broadly agree on that. The remainder of the debate got rather muddled between organisations providing assistance under the Bill and the locations at which the final act of an assisted death may take place. I think those are importantly different.
On organisations providing assistance, I want to reset things with a common-sense approach to how it will work in practice. The hon. Member for Reigate made the point that hospices should be under no obligation as organisations to provide specific services. I agree. The powers set out under clause 32 for the Secretary of State to make arrangements for the provision of these services, which we will come on to debate at some point, will operate as they do elsewhere across the health service. An NHS organisation or another organisation will say, “This is the set of services that we provide as an organisation.” I see nothing in this Bill that will compel them to do anything other than that. Healthcare organisations up and down the land now make decisions about what is appropriate for them to deliver, based on skills, expertise and demand and whether they think they are well placed to provide care.
I agree with the hon. Member for Reigate, but it does not follow that the amendments are required to enforce that principle. As I understand it, because it is permissible, every organisation and every individual practising healthcare professional will be able to say, “On my own bat, I’m not going to participate in this, regardless of what my employer believes,” not least because of clinical governance and regulation. There is already a strong body of healthcare regulation around the acts and services that are provided. It is currently overseen by the Care Quality Commission. We do not need to reinvent that regime.
I reassure Members that I think it entirely appropriate for hospices or other providers of palliative care to consider whether they want to participate, should the Bill become law. I imagine we will get to a situation in which some will and some will not, which is absolutely appropriate. Particularly in end-of-life cases, a patient will make a choice on the back of that. I am aware that some end-of-life care providers in my area are actively considering whether this is something that they will do; I am equally aware that there are others that think it is not for them. We heard in evidence that in Australia some providers of palliative care provide integrated, holistic care in which it is one of a number of options, whereas other providers do not.
Amendment 481 would insert a new subsection (3)(a) into clause 23, which suggests that an employer has the power to veto an employee doing an act on their time. That is moot: it is not necessary. In the healthcare environments in which I have worked, a doctor may practise elsewhere, doing their own thing, but while they are employed in a certain NHS trust to do an NHS service, they cannot suddenly decide to do something else.
Rebecca Paul (Reigate) (Con)
The hon. Member is giving a powerful speech. My amendment is only to ensure that if the employee is working in an NHS clinic, they comply with the policy of that clinic. It would not restrict their doing other things in their own time. The wording of the amendment is clear, as I discussed with the hon. Member for Spen Valley yesterday, that it is just while the employee is performing services for the employer.
Lewis Atkinson
I agree that that is what the wording says, but my point is that it is moot. The hon. Lady herself states that the amendment is to prevent an employee from going against the policies of the employer. That power already exists. No healthcare professional says, “Even though I’m employed as a doctor today by such and such a trust, I’m going to do a set of procedures or practices that I want to do.” It is moot.
I have no issue with subsection (3)(a) in amendment 481, although I think it is unnecessary. However, I think subsection (3)(b) is deeply problematic. It cuts across employment law protections by referring to selection when hiring employees. There is a reference to the Equality Act, but as others have noted, it is not clear what protected characteristics we are talking about. At a deeper level, if we accept that there is going to be mixed provision, I would argue—and I think this Committee, in a small way, has shown this—that there is some benefit to that. We should not get to a position where every medic of a certain viewpoint on assisted dying works for one organisation and every healthcare professional of a different viewpoint works for another.
That is not to say, by any stretch, that organisations would be forced to offer assisted dying. Clearly they would not. If the Bill becomes law, however, I want a society that is relatively at peace with it in healthcare, recognising people’s ability to conscientiously object as individuals. Setting up a dichotomy from the start, in which where a medic decides to work is determined by their views on such and such a procedure, is not a road that we should go down. I also have serious concerns, in terms of employment law, about subsection (3)(b).
Rebecca Paul
The amendment is simply to prevent a discrimination case. Let us take another example. A rape refuge may provide services to women who have suffered sexual abuse; it may be appropriate, in that instance, to hire only women to support those domestic abuse survivors. In order to prevent a discrimination claim when hiring, we have to rely on the Equality Act and the exemptions carved out. All my amendment says is that the same exemption would apply when a hospice or clinic is employing. It is just to avoid those issues down the road.
Lewis Atkinson
I am afraid I cannot agree. The situation that I set out, in which a hospice makes an organisational decision that it does not wish to provide assisted dying services, is entirely legitimate under the Bill, as drafted. I do not, however, think it should screen which applicants have a certain view, which would be legal under the amendment. The example that the hon. Lady gives is rather different, because it relates to a particular protected characteristic. I am not an expert in the area, so maybe colleagues can help me, but this relates to specific services.
Lewis Atkinson
I will move on, because we have started slightly late and I am not sure that we are going to add anything on this point.
There is a fundamental distinction between providing assistance and being the location in which people may self-administer an assisted death. In his speech on new clause 22, the hon. Member for East Wiltshire somewhat overlapped those two things, if I may say so. Having established that a hospice would be under no obligation to provide, an individual would clearly not be able to turn up and say, “Your staff must help me to do this.” However, that is different from a situation in which someone living in their own private home— that might include a room in a care home or sheltered accommodation—decides that they want their healthcare team to carry out entirely lawful and appropriate activities under the Bill.
I therefore cannot agree with new clause 22. People are legally resident in these premises. They are registered to vote. In some cases, such as in warden-provided accommodation, they have a lease. It is not a landlord in absentia. I know that the hon. Gentleman has provided an opt-out for some situations, but what about warden and supported housing situations? We would not accept operators or owners policing what lawful activities should happen in someone’s own home within that environment. That is entirely different from the situation that the hon. Gentleman sketched out, in which everyone has to be involved. There would be no obligation whatever on any staff of that establishment to participate in an ancillary manner or otherwise, but in a private residence, such as someone’s room in a care home, we cannot allow that to be prohibited.
Danny Kruger
As always, the hon. Gentleman is making a helpful and intelligent speech, and I appreciate the distinction that he is trying to draw. There is a lot to say, and I will respond more when I wind up, but does he think that it would be an acceptable condition of a lease—or whatever the living arrangement is for residents of sheltered accommodation or shared places—for the operator to specify that no assisted dying shall be performed in those premises, and for that to be a condition of coming to live there?
Lewis Atkinson
My instinct is that it would not. If the Bill becomes law, it would be a lawful choice. The hon. Gentleman may not characterise it as healthcare, but it would be part of healthcare and end-of-life services. We would not accept such stipulations on other healthcare services. I can see a sketch that some may choose to draw; someone mentioned housing supported by a religious institution. The reality is that people do not go out of their way to offend, and they try to live in harmony with those around them. If people are clear that they might actively explore assisted dying as an option, they will not choose to spend their last days in a community where others are ideologically opposed to their choice; it would be uncomfortable for the individual. They would, however, have the legal right to do so.
Kit Malthouse (North West Hampshire) (Con)
Having also thought about this overnight, I think there is a freedom-of-association argument. If it were a Roman Catholic organisation designed just for Roman Catholics to live in, such as a home for retired priests, or if it were a Jewish organisation just for Jewish residents, I could see that, but that is not a service that is generally on offer to the public. My concern is whether we could see a situation in which the board of trustees of Hampshire hospitals foundation trust has a majority of people who have a strong religious conviction, and they vote that the service shall not be provided across the three hospitals that the trust manages. If the provision is drawn tightly and the freedom-of-association argument could be made, I could see it. Having said that, there is no institutional objection power in law for abortion: people just do not offer it because they do not have the staff to offer it. It feels to me as though that is what the hon. Gentleman is pointing to.
Lewis Atkinson
That is entirely right. The response of public bodies such as NHS trusts is a slightly different issue. I would not want to speak for the Government or imagine what the Secretary of State might say, but it would be inconceivable to me for a quasi-independent public body to decide, on a vote on principle by some local governors, not to offer citizens choices that have been enshrined in law. That is a slightly different point, but I am grateful to the right hon. Gentleman.
The hon. Member for East Wiltshire suggested yesterday that if someone chooses to have an assisted death, everyone in the care home or wherever would be part of it. That fundamentally misunderstands the point; I will go for “misunderstands” rather than doubting his intentions, but some would see it as scaremongering. No one is asking for the right to do it in a communal area, where staff or neighbours are forced to observe or participate in any way. Where people live in their own home, they should have rights and dignity at the end of life, whether that is in a care home or in a private residence. We cannot deny them the choice to access end-of-life options, as set out in the Bill. I therefore cannot support new clause 22.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Does my hon. Friend agree that, given patient confidentiality, it is highly unlikely that other residents of a care home would even be aware?
Lewis Atkinson
That is entirely possible. Clearly it is up to the individual concerned to discuss how far they wish to share with neighbours or friends, in the home or elsewhere, but we must not get to a situation in which, as a policy default, someone’s intentions at end of life are broadcast within a certain radius. My hon. Friend is entirely right and helpful in making that point.
Jack Abbott (Ipswich) (Lab/Co-op)
I do not want to go over ground that we covered in the later hours of yesterday, but this is sort of the issue that my amendment 533 sought to resolve, albeit via regulations rather than in the Bill directly. I am sure that our colleagues on the Front Bench will be doing some thinking about it. As the hon. Member for East Wiltshire alluded to, in some situations the question of place—of where we will be able to carry out these procedures—is not black and white. I fully appreciate what my hon. Friend is saying, which is that if someone chooses to end their own life in their own home, they should be able to do so. In some cases, however, the Government will need to give further thought to the issue of place. I think that is really important.
Lewis Atkinson
In considering the offer of any health or care-related activity, the appropriateness and suitability of the place is always in people’s mind, and clearly that varies. As I mentioned yesterday, we already have a licensing regime under which the CQC specifically licenses places for particular activity. I think my hon. Friend is right, but this is a normal part of decision making in the provision of health services and I do not think we should try to constrain it in primary legislation. However, as I started by saying, I recognise that we must enshrine the rights of individual conscientious objectors, which I think the hon. Member for East Wiltshire is trying to do with amendment 480, and I hope that we can do that, through some route, with the Bill.
Naz Shah (Bradford West) (Lab)
I rise to speak to amendments 441 and 484, tabled by my hon. Friend the Member for York Central (Rachael Maskell), and in support of new clause 23, tabled by the hon. Member for Reigate.
Amendment 441 would amend clause 23 so that there would be
“no obligation on any care home or hospice regulated by the Care Quality Commission or the Care Inspectorate Wales to permit the provision of assistance under this Act on their premises.”
I think it is clear that “assistance” in this context means the act of administering lethal drugs. That is the sense in which the word is used in clause 18, for example.
Amendment 484 would tighten that restriction somewhat by providing that there is no obligation on any hospice to permit
“any activity closely related to the provision of assistance under this Act”.
New clause 23 would also apply to all regulated care homes and hospices in England and Wales. It would provide that none of those organisations can
“be subject to any detriment by a public authority as a result of not—
(a) providing assistance in accordance with this Act, or
(b) permitting such assistance to take place on their premises.”
The new clause would also provide that no public authority can make its funding for a regulated care home or hospice dependent on the care home or hospice agreeing to provide assisted dying or to allow assisted dying to take place on its premises.
All the amendments have the same goal: to ensure that the Bill does not harm this country’s hospices. We have heard from many witnesses how much hospices do in providing palliative and end-of-life care. Caring for people who are close to the end of life is difficult and vital work. The people who do that on our behalf include some of the very best in our society. We should all hold ourselves responsible for not making the task of hospices more difficult. The idea that the Bill might do that has been raised with us by people working in this country’s hospices.
Hospice UK takes a neutral position on whether assisted dying should be legal in England and Wales, but it has set out clear positions on how the Bill should and should not affect hospices. On funding, its written evidence TIAB 36 states:
“If assisted dying is legalised and becomes part of the health service, steps should also be taken to ensure there is no financial detriment to any hospice, whatever their positioning on the practice.”
I agree strongly with that argument, for several reasons. The hospice sector in this country receives a mixture of public funds and private or charitable money, including donations and the proceeds of charity shops and fundraising events. Like the rest of the population, the people who work in and run hospices have a mixture of views on assisted dying. Many have strong objections on various grounds. If public funds were made dependent on hospices agreeing to assisted dying taking place, we would see several things happen, all of them bad.
In evidence to the Committee on 28 January, Dr Sarah Cox, a consultant in palliative care and president of the Association for Palliative Medicine, said:
“I am also concerned about our palliative care workforce, which we know is already in crisis. Eighty-three per cent. of our members told the Royal College of Physicians in 2023 that they had staffing gaps, and more than 50% were unable to take leave because of those staffing gaps. Forty-three per cent. said that if assisted dying were implemented within their organisation, they would have to leave. This has a massive impact on palliative care, in terms of its potential to develop both our funding and our workforce, who are really concerned about this.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 70, Q83.]
In evidence to the Committee on 29 January, Toby Porter, chief executive officer of Hospice UK, said:
“If hospices were involved in assisted dying, there is a theoretical risk that that would just reinforce an inaccurate perception about hospice and palliative care: the myth that you are helped along your way by doctors in hospices and hospitals. That is one risk.
More briefly, the second risk relates to the duty of care. What do you need for hospice and palliative care services? You need adequate resourcing, which means staff and finances. In terms of staff, the real fragility in the hospice and palliative care sector is a shortage of clinical staff—that is shared nationally with the NHS and other healthcare providers.”
Mr Porter also mentioned the evidence of Dr Cox. He told us:
“You will know from Sarah Cox’s evidence that the majority of palliative care consultants hold views against assisted dying, many of them very strongly. If the consultants felt, for example, that they could not keep their distance from assisted dying in a 12-bed hospice unit in the way they could in an 800-bed hospital, you could very easily see that if this was not done properly and the consultants deserted the hospice sector, you could no longer offer the specialist care that is so important to the Minister, the NHS and every health and social care provider.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 196, Q256.]
Many people would be entirely willing to enter a care home or hospice if they thought they might receive assisted dying there, but others already fear that they might be pressured into taking assisted dying if they enter palliative care. They may be wrong to fear that, but they do. We heard evidence on that point from Dr Jamilla Hussain, who gave evidence to the Committee on 29 January:
“I work predominantly with an ethnically diverse population. I have gone into those communities and I have spoken to them about this Bill. What they say overwhelmingly to me is, ‘We’re scared. We’re really fearful that this is going to result in a disproportionate impact on our community. We have seen that through covid and we’re so scared. We already don’t access your services. We’re really worried that we won’t want to access them any more, and we won’t want to access the hospitals.’”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 187, Q245.]
That fear will only grow if we use public funds to oblige hospices to permit assisted dying on their premises. Hospices should be able to say clearly to their patients that they do not allow assisted dying to take place on their premises. The dedicated professionals who work in hospices and who deeply object to people being helped to die with lethal drugs must also be protected. They should be free from having to work on premises where something they might disagree with happens.
I anticipate that some hon. Members may argue that amendment 484 draws its restrictions too tightly. They might argue that it would mean that a doctor working on a hospice’s premises or making a visit to a patient in a hospice could not have the preliminary discussion about assisted death with that person. However, I want to be clear that these measures relate to the provision of assistance under this Bill. “Provision of assistance” is the phrase used throughout the Bill to refer not to the preliminary discussion, nor to the interviews with doctors, nor to the panel process, but to that part of the process at which the person takes lethal drugs with a doctor present.
Kit Malthouse
This is obviously a difficult and sensitive area, but does the hon. Lady think, for example, that a women’s refuge run by a Catholic foundation should be allowed to evict a woman who wants or has an abortion?
Naz Shah
I absolutely do not think that, because her abortion rights are set out in law. However, I also think that when that woman is going into a refuge, that refuge will make it clear that she may choose not to. It is about empowering both sides.
I am grateful for the right hon. Member’s intervention, but let us follow that argument. Let us say that somebody wants to pursue assisted death, and they want to go into a place, but they are informed that that organisation does not want to provide or has not signed up to providing an assisted death. It comes back to the issue that my hon. Friend the Member for Sunderland Central rightly raised, which is that people do not deliberately go out looking to offend people. If we were in that space—I cannot imagine being there, but I am trying to understand it—would we want to access that service, because its religious belief differs from assisted dying as a principle?
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Just so I am clear, if a young woman is escaping domestic abuse and goes to a domestic violence space close to her home so that her children can carry on going to school, but finds out once she is there that she is pregnant by the abuser, does my hon. Friend think that that is acceptable?
Dr Tidball
That the domestic violence protection centre or home can refuse to let that lady stay there because she has latterly discovered that she is pregnant as a result of the abuse and wants to seek an abortion.
Dr Tidball
I am glad to hear my hon. Friend’s answer. I ask that question because I can imagine an analogous situation of a woman suffering from breast cancer who is allergic to opioids but does not know that when she enters the care home. If her cancer reaches a stage of terminality but she cannot pursue palliative options because of her allergy to opioids, assisted dying would be the only option for her to die with dignity and not in great discomfort. Under my hon. Friend’s scenario, that woman would not be able to pursue an assisted death in that care home.
Dr Tidball
To clarify, in my very clear example—it is a real-life example that reflects the experiences of someone who attended this Committee yesterday—the person has a terminal condition and enters a care home that makes her comfortable and is near her family, but discovers while the hospice or care home is trying to find methods to palliate that she is allergic to opioids and therefore her condition cannot be palliated. In the hon. Lady’s scenario, she would not be able to choose assisted death because that care home has a blanket policy against it. That would discriminate against that young woman, who has an allergy to opioids that means that she cannot be palliated.
Naz Shah
I thank my hon. Friend for her intervention, which gives me a lot to think about. That is why I said that I genuinely do not have the answers. I want to have this discussion so that I can make the choice whether to support the amendments. I want to explore this issue further, because it is really important.
Rebecca Paul
The conversation has moved on a little, but I was just going to make the point that the amendments that I tabled focus very much on the rights of the employer with respect to what they expect from their staff. I wonder whether it would be helpful to explore that a bit more.
Danny Kruger
There is much to get into, and I will try to respond a bit more when I speak again. I do not want to revisit the whole question of palliative care but, on the scenario set out by the hon. Member for Penistone and Stocksbridge, the strong advice that I have received from palliative care professionals is that it is not accurate to say that somebody’s pain cannot be palliated. It might well be that there is a difficulty with particular opioids, but there are other palliative care options available to everybody. No palliative care doctor ever says that there is nothing they can do.
Danny Kruger
Well, we have been over the whole question of palliative care and alternatives to assisted suicide; nevertheless, I wanted to challenge that scenario.
On the suggestion that there is a comparison with an abortion service no one is suggesting that a woman who goes into a refuge, discovers she is pregnant and wants to have a termination is somehow obliged to have it on the premises of the refuge, which does not believe in abortion. That is not a scenario that could happen, because that is not how abortion operates. What we are suggesting is that somebody who arrives in a care home or hospice that does not want to facilitate assisted suicide would not be able to receive such assistance there. There is no objection to their believing in or desiring an assisted suicide; the point is to protect the institution.
I recognise the difficulty with the specific case the hon. Member for Penistone and Stocksbridge raised. Nevertheless, the alternative is to have blanket permission for any resident of any care home or hospice to insist that they can receive an assisted death in that home or hospice, despite what the rest of that community and the management might want. Indeed, the patient might have signed a contract specifying that they will not seek an assisted death in that home or hospice. There is much more to discuss, but I hope that that is helpful for the hon. Lady.
Naz Shah
I thank the hon. Member. What he said is really helpful.
I want to come back to the issue of opioids. As someone who suffers from chronic pain, my understanding is that I have a choice over whether I take opioids or other medication. So when people are allergic to opioids, they can potentially access other medication for pain relief.
Jack Abbott
A lot of the focus in the last few minutes has been about a care home having already made it clear that it does not support the process of assisted dying and the fact that anyone entering it would therefore know that. However, there is a clear scenario where some care homes might change their position over time. Someone may be in a care home for many years, but then the care home might change its position and say, “Actually, now we do not support assisted dying.” In that scenario, people would actually have gone into that setting thinking that it supported assisted dying.
Although I am sympathetic to the issue of place being made clear, it has real ramifications. Again, I do not think it is as black and white as saying, “This care home already had a set position.” Some care homes or other settings might change their position over time, even when residents are in situ for a long time. That is the big problem with this particular clause: the situation is not as straightforward as some Members have perhaps suggested today.
Naz Shah
My hon. Friend makes a very valid point: it is not straightforward. That is why people are tabling amendments and having this discussion—to iron this issue out and make sure we nail it, to make the process as safe as possible.
There are laws in our country that protect people’s religious views—for example, we have the Equality Act 2010—and those laws are there for a reason. Speaking to all the amendments, I would not want to see hospices not being funded because they take a certain position. Also, from an employer’s perspective—I appreciate the scenario that has been mentioned, and I will come back to it—they may be recruiting in accordance with their values. We are all in politics, and we all sign up to a particular view of politics. When we recruit our staff, we put on the application form, or other information, that we would like applicants to believe in our value system. That is not discriminating against somebody who has a different value system. That would be my response.
Lewis Atkinson
I just want to nail this point about employers and recruitment. We have said that no organisation will be obliged to provide these services, in exactly the same way as with abortion. The example I would give is this: a provider of women’s services says, “We are not providing abortion. But, in addition, we are going to ask staff members we are recruiting if they believe it is ever legal for abortion to take place.” That is exactly the same test of belief, although on a different medical procedure, that my hon. Friend is proposing in this instance.
Naz Shah
That is not what I am saying. I am saying very clearly that when we recruit people to any job, we ask them to have the values that we have as an organisation. I appreciate my hon. Friend’s intervention, but what he says is certainly not the point I am trying to make, and I cannot imagine anybody—even for religious reasons, and even if they have changed their position—genuinely treating somebody in that way. We just do not do that.
Jack Abbott
I appreciate that, but as my hon. Friend has said a number of times over the last few weeks, some of these things unfortunately do happen. As I am sure we all do, I have had casework involving people with guide dogs saying that they have been refused certain services, including taxis, even though that is a civil offence because they have a guide dog with them. We have said a number of times that there are flaws in every single system. I appreciate that we want to adopt a good-will attitude, and I am sure the vast majority of settings across the country will operate on that basis, but we know that, in certain circumstances, that is not always the case. That is why, if we put anything in the Bill, it needs to have real clarity and not unintended consequences.
Naz Shah
My hon. Friend is absolutely right that we need to clarify this.
To sum up, this comes back to some of the questions I have for the Minister, and I wonder whether he can answer some of them. I say that especially because the Committee has had lots of debates on amendments tabled by the Government via my hon. Friend the Member for Spen Valley giving the Secretary of State statutory duties. Perhaps the Secretary of State will be able to clarify this issue and make it watertight using regulations.
Have we had an assessment of what the impact would be on the provision of healthcare if assisted death were permitted in either a hospice or care home, and is the Minister happy to share that assessment with the Committee? For example, if palliative care specialists are saying, “X amount of people would no longer want to be involved, so there is a real risk of an exodus of specialists from hospices,” we need to know whether there has been an assessment of that. Perhaps the Government can help us to understand that real concern from palliative care specialists.
Given that the Minister mentioned his visit to a hospice this week, has he had any discussions with Care England care homes about allowing this process to happen in care homes themselves? How have the concerns of clinical staff about allowing an assisted death in their healthcare facility been assessed, and have those concerns been put to him? How many staff have indicated that they would need to leave the NHS, care providers or hospices if an assisted death were mandated on their premises?
Coming back to beliefs, there is also the element of charitable bodies. Have we spoken to the Charity Commission about the impact on those bodies if they were pressured by the Bill into changing their charitable aims? Would they be protected from providing assisted death because of their charitable aims?
For me, this debate has raised more questions than answers, and there is much more discussion to be had. I am happy to listen to the hon. Member for East Wiltshire, as I can then intervene and probe further.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship this morning, Ms McVey, even though it is a little later than originally planned.
Amendment 480 is intended to extend the category of those protected from being obligated to participate in the provision of assisted dying under clause 23 from registered medical practitioners, registered nurses and registered pharmacists or pharmacy technicians to all individuals. The amendment also seeks to clarify what an individual can refuse to do under clause 23(1), by setting out a non-exhaustive list of activities under the Bill that an individual would not be obligated to participate in. The amendment also specifies that the ability not to participate in the provision of assisted dying does not override any duty to signpost someone to information about assisted dying; to perform clerical, secretarial or ancillary acts; or to perform life-saving acts or grave injury-saving acts.
The amendment would introduce significant legal uncertainty and may mean that a person who had opted in to providing services under the Bill could refuse to continue to do so or could use clause 23 as a justification not to perform their duties as described in the Bill. For example, they may use the amendment as justification for not checking eligibility criteria, discussing prognosis or palliative care options, or performing other requirements under the Bill.
Amendment 480 may also conflict with other provisions. It states:
“no individual is under any duty…to be involved, directly or indirectly, in the provision of assistance”,
in accordance with the Bill. That may, for example, mean that although doctors are required under the Bill to notify a cancellation, they would be allowed to refuse to do things under the Bill, even if they have opted in to providing assisted dying services. It is not clear which provision would take precedence, which could allow the doctor to decline to notify a cancellation, by arguing that they are relying on clause 23(1).
Amendment 483 is intended to extend
“the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance”
under clause 23(1).
Amendment 484 is intended to expand the protection from being subject to a detriment by an employer at clause 23(2), to include where a registered medical practitioner or health professional refuses to participate in activity closely related to the provision of assistance. The term,
“activity closely related to the provision of assistance”,
is not defined, and that could create uncertainty as to what types of activity it is intended to cover.
The Bill does not, as currently drafted, specify where the provision of assistance may or may not take place. Amendment 441 would prevent there being any obligation on a care home or hospice regulated by the Care Quality Commission or Care Inspectorate Wales to permit the provision of assistance to be carried out on their premises. The effect of the amendment may be to limit the places where assistance could be provided. It may thereby reduce access to an assisted death for those residing within a care home or hospice, if a care home or hospice did not wish to allow an assisted death to be provided on its premises. The amendment could preclude some people from accessing services under the Bill if they were near the end of life and leaving their usual place of residence was therefore impeded. It may result in inconsistent treatment for patients when seeking to access an assisted death. That could potentially engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life.
Amendment 481 has two parts. The first aims to ensure that employees cannot participate in the assisted dying process in the course of their employment if their employer has chosen not to participate in assisted dying. The effect of the amendment could be to limit the places where assistance would be provided, and it may result in inconsistent treatment for patients when seeking to access an assisted death. That could engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life.
The explanatory notes suggest that the second part of the amendment seeks to ensure that employers require employees to provide or not provide assisted dying under schedule 9 of the Equality Act 2010. That schedule enables an employer to specify that having a protected characteristic is a requirement of a job when having that characteristic is crucial to the post and a proportionate means of achieving a legitimate aim. The ability to specify occupational requirements is conferred by schedule 9 of the Equality Act, and reference to it in this amendment would not have any additional effect.
The purpose of new clause 22 is to provide that the owners or occupiers of a premises would not be obligated to permit the self-administration of an approved substance on their premises. This right to refuse would not extend to a person who has an interest in the land but who is not occupying or operating on those premises, such as a landlord. It is unclear if the term “premises” would apply to a residential property, care home or hospice. As a result, the amendment may mean that someone who is terminally ill and is residing in, for example, a care home or a hospice could be required to leave that care home or hospice in order to receive assistance under the Bill if the care home or hospice owner did not wish to allow assisted dying on their premises. That could engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life.
Jack Abbott
Another example raised by the hon. Member for East Wiltshire was about hospitals under certain trusts—because of the word “premises”. In the Government’s view, would hospitals and other such facilities beyond hospices and care homes also be included within this new clause?
Stephen Kinnock
As I was saying, the scope of the term “premises” is unclear. Is it residential property, care home, hospice or indeed hospital? That is one of the challenges with the drafting of the amendment: the scope and definition of the term is not clear.
Danny Kruger
We are going to get to the question of the NHS provision, but, surely, if it is the decision of Parliament and the Secretary of State that assisted suicide should be provided through the NHS, then that is what will happen. It might be that there are some trusts that will have some sort of autonomy—to the extent that they can decline to deliver certain services—but, if this is a healthcare treatment that is regulated in that way and if it is to be set out as something that shall be provided by the NHS, surely hospitals will not be in a position to decline to deliver, if they are indeed NHS hospitals. The purpose of these amendments is to protect private and charitable providers. Does the Minister agree?
Stephen Kinnock
I agree with the sentiment of the hon. Gentleman’s intervention. The challenge is that the way in which the amendment is drafted could well lead to unintended consequences, because the scope is not clear. If we are not clear what the scope is, it could potentially be exponential.
New clause 23 would prevent regulated care homes and hospices from facing any detrimental consequences for not providing or permitting assistance in accordance with the Bill. This also means that their funding must not be conditional on them providing or permitting such assistance to take place on their premises. As a result, a person who is terminally ill and is residing in a care home or hospice could be asked or required to leave that care home or hospice in order to receive assistance under the Bill, if that care home or hospice provider does not wish to allow assisted dying on their premises.
In such circumstances, the care home or hospice provider would not be able to be placed in any detriment as a result of any action or decision taken. This could engage a person’s right under article 8 of the ECHR. Further, public authorities would not be able to persuade care homes or hospices to provide or permit assistance to take place on their premises by offering additional funding if they agreed to do so. Equally, if a public authority gave funding to care homes or hospice providers in recognition of their agreement to provide or permit assisted dying on their premises, and that provider later decided not to provide or permit the assistance, and spent the funding on other matters, the public authority would not be able to recover the funding if it were given unconditionally.
Clause 23 sets out that no registered medical practitioner or other health professional would be under any duty to participate in the provision of assistance in accordance with the Bill. It also sets out that employees cannot be subject to any detriment by their employer for exercising their right to either participate or not participate in the provision of assistance in accordance with the Bill. Further amendment to the clause will be required on Report to ensure that the opt-out in clause 23(1) and the employment protections in clause 23(2) work effectively alongside the duties imposed on health professionals in other provisions of the Bill as amended in Committee.
I hope those observations were helpful.
Kim Leadbeater (Spen Valley) (Lab)
Thank you for stepping into the breach this morning, Ms McVey.
Clause 23 provides that there will be no obligation on medical practitioners and health professionals to provide assistance as set out in the assisted dying process. We know doctors and other health professionals hold a variety of views on assisted dying. A significant number are in support of what this Bill sets out to do, and the experience from other jurisdictions is that that number increases once it is seen to be working safely and effectively in practice. Others, of course, would object to being involved at any stage and I am very respectful of that. The Bill is about giving terminally ill people choice and autonomy, but it is absolutely right that the principle of autonomy is extended to registered medical practitioners, health professionals and others.
As such, I turn to amendment 480. I agree with the intention behind the amendment—nobody should have a duty to be involved with the provision of assistance in accordance with the legislation—and I think there is consensus across the Committee on that.
However, I am concerned about the drafting of the amendment, the lack of clarity around being directly or indirectly in the provision of assistance, and the framing of the selective list of activities. I fear that the amendment could have unintended consequences and an impact on continuity of care, and I take on board the Minister’s comments about the significant legal uncertainty that that would create. I therefore cannot support the amendment as drafted but, as I have said, I am happy to work with the hon. Member for East Wiltshire to consider an alternative amendment that would better achieve the aim of ensuring that no one has an obligation to take part in the assisted dying process.
Danny Kruger
Obviously, the sentiment that we should work with hospices and let them set their own policy is absolutely right—that is the purpose of the amendment—but does the hon. Lady acknowledge that the Minister just said that if any hospice attempts to prevent assisted dying from taking place on their premises, there will be human rights claims? They can have all the consultations and conversations they want, but unless the Bill specifies that they are allowed to opt out, they will be forced to do it.
Kim Leadbeater
The hon. Gentleman makes a good point, and I am aware of the Minister’s comments. This will be part of the discussion as we take it forward. That is why this debate is really powerful.
In their written evidence, the trustees at Willow Burn hospice, based in the UK, told us:
“Our Mission is to deliver hospice care of the highest standard to our patients and those important to them...We also believe that we should support and enable people to make the choices that matter to them.”
They said they had not decided their position on assisted dying and remained
“open minded about possible future actions. We believe this stance is in the best interests of patients and their families and reflects the wishes of our community.”
I welcome that open-minded approach and their commitment
“to put care, compassion and dignity at the heart of everything”
they do. Contrary to what the hon. Member East Wiltshire has said, the picture is not black and white. I agree with my hon. Friend the Member for Ipswich in that regard.
Colleagues may remember the evidence given to the Committee by the CEO of Hospice UK, Toby Porter. He clarified for us that institutions do not function in the same way as individuals when it comes to conscience-influencing decisions. He told us:
“There is this idea that your individual opinion guides everything, but with a hospice charity the opposite is true. As many Members will know because of their own work as trustees, the trustees and leadership of a hospice team are required to put personal opinion and interest to one side and always act in the best interest of the charity’s beneficiaries, who are the population.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 195, Q255.]
It is also important to remember that international experience shows that up to 30% to 40% of patients who sign up to the assisted dying process ultimately do not access it. Palliative care may meet their needs, or they may simply change their mind. However, we also know that the reassurance and comfort that the choice of an assisted death provides alongside other treatment and care is really important to them, and I do not believe that reassurance should be denied to some people because of the institution they happen to be in.
Kit Malthouse
The hon. Lady is outlining the issues very effectively. No one, of course, is saying that anybody who works at the hospice that may object has to participate. It may say, “No one here will assist.” We have talked about the importance of place. To a certain extent, I have a right as a tenant in a place where I am resident. It seems that my hon. Friend the Member for East Wiltshire is proposing actively to prevent someone from being able to access this in a place that they choose. That feels to me the wrong balance. I wonder whether that is broadly where she is heading.
Kim Leadbeater
The right hon. Gentleman makes an important point. The word that we have used a lot—maybe not enough in some respects—is choice. That is important for individuals, but it is important for institutions as well. Putting an institutional opt-out in the Bill would risk creating confusion and distress for patients and their loved ones, and indeed for staff and volunteers.
Rebecca Paul
Does the hon. Lady have any concerns about what this position would mean for the end of life workforce? I know we are here to make law, but we cannot ignore the practical consequences for end of life care. If we do not have this carve-out, we could lose a lot of wonderful and great people who work in end of life care and who feel that they are not able to participate, if the hospice cannot specify.
Kim Leadbeater
The hon. Lady is absolutely right to acknowledge the wonderful workforce working in end of life care, but there is a range of views within that workforce and there is the individual opt-out. No one has to be involved in this process if they do not want to be. That is clear in the Bill as it stands. I hope that, working together, we can make that even clearer if needed.
Under the Bill, doctors and health professionals already have the ability to opt out for any reason, wherever they work.
Kim Leadbeater
It is a good point. My understanding—the Minister might correct me—is that pharmacists currently are within the definition of health professionals, but if they are not, that is an important point, which would be covered by making the change to ensure that no one is under any duty. However, I will definitely check that.
Mr Porter also said:
“hospices evolved out of the community. They exist because communities wanted better deaths. In the end, it is the job of institutions to evolve to fit the values and laws of society as they evolve, rather than vice versa.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 202, Q264.]
The polling on assisted dying shows significant public support for a change in the law, which is one of the main reasons we are here discussing the issue today. The latest figures from the British social attitudes survey, published just this week by the National Centre for Social Research, show that support at 79%, which is unchanged or slightly up on a decade ago. Although I cannot support these amendments, this is an important debate. I think we have conducted ourselves extremely well over the past 24 hours. I think it is important that we continue the debate respectfully and sensitively.
Danny Kruger
I, too, am very grateful to you for rescuing us, Ms McVey; thank you. I also thank the hon. Member for Spen Valley: it is nice to be commended for our good conduct, so I am grateful for that. This has been a very interesting debate, and I thank all hon. Members for participating. I appreciate the fact that we have made some progress in understanding each other and potentially improving the Bill, although I regret the lack of support from the Government Front Bench for the amendments that I have tabled.
Let me just refresh memories on the purpose of my amendments. The Bill promoter has tabled amendments to clauses 24 and 25, which we will come to and which keep the phrase
“providing assistance to a person in accordance with this Act”,
but add to it these two other phrases:
“performing any other function under that Act”
and
“assisting a person seeking to end their own life in accordance with that Act”.
Those amendments expand the protection from criminal and civil liability. They mean that performing any other function under the Act and assisting a person seeking to end their own life, in connection with the doing of anything under the Act, are both protected from criminal and civil liability. But the hon. Lady has not tabled a similar amendment to clause 23, and there is a real risk. The British Medical Association, the Royal Pharmaceutical Society and the Royal College of Nursing, as I mentioned yesterday, have all warned that the protection of conscience clause is limited solely to the final act, rather than applying to all functions under the Act. I appreciate that the hon. Lady expresses a commitment to trying to ensure that we do cover everybody and all appropriate actions and activities that take place, but I suggest that that is what my amendment would do.
In response to the objections to the amendment, I appreciate the sudden interest in precision in drafting.
Danny Kruger
Well, every time that those on my side of the debate raise detailed, particular points we are told, “Oh, the spirit of the text is clear. We’ll sort that out later. It’ll come in guidance.” We are told that we should not be nitpicking, embroidering and so on. Anyway, I appreciate the attention to detail, and I want to respond to some of the points.
With respect, the Minister made a pretty tendentious suggestion that a doctor could opt in to assisted dying and take part in some of the procedures but then suddenly decide to neglect performing others, and that that would not be negligent. I cannot conceive of any court or tribunal conceding that it would not be negligent not to fulfil the obligations under the Act once the procedure has begun—once the doctor has made commitments and already undertaken activities to progress an assisted dying case.
The hon. Member for Luton South and South Bedfordshire objected on the grounds that the amendment might give a gardener or cleaner the right to opt out. Proposed new subsection (1B)(b) of clause 23 actually makes it clear that “ancillary” activities are not protected by the conscience clause, so the gardener would not be off the hook—under the amendment, the gardener would still have to mow the lawn.
I recognise that the drafting might not be perfect, but I emphasise that the PBL “Guide to Making Legislation”—by the secretariat to the Parliamentary Business and Legislation Cabinet Committee—makes it clear that Government should not object to Back-Bench amendments on drafting grounds. If there are issues with particular phrasing that cause the Government or the promoter concern, that can be addressed subsequently, so I regret it if the Minister is using drafting issues to justify a refusal to support these amendments.
On new clause 22 and the issue of premises, which we have discussed very interestingly, a couple of objections have been raised. The first relates to shared ownership schemes, which we are all familiar with, particularly for elderly people. The answer is simple. The corporate owner under a shared ownership scheme is not in occupation. Being in occupation has a particular meaning in land law, and it is not the case here that a tenant genuinely in occupation of their own premises could somehow be denied their right to have an assisted death in their own home because of the freehold arrangement of the premises they occupy.
I am grateful for the indication given by Members, particularly my right hon. Friend the Member for North West Hampshire, that there may well be circumstances in which it is appropriate for particular premises to opt out of the obligation to facilitate assisted dying, so that a particular institution would have the right to deny permission for assisted death.
Kit Malthouse
To clarify my remarks, I was not necessarily saying that they should have the right to deny, but by default they would if they were, in effect, a closed community that was discriminating in favour of like-minded individuals—a home for retired Catholic priests, for example. By default it would be someone who was unlikely to offer those services. The other point to ask is: if I am in a hospice, in my bed at the last with visitors coming to see me, and one of those visitors is the doctor who is coming to administer to me, I am not quite sure how that would be prevented, unless people are willing for there to be a wrestling match at the door of my room.
Danny Kruger
Under the terms of amendment 441, the owners of the premises would be entitled to deny access to anyone who is seeking to deliver an assisted dying service on their premises. They would be entitled to prevent that from happening, yes. Obviously, that is an extremely unlikely scenario; nevertheless, it is one that I think we need to contemplate.
I thank my right hon. Friend the Member for North West Hampshire for his clarification. I had understood that he had acknowledged that it would be appropriate for the management of a Catholic care home to specify that there shall be no assisted dying on the premises, but he is suggesting that it would be illegal or inappropriate for the management to make that stipulation; it just would not happen organically, because no one would want that in that place. I regret that, because I think it should be appropriate for the management of a place—not in some sort of vindictive mission to deny people a particular right or service—to convey to everyone else who lives there that this is, as it were, a safe space in which there will not be state-assisted suicide. I think that is a reasonable hope and expectation that many residents will want when they live in a certain place.
Once this becomes normalised, once it becomes 5% or 10% of deaths, as happens in parts of Canada—if this becomes a normal and standard way to die—I think many people will not want to live in communities in which that practice takes place. I am afraid that we will find a demarcation, a bifurcation in society, for those who do not want to live in an assisted suicide community. It would be appropriate for them to have the option of going to live in a place where they know that will not be taking place.
I concede, by the way, that for many of the institutions that we are imagining here, these shared communities, it would be perfectly appropriate and understandable for it to be an option for residents. Let us think about the different sorts of places we are talking about. The Duchess of Somerset almshouse in my constituency—the sort of place we have in Wiltshire—is a lovely place, beautiful. It has lots of Liberal Democrat voters in it, which I know because I knocked on all their doors—unfortunately, the wrong sort of Liberal Democrat. I can imagine many of them supporting the right in their home, behind their own front door—which they have there—to have an assisted death, and I am sure that the other residents of that place would concede that that is appropriate.
In other places in my constituency, however, a hospice being the most obvious one, neither the management nor the other residents would be comfortable—in fact, they would be extremely uncomfortable—with the sense that assisted suicide might be practised in the next-door room. Whether it is performed, as it were, by the hospice staff, or merely facilitated by them—it would be extraordinary were it somehow to take place without the facilitation of the staff who managed the facility and look after the patients—for it to take place on some sort of parallel track would be an extreme imposition on that hospice and its management. It would be extremely disquieting for everyone else who lives and works in that place. I therefore think it is an appropriate consideration to give such places the right, at a management level, to opt out.
I also want to express my deep concern about what we heard from the Minister—his suggestion that we should not give either individuals or institutions the absolute right to opt out of the facilitation of assisted suicide because we think the European convention on human rights might challenge that. He suggested that a court in this country or Strasbourg would overrule a decision or would negate this law, or challenge it, if we passed it with these amendments to protect hospices and individuals. We would then have a court citing international law in an attempt to overturn this law. I am very concerned about that in terms of both parliamentary sovereignty and the Government’s position. Surely, if the Government think this is the right thing to do, we should do it even if we fear an ECHR challenge. This is a craven submission to a lawmaking body that is not sovereign in our country and would be only advisory. I regret what the Minister for Care said and hope that the Justice Minister can clarify that the Government would not concede an ECHR challenge if Parliament decides to insist on individuals’ rights to decline to participate in assisted suicide.
In response to my challenges on that point, the hon. Member for Spen Valley suggested that it would be an interesting topic for a future conversation. This is the moment to have that conversation. We are deciding on amendments now that will insist on people’s right to decline to take part in assisted death. There will be no further opportunity to insist that people have that right to opt out except on Report, which will be a limited opportunity.
Yesterday, the hon. Member for Luton South and South Bedfordshire made an interesting point that had not occurred to me—whether a husband living with his wife in their own shared home could legitimately deny her the right to assisted suicide in their home. It is a very good challenge. It is certainly not the policy intention, as I am sure the hon. Lady appreciates, to enable one partner to deny the other the right to assisted suicide in their shared home. I ask her to accept that that is not the intention. The purpose of the amendment is to give an occupier the right to refuse assisted dying.
With the hon. Lady’s permission, given that this clause will be voted on only next week, I propose tabling an amendment that would address her concern. I am happy to work with her or the Government to get to the point where we are satisfied that that concern has been addressed, because she is absolutely right: in someone’s own home, their partner or the person who shares the home with them should not be allowed to deny them.
We have hashed out the question about protected beliefs in relation to amendment 481, so I will move on.
Kit Malthouse
I am wondering about the difference between my own home with my partner, and my care home with lots of people that may or may not be strangers, and why I should have the right in one but not in the other.
Danny Kruger
I hope my right hon. Friend will understand that there is a difference between occupying one’s own home and living in a community under conditions set by somebody else, which is what happens if someone lives in a care home. There are terms and conditions. People have to comply with the rules of the place and have obligations to their fellow residents. In someone’s own home, whether they are living with a partner or not, they have absolute rights. That is the difference. If someone signs up to live in a care home, they have to follow the rules of the place, just like in a hotel. In someone’s own home, they can do what they like, as I am sure my right hon. Friend does.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
We should acknowledge the reasons that people go into residential and nursing care homes. They go into them because they need day-to-day help to live. Would the hon. Gentleman reconsider what he has just said? It seems to fundamentally discriminate between people who are able to live at home, have families or carers around them and can operate in that way and people who need to go into residential, and particularly nursing, homes.
Danny Kruger
The right hon. Lady clarifies the point very well. I concede—that is right. When someone goes to live in a care home, they yield, by necessity, a whole set of freedoms that one has in one’s own home. That is the consequence of the stage of life they are at, the conditions they have, and indeed their own choice to live in that particular care home.
Danny Kruger
I appreciate that—there might be very little choice or no alternative. I am speaking in terms of the reality of life. We can do everything we can through the law to obviate reality—to give people as much autonomy as possible, even though they are very dependent on other people. That is why it is so important to consider the autonomy of the elderly, the frail and people with disabilities or who are ill. They require other people to give them what fully healthy and able-bodied people are able to do for themselves. I recognise that I am suggesting that somebody who lives in a care home would not have the same freedom of action as somebody living in their own home.
Terminally Ill Adults (End of Life) Bill (Twenty-seventh sitting)
Wednesday 19th March 2025
(1 month, 1 week ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 March 2025 - (19 Mar 2025)
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 17 / Noes: 5 - Question accordingly agreed to.
The Chair
Will everyone ensure that all electronic devices are turned off or switched to silent mode? As people know, tea and coffee are not allowed in the Committee Room.
We now continue line-by-line consideration of the Bill. I remind Members, as I often do, that interventions should be short and raise points of clarification or questions; they should not be speeches in and of themselves. Members who wish to make a speech should bob, and continue to do so throughout the debate in which they wish to take part, until they are called. When Members say “you”, they are referring to the Chair. “You” should not be used to refer to one another; the debate should be through the Chair.
Clause 23
No obligation to provide assistance etc
Amendment proposed (18 March): 480, in clause 23, page 15, line 3, leave out subsection (1) and insert—
“(1) No individual is under any duty (whether arising from any contract, statute or otherwise) to be involved, directly or indirectly, in the provision of assistance in accordance with this Act.
(1A) In particular, no individual is under any duty (whether arising from any contract, statute or otherwise) to—
(a) provide information about assisted dying;
(b) participate in an initial discussion;
(c) participate in the request and assessment process;
(d) supply, prescribe or administer an approved substance;
(e) be present at the time of administration of an approved substance; or
(f) dispense a prescription of an approved substance.
(1B) Nothing in subsections (1) or (1A) of this section shall affect any duty to—
(a) signpost someone to where they can obtain information about assisted dying (under section 4(5) or otherwise);
(b) perform acts of a clerical, secretarial, or ancillary nature; or
(c) perform any acts necessary to save the life of or to prevent grave injury to a person.” —(Danny Kruger.)
This amendment would expand the provision of Clause 23(1) to all individuals and clarify the activities in which they are not obliged to participate.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 483, in clause 23, page 15, line 5, after “assistance” insert
“, or in any activity closely related to the provision of assistance,”.
This amendment would widen the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance under the Act.
Amendment 484, in clause 23, page 15, line 8, after “Act” insert
“, or in any activity closely related to the provision of assistance under this Act,”.
Amendment 441, in clause 23, page 15, line 9, at end insert—
“(3) There is no obligation on any care home or hospice regulated by the Care Quality Commission or the Care Inspectorate Wales to permit the provision of assistance under this Act on their premises.”
This amendment prevents there being any obligation on a care home or hospice which is regulated in England or Wales to permit the provision of assistance under the Act on their premises.
Amendment 481, in clause 23, page 15, line 9, at end insert—
“(3) Nothing in subsection (2)—
(a) prevents an employer who has chosen not to participate in the provision of assistance in accordance with this Act from prohibiting their employees from providing such assistance in the course of their employment with that employer, or
(b) prevents an employer from specifying occupational requirements in relation to the provision of assistance in accordance with this Act in accordance with Schedule 9 of the Equality Act when hiring employees.”
This amendment ensures that employees cannot provide assisted dying against the wishes of their employers and that employers can still rely, in appropriate cases, on the occupational requirements of the Equality Act to either require employees to provide or not to provide assisted dying.
New clause 22—No obligation for occupiers and operators of premises—
“(1) Any individual, business, organisation, or association who occupies or operates premises has the right to refuse to permit the self-administration of an approved substance on their premises.
(2) Nothing in subsection (1) confers any right on anyone with an interest in the land but who is not occupying or operating those premises.”
This new clause would mean that the owners or occupiers of premises — but not landlords not currently in occupation — are not obliged to permit the self-administration of approved substances on their premises.
New clause 23—No detriment for care home or hospice not providing assistance—
“(1) No regulated care home or hospice shall be subject to any detriment by a public authority as a result of not—
(a) providing assistance in accordance with this Act, or
(b) permitting such assistance to take place on their premises.
(2) No funding given by a public authority to a regulated care home or hospice can be conditional on that care home or hospice—
(a) providing assistance in accordance with this Act, or
(b) permitting such assistance to take place on their premises.”
This new clause would mean that regulated care homes and hospices cannot be subject to any detriment for not providing or permitting assistance in accordance with this Act, and that their funding cannot be conditional on them providing or permitting such assistance.
Clause stand part.
Danny Kruger (East Wiltshire) (Con)
I was just concluding my remarks on the amendment. I will quickly finish responding to the hon. Member for Spen Valley and others, who suggested that it would be improper to deny people living in a care home, hospice setting or other communal environment the right and opportunity to request assisted dying. I was suggesting that that right needs to be tempered by an acknowledgment that they do not live there alone, and that there are also rights, properly held, by the occupier of the premises, the individual’s neighbours and others.
My concern is that, just as suicide itself is contagious, so the practice of assisted suicide will have social ramifications. We fully recognise that, if the Bill is passed, people will have the absolute right to request the service in their own home, but when someone is living among others, that right needs to be tempered by the consideration that the occupier should ultimately decide whether he or she is prepared to allow the practice to take place on his or her premises.
Some hon. Members suggested that, if an institution receives public funding, it would be appropriate for it to be obligated to deliver the service. I am concerned about the implication of that, which might be that institutions that did not wish to provide or facilitate assisted suicide but did receive public money, for instance care homes or hospices, would be at risk of losing that money—essentially being defunded—on the grounds of their conscientious objection to participating in assisted dying. I would be grateful if the hon. Member for Spen Valley or Ministers would confirm that it is not their intention to penalise bodies that do not deliver assisted dying by withdrawing public money.
On the impact on staff, I am grateful to the hon. Lady for acknowledging that we might need to tighten the Bill to ensure that it is clear that people will not be required to participate in any stage of the process of assisted dying, and not just in the actual provision of assistance towards the final act. Nevertheless, my concern is that if we do not give institutions the right to opt out of provision, there will be an exodus of staff who object to being involved in any way with, or working for an institution that facilitates, assisted dying, as has happened in other jurisdictions where assisted suicide is legal.
I point particularly to evidence we heard from Australia. We were told that, in consequence of assisted dying being legalised in Australian states, there was an exodus of workers from the healthcare system—nurses and others—and the social care system. It was therefore no coincidence when one of the Australian witnesses who supports assisted suicide declared breezily that, although there were significant objections among the care workforce to the introduction of assisted dying when the law was first debated, five years later there was overwhelming support for assisted dying among them. Well, that is no surprise, because all the objectors had left, and I am afraid that is what we will see here.
A comparison would be the exodus of care workers that we saw after the last Government mandated covid vaccination. Some 40,000 care workers left their jobs rather than accept compulsory vaccination. If they were prepared to do that on those grounds, I fear we might see a similar phenomenon if we mandate that institutions facilitate assisted dying.
Lewis Atkinson (Sunderland Central) (Lab)
May I check that the hon. Member’s understanding is the same as mine—that nothing in the Bill compels an organisation to participate in the way that he describes?
Danny Kruger
No, I am afraid I do not concede that. At the moment, it is not apparent from the Bill or the amendments that have been accepted that an organisation would be enabled to decline to facilitate the provision of assisted dying. No organisation will be compelled to do so, but if a resident were to request assisted dying in their care home, my understanding is that the care home would be obliged to facilitate it.
It might well not be the intention behind the Bill, because I know that the hon. Member for Spen Valley and Members who agree with her recognise the importance of a conscience exception; they have been very clear on that, and I am grateful to them. Nevertheless, my concern is that on human rights grounds, as we have heard from the Minister, the likelihood is that there would be a claim on behalf of an applicant against the institution they reside in that assisted suicide must be provided to them in that place. I am afraid the Bill at the moment does not give an adequate exemption to institutions.
Lewis Atkinson
Does the hon. Member accept the distinction that I made between an organisation choosing to provide assisted dying services and the instance he outlined of this being done in someone’s home that happens to be a care home? They are entirely different points, and I fear that, particularly with regard to hospices, he is conflating the two.
Danny Kruger
I am conflating the two because they are conflated in reality. A care home where somebody lives is a residence, but it is also a community, a facility and a place where professionals work to support that individual. A clear demarcation between their living arrangements and the support they receive from the institution they live in does not exist in reality. That is why they are living there—because that distinction does not apply in their particular case. They require the support and help of the workers in the place where they live.
I am afraid it is not enough simply to say, “This is their home, and they should have exactly the same rights and freedoms as they would have if they were living alone in their own flat or house.” We have to recognise the reality of the situation, which is that they are living in a community, and what happens in the community affects them all. That is the nature of communal living. This is not individualised healthcare in the way that the hon. Gentleman imagines it is, and that is fundamentally our point of difference. This is separate or adjacent to healthcare, and it is delivered, by definition, by somebody else. By virtue of the Bill, it would have a separate regulatory environment to other healthcare treatments. Of necessity, it should have an appropriate legal framework to protect other people who are impacted by assisted death in a communal setting. That is my crucial point: if someone is living in a communal setting, what they do affects their neighbours.
Jake Richards (Rother Valley) (Lab)
Does the hon. Gentleman appreciate that, although this is different from the healthcare services we currently have, we have a legal framework that deals with many of these conflicting issues as and when they arise in lots of different circumstances that are not completely adjacent to these?
Danny Kruger
I do not know what those might be, but I would be interested to hear. That might well be the case. I am afraid that no hard-and-fast rules can be clearly applied here; or, rather, we have to apply hard-and-fast rules in the knowledge of the grey areas, the exceptions and the situations in which we might feel that the law is unjust in particular cases. We have heard examples of that, such as the evidence about the lady in Australia cited earlier by the hon. Member for Spen Valley. I can well imagine the distress involved if someone suddenly finds themselves in an institution that does not permit an assisted death, but they want one and are in their last days.
The alternative, however, is a different blanket rule. If we were to have a blanket rule that we can do an assisted death anywhere—that is one situation—there would be significant knock-on effects. Serious moral injury would be suffered by other professionals and residents. I recognise that my amendment could lead to someone having to relocate if they want to have an assisted death—I am sorry for that—but I think that we have to draw the line in a way that makes most sense.
Kit Malthouse (North West Hampshire) (Con)
It would be interesting, if my hon. Friend’s amendments go through, to see the series of plebiscites taking place in care homes and communal situations across the country as to what the residents do and do not want, presumably by a majority. He asserted that there had been a mass exodus of healthcare workers when VAD came in, but I am struggling to find any evidence to support that claim. In fact, the evidence seems to say that that is not the case. Although there have been some resignations, that has largely been because of pay and conditions, as one might expect.
Danny Kruger
My right hon. Friend seems hung up on this suggestion that there needs to be a plebiscite or communal decision making—some kind of citizens’ jury. I am not suggesting that for one moment. In fact, I am sure that I have said explicitly that what I want, and what the amendment would enable, is that the owner or occupier, who would probably be an individual or a board of directors, would decide what happens. If they are a decent, compassionate organisation, they might well consult residents—in fact, I would very much expect that to happen if they are doing their job properly—but I am talking about the importance of communal living; and the fact is that a communal living arrangement has leadership. The residents have signed terms and conditions, in a contract, under which they have agreed to abide by certain rules of the house. My suggestion is that if the charity, company or organisation that is managing a care home wants to stipulate that there shall be no provision of assisted dying in that care home, they should have the right to do so. I hope my right hon. Friend would acknowledge that that is consistent with English property rights.
On my right hon. Friend’s second point, I am grateful to him and he might well be right. I am happy to consult my evidence pack, which I do not have at my fingertips, about the effect on the Australian workforce in consequence of the introduction of assisted dying. My memory is that we heard such evidence, or had it submitted to us in written form—his knowledge of the 500 submissions might be better than mine. Let us check and we will have it out, perhaps on social media; I know how much he enjoys those forums.
Question put, That the amendment be made.
Kim Leadbeater (Spen Valley) (Lab)
I beg to move amendment 504, in clause 24, page 15, line 11, leave out from second “of” to end of line 12 and insert
“—
(a) providing assistance to a person to end their own life in accordance with this Act, or performing any other function under this Act in accordance with this Act, or
(b) assisting a person seeking to end their own life in accordance with this Act, in connection with the doing of anything under this Act.”.
This amendment provides that it is not an offence to perform a function under the Bill, or to assist a person seeking to end their own life, in connection with the doing of anything under the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 505, in clause 24, page 15, leave out lines 22 and 23 and insert
“—
(a) providing assistance to a person to end their own life in accordance with the Terminally Ill Adults (End of Life) Act 2025, or performing any other function under that Act in accordance with that Act, or
(b) assisting a person seeking to end their own life in accordance with that Act, in connection with the doing of anything under that Act.”.
This amendment ensures that it is not an offence under the Suicide Act 1961 to perform a function under the Bill, or to assist a person seeking to end their own life, in connection with the doing of anything under the Bill.
Clause stand part.
I remind Committee members that we expect four or five votes at about 2.50 pm. In that case, we will suspend for an hour, similarly to last night, and come back at 3.50 pm, but we will cross that bridge when we get to it.
Kim Leadbeater
These amendments relate to criminal liability under the Bill. They get to the heart of why the legislation is needed. Amendment 504 seeks to clarify the language of clause 24 and provide reassurance that it will not be considered an offence to perform a function under the provisions of the Bill or to assist a person seeking to end their own life in connection with anything done under the Bill. It will ensure that those acting within the law, and with compassion, to assist terminally ill individuals who wish to end their suffering and take control at the end of their life are protected under the law.
Amendment 505 ensures that the provisions of the Terminally Ill Adults (End of Life) Act 2025 will supersede the Suicide Act 1961, providing clarity that actions taken under the new Act will not be subject to the outdated legal framework established under the 1961 Act. That is a crucial step in modernising our laws to reflect the values of compassion, dignity and personal autonomy. These amendments bring us closer to a legal framework that is clear and safe.
Our Prime Minister, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the former Director of Public Prosecutions, stated in relation to assisted dying, “The law must reflect the changing moral landscape of society, and in cases such as this, where the individual’s autonomy and suffering are at stake, our legal framework must offer clarity and compassion.” During his tenure as DPP, Sir Keir also emphasised the importance of not criminalising individuals who act out of compassion, particularly in difficult and morally complex situations. He said, “The law must be clear, and it must ensure that those who act with the intention to relieve suffering are not penalised, as long as their actions are in accordance with the law.” That sentiment is echoed in the amendments before us today, which ensure that those who assist individuals under the Bill are protected by law, offering clarity and reassurance to both the public and professionals who may be involved in such decisions.
Sir Max Hill, another former Director of Public Prosecutions, remarked in 2019, “The law around assisted dying is often unclear and creates a great deal of uncertainty for both individuals and healthcare professionals. What we need is a system that balances compassion with protection, ensuring that people who are at their most vulnerable are supported in a way that is both legal and ethical.” Sir Max Hill’s words emphasise the need for clear, compassionate guidance, which these amendments will provide. They will help to eliminate the legal uncertainty that can cause fear and hesitation in those who act in the best interests of individuals facing terminal illness.
The 2010 DPP policy clarified that assisting someone to end their life was not automatically criminal and that each case would be assessed on its individual facts. However, that has not changed the law and many people are still being failed by the law as it stands. These amendments create clarity and prevent ambiguity around what constitutes a criminal act versus an action legally protected by the new law.
I will finish with a very powerful testimony from Louise Shackleton from Scarborough. Louise accompanied her husband to Dignitas last December. I believe she was the first person to make that trip since Second Reading. Louise talks about the trip she made to Switzerland with her husband. She says:
“This is not an easy process as some against Assisted Dying might have you believe, might try and convince you. It is a robust and thorough almost an ordeal in itself. Then there is the cost, not just financially but mentally and physically as he had to be able to get to Zurich and someone had to assist him to do this…My husband did not deserve this to be his end nor did I deserve this to be his end, my last memory of him…I accompanied my husband to Switzerland, where we had 4 wonderful days together, my husband’s mood had lifted, he was at peace, it was as if the weight of the world had been lifted from his shoulders. He was not scared, no anxiety, his emotional suffering had ceased. You cannot imagine unless you see and feel this he was looking forward to his peaceful death, looking forward to leaving his pain, suffering…At the end, my husband was able to die on his own terms, pain-free and peaceful, held in my arms as his heart gently slowed and finally stopped, granting him the dignified and serene farewell that he had wished for. But where was I? alone in a strange country alone, scared, bereft, organising an Uber to take me away from the…Dignitas House, I was vulnerable and in utter shock, now having to leave my dead husband alone, leave his body to be cared for by people I had never met…Due to our draconian laws my husband had to be in a foreign country, had to be cremated to be brought back home. No funeral that he would have chosen, no mourners, no ceremony, cremated with no Reverend to pray for him, returned to me in a cardboard box. The pain is excruciating beyond any other loss I have experienced”.
She then says:
“I have been arrested and spent just under three hours being interviewed by two CID officers. Four days after my husband left my world there I was stuck in a Police station being cautioned, questioned, having to relive my trauma, for my crime, a crime made by love, a crime made by adoration, a crime of compassion and respect of my husband’s last wish.”
She now faces a prolonged police investigation. She tells us,
“My husband was the first British person to go to Dignitas after parliament debated on Friday 29th Of November 2024. You have the power, the power is yours to be human, to follow Gods wish, to ‘suffer’ choices that other people may make even if its uncomfortable for you. Palliative care I hear you say, My Husband did not want palliative care…Please give others the gift of dignity and a good death in their homes…You have the power to do something amazing, give people the choice.”
I commend these amendments, which will help many people. Sadly, it is too late for Louise, but they will help many other families who will potentially go through what she has been through.
Rebecca Paul (Reigate) (Con)
I rise to speak briefly on clause stand part. As I noted a few weeks back—it feels a long time ago—when we debated amendment 82, the clause leaves the law in a strange position. I hope that we will now have the opportunity to explore that and make sure that we are comfortable with the position and have identified whether any changes are needed.
Section 2(1) of the Suicide Act 1961 criminalises both assisting and encouraging suicide:
“A person (‘D’) commits an offence if—
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D’s act was intended to encourage or assist suicide or an attempt at suicide.”
It is a single offence, but can be committed in two ways: either through assistance or through encouragement.
Clause 24(3), both as drafted and as amended by amendment 505, would make an exception from criminal liability under the Suicide Act, but in respect only of assistance, not of encouragement. It would cover:
“(a) providing assistance to a person to end their own life in accordance with the Terminally Ill Adults (End of Life) Act 2025, or performing any other function under that Act in accordance with that Act, or
(b) assisting a person seeking to end their own life in accordance with that Act, in connection with the doing of anything under that Act.”
In other words, it is strictly limited to assisting suicide. It only covers the actions in the Bill around conducting the preliminary discussion, assessing the applicant, giving the applicant the approved substance and so on. What happens to the other half of section 2 of the Suicide Act: the offence of encouraging suicide? I will not rehash the debates that we had over amendment 82, but I must point out that as that amendment was rejected, the law does not dovetail. Encouragement would still be very much an offence under the Suicide Act, as it has not been excepted under the Bill.
Because my amendment was not agreed to, we will have the absurd situation in which somebody can commit the crime of actively encouraging someone to take their own life, yet that will not be looked for or taken into account when assessing someone’s eligibility for an assisted death. On the flipside, there is a very real risk for families and friends of loved ones who could inadvertently overstep the mark and move from support of a loved one to encouragement. It does not take much imagination to realise that that could lead to accusations and potentially even to prosecution if the law is not sorted and clarified at this stage.
We already know how difficult it has been for family members who want to accompany loved ones to Dignitas but fear that they could face prosecution; the hon. Member for Spen Valley has made that point so eloquently. No one wants that, so it is important that we ensure that the Bill does not create a similar situation in which someone could be unfairly prosecuted for encouragement, which is still very much a crime under the Suicide Act.
Danny Kruger
It is an honour to follow my hon. Friend the Member for Reigate; I very much agree with the points that she made, and I hope that Ministers will respond. I will try not to repeat her arguments.
The hon. Member for Spen Valley says that clause 24 is, in a sense, the heart of the Bill. I agree. Without the clause the Bill would be ineffective, because the service that we are proposing to legalise would be illegal. We have heard many objections to the term “assisted suicide”, but the necessity of the clause exposes the fact that what is being legalised, at least in part, is assisted suicide. Calling it assisted suicide is therefore not improper; it is simply using the correct terminology, as I believe we should in this place. That is particularly important because the use of the euphemism “assisted dying” masks what this is really about and what the Bill would actually legalise: that somebody could help somebody else to commit suicide.
It is no surprise that the euphemism is deployed, because support for what is called assisted dying is driven in part by a failure to realise what it actually is and what the words mean. I cite a 2024 Nuffield Council on Bioethics survey of the public, which found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care, all of which is legal currently and is good medical practice.
Lewis Atkinson
The hon. Gentleman says that he is clear that those actions are assisting suicide and that he thinks that they are illegal. Is it right that members of the public, in the instance to which my hon. Friend the Member for Spen Valley referred, be investigated by the police on their return from trips to Switzerland?
Danny Kruger
Let me come to the question of investigation by the police in due course, but I am not sure that the hon. Gentleman heard me clearly. I was not talking about offences that I think are rightly criminal; I was talking about offences that are not offences at all. Providing hospice care, helping people to relieve symptoms of pain or suffering and withdrawing life support are all perfectly permitted and legal in our system. The issue is that a significant proportion of the public think that those activities are what assisted dying entails. I do, however, recognise the point and the power of the testimony recited by the hon. Member for Spen Valley, to which I will come on in due course.
I understand that in order to make the Bill effective, an exception must be made to section 2 of the Suicide Act. Section 1 says that someone is allowed to commit suicide; section 2 says that one cannot help somebody else to do so. I agree that such an exception is necessary if we are to pass the Bill, but I cannot follow why clause 24(1) is needed. I will be grateful if the hon. Member for Spen Valley or the Minister can explain which other offences would necessarily be committed by a doctor properly carrying out his or her functions under the Bill. What other offences might be caught that require clause 24(1)?
Clause 18 will forbid a doctor from engaging in euthanasia. One criminal law from which an exemption is not necessary is the law on murder, yet ostensibly subsection (1) has no such limitation. I would be grateful for the Minister’s confirmation that subsection (1) will not afford a defence when the charge is murder. I presume that that is not the intention.
What about manslaughter, and particularly gross negligence manslaughter? Under the Bill, a pharmacist performing the function of prescribing or dispensing the legal drugs would be, to use the wording of amendment 504, “performing” a “function under this Act”. If a pharmacist makes a grossly negligent mistake and mislabels a drug, which is then sent to another patient who takes it and dies, that would quite clearly be gross negligence manslaughter. Can the Minister explain why clause 24(1), as amended by amendment 504, would not allow someone to benefit from an immunity in respect of gross negligence manslaughter? To be clear, I agree that if the pharmacist intentionally mislabelled the drug, he could not be described as
“performing any other function under this Act”,
so he would not have that defence. However, in a case where, in good faith, he had made a fatal and grossly negligent mistake, surely he would have been performing such a function, albeit performing it very badly.
Can the Minister clearly set out the reasoning to explain why there is no chance of such a defence under the clause? Of course the hon. Member for Spen Valley does not intend to exempt from criminal liability a pharmacist acting in that grossly negligent way, but I am trying to make sense of the drafting of the amendment. If there is any criminal offence, other than in the Suicide Act, that requires an exemption, it would be best to say so clearly in the Bill rather than relying on a catch-all term, as subsection (1) does.
I concur with the points made by my hon. Friend the Member for Reigate and will not repeat them, but I do find it interesting that the hon. Member for Spen Valley has chosen to retain the offence of assisting and encouraging suicide. This is because two arguments made by proponents of the Bill lead to the logical conclusion that the offence should either be repealed entirely or limited to self-conduct, as is the case in Switzerland. Let us look at the two arguments in turn.
The first argument relates to autonomy. If an autonomous individual with capacity decides to end their own life and requests the assistance of another person, why should that other person be criminalised? After all, that person is simply helping another person to do something to their own body that the law has not prohibited since 1961, so surely it is a violation of autonomy to criminalise such conduct of assisting in suicide.
Lord Mance, a former justice of the Supreme Court, put the matter as follows on Second Reading of the Meacher Bill in the other place:
“Suicide is decriminalised, yet assisting suicide remains criminal—probably a unique exception to the principle that you can only be an accomplice to an act that is itself criminal.”
It is bizarre that the act is not itself criminal but being an accomplice to it is. Lord Mance went on to say:
“If a person may choose freely to commit suicide, what justifies a refusal to allow them to obtain willing assistance?”—[Official Report, House of Lords, 22 October 2021; Vol. 815, c. 408.]
I believe in the value of a prohibition on assistance, but the logic of the argument from autonomy—that someone should be allowed to request assistance to help them to die—surely obviates the distinction. I do not see why we have kept section 2 at all, and I would be interested in hearing from the supporters of the Bill what the limiting principle is. Why do they think assisted suicide should remain a crime, despite its being a limitation on autonomy, outside the scheme created by the Bill? Why are we simply creating a scheme within the Bill?
The second argument given, which I think relates to the intervention from the hon. Member for Sunderland Central and to the point made by the hon. Member for Spen Valley, is based on the fact that the current law requires people to travel to Switzerland. The argument against the current system comes in three forms. One stresses the toll that it places on families to know that the people who assist have committed a criminal offence and could be investigated by the police, even though the chances of prosecution are remote. I fully recognise and share all the concerns among Members about the terrible distress faced by people who may in any way have assisted their loved one to take their own life.
The second objection to the status quo makes the point about the unfairness that the situation creates. The hon. Member for Liverpool Wavertree (Paula Barker) said on Second Reading:
“I do not want choice to be available only to those who can afford to pay. That is not just or equitable.”—[Official Report, 29 November 2024; Vol. 797, c. 1073.]
The suggestion is that to have to pay to go to Switzerland is a violation of equality.
The third is a constitutional argument. It is said that it is constitutionally improper for the Director of Public Prosecutions to have effectively decriminalised assisted suicide for people who travel to Switzerland. But the point I am trying to make is that under the Bill, anyone helping their relative to travel to Switzerland, or any other country, would still be committing an offence under section 2 of the Suicide Act.
Research from My Death, My Decision, a campaign group pushing for a wider Bill than the current one—it supports the Bill but clearly wants it to go further—has found that 50% of cases going to Dignitas would not be eligible under the Bill. It helps to make my point, which is that I am afraid that if the Bill were passed we would still have stories like the very moving testimony read out by the hon. Member for Spen Valley. In fact, as my hon. Friend the Member for Reigate said, there is a significant likelihood that there would be more prosecutions. If the Bill were enacted, the conclusion of the Crown Prosecution Service and the police might well be that, given the existence of an assisted dying regime within the UK, assisting one’s relative to go to Switzerland should be subject to a greater likelihood of prosecution. That is a legitimate concern.
Tom Gordon (Harrogate and Knaresborough) (LD)
The point that the hon. Gentleman is making is actually one that I made yesterday. I appreciate that we are on entirely different sides of the debate, but that is exactly why I was talking about ensuring wider eligibility—the point he makes in relation to My Death, My Decision—and ensuring the provision of assistance for people who might have illnesses such as motor neurone disease. We have had to put a cut-off somewhere, and some people fall outside it, but does he accept that fundamentally this is about making sure that there are safeguards? That is the key point: that we should ensure safeguards. What the hon. Gentleman is talking about is exactly that.
Danny Kruger
I am grateful. With great respect to other members of the Committee, I think the hon. Gentleman is the most honest advocate of assisted dying among us, because he genuinely recognises that autonomy demands the widest possible range of eligibility. It might be that other Members feel that we have the balance exactly right. I recognise the force of his argument that if we are going to introduce a new human right, it is very difficult to circumscribe its boundaries. He himself thinks that there should be some boundaries: he proposed an amendment that specified 12 months, and he thinks that only certain people should be able to ask someone else to perform assisted death to them. Nevertheless, he is acknowledging that if we believe in autonomy, the Bill would not satisfy some people.
I think it would be intellectually coherent and more logical for proponents of the Bill to want to repeal section 2 of the Suicide Act, and I do not understand why they are not doing so. We could certainly continue to insist on prohibitions against any form of coercion, persuasion or inducement to take one’s own life, but if somebody is clearly in their right mind and wants to receive assistance to kill themselves, that is the principle of the Bill. It would be neater if we amended the Suicide Act accordingly.
The fact that proponents do not want to do so suggests that they see some value in the law and that they consider that that value trumps concerns about autonomy and the impact of the law on family members of someone who wishes to travel to Switzerland to end their life. I agree that there are such principles—namely, the intrinsic value of life and the protection of the vulnerable—but I do not see why proponents of the Bill consider that such principles trump autonomy when it comes to terminally ill adults in England.
The Minister of State, Ministry of Justice (Sarah Sackman)
It is a pleasure to serve under your chairship, Mr Dowd. My remarks, as ever, will focus on the legal and practical impact of the amendments to assist Members in undertaking line-by-line scrutiny. In exercising our duties to ensure that legislation that is passed is legally robust and workable, the Government have worked closely with my hon. Friend the Member for Spen Valley to reflect her intent.
Clause 24, as amended by amendments 504 and 505, will mean that individuals who assist a person to end their life in accordance with the terms of the Bill are not subject to criminal prosecution. Currently, it is a criminal offence under section 2 of the Suicide Act 1961 for a person to do an act that is
“capable of encouraging or assisting the suicide or attempted suicide of another person”
and intended
“to encourage or assist suicide or an attempt at suicide.”
That offence attracts a maximum penalty of 14 years’ imprisonment. Amendment 504 would amend clause 24(1) to ensure that a person is not guilty of an offence—[Interruption.]
Sarah Sackman
I was introducing amendment 504, which amends clause 24(1) to ensure that a person is not guilty of an offence by virtue of providing assistance in accordance with, or performing a function under, the Bill—for example, by undertaking the first or second assessment or providing the approved substance. The effect of the amendment is to ensure that a person is not guilty of an offence by virtue of assisting a person seeking to end their own life in accordance with the Bill. The phrase “in accordance with” the Bill is key. For example, where someone accompanies a person to the appointment at which they will self-administer the substance, the amendment would carve out any criminal liability for the accompanying person.
As originally drafted, the wording would have limited the protection offered by subsection (1) to the far narrower situation of the medical professionals providing assistance under clause 18. The amendment will give effect to the policy intent of the hon. Member for Spen Valley of applying that protection to all those who provide assistance in accordance with, or by performing a function under, the Bill. Subsection (2) clarifies that the clause does not override other ways in which a court may find that a person is not guilty of an offence.
Clause 24(3) inserts proposed new section 2AA into the Suicide Act 1961. As amended by amendment 505, that new section ensures that it is not an offence under the Suicide Act to perform a function under the Bill, or to assist a person seeking to end their own life by doing anything under the Bill. That is for the same reasons that I set out in relation to subsection (1). The new section also provides a defence to the offence of encouraging or assisting suicide, where a person reasonably believes that they were acting in accordance with the Bill, and that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.
Taken as a package, the effect of these amendments is to make the Bill legally workable. To do that, it is necessary to ensure that those who assist a person to use the lawful route are not then subject to criminal liability for doing so. Clause 24 clause, taken together with amendments 504 and 505, gives effect to that.
Let me address some of the issues raised by Opposition Members. There was a question as to whether there is any overlap between offences under the Bill—we will come to some of those offences in due course with clauses 26 and 27—and offences that remain on the statute book under the Suicide Act. The short answer to the question from the hon. Member for Reigate, although I know she has written to my Department, and I will ensure that she receives a full written answer, is that it would remain an offence under the Suicide Act 1961 to encourage suicide, including an assisted death under this Bill.
To the extent that any overlapping offences remain, that is not an unusual approach to drafting in the criminal law. However, the effect of the clause is that it would remain an offence under the 1961 Act to encourage someone to commit suicide. Where a person’s “encouragement”—the hon. Member focused on that term—is such that it amounts to what the courts would understand to be pressure or coercion, that could be an offence under clause 26, which we will come to. As I said, it is not unusual to have a degree of overlap in criminal offences. Again, what someone is charged and prosecuted with falls to the prosecutor, depending on the specific circumstances of the case and what would be most appropriate in that scenario.
I also want to address the scenario that the hon. Member for East Wiltshire posited, about whether a pharmacist who acted in a way that amounted to gross negligence manslaughter would benefit from immunity under clause 24(1) as amended. Again, with the important caveat that it will depend on the particular facts of the case, the offence of gross negligence manslaughter is committed where a death is the result of gross negligence in what would otherwise be a lawful act or omission on the part of the defendant, and where the defendant owes a duty of care to the victim—there are a number of actors within the Bill’s process who owe a duty of care to the person applying for assisted dying.
Let us assume for a moment that, in the hon. Member’s scenario, we do have gross negligence manslaughter on the particular facts; in those circumstances, the Government are content that the pharmacist could not be properly said to be performing a function under the Bill, or in accordance with the Bill, so clause 24(1)—the carve-out from criminal liability—would not apply. I think that that covers most of the questions that were posited earlier.
Danny Kruger
It may well be that the Minister has clarified the case sufficiently, but will she explain something for my sake? She is suggesting that the pharmacist inadvertently but negligently caused the death of a patient, having performed the duties under the Bill and believing that they were doing so. Surely, they were performing duties under the Bill, so they would potentially be captured by the carve-out.
Sarah Sackman
Again, it would depend on the actual facts. However, if they were attempting to perform duties under the Bill, it is highly unlikely that, in circumstances where the facts establish and meet the threshold of gross negligence manslaughter, they could be said to have carried out those duties in accordance with the Bill. They might have been carrying out duties that they thought were what the Bill prescribed, but if they have done that in such a way that it amounts to gross negligence manslaughter, then clause 24(1) would not apply.
The hon. Gentleman makes the point about what the pharmacist in that scenario believes they are doing; that belief has to be reasonable, and that is a test that our courts are well used to applying. That is why the amendments introduce the belief that someone is acting in accordance with the Bill. It is not enough that they think they are doing it; it has to be a reasonable belief. That is an objective standard.
Rebecca Paul
I thank the Minister for those helpful clarifications. Was any consideration given to also exempting encouragement as an offence under the Suicide Act? I am interested in why it was not exempted in the same way as assistance, particularly given that if it did fall within coercion and pressure—based on what the Minister said—it would get picked up as a criminal offence anyway under the Bill. I appreciate that the Minister will write to me on some of this, but the issue comes back to what is encouragement. As the hon. Member for Spen Valley set out—
The Chair
Order. As I have said time after time, if it is a question of receiving clarification, Members should keep their comments short, rather than expanding on them.
Rebecca Paul
My apologies, Mr Dowd, but it is a technical point. I think the Minister understands what I am asking.
Sarah Sackman
Helpfully, the hon. Member has also set out her questions fully and precisely in a letter to me, so I think I know what she is asking and I will try and answer it as best I can. I reiterate, as I and the Minister for Care have said throughout, that the policy choices have been for the promoter—the Government remain neutral. The offence of encouraging or assisting suicide or attempted suicide in section 2 of the Suicide Act is well established. Encouraging someone to go through the assisted dying process under the Bill with the intention of encouraging suicide or an attempt at suicide would therefore remain a criminal offence under section 2 of the Suicide Act. That is what I made clear earlier.
What we are talking about will always depend on the particular circumstances of the case. It is the Government’s view that in a scenario—I think this is what the hon. Member for Reigate is getting at—where a family member or friend simply suggests to a person with a terminal condition that the option of assisted death under the Bill is something they may wish to consider, and nothing more, it is unlikely—dare I say, inconceivable—that that would amount to an offence under the 1961 Act.
However, if someone encourages a person in a more tangible way, such as encouraging or pressuring them to make the first declaration, that could well amount to an offence under the 1961 Act. Where that encouragement crosses the threshold into what, interpreted in line with their natural meaning, the courts would understand as pressure or coercion, that could amount to an offence under clause 26 of the Bill, which we will come to in due course. I hope that that addresses the hon. Lady’s question. I will set that out to her in writing, and she is welcome to write back if there is any ambiguity.
I hope that that assists the Committee. I am going to sit down before anybody else intervenes.
The Chair
May I make an observation? I understand where the hon. Member for Reigate is coming from, but if letters have gone back and forth to the Department and other Committee members are not privy to what they say, the debate gets a little abstract. That is all I am trying to get to—we should not get too abstract, so that everybody knows what is being said.
Rebecca Paul
I appreciate that, Mr Dowd, which is why I was elaborating—I wanted to make sure that everyone understood the nature of the question without having seen the letter. In order to summarise, following your instruction, I refer to the letter.
Kim Leadbeater
I have nothing further to add.
Amendment 504 agreed to.
Amendment made: 505, in clause 24, page 15, leave out lines 22 and 23 and insert
“—
(a) providing assistance to a person to end their own life in accordance with the Terminally Ill Adults (End of Life) Act 2025, or performing any other function under that Act in accordance with that Act, or
(b) assisting a person seeking to end their own life in accordance with that Act, in connection with the doing of anything under that Act.”.—(Kim Leadbeater.)
This amendment ensures that it is not an offence under the Suicide Act 1961 to perform a function under the Bill, or to assist a person seeking to end their own life, in connection with the doing of anything under the Bill.
Clause 24, as amended, ordered to stand part of the Bill.
Clause 25
Civil liability for providing assistance
Kim Leadbeater
I beg to move amendment 501, in clause 25, page 15, line 31, leave out subsection (1) and insert—
“(1) The doing of any of the following does not, of itself, give rise to any civil liability—
(a) providing assistance to a person to end their own life in accordance with this Act;
(b) performing any other function under this Act in accordance with this Act;
(c) assisting a person seeking to end their own life in accordance with this Act, in connection with the doing of anything under this Act.
(1A) Subsection (1) does not apply—
(a) in relation to an act done dishonestly, or in some other way done otherwise than in good faith, or
(b) to any liability in tort arising from a breach of a duty of care owed to a person.”.
This amendment ensures that the exclusion from civil liability applies in relation to persons performing functions under the Bill, and persons assisting a person seeking to end their own life, in connection with the doing of things under the Bill. It also excepts, from the exclusion from civil liability, things done dishonestly or not in good faith, and any liability arising out of negligence.
The Chair
With this it will be convenient to discuss the following:
Amendment 502, in clause 25, page 15, line 34, after “life” insert
“, or to attempt to do so,”.
This amendment and amendment 503 are consequential on amendment 501.
Amendment 503, Clause 25, page 15, line 36, leave out subsection (3).
See the statement for amendment 502.
Clause stand part.
Kim Leadbeater
The amendments ensure that the exclusion from civil liability applies in relation to persons performing functions under the Bill and persons assisting a person seeking to end their own life in connection with the doing of things under the Bill. Importantly, they also rightly exempt from the exclusion from civil liability things done dishonestly or not in good faith, and any liability arising from negligence.
Proposed new subsection (1) in amendment 501 makes it clear that anyone providing assistance to a person to end their own life in accordance with the Bill will not face civil liability simply for doing so. That is crucial in offering clarity and confidence for healthcare professionals, family members or others who might otherwise hesitate due to fear of being sued for assisting a loved one or patient who wishes to end their life as a result of their terminal illness.
However, although we are providing protection, amendment 501 does not allow for unfettered actions without any accountability. Proposed new subsection (1A) ensures that any actions that are dishonest or done in bad faith are not protected from civil liability. Additionally, it states that breaches of a duty of care, such as negligence, are also not exempt from liability. This provision is a critical safeguard. It ensures that, although we provide legal protection for those acting with compassion and integrity, we also prevent exploitation or irresponsible actions, by making it clear that there is no immunity for actions that are dishonest or negligent. That strikes the right balance between compassionate assistance and legal accountability.
The amendment particularly reassures doctors, nurses, and healthcare workers—those who are most likely to be involved in the process. Often, they are deeply committed to palliative care and to supporting patients through their end of life journey, and the amendment ensures that they will not face legal risk if they provide assistance to eligible individuals under the Bill.
Danny Kruger
I rise to speak to clause 25 as a whole. First, though, I welcome the amendments tabled by the hon. Member for Spen Valley, because I recognise that she is attempting to fix a problem with the Bill.
However, I am afraid that my objection remains: the fact is that no other assisted suicide law in the world—including in common law jurisdictions similar to our own, such as Australia or New Zealand—has such a clause. There can be no justification for it. If, in the course of providing assistance under this Bill, a doctor commits a civil wrong, they ought to be liable for it in the usual way.
I am glad the hon. Lady has realised that a total exclusion of civil liability is not justifiable, but her change does not go far enough. Her amendments would preserve civil liability where an act was done dishonestly—not in good faith—or for liability in tort, based on the breach of a duty of care, or in other words the tort of negligence. However, it is worth noting that that still excludes civil liability in other respects, and we should ask whether that is justifiable.
First, the clause would still exclude civil liability under a contract, so a patient who has received improper care in breach of contract would not fall within either of the exceptions of proposed new subsection (1A). I take the point that, in the case of negligent care, there would often be a concurrent liability under the tort of negligence, and that that is preserved by new subsection (1A)(b), but that is not the case for other forms of contractual arrangements.
That might be particularly relevant in the situation of subcontracting. An example would be where an outsourcing company is tasked with transporting the lethal substance. Given the risks involved, the contract specifies strict rules that must be complied with, but the company does not comply with those rules. Under clause 25, even as amended, my concern is that they could not be sued for that breach of contract. What is the justification for excluding civil liability in contracts?
Secondly, there is the tort of trespass to the person, which is commonly relevant to medical practice, as it is under such torts that cases where there was no consent or capacity are handled. Those torts can be committed recklessly, but recklessness is not the same as bad faith or dishonesty, so liability could not be established under new subsection (1A)(a). Such torts are also different from negligence—they do not involve a duty of care—so they would not be covered by new subsection (1A)(b). I appreciate that, in many cases, liability could also be established under the tort of negligence, but that would not be the case in all cases. So I ask again: what is the justification for this exclusion?
Finally, and most concerning, we were told in previous debates that if it turned out that the criteria for an assisted death were not met, one could always apply for an injunction. Leaving aside the practical and financial obstacles involved in seeking an injunction at the last minute, which we have discussed before, my concern is that a private law injunction requires that a civil wrong either has been committed or is about to be committed. However, in a case where the doctors consider, in good faith and without negligence, that the criteria have been met, but the family has new evidence to show that that is not the case, the effect of clause 25, even as amended, would be that no civil wrong has been, or would be, committed in that instance, so the test for a private law injunction would not be met.
I might be wrong, so I would be interested to hear whether the Minister or the hon. Member for Spen Valley disagree with that analysis. I would be grateful if they could point out how the private law test for an interim injunction is met in such an instance.
All this could be much simpler if clause 25 were left out of the Bill entirely. Australia and New Zealand do not have such a clause or a civil liability exemption for practitioners of assisted suicide, and I am not aware of that having caused problems for practitioners, so I would be interested to understand why we need such a measure here.
Jake Richards
I welcome the amendments tabled by my hon. Friend the Member for Spen Valley. As I think she accepts, given that she tabled the amendments, there is an oddity with the Bill as drafted that has to be fixed, and I think the amendments would do that.
I appreciate that there is some force to the argument of the hon. Member for East Wiltshire. I would be interested to hear what the Minister says, but it seems to me that there is a balancing act between ensuring that medical practitioners and clinicians are working in an environment in which they do not constantly feel the heat of a lawyer’s breath on their neck, and ensuring protections. There is some force to the argument for removing the clause altogether, but on balance I see more force in the argument that we should have more clarity.
I want to raise some more issues that need to be considered in the light of the provision for aspects of civil liability in this process. That is why last night I supported the amendment in the name of my hon. Friend the Member for Ipswich, which was not passed, relating to guidance for doctors in certain circumstances during this process. I raise those points about the standard of care and the duty that doctors and clinicians will be working to throughout the process for the record, and so that the Government and my hon. Friend the Member for Spen Valley can take them forward. I raise those questions not because they are unanswerable—I think they are answerable—but because we need to work out exactly what we are asking our doctors to work to, and what form that guidance comes in. Does it need to be legitimised by Parliament, or can it be undertaken by a Minister?
I do not think I need to expand greatly on the point, but we can all imagine circumstances in which clinicians are compromised in their view of the duty of care that they have to the patient. When this process begins in this jurisdiction, it needs to be clear what that is.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd. Well done for arriving on time, by the way.
These amendments aim to ensure that, if passed, this legislation will be legally and operationally workable. I will offer a technical, factual explanation and rationale for them. Amendments 501, 502 and 503 replace clause 25(1) and instead provide that the provision of assistance in accordance with the Bill will, of itself, not give rise to civil liabilities in certain circumstances. Those circumstances are where an individual provides assistance in accordance with the Bill, where an individual performs any other function under the Bill in accordance with the Bill, and where an individual assists a person seeking to end their life under the Bill, in connection with the doing of anything under the Bill. Proposed new subsection (1A) would create an exception to the exclusion of civil liabilities, providing that civil liabilities can arise in cases when an act is performed dishonestly or otherwise than in good faith, as well as in cases of negligence. Without this amendment, there is the possibility that clause 25(1) could provide blanket immunity to a person from all civil liabilities, even when they may have been negligent in their actions in providing assistance in accordance with the provisions in the Bill.
Kim Leadbeater
I will speak briefly on this issue. An important point was made by my hon. Friend the Member for Rother Valley about the protections that clause 25 and these amendments provide for medical practitioners. I think the clause strikes the right balance, but it is important to remove the blanket immunity. My hon. Friend referred to codes of practice and codes of conduct. We have talked a lot about good medical practice from the General Medical Council, and we have a clause in the Bill on codes of practice. I feel confident in the clause, but I am still having regular meetings with officials about the legal implications of the Bill. I will continue those conversations, but I am happy that the clause as it stands serves the correct purpose.
Kit Malthouse
Will the hon. Lady respond to the point about injunctions? The Minister might want to respond to this as well. My understanding is that in order to obtain an injunction, someone does not have to establish that there is either a civil wrong or a criminal offence. They have to establish that there is a serious matter to be adjudicated, and that there is a strong likelihood of harm taking place. In those circumstances, a court would consider granting an interim injunction, subject then to a further hearing, ex parte or otherwise. The idea that some kind of civil tort needs to be established is not actually correct in seeking an injunction.
Kim Leadbeater
That would be my understanding as well, but I am not a lawyer. Fortunately, a lawyer just tried to intervene on me, so he might want to step in.
Jake Richards
My intervention is on something completely different. I have been reminded that in Australia, there is a specific clause that relates to the provision in this amendment almost word for word, so I think the hon. Member for East Wiltshire may have been incorrect in his comments.
Kim Leadbeater
I thank my hon. Friend for that. Unless the Minister has anything to add on injunctions—
The Chair
Order. Can the Committee address all remarks to me, please? I have said this time after time. This is not a dialogue or a chit-chat across the room.
Sarah Sackman
I will address the point about injunctions, which we have touched on at a number of junctures in our debate. In terms of applying for an interim injunction in a civil case, a very well-established test is the American Cyanamid test, which all the lawyers in the room would have learned at law school. The first of those tests is, “Is there a serious issue to be tried?” Someone does not have to establish to the civil standard—
The Chair
Order. Can we get the order of debate right? Members may make a speech for as long as they want, on the issues they want. They may intervene to get clarity from another Member, but that has to be short and sweet. There is nothing to stop a Member from making another speech, even if they have spoken before. I exhort Members, if they want clarity, to make a speech separately, unless it is a very short intervention. If it is going to be a long intervention, they may well want to make another de facto speech and get clarity through that. They are entitled to stand up as much as they want. I am not encouraging Members to do that, but that is the gist. If the Minister wants to stand up again and clarify the point in its own speech, that is fine.
Kim Leadbeater
Thank you, Chair, and apologies. I thank the Minister for the intervention and I think she did make the point that needed to be made.
The Chair
I hope my remarks were of some help. I might repeat them again in due course.
Amendment 501 agreed to.
Amendments made: 502, in clause 25, page 15, line 34, after “life” insert
“, or to attempt to do so,”.
This amendment and amendment 503 are consequential on amendment 501.
Amendment 503, in clause 25, page 15, line 36, leave out subsection (3).—(Kim Leadbeater.)
See the statement for amendment 502.
Question put, That the clause, as amended, stand part of the Bill.
Kim Leadbeater
I beg to move amendment 506, in clause 26, page 16, line 7, leave out “in accordance with” and insert “under”.
This amendment provides that the offence under subsection (2) applies in relation to an approved substance provided under the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 507, in clause 26, page 16, line 9, leave out “or (2)”.
This amendment limits subsection (3) to offences under subsection (1).
Amendment 508, in clause 26, page 16, line 10, at end insert—
“(4) A person who commits an offence under subsection (2) is liable, on conviction on indictment, to imprisonment for life.”
This amendment provides for a maximum penalty of life imprisonment for an offence under subsection (2).
Amendment 509, in clause 26, page 16, line 10, at end insert—
“(5) Proceedings for an offence under this section may be instituted only by or with the consent of the Director of Public Prosecutions.”
This amendment provides that proceedings for an offence under this clause may be brought only by or with the consent of the Director of Public Prosecutions.
Clause stand part.
Kim Leadbeater
These amendments to clause 26—and clause 27 to some degree, which I will come on to shortly—are intended to clarify offences under the law. The changes refine the language to ensure that offences relating to dishonesty, coercion and pressure are more clearly defined. The amendments serve to clarify the details of four categories of offences, and I will provide a summary of the four categories.
The first category is when someone
“by dishonesty, coercion or pressure, induces another person to self-administer an approved substance”.
This offence, in clause 26(2), is the most serious offence. It is coercing or pressuring someone to take their own life; it includes coercive control and pressure, and it attracts as the maximum a life sentence—the most severe punishment that the law can impose.
The second category of offences includes
“by dishonesty, coercion or pressure,”
inducing
“another person to make a first or second declaration, or not to cancel such a declaration.”
This is in clause 26(1). It is where the criminal conduct has coerced or pressured someone to execute or not cancel the declarations—a step in the process, but not actually ending their own life. It is the second most serious offence, and attracts a maximum of 14 years in prison.
The third category of offences involves making or using a false instrument—first declaration, second declaration, medical report or within-six-months-or-less diagnosis—or failing to notify the cancellation of a relevant declaration, with the intention of facilitating the provision of assistance under the Act. That actually comes under new clause 24, which will be discussed in relation to clause 27, but I think it is important to look at the offences in the round. This is the third type of offence. It is a new offence, and it covers cases where a person helps another person to obtain assistance under the Act by falsifying documents to get that assistance or to prevent it from being removed. This is still very serious, and attracts a maximum sentence of 14 years. It will most often be applied where the person seeking the assistance wishes to get round the safeguards. The safeguards must be rigorously enforced, hence the same maximum as for the second category of offence.
Rebecca Paul
I will be fairly brief. I welcome amendment 508, which would ensure that conviction for the offence leads to a necessarily serious result. However, it is not just the strength of the sentence that we need to think about; there is also a question about how difficult it can be to detect and demonstrate coercion in the first place.
Domestic abuse prosecutions have followed an overall downward trend over the past decade, according to Women’s Aid. A report from the Domestic Abuse Commissioner in January found the criminal justice system unfit to hold abusers to account and safeguard domestic abuse victims. Domestic abuse victims are being failed by the criminal justice system at every stage, from police to probation. Victims seeking safety in justice routinely face a lack of specialist service referrals, poor enforcement of protective orders, court delays and early release of abusers. The commissioner also found that just 5% of police-recorded domestic abuse offences reached conviction and that less than a fifth of victims have the confidence to report to the police in the first place. Within the police workforce itself, only 4% of alleged domestic abuse perpetrators are dismissed.
Women’s Aid says that trust in the criminal justice system is at an all-time low, with domestic abuse survivors not feeling that they will be believed and supported when reporting abuse. That is even more challenging for black and minoritised survivors, who face additional barriers and poor responses when they seek help.
Kim Leadbeater
The hon. Lady is making a point that we have already covered several times in the debate. It is an important point, but I hope that she is reassured by the offences to be included in the Bill, which create sentences that do not currently exist.
Rebecca Paul
I am absolutely reassured by the hon. Lady’s amendment, and I welcome it, but it is worth drawing attention to the fact that the sentence is important but identifying coercion and pressure can be difficult too.
In written evidence, a social worker called Rose has cast doubt on the workability of the Bill. She was writing when the High Court safeguard was still part of the Bill, so we need to bear that in mind, but what she said applies to the panel too. She wrote that
“based on lived experience…there is no authentic provision mechanism or route that cheaply and swiftly would allow an approved palliative care professional…or social worker to act to protect a vulnerable person under the grounds of coercion….Place yourself in a position of being sick or older, coerced by family for financial gain or by a practitioner wanting to save public costs to pursue assisted suicide, the social worker senses it by body language, a squeezing of their wrist, a sharp silencing look. Can you see a judge saying: ‘the social worker sensed a tension in the air and a look’.
Do you think that would serve to reach the threshold to override a request for assisted suicide in a court of law?
In practice, what would happen would be, the social worker will record her concerns on the system, share them with her manager who will go to her manager who will say we do not have funds to consult legal and your evidence provided does not reach threshold anyway.”
The Chair
Order. I am genuinely trying to give as much latitude as possible, but the issue of coercion has come up before. In the context of the offence, I am not sure that this is necessarily pertinent or relevant. Will the hon. Lady bear that in mind during her speech, please?
Rebecca Paul
Thank you, Mr Dowd. In that case, I will stop there. I was just making the point that this is important.
Amendment 509 states:
“Proceedings for an offence under this section may be instituted only by or with the consent of the Director of Public Prosecutions.”
I would find it useful to have more clarity around how the offence is used currently, why it is used and why it is appropriate to use it in this instance. Those are all genuine questions. I simply do not know, so I would be grateful for some input. I will leave it there.
Danny Kruger
I will be grateful if the Minister or the hon. Member for Spen Valley can explain the situations in which behaviour criminalised by clause 26(2) would not also amount to an offence under section 2 of the Suicide Act, as amended, or indeed to murder. What behaviour would be criminalised here that is not already criminal? Can the hon. Lady think of any instance in which there would be no crime under section 2 of the Suicide Act, but there would be an offence under clause 26(2)? If there is no such instance—I cannot think of one—it strikes me that, at least in respect of coercion and pressure, the offence being created here is redundant and duplicative.
Ministers have rightly stressed the importance of their duty to the statute book. My understanding is that having redundant or duplicative legislation, or indeed duplicative offences, would be inconsistent with our duty to the statute book. One might ask, “What does it matter? Wouldn’t it be helpful to have additional belt-and-braces safeguards in the Bill?” I agree in principle, but I note that when other Members have deployed that argument in relation to adding terms such as “undue influence”, the neutral Ministers have rebuked them by appealing to the duty that we are supposed to have to the statute book. I think the point cuts both ways. Why are we embroidering the statute book with duplicative offences?
Kim Leadbeater
I would have thought, given the hon. Gentleman’s views on the Bill, that he would welcome having an actual offence for the purposes of the Bill. Surely that is something that we should all support.
Danny Kruger
I support the principle of insisting that inducing people by dishonesty, coercion or pressure to kill themselves should be illegal, but my understanding is that it already is. If it is not illegal, or if there are circumstances in which we need this additional offence that are not already captured by the Suicide Act or the law on murder, I would like to understand what they are. As I say, while it might be helpful to duplicate the offence, I understand that the very sensible convention in our law is that it is not helpful to have two offences relating to the same act because of the opportunity for offenders to play off one offence against the other.
Having duplicative criminal offences can make prosecuting cases harder because the defendant can raise abuse-of-process arguments about whether they have been charged with the most appropriate offence. I understand that the Attorney General’s Office and the Ministry of Justice are therefore usually very keen to avoid duplicative offences.
Let me give an example of the difference in the treatment of the offence. It is proposed that this offence would be subject to a life sentence, which requires the consent of the DPP. But at least in the one case where it overlaps with murder, this would provide a more favourable treatment for the accused than the other obvious charge. Can that be justified?
Duplicating criminal liability by introducing new offences has far-reaching implications that can disturb the coherence and certainty of criminal law. If one introduces a law that gives prosecutors two criminal offences to choose from to cover one act, some prosecutors will choose one and some will choose the other. This is generally undesirable; indeed, it is unprecedented in the case of homicide, where there is every reason to suspect that it could cause chaos for grieving families in search of justice. Such chaos is all too predictable, for a number of reasons.
Let me give an example. A defendant proven to have procured a suicide by deception will be well advised to plead guilty to the offence contrary to section 26(2) and then contest any attempt to introduce murder proceedings. This matters profoundly. A decision to prosecute is an administrative decision and is subject to judicial review. This is not an academic point; it could cause real distress for bereaved families in deep turmoil seeking justice.
Let us imagine that a person, A, is a new coercive and controlling partner of person B and procures by deception their suicide in order to profit from a will. The family of person B grow suspicious and provide the police with a convincing case for a murder prosecution. The CPS agrees and charges A with murder. A accepts that he procured the suicide by deception. On that basis, he appeals, seeking a remedy in judicial review, saying that the CPS should have charged him with a clause 26(2) offence, not murder. The JR is backed by wealthy pressure groups and is beset with administrative adjournments and so on. From the filing of the claim form to the final judgment of the administrative court within the High Court, the case takes 24 gruelling, painful, awful months for the bereaved family.
Throughout this time, the lawyers for A, the defendant, tell him to stay the course and continue to offer the plea to section 26(2), because the family will be exhausted by the reality of litigation. The family have no legal aid, no support, no charity backing and no one interested in their case. The war of attrition in litigation finally defeats them. They advise the CPS that they will accept a plea under the section 26(2) offence, and not the murder that actually occurred. That is the reality of duplicating criminal liability. In that example, A has got away with murder by judicial review.
We must be clear about what we are being asked to do. It is not simple. We are being asked to innovate in the law of murder. We are being asked to do so without the assistance of the Law Commission, without the careful eye of legal or judicial bodies alive to the difficulties of duplicating liability and without the input of any bodies that represent the victims of crime on how this might affect them. There are no Government consultations with such bodies before us. There is no expert assistance from judicial or legal figures on how the good intentions around clause 26(2) might unintentionally lead to serious and undesirable consequences such as those that I have described.
Naz Shah (Bradford West) (Lab)
I thank the hon. Member for East Wiltshire, who has raised some concerns for me. I rise to speak in support of the amendments, but also to raise some points. I share the hon. Gentleman’s concerns, but let me begin by speaking about the bits that I feel pleased with and able to support.
My hon. Friend the Member for Spen Valley has already explained the amendments and may explain them more later. I am pleased that they tidy up errors in the original construction of the Bill. In its original form, subsection (2) rightly states:
“A person who, by dishonesty, coercion or pressure, induces another person to self-administer an approved substance provided in accordance with this Act commits an offence.”
Unfortunately, in the Bill as drafted, the penalty for such an act is only a prison sentence of 14 years. It is quite right for that to be the penalty for the offence detailed in subsection (1), namely when someone,
“by dishonesty, coercion or pressure, induces another person to make a first or second declaration”,
but does not actually succeed in getting them to the end of the assisted dying process. However, it is easy to agree that 14 years is an inadequate penalty for successfully coercing or pressurising somebody into an assisted death. I am glad that my hon. Friend the Member for Spen Valley has recognised that problem and has tabled an amendment that would impose a maximum penalty of life imprisonment for such an offence.
My hon. Friend the Member for Sunderland Central made a powerful speech in this Committee the other day, in which he said that abusive or coercive people are already likely to be forcing their victims to starve themselves or refuse treatment. That is true, and I thank him for raising that important point. I will welcome all measures to make it harder for abusers to do so and will gladly work with hon. Members to do so. However, I want to sound a strong note of caution.
Creating an offence and giving it a strong maximum penalty is only one of the ways to deter abuse and coercion, and perhaps the easiest. As I have mentioned before, the conviction rate for coercion is only about 4%. There are other things that we need to do to deter and prevent abuse. We need the people who may come into contact with it to be aware of what could happen; we need them to be able to spot the signs that it may be happening; we need ways to investigate those signs carefully. Only when we have done those things can we move on to the CPS potentially prosecuting somebody for an offence and, if they are found guilty by the court, to sentencing that person. Those are matters that this clause deals with, and they come at the end of a process.
I welcome the amendment tabled by my hon. Friend the Member for Lowestoft (Jess Asato), which makes training in domestic abuse and coercion mandatory for professionals working on assisted dying cases, and which my hon. Friend the Member for Spen Valley has accepted. However, new training on its own will not be enough to make it near-impossible for abusers to succeed. Having unfortunately had lots of experience in the area—having seen it in my own life, the lives of people close to me and the lives of constituents—I know that sometimes abusers are not subtle. Even so, they can be hard to catch, because their victims cannot recognise that they are being abused. The classic—I wish I had a pound for every time I heard it—is “He’s changed.” There are hundreds of justifications and some are very subtle indeed. These people can be very hard to catch, or they may never be caught at all.
I have heard hon. Members say—I think my hon. Friend the Member for Spen Valley said it earlier—that the Bill strengthens the safeguards around people who are terminally ill, because those are not there in the first place. I appreciate that idea, but that is just for those people who are terminally ill. I want to strengthen safeguards more generally. In some ways, the Bill offers people a new opportunity to be coercive, controlling and dishonest. That is why I have been banging on about safeguards so much in this Committee; perhaps people find it a bit much, but I do it because abusers are very persistent and clever people and we have to be clever and persistent in how we devise our safeguards against them.
Although I welcome the clause and the amendments tabled by my hon. Friend the Member for Spen Valley, I am disappointed that other safeguards have been rejected. I still say that the panel procedure could and should be much tougher. That would not guarantee that abusers would be caught, but it would make it more likely.
The Chair
Order. Members cannot continue to talk about the substance of amendments that have already been rejected, and we are now going into that territory. I am not going to stop the hon. Lady talking, but rehashing debates about amendments that we have already had is not in order.
Naz Shah
I apologise, Mr Dowd. I will not refer to them.
I come back to the point made by the hon. Member for East Wiltshire about DPP consent. I will be grateful if the Minister picks up some of these queries. In this place, we make laws. My experience of the law on forced marriage—I was a victim of forced marriage—was that we made a law but never got any convictions. Very little moved on it, because we already had laws in place to prosecute that offence. I am not saying that the same is happening here, but I draw the Committee’s attention to the fact that we may be making a law that already exists. If it already exists in the Suicide Act, are we just making a law for the sake of putting something on the statute book or on the face of the Bill?
We have talked a lot about how we should not complicate things. The word “complication” has been used quite a lot in this Committee. Are we adding another layer of complication by putting this measure in the Bill, when we are not prepared to do so for other things that people feel strongly about? This is also something that already exists.
My understanding is that if we were prosecuting coercion, for which unfortunately the prosecution rate is only 4%, that would not need DPP consent. It would be needed, potentially, for assisting suicide, but not for coercion. Do we need some clarity about the application of the law in this regard? Suppose we had a scenario in which somebody was murdered: it was premeditated, and somebody had thought through how to use this process as an avenue to kill that person. I do not want us to make a law that would allow somebody to literally get away with murder. More thought needs to be given to that. I am not an expert or an eminent lawyer like the Minister, but I am concerned by the comments of the hon. Member for East Wiltshire, having looked more closely at the issue. I would welcome the Minister’s comments.
Terminally Ill Adults (End of Life) Bill (Twenty-eighth sitting)
Tuesday 25th March 2025
(1 month ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 March 2025 - (25 Mar 2025)
The Chair
Would everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. I remind Members that interventions should be short, and raise points of clarification or questions; they should not be speeches in and of themselves. Members who do wish to give a speech should bob and continue to do so throughout the debate that they wish to speak in, until they are called. When Members say “you”, they are referring to the Chair. “You” should not be used to refer to each other. Debate should come through the Chair.
Clause 32
Secretary of State’s powers to ensure assistance is available
Danny Kruger (East Wiltshire) (Con)
I beg to move amendment 525, in clause 32, page 19, line 26, leave out subsection (2).
The Chair
With this it will be convenient to discuss the following:
Amendment 537, in clause 32, page 19, line 27, after “assistance” insert
“by a registered charity but not”.
This amendment would limit the provision of an assisted death to charitable providers and not permit provision as part of the National Health Service.
Amendment 528, in clause 32, page 19, line 27, at end insert—
“(2A) Regulations under subsection (1) cannot authorise a body other than a public authority from providing such assistance even if that body is to be contracted by a public authority to do so.”
Amendment 529, in clause 32, page 19, line 28, leave out subsection (3).
Amendment 530, in clause 32, page 19, line 31, at end insert—
“(5) The Secretary of State may not lay a draft statutory instrument before either House of Parliament that makes provision containing (whether alone or with other provision) regulations under subsection (1) unless they also lay before both Houses an impact assessment on such regulations.
(6) The impact assessment under subsection (5) must include an assessment of the impact of such regulations on the workforce of health professionals and on the National Health Service.”
Clause stand part.
Amendment 545, in clause 39, page 23, line 6, leave out subsections (3) to (5) and insert—
“(3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A),30(3), (Voluntary assisted dying services: England) or (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) The Welsh Ministers may not make a statutory instrument containing regulations under section (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.”
This amendment brings together the various provisions about the procedure for regulations. It also makes regulations under clauses 5 and 8 about training, qualifications and experience, and regulations under NC36 and NC37, subject to the draft affirmative procedure.
New clause 36—Voluntary assisted dying services: England—
“(1) The Secretary of State must by regulations make provision securing that arrangements are made for the provision of voluntary assisted dying services in England.
(2) In this section ‘commissioned VAD services’ means services provided by virtue of regulations under subsection (1).
(3) The Secretary of State may by regulations make other provision about voluntary assisted dying services in England (whether or not the services are commissioned VAD services).
(4) Regulations under this section may for example provide that specified references in the National Health Service Act 2006 to the health service continued under section 1(1) of that Act include references to commissioned VAD services.
(5) Regulations under this section must provide that section 1(4) of that Act (services to be provided free of charge except where charging expressly provided for) applies in relation to commissioned VAD services.
(6) Regulations under this section may make any provision that could be made by an Act of Parliament; but they may not amend this Act.
(7) In this section ‘voluntary assisted dying services’ means—
(a) services for or in connection with the provision of assistance to a person to end their own life in accordance with this Act, and
(b) any other services provided by health professionals for the purposes of any of sections 4 to 22 except section (Determination by panel of eligibility for assistance).”
This new clause imposes a duty on the Secretary of State to make regulations securing that arrangements are made for the provision of voluntary assisted dying services in England. It also confers a power to make other provision about voluntary assisted dying services in England.
Amendment (a) to new clause 36, after subsection (1) insert—
“(1A) Regulations under subsection (1) cannot authorise the National Health Service in England to provide voluntary assisted dying services.”
Amendment (c) to new clause 36, after subsection (1) insert—
“(1A) Regulations under subsection (1) cannot authorise a body other than a public authority to provide voluntary assisted dying services if that body is to be contracted by a public authority to do so.”
Amendment (b) to new clause 36, leave out subsections (4) and (5) and insert—
“(4) Regulations under subsection (1) may not amend, modify or repeal section 1 of the National Health Service Act 2006.”
Amendment (d) to new clause 36, leave out subsection (6).
Amendment (e) to new clause 36, after subsection (6) insert—
“(6A) The Secretary of State may not lay a draft statutory instrument before either House of Parliament that makes provision containing (whether alone or with other provision) regulations under subsection (1) unless they also lay before both Houses an impact assessment on such regulations.
(6B) The impact assessment under subsection (6A) must include an assessment of the impact of such regulations on the workforce of health professionals and on the National Health Service.”
New clause 37—Voluntary assisted dying services: Wales—
“(1) The Welsh Ministers may by regulations make provision about voluntary assisted dying services in Wales, including provision securing that arrangements are made for the provision of such services.
(2) Regulations under subsection (1) may make any provision that—
(a) could be made by an Act of Senedd Cymru, and
(b) would be within the legislative competence of the Senedd if it were contained in such an Act.
(3) The Secretary of State may by regulations make provision about voluntary assisted dying services in Wales.
(4) Regulations under subsection (3) may make any provision that—
(a) could be made by an Act of Parliament, and
(b) would not be within the legislative competence of the Senedd if it were contained in an Act of the Senedd.
(5) Regulations under this section may not amend this Act.
(6) In this section ‘voluntary assisted dying services’ has the meaning given by section (Voluntary assisted dying services: England).”
This new clause confers a power on the Welsh Ministers to make provision about voluntary assisted dying services in Wales, including provision securing that arrangements are made for the provision of such services. It also confers a power on the Secretary of State to make provision about such services, where the provision would be outside the legislative competence of Senedd Cymru.
Danny Kruger
It is very good to serve under your chairmanship, Ms McVey, on what is probably our last day in Committee. I fully expect that we will reject clause 32 in due course, so although I want to move my amendment, I have no intention of pushing it or any of the other amendments in this group to a vote, but I do want to take the opportunity to address the clause and to speak to the amendment in my name.
Clause 32 was always going to be an important one, because it would have allowed the Government to provide money to fund the assistance to die; it would have allowed the Secretary of State to make financial arrangements to secure the provision of assistance under the Bill. What we might have been debating if we were sticking with this clause—I think it is still worth inviting the hon. Member for Spen Valley and people who support the Bill to speak to this point—is that the Bill will require the Government to fund the provision of assisted suicide services, but it makes no provision to fund the supply of palliative care. I think everyone in this Committee recognises the absolute imperative of a properly supported palliative care sector, and I deeply regret that although the Government are supporting a resourcing of this new service, there is no balancing commitment to provide what we have all acknowledged is the essential corollary of any assisted dying service. What is worse, in clause 32 and in new clause 36, which will replace it, we have something different.
Last Wednesday night, just as the Committee rose, the hon. Member for Spen Valley tabled amendment 538, which would remove clause 32 from the Bill. This is the clause that committed the Secretary of State to make the financial commitments—commitments that were debated in principle when the House debated the money resolution on 22 January. Once again, I regret that important undertakings that were made by the Government and by the hon. Lady have, in the course of the debate subsequent to Second Reading and now subsequent to the money resolution, been superseded by further provisions.
Amendment 538 is consequential on two new clauses, one of which is new clause 37, which will allow Welsh Ministers to set up a system to implement the Bill in Wales. This will give very wide powers to Welsh Ministers, including the powers to make provision about the service that would be outside the legislative competence of Welsh Ministers. That is significant. Unlike clause 32 and new clause 36, which will replace it, new clause 37 does not make any reference to the health service in Wales. I think it is worth us teasing out the challenge to the devolution settlement that these new clauses represent; I am sure the right hon. Member for Dwyfor Meirionnydd will speak to that.
I want to speak briefly, but I hope clearly and powerfully, to the essential challenge. Without getting too involved in the party politics, we all talk about “our NHS”, and in a sense it is our NHS: this nation’s great domestic institution, created in the 20th century in response to the shamefully inequitable provision of healthcare that preceded 1946. Labour rightly claims the credit for having introduced the NHS under the Attlee Government and in fact the Liberals also have a good claim to it—it was a Liberal, Beveridge, who first advocated the provision of a national health service—but what is not enough recognised is that, as I am sure my hon. Friends are proud to say, it was a Conservative Health Secretary who first put before the House of Commons a plan for a national health service: Henry Willink, Health Secretary in the wartime coalition Government. Unfortunately, the public voted us out of power in 1945 and it fell to Labour to implement a slightly different plan. Nevertheless, we can all claim some parentage of this great institution, the NHS. That is why it is so significant that in the new clauses we are debating, a fundamental change to the NHS in England is proposed.
The duty on the Secretary of State under the National Health Service Act 1946, as updated in 2006, is to promote
“a comprehensive health service designed to secure improvement in the physical and mental health of the people of England…and the prevention, diagnosis and treatment of illness”—
that is, physical and mental illness. That has been the purpose of the NHS since 1946.
I find it curious that a linguistic sleight of hand is being practised in new clause 36. The new phrase, “voluntary assisted dying services” or “VAD services”, is introduced, and it is used to avoid having to spell out that section 1(1) of the NHS Act 2006 will now include references to “assistance to end” the lives of people in England and Wales—that is the language of the Bill as introduced, in the long title and in nearly every clause up to this point. The explicit language that this is about ending people’s lives is avoided in the new clause. Why? I put it to the Committee that it is a hard thing to do: to take a red pen to Bevan’s legacy, to fundamentally change the NHS from one that is
“designed to secure improvement…in the physical and mental health”
of the people of England and Wales, and dedicated to
“the prevention, diagnosis and treatment of…illness”,
and to add to that founding clause “to end” the lives of terminally ill people.
I will be blunter than the drafters have been. New clause 36 changes the NHS from being the national health service to the national health and assisted suicide service. That is its direct implication. Furthermore, the new clause is also designed not only to alter fundamentally the national health service, but to enable the private sector to be paid from NHS funds to end the lives of terminally ill people—and not only that, but to do so with a Henry VIII power so broad as to enable any changes in the NHS or any law to facilitate that goal.
Dr Simon Opher (Stroud) (Lab)
Does the hon. Gentleman accept that end-of-life care is also part of the NHS? That has always been part of the NHS, and it is not promoting health but enabling a good death.
Danny Kruger
No, I fundamentally disagree: end-of-life care is healthcare. It is addresses symptoms and conditions, and it is designed in a way that is completely compatible with the founding principle of the NHS, whereas the Bill—I appreciate the honesty of the drafters in recognising this, even if they do not quite spell it out—and its proposal of an assisted suicide service is not compatible with the founding principle of the NHS. That is why adapting that founding subsection as in the original NHS Act is required. Of course I recognise that end-of-life care is healthcare and completely compatible with what the NHS does. I wish it were more part of the NHS—that is another debate. Palliative care should have been more closely integrated into NHS provision, and it still should be.
I want to tease out a tension among the drafters and advocates of the Bill about exactly how the assisted suicide service will be facilitated and provided. We have got a bit closer to it, but some questions remain, which is regrettable when here we are on the very last day of the Committee’s debate. Last month, the hon. Member for Spen Valley told the Committee:
“This is not assisted suicide by the state. The state is not involved.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 11 February 2025; c. 318.]
I am perplexed by that. I think many members of the public would not agree with that analysis of how the Bill has evolved in Committee. If involving the state in the provision of this service was not intended, then that is not the Bill we have.
In contradiction to that, and I think more accurately, the Minister for Care told us that the promoter’s intent—speaking for the hon. Member for Spen Valley—is
“to ensure that the assisted dying service is available as an integral part of the NHS. Officials are working on amendments to later clauses to establish the operating model for her consideration.” —[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 802.]
That is clearly what has happened, and it is where we are now. However, I am sorry to say that I do not feel that the operating model is now clear. We still do not have an impact assessment, we do not know how the Government envisage it working in practice, and important information is still lacking for the debate today. We do not know the possible impact on general practice or medical specialists, nor how it might impact money that is available for palliative care. I hope the Minister can tell us more today about how he envisages the service being implemented, especially in the light of the British Medical Association conference earlier this month, which supported the motion that
“Assisted dying is not a health activity and it must not take place in NHS or other health facilities”.
That is a principle I agree with.
On 5 March, the hon. Member for Spen Valley said:
“there is no expectation that assisted dying would be set up as a private enterprise or service. It would be delivered within the provision of the NHS.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 799.]
That now agrees with the Minister—fine, interesting; it is to be an NHS service not to be provided privately. But the new clauses do not rule out private provision, nor any profit making by providers or remuneration of people outside the NHS. Indeed, the new clauses refer to “voluntary assisted dying services”, which suggests the hon. Member for Spen Valley is supportive of services outside those that are NHS commissioned, which will be possible under subsections (1), (3) and (7)(a). That will be in line with comments made by my right hon. Friend the Member for North West Hampshire, who made a very coherent case for private provision of assisted suicide if that is what Parliament chooses to legalise; he said that nothing should prevent someone from opting for private provision. In response, the hon. Member for Spen Valley said:
“This service, like many others, will be delivered through a range of providers”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 800.]
I remain unclear about the extent to which this is an NHS monopoly, as it were, or whether there will be private provision that is privately paid for, or private provision that is publicly paid for. I would be grateful for the hon. Member’s clarification.
Lastly, on the question of profit, in an article in The Times that appeared to have some briefing behind it, there was a suggestion that there would be a cap on the profit of private companies providing the service, limiting them to “making a reasonable profit”. Again, there is nothing in the new clauses about limitations on providers’ profits. If the hon. Member could clarify how she envisages the private provision of the service, I would be grateful.
Sean Woodcock (Banbury) (Lab)
It is a pleasure to serve under your chairship, Ms McVey. I rise to speak to amendment (b) to new clause 36, which was tabled by my hon. Friend the Member for Shipley (Anna Dixon). The amendment states:
“Regulations under subsection (1) may not amend, modify or repeal section 1 of the National Health Service Act 2006.”
For clarity, I will read out the relevant part of section 1 of the 2006 Act:
“The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a)in the physical and mental health of the people of England, and
(b)in the prevention, diagnosis and treatment of physical and mental illness.”
Those core principles have remained the same since the National Health Service Act 1946. As the hon. Member for East Wiltshire stated, in a Britian that was devasted by war, Clement Attlee and Nye Bevan together promised a better future, one where healthcare should be available to all, regardless of wealth. It enshrined a principle that as a society we will care for the ill and we will do that together. No one’s health should be left behind, especially that of the vulnerable.
The NHS stands as the greatest legacy of a Labour Government—despite the input of Opposition parties referred to by the hon. Member for East Wiltshire—and perhaps of any Government since the second world war. The establishment of the NHS lives on in section 1 of the NHS Act. It is why at the height of the pandemic NHS staff courageously put themselves on the frontline to protect us. It is their mission to secure improvement in the physical and mental health of all, free at the point of service. As we consider assisted dying, we must not lose the values at the heart of the NHS.
Section 1 of the 2006 Act has changed little from the corresponding first section of the 1946 Act. It is not just a line in legislation; it has become part of our national story and our national identity, and amendment (b) to new clause 36 is about continuing that. It seeks to preserve the legacy of Attlee and Bevan, and that of Labour Governments committed to the betterment of the people.
Twenty-five senior doctors and pharmacists from Shetland and Orkney spoke of that legacy in their written evidence:
“We note with pride the founding principles of the NHS, with the 1946 National Health Service Act stating, ‘It shall be the duty of the Minister of Health…to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness.’ We believe that Parliament must reflect the lasting ethos of our founding document.”
There are very few lines in legislation that come to represent an institution in this way. It is a testament to the ideal of those founding principles in section 1 that they guide doctors to this very day. This is the thread that runs through the 1946 Act to the 2006 Act—two Labour Governments, 60 years apart, united by this mission to improve the physical and mental health of the people. This Committee should continue the thread of those principles.
Of course, I understand that previous legislation may need to be amended to provide assisted dying services, and that may include the 2006 Act. New clause 36(4) clarifies that specified references to commission voluntary dying services may be included in that Act. I note with regret that the new clause gives us so little information elsewhere about the use of these powers, which are commonly known as Henry VIII powers or clauses. This is not a term that I was familiar with until very recently. I am sure other Members are much more familiar with it than I am, but on the off-chance that there are one or two Members who need a reminder, I will read Parliament’s own official definition of the term:
“‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.”
Helpfully, it adds:
“The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.”
I accept that it might be rather odd to talk about Henry VIII in this debate, but we should not let that distract us from the serious question of this new clause, which could result in a significant transfer of power from Members of this House to the Secretary of State, and it is not clear what that power will be used for.
The Hansard Society has noted that there is little indication about what role or nature these powers will take, saying:
“A key principle that the House of Lords Constitution Committee has applied to delegated powers is that they ‘should not be framed in such a way that gives little indication of how they should be used.’ The Delegated Powers and Regulatory Reform Committee’s guidance to Departments states that the Delegated Powers Memorandum should set out how it is proposed that a power should be exercised.”
I would be grateful if my hon. Friend the Member for Spen Valley and Ministers could provide clarity on those questions. New clause 36(1) does not specify that voluntary assisted dying be provided on the NHS, but subsection (4) allows for the National Health Service Act 2006 to be amended. What is the intention of these powers? What will the structure of the voluntary assisted dying service be? How will it be funded and who will be responsible for the provision of the services? The answer to those questions will inform which legislation needs to be amended, and that information should be in the Bill.
To be clear, as I have said, I accept that changes to previous legislation may be required. However, the provision of assisted dying should not amend the foundational principles of the national health service. It should not break with the legacy of Attlee, of Bevan and of Labour. That is why I support amendment (b) to new clause 36.
Dr Opher
My hon. Friend is making a reasoned speech. The thing is that the way the NHS is delivered is already very complex: for example, GPs are private providers who are on a contract with the NHS. Amending the Bill to completely ban private providers will not in any way enhance it; it will create a situation in which almost no doctors can get involved. We need to keep the private aspect simply so that the NHS can control what is going on, albeit the providers can be from independent organisations.
Sean Woodcock
I am afraid I just do not agree. My view is that if we are going to do this, it should be done via the NHS. As somebody who stood on a Labour election platform not too long ago, that is something I stand by.
We know that geography and socioeconomic factors render access to healthcare, especially private healthcare, unequal. In oral evidence, Baroness Kishwer Falkner, head of the Equalities and Human Rights Commission, and Fazilet Hadi of Disability Rights UK both explained how the impact of the Bill on an unequal society might cause problems. Baroness Falkner said that
“from what one understands, GP provision and general access to healthcare are poorer where demographics are poorer than it is in the better performing parts of the country. One other factor to consider in terms of a postcode lottery is that people in wealthier parts of the country tend to be more highly represented in private healthcare than in public healthcare and use of the NHS. That also impacts their choices and the care they get.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 181, Q235.]
The system must not only be fair, but be seen to be fair. If we had such a system of private provision in place, public trust would almost certainly fall. We do not have to look far to see what happens if these matters go unaddressed. When we have a lack of oversight and accountability, it is the public who suffer. There have been too many scandals in recent history for us not to recognise that reality.
One of the big factors in the Post Office Horizon scandal was that Fujitsu, the supplier of specialist computer software, did not admit when it knew that things were going wrong. I have spent much of my working life in the public sector and I am not saying it is perfect—far from it—but the Horizon scandal is an example that teaches an important lesson. Sometimes private companies will not share information that could mean they lose a lucrative contract. They do not have the same oversight as public authorities, which are ultimately accountable to the Government, to Parliament and, through them, to the public.
We must give the public reason to trust that assisted dying services will have proper oversight; otherwise, the consequences will be felt not just in the provision of assisted dying but in healthcare more generally. Amendment (c) to new clause 36 addresses some of the risks by establishing that voluntary assisted dying services must be provided by a public authority. Furthermore, a body contracted by a public authority to provide the service must be a public authority.
A public authority is defined as:
“A body substantially publicly funded which performs statutory duties, objectives and other activities consistent with central or local governmental functions.”
It is clear that public authorities have stronger mechanisms for transparency and reporting. Requiring assisted dying provision to be through such authorities also places the responsibility firmly with the state. It allows the direct implementation of regulations and guidelines on the provision of assisted dying. Best practice is easier to establish when the regulations apply to the same types of organisations.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
It is a pleasure to serve under your chairship, Ms McVey. In similar circumstances, with the provision of intense personal services such as in vitro fertilisation, there are a range of providers, some in the private sector and some in the public sector—in fact, most are in the private sector even if they deliver under NHS funding or an NHS contract—but they are all subject to the same rules, inspection and regulations. Does my hon. Friend not accept that if it can work in an intense, personal and sometimes ethically complex situation like that, it could equally work here, because there is experience in that sort of environment?
Sean Woodcock
I accept that it could work, but my view is that it is far less likely to work and that it is more likely to be successful if it is wholly the responsibility of public authorities.
I will vote in favour of amendment (d) to new clause 36. It would remove subsection (6), which says:
“Regulations under this section may make any provision that could be made by an Act of Parliament; but they may not amend this Act.”
It strikes me as dangerous to provide in the Bill for the Secretary of State to amend primary legislation, and we should vote to remove that power. It is surely a weakening of the Bill’s safeguards. Assisted dying must remain firmly in the control of the democratically elected Parliament. I urge Members to join me in voting to remove subsection (6).
If we fail to rule out the possibility of private provision and allow the Secretary of State the power to amend primary legislation, we will fail to implement the necessary safeguards. Amendments (c) and (d) to new clause 36 would go some way to addressing that, by ensuring that the state that sanctions assisted dying is also the body that provides it. Assisted dying services need strong reporting and accountability; otherwise, we risk inequality, or the abuse of assisted dying going unchecked. The provision of assisted dying through public authorities is essential to proper accountability, reporting and best practice, so I urge the Committee to support the amendments.
Sarah Olney (Richmond Park) (LD)
It is a pleasure to serve under your chairmanship, Ms McVey.
In Richmond Park, a Henry VIII power has traditionally meant the right of the monarch to hunt the deer in the large open space that gives my constituency its name—something that I am sorry to say he has in common with the dog of the hon. Member for East Wiltshire—
Sarah Olney
He paid a hefty fine, I think.
The efforts of Henry VIII’s descendants to try to enclose the park and maintain the powers for the exclusive benefit of the royal family were defeated by a popular and somewhat genteel uprising of the residents of Richmond. I stand here today as the Member for Richmond Park to do a similar job: to assert the rights of the House of Commons and the Houses of Parliament to determine what legislation is, and not to allow it to be delegated under Henry VIII powers.
The normal approach is that legislation made by Ministers is delegated legislation, and such legislation is therefore of subsidiary character to primary legislation. However, there is a type of power, known as a Henry VIII power, that gives Ministers the power to amend even primary legislation. The glossary on Parliament’s website says:
“The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.”
We may in the course of time start to refer to them as President Trump powers—who knows?—but that is the precedent we act on.
The Hansard Society, a non-partisan organisation that is neutral on assisted dying, issued a report that was critical of the power in the Bill. It said this:
“little can be deduced about how it is thought this power will be used in practice, beyond the fact that it may, in particular, be used to enable the provision of assisted deaths through the National Health Service.
But as the DPRRC”—
the Delegated Powers and Regulatory Reform Committee—
“has previously stated, where a power provides that delegated legislation may ‘in particular’ include a specified matter, it implies the legislation may deal with matters beyond that specified matter. The explanatory notes shed little more light, except to clarify that the power could be used to make arrangements for the funding of any provision made by the regulations. Could the regulations thus be used to enable the provision of assistance through the private sector on behalf of the health service in England and in Wales? If the intention is that the regulations will be used only to establish an assisted dying service, either within or separately to the NHS, would they require that the service be free at the point of access to the person requesting assistance?
A key principle that the House of Lords Constitution Committee has applied to delegated powers is that they ‘should not be framed in such a way that gives little indication of how they should be used.’ The DPRRC’s Guidance to Departments states that the Delegated Powers Memorandum should set out how it is proposed that a power should be exercised.
In the current absence of the DPM, MPs may therefore wish to seek clarification from the sponsor of the Bill, Kim Leadbeater, about how she envisages the power being used, and similarly from Ministers how they expect to use this power if it were granted to them.”
The drafter of the Bill, Dame Elizabeth Gardiner, appeared on the Hansard Society podcast and gave some further detail on this power and how it arose:
“In other areas, like, is it going to be delivered through the National Health Service or in some other way, indeed the regulation of any substances that might be involved, in the time available, we didn’t have time to go into all the detail of how those regimes work and to make the provision on the face of the Bill, and so there are regulation making powers there, which enable that provision to be set out in detail, as you say, when the Government has looked at it and decided how it would implement it.”
Given the time available and the constraints of the private Member’s Bill process, the hon. Member for Spen Valley can be forgiven for not including the detail of how assisted dying will be provided on the NHS in the Bill on its introduction, but she and the Government have now had months to think about it. Many people had hoped that clause 32 would be replaced with detailed arrangements for the delivery of the service, to be put on the face of the Bill by way of an amendment, which the Committee could properly scrutinise.
On 5 March, the hon. Member for Spen Valley repeatedly said that it would be made clear by clause 32. When the hon. Member for East Wiltshire called for clarity in the Bill as to how the service would be delivered, the hon. Member for Spen Valley said: “It will be.” The Minister said:
“Officials are working on amendments to later clauses to establish the operating model for her consideration.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 802.]
This does not appear to have happened, which means Parliament will be limited to a 90-minute debate on this issue when the regulations are eventually made, and such a motion will be unamendable. Surely the issue of how the service is to be delivered is much more important than that and deserves greater scrutiny.
It is disappointing to see new clauses 36 and 37 as the replacement clauses. Ideally, instead of the new clauses we would have had a detailed set of amendments to specify exactly how assisted dying is to be delivered. We do not have that; instead, we have a Henry VIII power that provides even more power than the one in clause 32, because the new one includes a power to modify Acts of Parliament passed subsequent to this legislation.
New clause 36 provides very little guidance on how the Henry VIII power would be exercised. Will assisted dying be provided by the state? If so, would that be on the NHS or through another body? Subsection (1) one does not specify that it must be on the NHS. Subsection (4) gives the power, but not the duty, to change section 1 of the National Health Service Act 2006—a foundational piece of Labour legislation if there ever was one, as the hon. Member for Banbury said—but subsection (5) requires it to be free at the point of use.
The question of whether assisted dying should be provided as part of normal NHS services, or in a parallel service, as requested by both the BMA and the Royal College of General Practitioners, is not answered by new clause 36, although hopefully it can be fleshed out in the debate on the amendments in the name of the hon. Member for East Wiltshire. Alternatively, it would seem that the power can be used to commission private providers to deliver the service on behalf of the state. Instead of deciding between the various models, new clause 36 simply leaves it open. It therefore gives very little indication about how it should be used.
When giving the Gray’s Inn reading at Gresham College last year, Lord Falconer said:
“The wider the power—because there is less material in primary legislation to define how it should be exercised—the greater the reduction in parliamentary scrutiny, but also the harder”—
it would be—
“to identify any legal basis of challenge.”
He went as far as to suggest that such wide Henry VIII powers were “unconstitutional”. Given his great support for the Bill, it would be interesting to hear the response of the hon. Member for Spen Valley and the Minister to Lord Falconer’s remarks.
Daniel Francis (Bexleyheath and Crayford) (Lab)
My hon. Friend the Member for Luton South and South Bedfordshire referred to IVF. My wife and I have been through IVF, and what exists is exactly what the hon. Member for Richmond Park described. There is an annual show at Olympia where it has been commercialised and it is put to people, “Why not go down this route? Why not go down that route?” Does the hon. Member agree that that is really not a route we want to go down?
Sarah Olney
I am grateful to the hon. Gentleman for that point, because it provides a comparison. We are talking about there potentially being a market for end-of-life services. I do not think that is the way we should be going.
Dr Opher
I thank the hon. Lady for her impassioned speech, but we are rather getting off the point. The division between private and NHS provision is spurious in a process that will be delivered by doctors who are working under a code of practice. They will be rewarded in their pay which, as we have said, will be stipulated by the BMA in contracted arrangements with the Government and will be proportionate. The doctors will do the work and get the money for that. That is no different from IVF or anything else. If we accept that the NHS will be the commissioning body and will ensure standards in that way—sorry, I am going on a bit, Ms McVey; I shall now finish—the division between an NHS provider and a private one is spurious.
Sarah Olney
The issue is who is commissioning the service. The issue is not the doctors or how they are recompensed for the work that they do, but who is doing the recompensing and what their incentives are. If the process is part of an NHS-provided service where it is agreed that it is a compassionate end of life choice, and where it is properly regulated within the wider NHS service and connects with other NHS services, that is one thing.
If the person commissioning that doctor has any kind of incentive around making a profit—and any profit-making organisation will be incentivised to increase the amount of profits that it makes—then, however carefully regulated, there will be subtle influence, pressure, coercion or persuasion that assisted dying is an option that patients should choose, or possibly not-so-subtle influence, to take the example from the hon. Member for Bexleyheath and Crayford. Under other circumstances, in an NHS model, that may not have been a solution they would have been persuaded to choose. It is that issue of persuasion and of incentives that really troubles me.
Kit Malthouse (North West Hampshire) (Con)
I am not clear: is the hon. Lady suggesting that doctors who operate in the private sector are less ethical than doctors who operate in the public sector?
Sarah Olney
I think I said very clearly to the hon. Member for Stroud that it is not about the doctors. It is about the people who are commissioning them. I absolutely do not believe that about doctors operating in the private sector, who in my experience are often the same doctors as the ones in the NHS. It is about who is commissioning them and who is asking them to carry out this work, and whether those commissioners are motivated by a profit incentive as opposed to the incentive in the NHS to provide the best possible care.
Danny Kruger
I entirely agree with the hon. Lady. We are all equally ethical and unethical—the point is that we respond to incentives, and incentives have their effect. Does she agree that there is a further concern? If we had a tariff system, which we probably would, that would by definition create a market, if there was the opportunity for private provision, to earn tariffs—to make more money the more assisted deaths one provides. Furthermore, to the point made by the hon. Member for Stroud that this is all perfectly fine and normal, what about the opportunity to top up the public provision—the tariff one gets from the NHS—with one’s own money, therefore definitely creating the opportunity for some sort of upmarket arrangement through the additional fees and services that might be provided? As the hon. Member for Bexleyheath and Crayford said, we could see expos dedicated to providing the most luxury or glamorous forms of assisted death through private providers with NHS funding.
Sarah Olney
That is not a prospect I particularly want to reflect on, but it is worth noting that the particular risk in assisted dying services is that, as we heard in oral evidence from the chief medical officer, it is really hard to define, first, whether an illness is going to be terminal and, secondly, that somebody has only six months to live. There is an element of subjective judgment in assessing who is going to be eligible for assisted dying. Aligning subjective judgment to a profit incentive could create a serious ethical minefield.
I want to state absolutely clearly for the record that I am not questioning the ethics of doctors or the ethical standards of doctors or of any of the bodies that represent them in any way at all. My question is merely about introducing a profit incentive to this issue. As I said, this process could be contrasted with something like the provision of abortion services. Abortion services are clearly available only to pregnant women. The fact that the qualification, as it were, for this service is on a rather more subjective basis creates a risk.
Without this amendment, I am concerned that the Bill commodifies the end-of-life process and pushes what should be a sensitive, careful process towards being a transactional one. It also increases the risk that everything becomes focused on facilitating ending the patient’s life rather than supporting the holistic ethos of the NHS in addressing all the patient’s needs. Without the amendment, I worry that the Bill opens a door to the commodification of death, as the hon. Member for East Wiltshire has so graphically anticipated. What should be a careful, compassionate process could slide into something more transactional: a service that is marketed, packaged and sold.
We need look only to the parallel of care homes to see that danger writ large. In England, social care has been quietly overtaken by for-profit providers. Today, 75% of adult care homes, and over 80% of children’s homes, are run for profit—not by design or explicit policy, but by the slow creep of market forces. The Economics Observatory, drawing on studies such as Patwardhan et al. 2022, Barron and West 2017 and Bach-Mortensen et al. 2022, reveals a stark truth: for-profit care, particularly where private equity is involved, consistently delivers worse outcomes.
Similarly, a 2019 BMJ study found that private providers running NHS-funded services had higher rates of complications in procedures such as hip replacements compared with NHS trusts. The focus on cost efficiency can lead to skimping on follow-up care or using less experienced staff. Why does that happen? Profit-seeking behaviour drives cuts to staff, to resources and to time. Now, if we transpose that to assisted dying, let us imagine the pressures on a private provider to trim costs and the pressures on the quality of assessments. How thoroughly are mental health conditions, or the risk that something else might be going on, explored? How great is the depth of attention to medical records? Is what is relevant to the doctor influenced by the ticking clock? Will they tick a box rather than a safeguard?
Kim Leadbeater (Spen Valley) (Lab)
The hon. Lady said that she is not questioning the ethical judgment and practice of doctors, but the comments she is making suggest otherwise.
Sarah Olney
Again, I am talking about the companies that are running the service. I am not questioning the ethics of the doctors involved. I am merely suggesting that the people who are commissioning the doctors to carry out the service will have their own priorities that are not directly related to the safety or welfare of patients.
Kit Malthouse
I am sorry if I have failed to understand what the hon. Lady is saying, but under the Bill as it stands, every single stage is supervised by a doctor, even the final moments. I fail to see how the motivations that she seems to be applying to the private sector, malign or otherwise, might affect the conduct of the doctors, given that she accepts that doctors are equally ethical in the private and public sectors, unless she thinks that those motivations are pressuring doctors to behave unethically.
Sarah Olney
It clearly remains to be seen, but that may be an outcome as we do not yet know what model we are proposing for the delivery of assisted dying. Perhaps doctors will feel pressured to deliver an outcome because that is how the model has been set up. If we have a model that incentivises profits, particularly if we do not have a similar service within the NHS itself, it is quite possible that that will happen. It will not necessarily affect the care that doctors give to patients at the end of life, but the point is that we do not know.
We cannot fully explore that matter in Committee, because we do not have the full clarity of exactly how the process will be delivered, so we cannot examine the proposed model and identify its potential risks and pitfalls. That continues to be a real concern. Perhaps doctors will feel that pressure; perhaps the service will be precisely designed to encourage them to, for example, diagnose someone with having fewer than six months to live even when it is a slightly more subjective judgment and a different doctor operating in a different system may come to a different view.
Tom Gordon (Harrogate and Knaresborough) (LD)
I am just trying to wrap my head around the argument. We already know that integrated care boards and other commissioning bodies have incentives given to them when they commission services, so it would be in their interests to diagnose or produce a demand for a service in a particular area. There is already an analogous situation within the NHS; I do not see how that is any different.
Sarah Olney
I thank my hon. Friend for his intervention, but those incentives are not about creating profits that make money for individuals. They are about directing the way that resources are allocated to ensure that a broader range of health outcomes are achieved. When I talk about a profit incentive, it is an entirely different kind of incentive from the one he has just raised.
Danny Kruger
This is a very important debate, and my concern is that there is a naive assumption that the innate goodness of doctors will render them impervious to all the incentives in the system. As the hon. Lady suggests, if it were possible, as I think it is under the Bill, for a profit-making organisation—a company—to set itself up to provide an assisted suicide conveyer belt as a pathway through this process, and to earn money publicly or privately according to the volume of the provision it enables, we are setting up incentives that would corrupt the doctors who would be required to sign it off.
I regret that my right hon. Friend the Member for North West Hampshire has such an optimistic view of human nature that he thinks that no doctor would respond to the incentives in the way that is clearly enabled through the Bill. There are other medical professionals—ethical doctors—who do respond to incentives, such as those in the cosmetic surgery industry.
Danny Kruger
I would, but actually I am making an intervention. It may appear that I am making a speech, so I will soon sit down, but I would be interested in the hon. Gentleman’s response to the suggestion that even he —the paragon of virtue that he is—might not be entirely resistant to the economic incentives in the system. That is why we have an NHS that explicitly tries to exclude profit making from the provision of healthcare.
Sarah Olney
I thank the hon. Member for his intervention, but I do not associate myself with his use of the word “corrupt”; I am absolutely not implying that in any way, and I want to be very clear about that. However, there is a grave risk—even for the most ethical person, if they are offered money to carry out an action that they are inclined to carry out anyway as part of their professional practice—that those incentives drive behaviour that leads to worse outcomes for patients, specifically in relation to assisted dying.
Sarah Olney
As I say, we do not have a model before us that we can fully scrutinise or test for risks, and we will not have the opportunity to propose amendments to address those risks—nor will we at any stage. There is a serious risk about all the different parts of the system, not just the doctors, being incentivised by private profit. My amendment would comprehensively remove that, so it would not be a risk. Given that we cannot fully and properly scrutinise the proposed model, my amendment is the best we can do.
Sarah Olney
We do not have the model to scrutinise, and we do not know within that whether the first or second co-ordinating doctor will be paid for their services in carrying out those initial assessments. To say that there is no incentive for making the final decision ignores the fact that people might be incentivised for making those initial decisions, where the professional judgment is required and may differ between doctors. That is why there is a risk.
Kim Leadbeater
Clause 40(4) is very clear that medical practitioners can receive only “reasonable remuneration” for the provision of services, so it is clear that they cannot make money from the provision of assisted dying. Is the hon. Lady saying that where there is a private provider or one commissioned by the NHS—the model that I have set out in the Bill—there is a financial incentive for doctors to do more hip or knee operations, or other things? That is a question about the model of public and private healthcare as it stands, not about assisted dying.
Sarah Olney
On the hon. Member’s comment about clause 40, “reasonable” is a fairly elastic term. We will find in time that the word “reasonable” will come to have its own accepted definition, but it does not preclude a profit margin.
Sarah Olney
But the Bill does not say that. It does not say that the payment to the doctor should not include any consideration of profit. Regarding hip operations, someone would have one only if they needed it. My point is that assisted dying is one of a range of options at the end of life being presented here. The concern is that people motivated by profit would be incentivised to push for assisted dying at the expense of other options for the patient that do not attract the same level of reward. That is the issue. It is not a binary decision in the way that most treatments are.
Danny Kruger
In response to the hon. Member for Spen Valley, the scenario that she mentions is exactly the problem in many healthcare systems around the world, particularly in America, where doctors are incentivised to deliver volumes of treatments and procedures that are often not strictly necessary. We do have a problem even in our own system with the over-prescription of certain medical treatments, particularly pharmaceuticals, so incentives do apply. Doctors are subject to them, and we do our best to regulate them out of the system. One of the great advantages of the NHS compared with other healthcare systems is that we manage to prevent the over-provision of services in response to economic incentives. That is a founding principle of the NHS that we are overriding with this process.
Sarah Olney
I will conclude my remarks by observing that the only reason that we are looking at contracting out assisted dying services to a private provider is that the country is simply not ready for assisted dying. We know how overstretched and under-resourced our NHS is, and we are looking at cutting corners in the Bill, in our policymaking, in our scrutiny of this legislation, and in how this legislation and the service is delivered.
Naz Shah (Bradford West) (Lab)
It is interesting to follow the hon. Member for Richmond Park, because I rise to speak to amendment 537, tabled by my hon. Friend the Member for Shipley. The amendment goes further than the hon. Member for Richmond Park would as far as local authorities are concerned.
The amendment also concerns both the national health service and the provision of healthcare by charities. My hon. Friend the Member for Shipley knows both fields extremely well. She was the director of quality and strategy and chief analyst at the Department of Health, and then had a senior role at the Centre for Ageing Better. Her amendment would mean that assisted dying services could be provided only by charitable organisations and not by the national health service.
I strongly support the general principle that if we do have assisted dying, it should be free at the point of use. If this House decides that people do indeed have the right to an assisted death under the conditions that this Bill sets out, then it should not be something limited to those who can afford private healthcare. There are, however, strong objections among general practitioners to providing assisted dying as part of their services, and I do not think we should plan to have private firms work under contract from the NHS to provide assisted dying either.
The Royal College of General Practitioners said in its written evidence that
“any assisted dying service should be seen as a standalone specialised service that healthcare professionals may opt to provide with additional training and should not be deemed core GP work.”
The royal college’s advice, which is founded on the views of its members, means that we should give very strong consideration to putting assisted dying outside the normal workings of the NHS. If we do that, it seems that there are a few options. One is for the Secretary of State to invite private firms to tender for contracts and administer assisted dying services. As I have said, there are very strong reasons why we should not plan to have private firms work under contract to the NHS to provide assisted dying; for me, that it is one of the worst possible options.
Another option is for the NHS to fund a specialised assisted dying service that would be separate from its other functions. That could potentially be feasible, but it could also represent a significant cost for the NHS, because we still have not had the impact assessment from the Government and we have no idea how significant that cost may be.
There is also the worry that if assisted dying becomes available on the NHS, some people will become too frightened to access palliative care, as was outlined to the Committee by Dr Jamilla Hussain. I will read a brief part of her written evidence to the Committee. After talking to the patients in ethnic minority and other disadvantaged groups, she said:
“Overwhelmingly, racialised communities expressed deep concerns that they would be more likely to be pushed towards AD through systemic biases and societal attitudes about whose lives are valued… While safeguards were acknowledged, many remained sceptical that they would be applied fairly and equitably, fearing that vulnerable individuals, particularly those who lack strong advocates or English proficiency, might be at greater risk of being guided towards AD rather than offered appropriate care options.”
I want to share something with the Committee. We often get taxis to and from work and home; I got into a cab yesterday, and the chap who was driving was called Dave. His 84-year-old aunt died on Friday. When we were discussing this option, he told me really clearly that she has opted for a cremation, which would cost less money, just because she internalised that idea of burden and she did not want a cost for those that she left behind. She had not seen a doctor for 40 years. That brought home the idea of internalised coercion, internalised pressure and mistrust, because he also talked about what happened during covid. We had an interesting conversation. I told him that it was interesting that he had said that, and today I am talking about it. That is the reality: it is about how people perceive healthcare provision, the potential inequalities, and what the barriers are to access—all the preconceived ideas that we have about the provision of healthcare.
That brings me to a potential third way, which is what amendment 537 is about: charities. Charities are one way of addressing the concerns I and the hon. Member for Richmond Park have outlined about the risk with private companies and the risk of loss of confidence and access to the NHS, as well as the concerns outlined by the Royal College of General Practitioners. They could well be mitigated by ensuring that the lead responsibility for administering assisted dying is given to charities rather than the NHS.
Rebecca Paul (Reigate) (Con)
It is a pleasure to serve under your chairmanship, Ms McVey. I rise to speak on clause stand part and new clause 36, and in support of amendment 525 and amendment (a) to new clause 36, tabled by my hon. Friend the Member for East Wiltshire. This is a really important debate. The NHS is the greatest achievement of any Labour Government, and maybe even of any Government.
Rebecca Paul
It transformed the quality of life of British citizens at a time of mass unemployment and widespread slums, ensuring free healthcare, in the words of Beveridge, from cradle to grave. The provision of healthcare free at the point of delivery was life-changing and life-prolonging. Although it is far from perfect, we have seen time and time again that as a country we can be very proud of the NHS.
The National Health Service Act 1946 came into effect on 5 July 1948, as a direct consequence of the Beveridge report. Section 1 of the Act states:
“It shall be the duty of the Minister of Health…to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness”.
It was set up to help people to get better and live healthy lives, and to give hope in situations where otherwise there would be despair. It was lifesaving and life-changing. New clause 36 turns all that on its head. Subsection (4) states that:
“Regulations under this section may for example provide that specified references in the National Health Service Act 2006 to the health service continued under section 1(1) of that Act include references to commissioned VAD services.”
If this new clause passes, the founding principles of the NHS will be monumentally changed to include helping eligible people to commit suicide. That is what it does.
I want to be really clear that it is entirely possible to support assisted dying—to want to ensure that a small group of people, whom palliative care cannot help, have that assisted dying option—but not to support this new clause, which forces provision of the service through the same channels as normal healthcare. Assisted dying is not a medical treatment or a healthcare service and accordingly there should be a degree of separation.
We should be incredibly cautious about incorporating the service into the NHS. It will forever change the relationship between doctor and patient, breed mistrust and fear, discourage vulnerable groups from seeking the healthcare they need and fundamentally violate the Hippocratic oath. Dr Catherine Day, a senior partner of a large GP practice in Coventry, states:
“Trust lies at the heart of the doctor patient relationship. I believe this trust will be shattered if patients consider that their GP…may think that they should end their life and stop being a drain on our NHS.”
Siwan Seaman, a palliative care consultant said:
“How could a terminally ill patient trust a doctor if they know that the doctor was prescribing medication to the patient in the next bed in a bay or cubicle with the intention of ending their life. Letting these assessments take place alongside other NHS services will irreversibly impact on patients’ trust in healthcare professionals and negatively impact our therapeutic relationship with patients as doctors.”
Kim Leadbeater
If the hon. Lady is saying that she would not want to see assisted dying services within the NHS, then where does she think they would sit? Would she support my hon. Friend the Member for Shipley’s suggestion that this should be done by the voluntary sector and charities, or would she suggest the private sector?
Rebecca Paul
It is important that there is a degree of separation, but I would say to the hon. Lady that it would have made more sense for her to put forward a proposal that we could evaluate, assess, and identify the upsides and downsides of. It would be much easier for me to then come up with suggestions. It does not make sense to ask me, “What is the solution and how would you do this?”, and for me to lay out the many different ways that this could be done, without having first laid a proposal in front of me.
Kim Leadbeater
There is a clause that I have laid before the hon. Lady—that is what we are discussing. I will come on to that in my comments. Since she is clear that she does not think this sits within the NHS, she must have given consideration to where she thinks it should sit, if it were to come into effect.
Rebecca Paul
I will come on to some of that, and it goes back to my belief that there should be a degree of separation. I think it should be separate from normal healthcare services and there are multiple ways that we could do that. I regret that we are not specifically debating the various different options, with a proposal in front of us detailing exactly how it would work. I am assuming, from the new clause put forward, that the proposal is for this to go through the NHS as healthcare; that is the only assumption I can make based on what is in front of me in this Bill, because there is no other detail to give me any other impression.
Sarah Davies, a consultant respiratory physician in north Wales, argues for a separate service so that ordinary NHS care is not associated with assisted dying. She said:
“It is already my experience that patients and their families are anxious about limiting treatment when they are dying. Many people believe that symptom control medication, such as those delivered in a syringe-driver to aid symptom control amount to hastening or bringing on death. This perception can hinder the patient’s acceptance of medications which can afford significant alleviation of distressing symptoms.”
I have raised my concerns about providing an assisted dying service alongside and in conjunction with day-to-day healthcare many times over the last few weeks. I think it is a massive mistake both for patients and healthcare staff. It blurs the lines of what a treatment is, increases the risk of bad decisions and, as we heard so powerfully from Dr Jamilla Hussain, it will discourage some of the most vulnerable groups from seeking essential healthcare. We have received so much evidence and it is really important that we take it on board, so I will be quoting some in my speech.
Dr Green of the BMA said:
“It should be set up through a separate service with a degree of separation. We believe that is important for patients, because it would reassure patients who may be anxious about the service that it would not just be part of their normal care… It would reassure doctors, because doctors who did not want to have any part would not feel that it was part of their normal job, whereas the doctors who wanted to go ahead would be assured of having support, emotional support and proper training.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 45, Q32.]
In oral evidence, Professor Preston argued for a separate system and pointed to the Swiss example. She said:
“In covid, we did research in care homes, and there was real concern about ‘do not resuscitate’ orders and emergency care plans that were blanketed across the care homes. Care home staff were traumatised by that, so there are real issues. We know that there are real issues day to day in how people are treated within the NHS. I think it is unconscious—I do not think people are intending it—but we know that people are treated differently and that different things are done. That is partly why we think a system outside that would protect them, because then you are not within the healthcare team that is treating you and giving you advice about such things”.
She went on to talk about the Swiss system, also being adopted in Germany and Austria, which seeks to
“protect these people by keeping it one step removed”
from normal healthcare. She said:
“Most hospitals in Switzerland will not allow assisted dying to occur, because they do not want a lack of trust in their patient group.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 246, Q317.]
I therefore support amendment 525, tabled by my hon. Friend the Member for East Wiltshire, which would amend clause 32 in order not to allow the provision of the assisted dying service to be done through the health service. That would ensure that much-needed degree of separation. In light of what the Bill’s promoter has said, I recognise that there are different ways to do that; I am very open to those different ways, but I need to see that degree of separation from normal healthcare. I also support new amendment (a) to new clause 36, also tabled by my hon. Friend, which does the same thing.
Let me come to the other amendments in this group. Amendments 537 and 528, tabled by the hon. Members for Shipley and for Richmond Park respectively, are important to debate—we have had some good debate on them this morning—as they raise the different ways of delivering an assisted dying service. I have been listening closely to the points made. Amendment 537 would limit the provision of an assisted death to charities rather than to the NHS, and conversely, amendment 528 would limit provision to public authorities only.
I do not have the answer on the best way to do this, and that is why I regret that a royal commission has not been set up to properly investigate and evaluate all the options and recommend the best way forward. Instead, we are here without all the relevant information and expertise available to us, trying to land on the best way to do it. That is not the way to make such an important decision. I can tell the Committee, however, that—like many others, including my hon. Friend the Member for East Wiltshire—I have huge reservations about delivering such a service through the NHS alongside normal healthcare.
I agree with much of the evidence that has already been cited: there should be a degree of separation. The BMA said that assisted dying could be part of the NHS, but should be outside existing care pathways and separate in some way:
“Our view is that assisted dying should not be part of the standard role of doctors or integrated into existing care pathways—it is not something that a doctor can just add to their usual role… The separate service could take the form of a professional network of specially trained doctors from across the country who have chosen to participate, who come together to receive specialised training, guidance, and both practical and emotional support. They would then provide the service within their own locality—for example, in the patient’s usual hospital, or their home. Or it could be a combination of some specialist centres and an outreach facility.”
In its written evidence, the Royal College of General Practitioners also proposed a separate service:
“The establishment of a separate service which covered every stage of the process would ensure healthcare professionals of multiple disciplines (including GPs) who wanted to do so could still opt in to provide assisted dying, but this would be arranged through a different pathway.”
I agree with both bodies that the service should be separated out in some way. It is now apparent that my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer), whose amendments would have created an assisted dying agency, was on the right track. I regret that the Committee did not explore his ideas in any real detail during our proceedings.
We received important written evidence from Robert Twycross, a pioneer of palliative care who sadly died in October, but had given his friend Ariel Dempsey permission to submit it. Dr Dempsey writes:
“Twycross recommends a de-medicalized model in which AD is a separate service, delivered outside of healthcare practice. He argues for a standalone Department for Assisted Dying, separate from the NHS. He writes, ‘Data indicate that the primary reason for a persistent desire for AD is to relieve distress over a perceived loss of autonomy and to experience a sense of personal control over the circumstances of their dying. These are not medical reasons. Thus, for patients fulfilling the legal criteria, a separate AD service should be established. Indeed, this would be the best way to prevent a corrosive effect on medical practice generally.’ ‘Given the widespread disquiet felt by doctors, a law with minimal medical involvement would be the most equitable.’ He suggests, ‘One way to achieve this would be for [AD] to be delegated to a stand-alone Department for Assisted Dying, completely separate from the NHS and with its own budget. Victoria almost achieves this with its combination of Care Navigators, mandatory training for participating doctors, and a separate Voluntary Assisted Dying Statewide Pharmacy Service.’
Twycross emphasizes that hospice and palliative care must be a ‘sanctuary’ for patients – ‘an assisted dying free zone. Even in the absence of AD, some people decline referral to palliative care despite unrelieved pain and/or other distressing symptoms because they fear they will be “drugged to death”…This unfounded fear will most likely be enhanced if AD is legalized, particularly if palliative care is involved’ and result in an overall increase in suffering.”
Dr Opher
Briefly, the hon. Lady says that only 30% of palliative care is funded by the NHS, but that is quite spurious, because everyone who gives palliative care—all doctor time, palliative care consultants, palliative care departments, all GP services, all district nurses—gives it under the NHS. What she must be talking about is social care, which is obviously very different from medical NHS care.
Rebecca Paul
I thank the hon. Member for his intervention. I was quoting written evidence, so I just quoted it, of course, as written.
We should be ashamed if what I have set out is where we end up as a result of this Bill. How would it in any way recognise patient autonomy and give them a real choice? Clearly, it would not. We will end up with patients taking an assisted death because there is no alternative to dying well. If as much effort was put into improving palliative care as has been put into legalising assisted dying, a much greater number of people would be given the dignified, comfortable deaths they rightly deserve. It is a travesty that we find ourselves considering the introduction of assisted dying while hospices are on their knees and patients face a postcode lottery when it comes to receiving adequate end-of-life care. Accordingly, I will vote against new clause 36.
Lewis Atkinson (Sunderland Central) (Lab)
It is a pleasure to serve under you this this morning, Ms McVey.
I rise in support of new clause 36, which sets out an entirely workable, appropriate and safe set of provisions for the Secretary of State to ensure that these services are provided across England, as well as appropriate powers for Wales, although I am far from being an expert on those matters.
The new clause would convey powers to the Secretary of State to commission services free at the point of use, in a way that is entirely analogous to the commissioning of other health services that are provided, as we know, by a range of providers.
I came to this place having been an NHS manager for nearly 20 years, and I feel that the debate has sometimes slightly confused elements of commissioning, provision and the way in which the NHS commissions and manages services. My hon. Friend the Member for Banbury said that the state must oversee and regulate the service, and I entirely agree. Commissioning powers sitting with the Secretary of State will ensure that that is the case. The hon. Member for Richmond Park said that the issue is who is commissioning. Again, we are clear that the only person doing any commissioning will be the Secretary of State, potentially delegating this to NHS structures at the time.
The NHS and the Secretary of State are not unused to commissioning highly specialised, sensitive services in this way. Indeed, I would be amazed if the Minister and my hon. Friend the Member for Spen Valley do not confirm that the Government were involved in the drafting of this new clause to ensure that it is equivalent to the other powers that the Secretary of State has.
This will clearly be a specialist service. It is a new service. At high levels of NHS England and equivalent bodies, there is significant expertise and practice in commissioning specialised services. The importance of the commencement period, which I hope we will discuss later today, is that engagement around the exact service specification will be drawn up in just the same way that it would be for a new cancer treatment or a treatment for a rare disease. It is right that the time will be taken to engage on that.
Fundamentally, services have to be commissioned. Some suggest that this will be a free-for-all, that anyone can provide this service and that anyone can be paid for it, but that idea is nonsense. There is no obligation for the Secretary of State to reimburse anyone who decides they want to provide this service. The service must be explicitly commissioned.
Naz Shah
My hon. Friend says that this will be explicitly commissioned. I completely agree with everything he has said, but this will be a newly designed service by definition, so will that not leave the door open for new providers, such as Serco or G4S, to come in, design a new service and bring in the expertise to deliver it?
Lewis Atkinson
No, it will not, in the same way that G4S does not suddenly appear and provide treatment through a new cancer service that the Secretary of State decides to commission under specialist powers.
I am afraid that some opponents of the Bill are trying to scaremonger about potential provision as a way of altering the way people voted on Second Reading. A number of amendments clearly deal with whether potential providers should be public sector, voluntary or, indeed, private organisations. I emphasise that the overwhelming majority of GP services in this country are private contractors. It is inconsistent for Members to argue that we should maximise continuity of care and have the best safeguards around coercion and capacity by having someone who has known the individual for a long time, while also arguing that the Secretary of State should not be permitted to commission that individual’s GP to play any role. I challenge opponents on that matter.
Danny Kruger
As ever, the hon. Gentleman is speaking very coherently in support of the Bill and the principles behind it. I think he does regard assisted suicide as another form of healthcare that, as he says, should therefore be completely consistent with the normal duties of every medical professional. I would genuinely like him to help me to understand this. Does he envisage the service being provided by bespoke clinics in the NHS? Would established professionals set themselves up with the purpose of delivering it, or would it genuinely just be something that any general practitioner would provide as part of their services? Does he imagine that there will be specialists in the NHS whose sole job, or most of whose job, would be to provide this service?
Lewis Atkinson
I hope to help the hon. Gentleman with the points I am about to make.
What I would say to begin with is that we have talked throughout this Committee about using an opt-in model. There is this idea that everyone will be doing this, but we have rightly set out requirements for specialised training and so on. There will clearly be individual doctors in the NHS, and so on, who decide that they want to provide these services, and specialisms and appropriate regulation will accordingly be developed as part of that.
The other thing I would highlight is that the current drafting explicitly requires a range of provision. The second doctor must be independent. Indeed, clause 8(6)(d) requires that they must not be
“a partner or colleague in the same practice or clinical team as the coordinating doctor”,
so although some are suggesting, perhaps in a positive sense, that there should be one, entirely separate organisation that does all this, that would not meet those requirements. There are those who are trying to instil a fear of one large organisation being set up to take someone from start to finish, but that is not possible under the Bill as drafted.
Sarah Olney
I am reflecting on the earlier intervention on me by the hon. Member for Stroud about how the only payment under assisted dying would be made at the very end, so therefore there would no possibility of a doctor making an assessment at an earlier stage in the process being influenced. Now the hon. Member for Sunderland Central is saying—this is obviously implied by the drafting—that the different bits of the approval process would need to be delivered separately. Whether that involved a payment from the NHS or a private provider, the doctor making those assessments will clearly be paid at different stages in the process.
Does the hon. Gentleman agree that this points to the fundamental problem we have in this Committee, which is that we do not have a proposed model that we can properly scrutinise? All of us are just talking about potential suppositions about how things might work. We are effectively talking about a range of straw men.
Lewis Atkinson
No, I do not agree with the hon. Member, and I will tell her why. The reality is that the shape of the health provider landscape is different in different parts of the country. For example, in Wolverhampton, there has been a significant amount of vertical integration, such that in many cases GP services are part of the NHS provider trust. Therefore, those amendments that would prohibit any public body from participating would explicitly prohibit GPs in Wolverhampton from that provision. Elsewhere, some hospices—a small number—are provided directly by the NHS. Given the history of the hospice sector in the UK, there is clearly a strong voluntary and charitable element of that provision, which is entirely right, but that varies in different parts of the country.
To return to the point made by the hon. Member for East Wiltshire, there are some hospices and end-of-life providers who have made it known that, if this law passes, they may wish to explore whether they will provide such services. Equally, others will not. This goes back to the conscience debate that we had last week. There will be no obligation, so a hospice in one part of the country may well say, “Yes, we wish to provide this service as an option to our patients,” whereas a hospice in another part of the country might say, “We do not.” We need to get past this metropolitan mindset, whereby ll the providers are within easy travelling distance from each other.
Kit Malthouse
The hon. Gentleman is making a strong point. Surely what should be at the heart of the organisation’s disposition is consideration of the condition and circumstances of the patient. Whether on the cancer ward, in the hospice or at home, the health service adapts, and has adapted with all sorts of treatments, to dealing with the different circumstances of the patient that it encounters. We must have a system that is flexible enough to allow it to do so for this.
Lewis Atkinson
The right hon. Gentleman is entirely right. These powers need to provide for that patient-centric nature, in a service that is explicitly commissioned by the Secretary of State, which will vary in different parts of the country, and not just in the provision landscape. The services provided in rural North Northumberland will, by their nature, probably be different from those provided in London, and that is entirely appropriate.
Danny Kruger
And yet the irony of this measure is that it is not specific to the patient. Genuine healthcare treats the symptoms and condition of the individual patient. This proposed treatment has nothing to do with the individual symptoms or the condition of the patient; it just kills them. It is totally unrelated to the condition, which is why it is not healthcare.
The hon. Gentleman suggested earlier that the Bill somehow ensures that the provision and the pathway are deliberately fragmented because the second doctor needs to be independent of the first. Does he agree that, with that single exception, it would be perfectly possible for an independent provider to set up to provide for the whole pathway of assisted death, with the single requirement that the co-ordinating doctor, who would manage the whole process from beginning to end, must get a second opinion from outside their organisation to sign the paperwork for the second assessment? With that single exception, the whole process could be managed by an independent, profit-making provider—commissioned by the NHS or otherwise—entirely on its own.
Lewis Atkinson
The hon. Gentleman is providing a masterclass in scaremongering. I know he needs Labour votes to switch before Third Reading, but this service must be explicitly commissioned by the Secretary of State, and it is inconceivable that they would commission that in the way that the hon. Gentleman describes. The co-ordinating doctor is of course one person, and they would be involved in the first assessment and the provision of assistance. Whether that is a doctor employed by the NHS or somebody else, it can only be one individual, but there are the other safeguards we have talked about, such as the panel, which the hon. Gentleman has spoken against. It is absolutely appropriate that the Secretary of State has the powers and the duty to commission the service, and that they will do so from range of providers, reflecting the differences.
On the other point that some hon. Members have made about regulation, I remind the Committee that any provider will be regulated not only under this Act, but by the Care Quality Commission, in entirely uniform manner. I am therefore confused by the points made by opponents of the Bill. Some have said there should be no provision of this by the NHS or any public body, some say there should be no provision by charities—including, presumably, local hospices, should they make that decision—while others say there should be no provision by local GP practices to provide continuity of care.
Perhaps those different points reflect different ideologies within the Committee that are deeper than this issue, but they perhaps also reflect the fact that opponents of the Bill simply do not want this service to be provided at all.
Lewis Atkinson
No, I am going to finish this point.
The hon. Member for East Wiltshire did a good job of reading a Bevan quotation before—although I do not advise him to seek Labour party selection with such gravitas in his voice. However, I think he is the heir not to Bevan, but to Bernard Braine, the Member for South East Essex, who said in the 1967 debate on the David Steel abortion Bill:
“The idea has been spread around that it will be available on the National Health Service.”
In reference to the waiting lists, Braine went on to ask:
“Are our consultant gynaecologists going to make that list longer by making beds available to those who want abortions?”—[Official Report, 13 July 1967; Vol. 750, c. 1382.]
That is the tradition of objection that the hon. Member for East Wiltshire is in. Just because he does not wish to have the option for himself, he does not believe that there should be free-at-the-point-of-use provision on the NHS for anyone else.
I will take Bevan back to this side of the Committee Room. He said:
“The essence of a satisfactory health service is that the rich and the poor are treated alike, that poverty is not a disability and that wealth is not advantaged”.
At the moment, at the end of life, wealth clearly is advantaged. Those who are wealthy and are able to go to Switzerland do have choice at the end of life. Dignity and independence and autonomy should not be based on ability to pay. That is why we need to pass this Bill; that is why the powers to commission in new clause 36 are entirely appropriate and necessary; that is why I support it.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Diolch yn fawr—thank you very much, Ms McVey. I rise to speak to clause 32 stand part and to new clauses 36 and 37.
It is gratifying that everybody on the Committee has taken so seriously the need to recognise where the powers lie in relation to the Senedd in Wales and Welsh Ministers, and Westminster and the Secretary of State. The evidence we heard from Professor Emyr Lewis is that clause 32 would contravene the Sewel convention by giving the UK Government powers of regulation to provide an assisted dying service in the NHS in Wales.
I am very appreciative of the way in which we have discussed the matter. This is, of course, a private Member’s Bill; by the nature of the subject it is discussing, it is unprecedented since devolution in 1999. As we talk about constitutional matters and the Sewel convention, it is important to remember what we are doing as a Bill Committee: we are trying to make sure that we tease out the questions about the environment in which all these services will be provided, and that we are giving people who are at the most vulnerable time in their life the appropriate protection and the appropriate autonomy. That is what we should always be balancing.
New clause 36, which relates to England, and new clause 37 certainly appear—I use the word with as much generosity as I can—to clarify the responsibilities as between Welsh Ministers and Secretaries of State. My amendments would go through the Bill clause by clause and would then insert a definition into clause 40, rather than making a broad statement as the new clauses do.
Although we have debated the content of new clause 36, I believe strongly that it is not for us in Westminster to specify how Welsh Ministers may make provision for those areas over which they have responsibility. It is appropriate that we have a debate, because that raises awareness of the potential for a legislative consent motion or motions. It is appropriate to have that discussion; it is also appropriate to be aware that there may be a discussion about the commencement date and the implications, which we will address in the debate on a later amendment.
I am looking particularly at Wales, and new clause 37 would do what my amendments were attempting: it would give us future-proofing. The powers that have been granted to the Senedd in Wales are considerably different, and lesser in their extent, than those that have been granted to Scotland and to Northern Ireland. That may well change in future, and new clause 37 would allow for that.
I put it on the record that I await further discussions between Welsh Ministers and the hon. Member for Spen Valley, although I understand that some have already taken place. It is already on the record that UK Ministers, the Secretary of State, the hon. Member for Chesham and Amersham and I will have further discussions as we move ahead. There will be opportunities on Report to do what the Committee is trying to achieve, which is to future-proof the legislation and ensure that it works as effectively as possible.
I welcome the changes that the new clauses would make. Clause 32, as it stands, does not recognise the constitutional arrangements of the United Kingdom, and it is important that we do that.
Kim Leadbeater
I thank the right hon. Lady for her constructive and collegiate approach to the Committee, particularly on devolution. I have contacted the Welsh Government and am keen to speak to them when Committee proceedings have finished. They have said that they are happy to do that. I am keen to continue to work with the right hon. Lady and other colleagues on devolution to ensure that we get the Bill right for the people of England and Wales.
Liz Saville Roberts
I appreciate the hon. Lady’s comments. I think there is a lesson to be learned. I understand that the legislation is unprecedented in coming through the private Member’s Bill route. After this, we will have to think about how we deal with such legislation because we are feeling our way. I appreciate the opportunity to work with the co-operation of colleagues on something for which there is no road map, but I fear, although I also appreciate, that we are making the road map as we go.
Daniel Francis
It is a pleasure to serve under your chairship, Ms McVey. I genuinely did not intend to speak today, but the debate, particularly the speech by the hon. Member for Richmond Park and the intervention from my hon. Friend the Member for Luton South and South Bedfordshire, has brought me to my feet.
It was 13 or 14 years ago that my wife and I embarked on the IVF road. It never worked—our children came naturally in the end—but I know the pain and despair of that process. Although I do not call into question the efficacy of any doctor, some companies, looking to their profit margins, will always prey on people.
We have had discussions today about the regulations to be made under new clause 36, but we need some clarity on Report. I referred to the annual fertility show at the Kensington Olympia; I have checked, and it is still held. I visited it about 13 years ago. Frankly, it is complete marketisation. People who are already on their knees and really depressed are left feeling that companies are simply trying to make a profit out of them. People can already book their tickets for the event in May and navigate a path through it: there are expert-led seminars, real stories, whereby people connect with others who have been through the process, wellbeing workshops and more than 70 exhibitors. Of course, they are all paying a fee to be there, and they all aim to have made a profit by the end.
Our first set of IVF treatment was free on the NHS. We paid £7,000 for our second, which was again through the NHS. We went through several visits to NHS and private providers to assess whether we were willing to pay a top-up for a slightly better service. I really did not intend to speak this morning, but I wonder whether, in the final part of the process that we are considering, there would be the sort of upsetting process that has taken root in the fertility industry in this country. We need more clarity on that by Report.
Naz Shah
I stopped myself intervening on my hon. Friend the Member for Sunderland Central; I had lots of questions, and he has confused me even more. He referred to the provision in clause 8(6)(d) about the doctors being different. If I am right, healthcare providers such as Aspire or Ramsay Health Care could be commissioned to deliver the services. If so, does that mean, as the hon. Member for East Wiltshire suggested, that we will need two separate doctors or providers because the co-ordinating doctor and the second doctor cannot be linked? That confuses me even further. After what we have heard this morning, it strikes me that we do not have any proposed model and the measure has not been thought through. It speaks to the idea that this is not right. We are spending hours and hours going through hypotheticals and possibilities—this could happen, that could happen—but there is nothing actually before us.
Danny Kruger
The hon. Lady is absolutely right. I am not sure that anything in the Bill would preclude a private provider—“Virgin Health” or some such organisation—from providing the whole pathway of the assisted death, including employing, albeit in separate clinics or separate practices, the two doctors who would provide the two assessments. The provider would comply with the Bill, but the doctors might be part of the same organisation even if they work in different practices.
Naz Shah
I thank the hon. Member for his intervention. I have observed two things this morning. First, the reality has really hit home. Are we going to look at the amendment regarding local authorities providing the service? Are we excluding private providers? Are we excluding big firms? A new service has to be designed. Will it be two organisations or one? How will the Bill be delivered? We do not even have that before us, and that concerns me deeply.
Kim Leadbeater
As my hon. Friend the Member for Sunderland Central said, it is common practice in healthcare and in the NHS for services to be commissioned in a range of ways. We would not put such a level of detail in the Bill, but it would be normal practice for the Secretary of State to do that commissioning work. My hon. Friend the Member for Bradford West has her own experience of that, I imagine.
Naz Shah
Absolutely. As a former commissioner, I am very familiar with commissioning; I commissioned millions of pounds’ worth of services across Bradford when I was in the NHS. The difference is that that was under Government Bills that had pre-consultation, impact assessments and a model that was debated. None of that has happened with this Bill. I agree that in an ideal world the process set out in new clauses 36 and 37 would be the right one, but without an impact assessment and a consultation, I am afraid that I have been left really disheartened.
I am disheartened about something else, too. I thank all Committee members, regardless of the points that they have or have not made, for the way in which the debate has been conducted, both before and during our sittings. On a few occasions, hon. Members have questioned other Members’ reasons for tabling amendments—but to suggest, as has been suggested today, that we are scaremongering, when we are actually going through the detail, is something else.
I am afraid. This is not me scaremongering; this is me being afraid for women who are anorexic. This is a gendered Bill. There are amendments that I support because I want to strengthen the Bill. I genuinely do not think that the Bill, as it stands, has that strength. I feel disheartened that we are talking about what is going to happen on Third Reading and potential votes, when we should be concentrating on the amendments on the selection list.
I oppose the new clauses tabled by my hon. Friend the Member for Spen Valley, which would replace clause 32. As my hon. Friend explained, new clause 36 outlines the powers that the Secretary of State for Health would have over voluntary assisted dying services in England. New clause 37 does the same for Wales, but makes changes that are necessary because health is a devolved power. I will concentrate on new clause 36, as I represent a constituency in England.
Put very simply, if new clause 36 is agreed to, it will give the Secretary of State three sorts of power. First, it will give the Health Secretary powers under subsection (4) to, effectively, change the National Health Service Act 2006. Secondly, it will give the Health Secretary powers to set out regulations about how any service, whether public or private, carries out assisted dying services. Thirdly, the Health Secretary will have powers under subsection (1) to commission assisted dying services. As I understand it, the wording means that assisted dying services could be provided directly by the NHS or by private firms working on contract for the NHS. I will discuss those powers in the order in which I mentioned them.
Subsection (4) of new clause 36 says that the Health Secretary may pass regulations that
“may for example provide that specified references in the National Health Service Act 2006 to the health service continued under section 1(1) of that Act include references to commissioned VAD services.”
To make it clear how the new clause works, I will quote from the subsection of the National Health Service Act 2006 that it would affect. It states:
“The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of physical and mental illness.”
That Act is an adaptation of the original National Health Service Act 1946, section 1(1) of which states:
“It shall be the duty of the Minister of Health…to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness”.
The 1946 and 2006 Acts both give the Health Secretary a very clear set of duties that I think we can all support. Those duties have been the basis of how the NHS has been run for the nearly eight decades for which it has existed.
My hon. Friend’s Bill would give the Secretary of State powers to change the duties set out in section 1(1) of the 2006 Act. I ask my hon. Friend and both Ministers why the Bill needs to give the Secretary of State those powers. The only reason I can think of is that someone who was part of the drafting process has pointed out that the Health Secretary’s current duties might be incompatible with assisted dying.
The Health Secretary has duties to secure improvement in the people’s physical and mental health and in the prevention, diagnosis and treatment of physical and mental illness. Someone could bring a legal challenge on the basis that assisted dying does not fit with that duty, and that challenge might well succeed. I think that, to prevent that happening, my hon. Friend has proposed subsection (1) of new clause 36. If there is any other reason why she has suggested that we should give those powers to the Secretary of State, it is important that the Committee understands and hears it.
What is proposed underlines just how major a change the Bill would make. Since the NHS started operations in 1948, we have had a clear understanding of what it is there for. The 2006 Act is little different from the 1946 Act in that respect. For nearly 80 years, we have had an NHS that is there to improve health and to improve the prevention, diagnosis and treatment of illnesses. The fact that we may have to change that shows us that we are taking a very big step indeed. To make such a fundamental change to the NHS, we should have had the best possible evidence and proper consultation, not three days of witness hearings and then hundreds of pieces of written evidence, often published after we had finished discussing the topics to which they relate. That is nowhere near good enough.
The next set of powers that I want to talk about is mentioned in subsection (3) of new clause 36, which says that the Health Secretary
“may by regulations make other provision about voluntary assisted dying services in England (whether or not the services are commissioned VAD services).”
I absolutely accept that if we have assisted dying services in England, the Health Secretary should ensure that they are properly regulated. That will have to include privately provided services as well as those offered on the NHS. However, I must ask: why does the Bill say that the Secretary of State “may” pass such regulations? The best interpretation I can think of is that a future Health Secretary might decide that private firms should provide assisted dying services directly to paying customers rather than via outsourced NHS contracts. In that case, the Health Secretary would need to provide regulations for those private sector services.
If that interpretation is correct, surely we could have tighter wording. For example, the new clause could say that if the Secretary of State decides to allow private firms to provide assisted dying to paying customers, the Secretary of State must make regulations to govern that. I would welcome clarification on the point, because I know that my hon. Friend the Member for Spen Valley previously accepted an amendment—I think it was amendment 477—