The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)

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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.

The Minister for Care (Stephen Kinnock)

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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.

The Minister for Care (Stephen Kinnock)

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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.

The Minister of State, Ministry of Justice (Sarah Sackman)

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Q I want to pick up on your evidence, Sir Nicholas, in relation to the panel that we have just been discussing with Sir Max. I have three questions. First, what do you envisage the panel doing under your model? Will it be ensuring that a lawful process has been followed or doing something more than that?

Sir Nicholas Mostyn: The former.

Sarah Sackman

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Q That is helpful. Secondly, what information do you think the panel will need in order to reach a determination on that question?

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

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Q I suppose my third question, then, is how do you envisage such a panel, if at all, interacting with the High Court—with, say, a final right of appeal to the High Court, similar to what is in the Bill?

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.

Sarah Sackman

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Thank you.

The Minister for Care (Stephen Kinnock)

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Q I want to drill down a bit more on the question of training. Could you say a bit more about how the training works? Is it mandatory for everyone who takes a medical qualification to a certain standard? How many class hours are required? Is there an in-practice shadowing process? Is there an assessment process to verify that the person is qualified as a result of the training? I am just trying to get a better sense of the detail of the training. I will perhaps start with Dr Kaan.

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

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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.

The Minister of State, Ministry of Justice (Sarah Sackman)

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Q It may flow from what this third layer of a panel or court is doing, but what sort of information would be desirable for the panel to have before it in order to add a meaningful layer of scrutiny?

Lord Sumption: That is really the critical question when you ask yourself how useful this process is. Obviously, they will have the opinions of the two referee doctors—they will have their rather pro forma statements, and possibly statements they will make by way of expansion of those—but if they are going to add something of value in the way of safeguards, it seems to me that they have got to carry out an independent investigation of those same matters. That would involve getting, presumably, a third expert adviser and proactively seeking evidence about, for example, the patient’s state of mind. It seems to me that that is duplicative.

Obviously, there is no system that you cannot have a greater degree of assurance about, but I am struck by the fact that no other jurisdiction has felt it necessary to have a process as elaborate as this for the purpose of duplicating the expert views already required.

Sarah Sackman

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Q Lord Sumption and Dr Graham, you will have seen that clauses 26 and 27 include criminal offences. Do you have any views on the operability of those criminal offences?

Dr Graham: My only contribution here can be that similar offences in other jurisdictions have been held to be perfectly compatible with European human rights law.

Lord Sumption: I have no problem about the criminal-isation of people who abuse or distort the system, which is what those two clauses envisage.

The Minister for Care (Stephen Kinnock)

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Q I want to make a brief point of clarification, based on what both Baroness Falkner and Ms Hadi said. In the debate on the motion on the money resolution in Parliament last week, I stood at the Dispatch Box and confirmed that the Government will publish an impact assessment before Report stage. We are obviously working on that with officials.

I will also add as a point of clarification that both myself and my ministerial colleague are working with the sponsor of the Bill to provide assistance and advice, purely on the workability and operational aspects of the Bill, and impacts of the Bill, should it gain Royal Assent. It is important for the purposes of this discussion that everybody is on the same page on that point. The Government are absolutely remaining neutral on the principle of the Bill, but it is our job to ensure that any Bill that passes through Parliament is workable and implementable as and when it gains Royal Assent.

Baroness Falkner: Will there be a human rights compatibility assessment as well as a delegated powers memorandum? Those are the other things that Government-sponsored legislation would have contained.

Sarah Sackman

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We can take that suggestion away. Thank you.

The Minister for Care (Stephen Kinnock)

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Q I have a specific question about the period between the legislation passing in your Parliament and the commencement of its provisions and the implementation of voluntary assisted dying. Can you say a little more about what had to be done in that period: the institutional arrangements that were needed between the Act’s passage and its commencement, and the training, capacity building and practical measures that you had to put in place? Did you do that from a standing start, so that in that 18-month period you went from having no training and no institutional set-up to being ready to take the system forward?

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

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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.

The Minister of State, Ministry of Justice (Sarah Sackman)

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Q To be clear, I am here as a Government Minister on this Committee, and the Government are entirely neutral on the Bill, so we do not take a position on the substance of the issues you have raised. Clearly, the draft Bill is intended to apply in both England and Wales, as you say, and your note is extremely helpful in highlighting some of those issues that will need to be worked out. As a Government, we will work closely with the Welsh Government to assess the legalities and practicalities of any potential changes to the law.

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 Sackman

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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 Minister for Care (Stephen Kinnock)

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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.

Stephen Kinnock

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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.

The Minister for Care (Stephen Kinnock)

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It is a pleasure to serve under your chairship, Sir Roger. As was noted earlier, the Government remain neutral. My role here 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. This group of amendments focuses on the concept of mental capacity. As drafted, the Bill, in clause 3, states that

“references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005”,

with sections 1 to 3 of that Act establishing the principles and criteria for assessing a person’s capacity to make decisions. New clause 1, which would replace clause 3, and amendments 34 to 47, would collectively introduce the concept of an individual having the ability to make the decision to request assistance to end their life. A person’s ability would be determined by whether they could

“fully understand, use and weigh the relevant information in accordance with regulations made by the Secretary of State”.

That is intended to replace the term “capacity”, used in the Mental Capacity Act 2005, which provides a very specific definition of what it means to lack capacity in relation to a particular decision. A lack of capacity under this framework means that a person must be unable to understand, use and weigh information relevant to the decision, and that that must be directly caused by

“an impairment of, or a disturbance in the functioning of, the mind or brain.”

The “ability” proposal, as drafted, deals only with the use and weight of information.

Stephen Kinnock

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The fundamental position of the Government is that the Mental Capacity Act as it stands is a known quantity. It provides the legal base for a whole range of measures and interventions, and the Government’s view is that it would be an adequate legal base to operationalise the Bill should it receive Royal Assent. Our position on it goes no further than that; it is simply a matter of fact that there is a piece of legislation that is a known quantity.

Stephen Kinnock

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As I set out from the Dispatch Box when we had the money resolution, the Government will publish an impact assessment before Report. Given that this is a highly dynamic Bill, with a whole range of amendments having been tabled, and that it is not really possible to publish an impact assessment on the basis of a Bill that has not cleared a Bill Committee, there is a simple point of sequencing. That is why we are going to publish the impact assessment after the Bill Committee has completed.

Stephen Kinnock

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I thank the right hon. Member for her intervention. We have had a conversation about the need to ensure that the impact assessment has a clear and specific focus on the impact in Wales. I can absolutely assure her that either there will be a separate impact assessment for Wales, or we will ensure that the impact assessment that we produce is absolutely clear in terms of the impact that it will have in Wales; it will be one of those two.

Personally, I am agnostic as to which of those it is. It is simply a question of what works best given the highly integrated nature of the conversation because the criminal justice aspects of it are a reserved competence, while health and care are a devolved competence. What is the best way to present that—having a single document or two separate documents? I am not entirely clear, but I have undertaken to check the matter with officials. I will get back to the right hon. Lady as soon as possible on that point.

Stephen Kinnock

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The Government choose when to bring forward an impact assessment based on the passage of the Bill through the House. We have had reports today about a very substantial amendment to clause 12 that may well be brought forward by my hon. Friend the Member for Spen Valley, for example. It is not possible for the Government to conduct and publish an impact assessment when quite significant changes are being made.

I also gently point out to the hon. Member for East Wiltshire that this is not a Government Bill; it is a private Member’s Bill. It is also worth noting that it is unprecedented, as far as I know, to have oral evidence sessions for a private Member’s Bill, so we are already on relatively uncharted territory. It is also relatively uncharted territory to have, on a Bill Committee, Ministers who are neutral because the position of the Government is neutral. But that reflects the fact that this is indeed uncharted territory, so that is where we stand.

The hon. Gentleman made a point about our own positions on the subject; I speak also for the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green. It is a matter of public record that I supported the Bill on Second Reading. It is also the case that we vote, as members of the Committee, on the basis of our conscience because this is a matter of conscience; that is why the Government are neutral on it. There is no whipping from the usual channels.

At the same time, we are articulating the position of the Government. The hon. Member for East Wiltshire asked how we come to that position. It is through the usual process of engaging with officials and experts in the field, and through taking into account all the considerations that the Government need to take into account for the operationalisation of the Bill. The Government then come to a view, and that is the view that I express when I am on the Committee.

Stephen Kinnock

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The hon. Member makes an interesting point. I simply reiterate that this is a very dynamic Bill Committee; I believe that 362 amendments have been tabled. Given the Government’s focus on establishing the Bill’s implementability, the coherence of the statute, the legal dimensions and the complexity of what we are dealing with, we took the position that it was better to wait for the Bill to clear Committee stage before producing an impact assessment. To do otherwise could have involved a large amount of second-guessing based on radical changes that might well have come out of the Bill Committee. I reiterate the logic of that sequencing.

On the point about the established legal framework, which clinicians have been applying since 2007, “capacity” would still be used for other decisions about care and treatment.

I turn to amendment 202, tabled by my hon. Friend the Member for Spen Valley on the advice of the Government. It ensures that the assessment of “capacity” is utilised by the assessing doctor, and corrects a typographical error in clause 9 to ensure that an assessment of capacity will apply consistently throughout the Bill. As I said earlier, how and whether the law on assisted dying should change is a matter for this Committee and for Parliament as a whole. However, I hope that these observations are helpful to the Committee when considering potential changes put forward.

Stephen Kinnock

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Further to that point of order, Sir Roger. I thank the hon. Member for East Wiltshire for his question. Let us take this back to first principles.

This is a private Member’s Bill. A Bill Committee had to be formed. The Committee was formed in discussions between the Member sponsoring the Bill, the Whips and the House authorities. The principle of formulating the Committee was based in large part on the steer given by the debate and the vote on Second Reading, which delivered a majority of 55 in the House. The numerical composition of this Committee was therefore based on that majority of 55, broadly speaking. My hon. Friend the Member for Spen Valley needed to put together a Committee that reflected that.

The position was also taken that there should be Government Ministers on the Committee who had to speak for the Government with neutrality. It is with those two factors in mind that the Committee was put together. The two functions that my hon. and learned Friend the Member for Finchley and Golders Green and I have reflect the two purposes that were in mind when the Committee was put together.

Stephen Kinnock

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My apologies, Sir Roger. It was just a point of clarification.

Stephen Kinnock

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The amendments relate to the criteria that individuals would need to meet to request assistance to die under the Bill. All the amendments seek to amend the eligibility criteria in some manner. To reiterate, the Government have no view on the policy questions pertaining to the amendments, and my role here is to offer observations on the legal and practical impact of amendments tabled. The legal impact of these amendments will be the main focus of my remarks.

Amendment 353 seeks to make prisoners ineligible for assisted dying services even if they meet the definition of having a terminal illness. Amendments 354 and 355 are consequential amendments that would make it a requirement for the co-ordinating doctor in the first assessment and the court process to ascertain whether a person seeking assistance to end their own life is a prisoner.

Aside from the right to liberty, article 5 of the European convention on human rights requires that prisoners should have the same rights as those who are not prisoners. The rights engaged by the amendment are article 8 on the right to respect for private and family life and article 14 on the protection from discrimination. Making prisoners ineligible for assisted dying would, on the face of it, lead to a difference in treatment between prisoners and non-prisoners that would need to be objectively and reasonably justified. The justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim.

Stephen Kinnock

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I thank my hon. Friend for that intervention. My understanding is that it is termed as a treatment under the law. The Government do not take a view on the semantics of the word; my understanding is that that is how it is classified under the law.

Stephen Kinnock

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I apologise; I think I misunderstood the intervention of my hon. Friend the Member for Bradford West, so my comments were not clear. I meant the treatment of this matter under the law. As I said, the justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim. That means the way in which the matter is treated under the law. That is what I meant; I think we got our wires crossed.

Finally, let me address amendments 356, 357 and 358, whose purpose is to exclude those who are homeless within the meaning of section 175 of the Housing Act 1996 from the definition of a “terminally ill person”. The effect of amendment 356 would be to amend the definition of a “terminally ill person”, as set out in clause 1 of the Bill, to expressly exclude a person who, notwithstanding that they met all the other requirements set out in paragraphs (a) to (d) of subsection (1), was homeless within the meaning of section 175 of the Housing Act 1996.

Amendments 357 and 358 seek to make consequential amendments to clause 7 on the first doctor’s assessment and clause 12 on court approval. These amendments would require the co-ordinating doctor and the court to be satisfied that, in their opinion, the person was not homeless within the meaning of section 175 of the Housing Act 1996 before making their statement or declaration to allow the person to proceed to the next stage of the assisted dying process.

Article 14 states that the rights set out in the ECHR should be secured for everyone without discrimination on any ground. This amendment engages article 8 on the right to respect for private and family life. Making those who are homeless ineligible for assisted dying would lead to a difference in treatment that will need to be objectively and reasonably justified. The justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim.

I hope these observations may be helpful to Members in considering these amendments and making a determination about who should be eligible for accessing assisted dying services, should the Bill pass.

Stephen Kinnock

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The amendments in the name of my hon. Friend the Member for Broxtowe relate to an individual who seeks to access assisted dying services demonstrating their wish to end their own life and demonstrating their understanding of the process by which that happens. To support the Committee’s deliberations, I will briefly summarise the Government’s analysis of the effect of the amendments.

Amendments 109, 110 and 111 would modify the requirement that the co-ordinating doctor and the independent doctor must undertake an assessment to ascertain whether, in their opinion, the person has a clear, settled and informed wish to end their own life. That would be amended to require the person to have a clear, settled and demonstrably informed wish. The term “demonstrably” would not provide further practical guidance beyond the words already in the Bill and could create uncertainty as to what constitutes being demonstrably informed.

I turn to amendment 112. Clause 9 currently provides that the co-ordinating and independent doctors must explain and discuss a number of matters with the person being assessed. These matters are set out in clause 9(2)(b), (c) and (d). In the interests of time, I will not go through each of those matters, but they include an explanation and discussion of the person’s diagnosis and prognosis, any treatment available and the likely effect of it, and the further steps that must be taken before assistance can lawfully be provided to the person under the Act.

The amendment would create an additional requirement for the co-ordinating and independent doctors. It would require them both to be satisfied that, in their opinion, the person seeking assistance has demonstrated their understanding of the matters that have been discussed under clause 9(2)(b), (c) and (d). The amendment does not specify in any further detail what the doctors would be required to look for to satisfy themselves that a person has demonstrated their understanding. That would be left to their professional judgment, with training, support and guidance, as with other concepts in the Bill. The amendment would leave it to the co-ordinating and independent doctor’s professional judgment to determine what “demonstrated their understanding” looked like in respect of each individual person.

I hope that those observations are helpful to the Committee.

The Minister of State, Ministry of Justice (Sarah Sackman)

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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.

The Minister for Care (Stephen Kinnock)

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That was a misunderstanding; I was talking about “treatment” as a legal term.

The Minister of State, Ministry of Justice (Sarah Sackman)

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I know that Members will be eager to engage, and have already engaged, in a robust discussion about the issue of safeguarding, and how best to protect and prevent individuals from being forced or coerced into seeking assistance to end their life. As my hon. Friend the Member for Aberafan Maesteg has said throughout the debate, I will not be offering a Government view on the merits of any proposed amendments tabled by Members. Instead, I will offer some observations on the legal and practical effects of the amendments, to assist Members in undertaking line-by-line scrutiny.

As a starting point, we have heard a series of concepts discussed in this debate, including manipulation, pressure, coercion, undue pressure and encouragement with coercive ends. There is a range of terms that some Members have used interchangeably, and fairly so. It is important to say that there is a consensus that all those things are unacceptable; the point, and the Government’s view, is that the current provision in clause 1(2)(b) would cover that behaviour with the currently used terminology “coerced or pressured”.

Amendments 23 to 33 set out to include consideration of whether a person has been unduly influenced, in addition to having been coerced or pressured by another person, in the determination of whether that person is accessing assisted dying voluntarily. As I have already indicated, the Government’s view is that the terms “coerced” and “pressured” would cover the term “unduly influenced” as it is understood. If the Bill is voted into law, the guidance and training for the healthcare professionals who would apply the tests would need to be developed to cover that sort of behaviour in this specific context.

Similarly, amendments 82 to 92 and new clause 5 seek to introduce an additional safeguarding requirement that a person has not been encouraged into undergoing the assisted dying process. It is important to contextualise the amendments, which would introduce this new safeguarding requirement into all the relevant clauses of the Bill where a doctor—or a court or panel, if that is what transpires—must already make an assessment as to whether the person has the relevant capacity, has a clear and settled wish, is making the declaration voluntarily and has not been coerced or pressured by any other person into making it.

I have listened to the debates about what encouragement may or may not mean in this context. As I understand it, new clause 5 states that the definition of encouragement is that which would constitute an offence under section 2 of the Suicide Act 1961. In reality, that Act does not specifically define encouragement in legislative terms, so there is a risk that the definition becomes somewhat circular. As I will come to in a moment, as with the terms “coercion” and “pressure”, the meaning given to “encouragement” by the courts, where it is not defined by Parliament, is its natural meaning.

I now turn to amendments 113 to 115 and 118 to 122. Let me deal first with amendments 113 to 115. As the Bill is currently drafted, registered practitioners who act as co-ordinating and independent doctors are required to establish that the person seeking assistance has not been coerced or pressured. People seeking assistance to end their own life are also required to confirm in the first and second declarations that they have not been coerced or pressured. The amendments seek to add an additional requirement to establish that the person seeking assistance to end their own life has not been manipulated by any other person into making the decision.

Sarah Sackman

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To bring it back to the specific debate about the amendments, the terms “coercive” or “coerce” and “pressure” appear in the criminal law and have broad definitions. That is how they have been interpreted by the courts. Others have referred to section 76 of the Serious Crime Act 2015, which created an offence of controlling or coercive behaviour. In that context and the relevant Bill, Parliament chose not to make a specific legislative definition, but the way in which it has been interpreted, in accordance with its natural meaning, has vindicated the proposition that a broad meaning is given to those terms. For example, that offence could include coercive behaviour such as repeatedly putting somebody down, telling them they are worthless, seeking to control their daily routines or isolating them from friends and family to put pressure on them. As my hon. Friend says, we understand those sorts of behaviours in a much broader way in a changing society.

Sarah Sackman

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I am going to make a little more progress; we will come back to that in a moment. It is really important that we have these concepts in other parts of criminal law and other parts of our legislation. I come back to the point that we run a risk, which runs counter to the intent that lies behind the amendments, if we add additional language into the Bill. I will develop that point and then take further interventions.

As we have seen, clause 1 includes the terms “pressured” and “coerced”. The ordinary meaning of the word “pressure” is the use of persuasion or intimidation to make someone do something. There are broad types of behaviour, many of which have been eloquently brought into this debate, that would come within that. The ordinary meaning of the word “coerce” is to persuade someone to do something against their best interests by using force or threats. That could be subtle or it could be very blatant, but the word “coerce” is understood in that way by our courts and in other areas of our legislation. One can readily see how an act of manipulation such as in the examples used earlier, or the exertion of undue influence—I think the term “unduly pressured” was used—would all fall within the terms “coerced” and “pressured”. That is the settled view of the Government.

There is a consensus that none of these things, including applying undue pressure, are desirable or acceptable in this or any other context, but there is a risk that adding terminology does not do what hon. Members intend, which is to create more safeguards. The risk is that by adding new words, those tasked with applying and interpreting legislation, if it comes to court, will assume there must be some specific reason for their inclusion. They will assume that the words must have some meaning distinct from the other words in the list—coercion and pressure—notwithstanding the fact that, on their natural meaning, the terms overlap and, in the Government’s view, are inclusive of those sorts of behaviours. That risks the effect of narrowing the interpretation of the words used rather than inviting our courts to give them their usual expansive meaning.

In turn, that risks casting doubt on the current interpretation of those words in existing statutes such as the Serious Crime Act, which created an offence for coercive and controlling behaviour, and limits any read-across on interpretations from previous decisions into the application that we are debating. In short, it may actually serve to limit, not to add, to the safeguards in the process. It may risk adding confusion and uncertainty where what is already provided for in clause 1, with the words “coercion” and “pressure”, are simple, readily understood, expansive definitions that would cover precisely the behaviours that I think the hon. Members who tabled the amendments are concerned about.

Sarah Sackman

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On the hon. Gentleman’s first point, there is no suggestion that we should somehow accept any weaker form of provision in this Bill to protect other parts of the law. Having said that, he would well expect me, as a Government Minister, to be concerned with the integrity of our statute book as a whole.

It is because the Government take a holistic view of how the criminal law and other areas of our law operate and define these concepts, and how they are read across the piece, that we make our contention in respect of these particular provisions, because the terms “coercion” and “pressure” are given their natural meaning and are expansive. In the Government’s settled view, they would be inclusive of the types of behaviour that are described in the amendments before us—namely manipulation, undue pressure and the sort of encouragement that I think, when he keeps coming back to it, the hon. Gentleman is referring to, which is not encouragement in a benign way as might exist between two perfectly supportive family members in a normal conversation, but the sort of encouragement that is intended to lead to coercive ends.

The hon. Gentleman says that pressure is a subset of encouragement; the Government’s view is that coercion and pressure would cover off the other behaviours that are described in the amendments. It is not necessary to include those additional concepts, because it risks sowing confusion that somehow they are not included in the concepts of coercion and pressure.

Sarah Sackman

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I am certainly not saying that those are bad Acts, and I do not want anyone to quote me as saying that. We could in theory sit here and come up with a whole set of terms that would be descriptive of types of pressure and coercion. We have come up with a number of those, including “undue influence”, “manipulation” and “unduly pressured”. There are other types of behaviour that we might seek to describe. Indeed, if one refers to the Crown Prosecution Service’s guidance in respect of the offence in section 76 of the Serious Crime Act 2015, there are a whole load of descriptors of different types of behaviour. We could name and enumerate all those different types of behaviours, but, in the Government’s view, that is not the best way to create legislation that is workable.

It is the Government’s settled view that the words “coercion” and “pressure” cover off the types of behaviour that Members suggesting these amendments would wish to include. The risk is that such amendments create more confusion and shed more heat than light, if you like. Indeed, there is then the risk that the definition of coercion is narrower than it in fact is under our law as it is understood in our courts and in the body of common law and case law, which has been developed in construing those sorts of terms.

We are still on clause 1, and we have spoken a little about the interplay between clause 1 and later clauses, particularly clause 26, which engages the criminal offence as drafted in the Bill. I want to stress that while the procedural clauses 1, 7, 8 and 12 may use the same language as the criminal offences in clause 26, they are conceptually distinct, as others have noted. Although it is right that a court could be expected to construe legislation as a whole, case law in relation to one provision will not necessarily flow through directly to a later provision.

It may be helpful to illustrate that with the word “encouragement”, which has been raised. As we know, it is an offence to encourage or assist a person to commit suicide. As the hon. Member for Reigate pointed out earlier, it will continue to be so if the Bill is passed, outside of the specific exemption in the Bill. It is generally also an offence to encourage or assist a person to commit any other offence under the Serious Crime Act 2007. Specifically, it is an offence to do an act capable of encouraging or assisting suicide or another offence. The term “encouraged” is not defined in either statute. While it is true to say that section 2A(3) of the Suicide Act—which was added in 2009—clarified that doing an act that is capable of encouraging suicide includes a reference to a person doing so

“by threatening another person or otherwise putting pressure on another person”,

that was intended to be illustrative of the meaning of “encouraged” in that context; it does not serve as a general definition.

Within the Bill, it is important to keep in mind the difference between the procedural requirements—which is what we are discussing in this group—and the criminal offence requirements. Adding words to one provision because they are found in a criminal offence elsewhere risks, in the Government’s view, unintended consequences. Adding “encouragement” to the procedural clauses is perhaps an example of this.

The Minister for Care (Stephen Kinnock)

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It is a pleasure to serve under your chairship, Ms McVey. This group of amendments focuses on the motivations of an individual who wishes to seek assisted dying services. As before, I will limit my remarks to observations about the legal and operational impact that these changes would have.

Amendments 94 to 104 would introduce an additional safeguarding requirement that would require that a person who wishes to be provided with lawful assistance to voluntarily end their own life must be acting for their own sake, not for the benefit of others. These amendments would introduce that new requirement into all the relevant parts of the Bill where a doctor or court or panel must, under the current provisions in the Bill, make an assessment as to whether the person has capacity, a clear and settled wish and is making the declaration voluntarily. These relevant points include, for example, the assessment of the first doctor—the co-ordinating doctor—and that of the second doctor—the independent doctor. The amendments would provide that declarations set out in the schedules are, in consequence, also amended to reflect this new requirement.

With respect to the impact of introducing additional or overlapping terminology alongside the existing terms “coerced or pressured” currently in clause 1 of the Bill, such as “acting for their own sake”, there is a risk that this would cause uncertainty about their interpretation and application by the assessing doctors and the courts. The Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green (Sarah Sackman), has articulated the Government’s position in her previous contributions.

Amendments 235 to 245 are intended to refine the eligibility criteria of a person seeking assistance to end their life so as to ensure that the primary motivation of that person is to avoid physical pain. Consequential amendments are included to reflect that throughout the entirety of the Bill. If this refinement were to form part of the Bill, amendment 235 could exclude those who are suffering with a terminal illness for which physical pain is not a specific symptom. The likely effect would therefore be to limit those who are eligible to access assisted dying under this legislation to terminally ill persons with conditions that are likely to cause only physical pain. In addition to the generic risk of additional overlapping terminology causing uncertainty, the inclusion of these amendments would generate specific uncertainty, as it may be difficult to distinguish physical pain from other pain. It is also not clear whether the person needs to be in pain all the time or some of the time. As I said earlier, the Government have taken a neutral position on the substantive policy questions.

Stephen Kinnock

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I thank my hon. Friend for that intervention. I will just take us back to the first principles. This is not a Government Bill; it is the Bill of my hon. Friend the Member for Spen Valley, who came top of the ballot for private Members’ Bills. She chose to bring forward this piece of legislation. The Government had absolutely no role whatsoever in drafting the legislation. The Prime Minister then made it clear that the Government will remain neutral in their position on the Bill. However, it is the constitutional duty of the Government to ensure that every Bill that passes through Parliament and secures Royal Assent is workable, deliverable, viable and coherent in terms of the statute.

How does that play into this Bill Committee? Members of the Committee who are not Ministers are here to debate the philosophical, moral, ethical and, in some cases, legal and perhaps clinical aspects of the Bill. Members of the Committee who are Ministers—namely myself and the Justice Minister, my hon. and learned Friend the Member for Finchley and Golders Green—are here to provide observations on the Bill with regard to its legal, practical, technical and operational impact, to ensure that we are doing our constitutional duty to deliver the objectives I just outlined to my hon. Friend the Member for Bradford West.

The answer to the question from my hon. Friend is that when my hon. and learned Friend the Justice Minister and I speak, we focus our remarks exclusively on the legal, practical, technical and operational considerations of the Bill. I assume that the Committee finds it useful to know what the Government’s position is on those matters. We do not opine on the philosophical, ethical or moral considerations that are at the heart of the Bill.

Stephen Kinnock

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I cannot really comment, because I did not get the specific question that my hon. Friend asked.

The Minister for Care (Stephen Kinnock)

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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.

Stephen Kinnock

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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

The Minister for Care (Stephen Kinnock)

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

Stephen Kinnock

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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.

The Minister for Care (Stephen Kinnock)

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It is a pleasure to serve under your chairship, Mrs Harris. As usual, my remarks will focus on the legal and practical impact of amendments, to assist Members in their consideration.

This set of amendments seeks to change the way in which capacity is determined. As drafted, the Bill requires that a terminally ill person must have capacity to make a decision to end their own life before they meet the conditions for accessing assisted dying. Capacity in the Bill is determined in accordance with the Mental Capacity Act 2005, which presumes capacity unless it is established to the contrary. Amendment 322 would reverse the presumption of capacity and, in effect, establish a presumption of incapacity.

It may be helpful to the Committee if I set out the Government’s understanding of both the Mental Capacity Act and the implications for the Bill. Section 1 of the Act sets out several guiding principles, including that a person must be assumed to have capacity unless it is established that they lack capacity. Section 3 sets out a description of the factors that demonstrate that a person is unable to make a decision for themselves: that the person is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate their decision. This inability must be because of an impairment or disturbance of the functioning of their mind or brain.

Turning to the Bill, at each stage of the process an assessment of capacity would be required. This assessment of capacity, in accordance with the Mental Capacity Act, is separate to the considerations of whether a person holds a clear, settled and informed wish to end their own life, which is also required by the Bill.

Amendment 322 would disapply section 1(3) of the Mental Capacity Act, which is the principle that a person would not be treated as lacking capacity unless all practicable steps had been taken to help them to make a decision. This could create challenges for practitioners who have experience using the Mental Capacity Act, as they would need to apply a new approach.

Amendment 49 seeks to apply a consistent approach to the burden of proof when assessing a terminally ill person’s capacity for assisted dying. The Mental Capacity Act has two evidential tests. In court proceedings to determine capacity, the balance of probabilities test applies. When care or treatment is given to someone on the basis that they lack capacity, there is protection from liability if there is a reasonable belief that the person lacks capacity and the intervention is in the person’s best interest. The amendment would diverge from this evidential approach. It would also have implications for the workforce. Requiring doctors who have experience in applying the reasonable belief test to instead apply a balance of probabilities test for assessing capacity would likely make the current established approach more complex and potentially less safe.

Amendment 50 seeks to specify certain matters that the person must be assessed as being able to understand in order for a determination to be made that they have capacity. Under the Mental Capacity Act, when a capacity assessment is carried out, the assessor must determine the salient information that the person needs to understand, retain and use or weigh based on the circumstances of the case. The amendment would diverge from this approach, both by specifying in statute the information to be understood and by including the requirement only to understand the information, not to retain, use or weigh it. The Committee may wish to consider whether that would in some respects weaken the test.

Amendment 50 might create two legally distinct frameworks for decision making that doctors would be expected to use. Again, this may introduce additional complexity for those undertaking these assessments.

Stephen Kinnock

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We are talking about the holistic nature of the engagement between patients and medical specialists. In some cases that is for treatment, and in others it is for the withdrawal of treatment. The answer to the hon. Gentleman’s question is that what we are talking about here—the two distinct legal frameworks— relates both to treatment and the withdrawal of treatment. This Bill fits into that category, in the sense that it is part of the engagement and conversation between a patient and a medical practitioner.

Stephen Kinnock

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It is the view of the Government that this is a new piece of legislation that introduces a new type of engagement between somebody who meets the conditions and criteria set out in clause 1, and medical practitioners and other experts, as set out in the Bill. I am not quite sure what the hon. Gentleman is driving at. I do not know whether he wants to get into a discussion about the definition of the word “treatment”. It is absolutely clear that this Bill introduces changes into the system, including a new part of the conversation that would take place between medical practitioners and patients who have less than six months to live.

Stephen Kinnock

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It is the Government’s view that, even though the Bill is introducing something new, introducing new and potentially parallel legal frameworks would not improve its clarity or workability. In essence, the Government’s view is that we bring forward legislation; if that legislation passes, we bring forward regulations; and we then bring forward training and capacity-building to ensure that we ultimately have a system that is operational.

The Government do not accept the argument that bringing forward a new parallel framework of legislation at the first step would improve the workability and operationalisation of the Bill. My role as Minister on this Committee is to talk about the fact that the Bill needs to be workable, operational and legally watertight. The Government’s general view is that if we have a legislative base that, in our view, works—namely, the Mental Capacity Act 2005—we should not add more complexity into it.

Stephen Kinnock

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My hon. Friend makes an important point, and did so more eloquently than I could. The withdrawal of treatment is an important part of this conversation. I would also say that although we totally understand that Members want to address through primary legislation certain risks that they see arising from this legislation, it is important to point out that by doing it through primary legislation we could end up with something that is counterproductive and that could lead to the Bill being less workable and therefore potentially less safe. That is a balanced judgment.

Stephen Kinnock

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What we are talking about today with this Bill—and the job of this Bill Committee is to improve the Bill—is a number of safeguards that ensure that the patient is absolutely consulted and positively and constructively engaged every step of the way. In that sense this is different from the situation my hon. Friend describes. I bow to his expertise as a medical practitioner in this field, and it sounds as though what he has described is not an ideal situation, but certainly this Bill, it would appear, has safeguards that ensure that the situation he describes should never arise.

Stephen Kinnock

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I thank my hon. Friend for that intervention. Fundamentally, the balance of judgment of risk is based on whether, if we add additional words, phrases and amendments to a piece of legislation, it would have the result of decreasing the risk we are trying to address, or of increasing that risk. The Government’s view is that the Mental Capacity Act is a robust foundation for the decisions and processes set out in the Bill. Hon. Members are, of course, absolutely welcome to say that they do not believe that the Mental Capacity Act does what it should be doing and that that is why they have tabled amendments. However, the Government’s view is that the proposed changes would increase the risk of somehow creating a parallel framework to the Mental Capacity Act, rather than keeping it as the foundation. The system is very familiar with it and knows how it works, and that is the best way to minimise the risks that I think all hon. Members are keen to minimise to the greatest extent possible.

Stephen Kinnock

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What we are saying is that we have the Mental Capacity Act as the legal basis for the questions we are addressing in the Bill. Cleary, on top of that regulations will be brought forward by the Secretary of State to ensure that medical practitioners have adequate training and that capacity-building takes place, so that the system is able to deal with the question before it, and therefore the judgment of the medical practitioner is trusted. I think, in the situation my hon. Friend just outlined, that that would be the same case.

Again, this is the process that every Government go through in pretty much every single aspect of policy that they deal with. They have a legislative basis; they bring forward regulations; they deliver training and they build capacity; and the system works on that basis. We then need to ensure that we have a system that is flexible, robust and resilient enough to deliver and to address whatever challenges it faces.

Stephen Kinnock

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I see the point that my hon. Friend is making, but the amendments, as the Government understand them, would risk creating a parallel legal framework and increasing levels of uncertainty, and the more that we increase levels of uncertainty, the greater the risk of the system not working properly. Clearly, the situation that he describes is based on particular measures that have been brought forward, but what we are talking about is a legal framework, not a code of practice, in the legislation.

Amendment 398 would remove the existing presumption of capacity in the Mental Capacity Act, thus requiring a capacity assessment in every case. The amendment would also establish a different test for assessing capacity with regards to the decision to seek assisted dying. Establishing a lack of capacity would not be based on an inability to make a decision because of an impairment of, or disturbance in, the functioning of the mind or brain, as in the Mental Capacity Act. Rather, this would allow for the consideration of other factors, such as immaturity. It would also apply a higher standard of proof than the Mental Capacity Act requires for other decisions, including for serious medical treatment, by requiring assessors to establish capacity “beyond reasonable doubt”. This may raise questions about the nature and extent of the evidence required.

In summary, the amendment would introduce a new framework for assessing mental capacity specific to assisted dying. This may create operational challenges for practitioners and healthcare professionals who are well experienced in applying the Mental Capacity Act.

Stephen Kinnock

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That goes back to what I was saying earlier, which is that this is fundamentally a judgment call: do we make the system more robust, resilient and effective by adding more complexity and bringing in a new and parallel legislative framework, or is it best to work with a legislative framework that is well established and well understood by practitioners, and then to enhance that through regulations and training? It is the Government’s view that the latter is a more effective way of doing this legislation, but I accept that the hon. Members who have tabled this group of amendments clearly would not agree with that analysis.

Stephen Kinnock

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I thank the hon. Member for the last intervention that he will ever make on me.

The Government’s analysis of this group of amendments is that, to varying degrees, they would not add clarity; they would add more complexity, partly because they would either create a parallel legal framework or put new elements into the mix that would create operational challenges for practitioners. That is the Government’s fundamental analysis, but it is a finely balanced judgment and I absolutely accept the hon. Member’s argument.

Stephen Kinnock

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I think the right hon. Member has outlined what I was saying, in slightly sketchier terms, about legislation, regulation, training, capacity building and delivery. What he has described falls under what I would broadly refer to as regulations, but within that there are a multitude of interventions, which could include codes of practice, other forms of legislation, other forms of guidance—

The Minister of State, Ministry of Justice (Sarah Sackman)

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Common law.

Stephen Kinnock

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Indeed: common law, jurisprudence and whatever a professional body might take as a steer for delivery. It is then about the professional judgment of the professional body.

Stephen Kinnock

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The Government are neutral on the Bill—the Government do not take a view on the substantial philosophical, ethical and moral policy considerations—but we do advise, and are advising, the Committee on the implications for the legislative framework of amendments that have been tabled. In a sense, we are not neutral in respect of whether we think that if an amendment were to be made, it would have very significant operational impacts that could potentially affect the workability of the Bill. We are duty-bound to advise the Committee of our position on that.

Stephen Kinnock

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Without knowing the exact implications for the number of people who the hon. Member mentioned, it is difficult to answer her question, but fundamentally the Government’s position on every aspect of the Bill is to be clear that we want the Bill Committee to make informed decisions. Those informed decisions should be based on whether the Government think that amendments to the Bill would have a positive or negative impact on its workability and the legal framework. We also have to ensure that we protect the integrity of the statute book.

Stephen Kinnock

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The Bill has a two-year commencement date. Within that two-year period, the Secretary of State will make regulations to determine precisely the kind of training and capacity building that are required, and that training will be delivered within that two-year period. Those sorts of issues will be dealt with if the Bill gains Royal Assent.

Clause 3 sets out that any assessment as to whether a person has the capacity to make a decision to end their own life is to be determined in accordance with the Mental Capacity Act 2005, sections 1 to 3 of which establish the principles and criteria for assessing a person’s capacity to make decisions. Section 2 of that Act establishes that a person lacks capacity if they are unable to make the decision in question, owing to an impairment or disturbance in the functioning of the mind or brain. Section 3 states that a person is unable to make a decision if they are unable to

“understand the information relevant to the decision…retain that information…use or weigh that information”

as part of the decision-making process, or communicate their decision.

As the Committee will be aware, the Mental Capacity Act has for some time provided a robust framework for important and difficult decisions, and it is familiar to clinicians. I hope that my remarks have been helpful to the Committee in considering the Bill and the amendments.

The Minister for Care (Stephen Kinnock)

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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.