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Fiona Bruce (Congleton) (Con)
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163), and negatived.
Health and Social Care (Safety and Quality) Bill
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jeremy Lefroy (Stafford) (Con)
I beg to move, That the Bill be now read a Second time.
This Bill is all about patients—their care and safety. My commitment to that comes directly out of the findings of the Francis report, particularly the second Francis report, following the public inquiry into the instances of dreadful care at the Mid Staffordshire NHS Foundation Trust in my constituency. The work of Cure the NHS, led by Julie Bailey, who challenged that care, and supported by a group of my constituents and those of my hon. Friend the Member for Stone (Sir William Cash), has brought us to today’s Bill.
Sir Robert Francis, in the letter to the Secretary of State for Health presenting his report, wrote:
“In introducing the first report, I said that it should be patients—not numbers—which counted. That remains my view. The demands for financial control, corporate governance, commissioning and regulatory systems are understandable and in many cases necessary. But it is not the system itself which will ensure that the patient is put first day in and day out. Any system should be capable of caring and delivering an acceptable level of care to each patient treated, but this report shows that this cannot be assumed to be happening.”
The Prime Minister, in his reply to the Francis report, said:
“Quality of care means not accepting that bed sores and hospital infections are somehow occupational hazards—that a little bit of these things is somehow okay. It is not okay; they are unacceptable—full stop, end of story. That is what zero harm—the jargon for this—means.”—[Official Report, 6 February 2013; Vol. 558, c. 281.]
The Prime Minister’s words captured the essence of this issue precisely.
Most of the Francis report recommendations have been accepted, and many have already been implemented. In addition, other very important decisions have been taken by my right hon. Friend the Secretary of State for Health, such as the appointment of chief inspectors of hospitals, general practice and social care. Those are already having a profound effect on improving the safety and quality of care that patients receive.
Our NHS, using the best medical science and skills, combined with professionalism and compassion, delivers extraordinary repair treatment and healing to the vast majority of its patients. Yet, it can also forget that and cause completely avoidable harm to sick patients. The Bill intends to reduce, and, I hope, eliminate, its ability to do that. The Bill arises out of a determination to ensure that what happened at Stafford, and indeed elsewhere, should not be repeated. It seeks to ensure that the focus on safety and quality of care we are seeing is not only maintained, but strengthened, and, most importantly, it seeks to ensure that it cannot be reversed. Of course, legislation on its own will not guarantee safe and high-quality care—leadership, culture and resources are all vital elements—but by making it clear in law what is expected of those providing health care, the Bill will go a long way to doing so.
First, the Bill, in clause 1, changes the Secretary of State’s power to a duty, moving from a “may” to a “must”, to ensure that all those providing health and social care make zero avoidable harm their target. Patient safety is therefore put at the top of the list of what must be inspected for. One important way of ensuring that patients receive the safe and high-quality care we would all wish to see is through better integration between services, both health and social care. That is why clauses 2, 3 and 4 seek to give an impetus to integration through the requirement for a single patient identifier and a responsibility to share information. Professional bodies play a vital role in improving safety and quality of care by setting standards.
Mr David Nuttall (Bury North) (Con)
My hon. Friend will be aware of small concerns raised by the British Medical Association about some of the detail of his Bill. Is he confident that those will be able to be dealt with in Committee?
Jeremy Lefroy
I thank my hon. Friend who has shown a strong, keen and sincere interest in this Bill. Yes, I have just seen the BMA’s submission, and I recognise the concerns that have been raised. Those concerns should be listened to, addressed, and dealt with in detail in Committee. Perhaps what I am coming on to say will address some of them now. We must take extremely seriously the views of the BMA, which represents doctors.
As I was saying, professional bodies play a vital role in improving safety and quality of care by setting standards of practice and ensuring that high standards of conduct are maintained. Clause 5 and the schedule to it ensure that the professional bodies within the medical, nursing and care professions have the same overarching objectives that will benefit patients.
I propose to set out the context of the Bill and then to go into the detail of each of its three parts. In doing so, I will seek to address points that have been raised with me, especially whether we need legislation to achieve the aim of the Bill—patient safety and quality of care.
I am grateful to the team at the Department of Health that has helped in the preparation of the Bill and to the Minister, whose earlier proposals in his ten-minute rule Bill have informed the measures on the integration of services. I also thank the shadow Secretary of State and the Opposition health team for their interest in the Bill, the Chair of the Health Committee and other colleagues who have taken the time to discuss it with me, and to those in the health and social care professions who have contributed their thoughts.
I am also grateful to Ken Lownds whose work on patient safety has been fundamental to my work on this Bill and to my hon. Friend the Member for Stone who first called for a public inquiry and who has supported this work all along. I wish to thank my staff: James Cantrill, Pauline Ingall, Hetty Bailey, Alex Simpson, and Emily Mills, all of whom, but especially James and Pauline, have contributed in many ways. Above all, I wish to thank my wife, Dr Janet Lefroy, who has patiently discussed with me over many years the theory and reality of patient safety and care.
In 1863, in her preface to her notes on hospitals, Florence Nightingale wrote:
“It may seem a strange principle to enunciate as the very first requirement in a hospital that it should do no harm to the sick.”
That principle, extended to all health and social care services, lies behind the whole Bill, but particularly clause 1, to which I will now turn.
We are in a time where, quite rightly, there is increasing scrutiny of the safety and quality of care in our health and social care services. There are no accurate figures of how many people die avoidably while in the care of health or social care services in England. A recent study estimated that perhaps 12,000 people a year die from avoidable causes in hospitals alone. That is more than four times the annual number of deaths on roads in the UK. This is about not just those who die avoidably, but those who live but whose lives are profoundly affected by the avoidable errors—perhaps they are left with disability or mental scars. It is also about those who care for them who may have caused the avoidable harm and for whom it casts a shadow over their entire life.
In many cases, straightforward patient safety concern, procedures and practice would have protected both the patients and the members of staff from the consequences of avoidable harm. No patient wants to be harmed, and no one in the NHS would willingly harm them. The essence of zero avoidable harm is for the professionals and the organisations for which they work to convey to the patients, “We are health care providers because we want to treat and cure people. This is our contribution to humanity. We owe it to you, the patient, when you submit to our treatment not to harm you by being unprofessional, inattentive or negligent and also to have made all possible preparations in case we make an error so that it will not harm you. We will of course advise you of all risk inherent in what we are going to do for you.” When I speak of zero avoidable harm, that is the culture I mean.
These principles, procedures and practices for zero avoidable harm are in place in many hospitals and other care providers across the country, but they are neither universal nor standard. This is about not bureaucracy, but ensuring that health and social care has the same approach to safety as other activities in which safety is critical, such as air travel or the nuclear industry. Just last weekend, I noticed at one of the manufacturing sites in my constituency, which deals in chemicals, a board prominently displayed that said that the site had gone for more than 1,000 days without an accident. I fully acknowledge that health and social care is highly complex, and becoming increasingly so. But to those who use complexity as an excuse not to draw lessons from other professions that have had to make safety a priority, I would simply say: that is not good enough.
There is much excellent work going on in safety science, systematising and standardising many elements of health care, and indeed social care, to ensure that variability can be eliminated. Safety-critical sectors in the UK and elsewhere have for years been using what are called human factors to enable all staff to perform at their best, not only technically but also in communicating with patients and colleagues. Human factors are the key to building a culture of safety, or an open culture in which staff are able to speak up about safety—a just culture, in which blame is absent but fair accountability is the norm.
I shall now explain the detail of clause 1. At the moment regulated activities, which are defined by clause 8(2) of the Health and Social Care Act 2008 as activity involving, or connected with,
“the provision of health and social care”,
are regulated through regulations that are made under section 20 of that Act. That section provides that the Secretary of State
“may impose in relation to regulated activities any requirements which the Secretary of State thinks fit”.
Such regulations
“may in particular make provision with a view to…securing the health, safety and welfare of persons for whom any such service is provided.”
So the Secretary of State has the power—a “may”—but not the duty—a “must”—to impose regulations regarding the safety of patients. The message that this could send out is that patient safety is not essential. Of course, Secretaries of State, and most recently heads of the Care Quality Commission, have made it clear that patient safety is of vital importance, but that did not apply at Stafford hospital or, indeed, in many other places.
Clause 1 of my Bill amends the 2008 Act by substituting the following for subsection (1) and part of subsection (2) of section 20:
“The Secretary of State must by regulations impose requirements that the Secretary of State considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided.”
So it is now incumbent on the Secretary of State specifically to require that those providing health and social care services cause no avoidable harm. The Care Quality Commission will therefore need to assure itself, when inspecting those providers, that they have the policy systems and procedures in place that tackle avoidable harm.
As the explanatory notes to the Bill state, current Care Quality Commission registration requirements, which the Government are introducing, which will introduce new fundamental standards of care, would not be changed as a result of clause 1, as the new regulations satisfy the new duty. But the clause ensures that those regulations could not be watered down in future to reduce the emphasis on patient safety.
The Bill defines harm as being avoidable,
“unless the person providing the service cannot reasonably avoid it (whether because it is an inherent part or risk of a regulated activity or for another reason).”
It may be argued—this is one of the concerns that have been expressed by the BMA—that it is impossible precisely to define avoidable harm in every instance, and therefore that we should not attempt to do so. However, the very fact that so many cases of avoidable harm, sometimes leading to death or other serious consequences, manifestly do occur is a reason to ensure that it receives the highest possible priority, even if there may be arguments over the definition at the very margins.
Some may understandably raise the concern that the desire to tackle avoidable harm might lead to professionals simply not taking any risks. The Bill covers that by excluding from the definition harm that cannot be reasonably avoided. As in many instances, a test of reasonableness, which is included in the Bill, is a sensible way to address that.
Instances of avoidable harm would include, for instance, operations being performed on the wrong limb; patients being left without adequate hydration or nutrition; patients being left alone in A and E for long periods without any attention; poor records resulting in the wrong drugs being administered; and neglect as a result of wards being staffed below safe levels. In my experience, and I am sure in that of other hon. Members, the vast majority of instances of avoidable harm would come under one of those, or similar, categories.
There would be no questioning whether such instances had arisen because professionals were afraid to take risks; they would come from poor clinical skills, faulty record keeping, inefficient administration or a lack of care and compassion. The fact that the instances of avoidable harm vary so much across the health and social care sectors in itself shows that the problem can be tackled. How many lives would be saved if all providers had the same standards as the best in class? That is why it is so important to address avoidable harm through legislation.
I now turn to clauses 2, 3 and 4. These clauses are about continuity of information, which must be used
“to facilitate the provision to the individual of health services or adult social care in England, and…in the individual’s best interests.”
Again, this is all about the patient. There are two provisions: the first is for use of a consistent identifier for a person by the provider of health or social care; the second is to ensure that relevant information is shared in support of people’s direct care by the introduction of a duty to share information. Both provisions are designed to help with the integration of health and social care, which is greatly needed and which the Government and the Opposition have said is essential for the future.
Before I turn to the details, I should like to quote from a letter sent to me by my constituent, Mrs Janet Powell, who was delighted to hear about the Bill. She describes two recent experiences of the lack of integrated information, explaining:
“After breaking her femur in November 2013, my mother was admitted to the Manor Hospital, Walsall. In February 2014, she was admitted to Stafford Hospital suffering from heart failure. In July 2014, she went to New Cross Hospital, Wolverhampton for her cataract operation. For each of these admissions, she has a different hospital number. We have had to repeat vital information about her medical conditions each time she has been dealt with by different teams.”
Mrs Powell’s mother was fortunate to have relatives who were able to be with her on each occasion and give the vital information about her conditions, but for many people that is not the case, and even if it were, the process would still be inefficient and leave open the possibility that vital information regarding the patient and their care would be omitted.
The requirement for the use of a consistent identifier would make the accessing of accurate and timely information about a patient’s condition much easier, but clause 2 stresses in proposed new section 251A(5)(a) to the Health and Social Care Act 2012 that the requirement to use a consistent identifier would apply only if it was
“likely to facilitate the provision to the individual of health services or adult social care in England, and…in the individual’s best interests.”
As one would expect, the Bill contains provisions for the identifier not to be used in certain circumstances, including when the individual objects or would be likely to object and when the information concerns the provision of services by an anonymous access provider—for instance, sexual health services. The Bill makes it clear that the professional must still comply with the Data Protection Act 1998 and with any common law duty of care or confidence.
The introduction of a duty to share information for an individual’s care and treatment—again, only if in the person’s best interests—is aimed at ensuring that medical records are shared appropriately between the professionals in the NHS and care sectors who are responsible for the care of the patient. That is especially important when patients move between organisations along their care pathway.
The 2013 Caldicott review of information governance, “To Share or not to Share”, found that a culture of anxiety prevents information from being shared between organisations and that the legislative landscape contributed to this, with staff saying that a risk-averse attitude to sharing was a barrier to sharing in caring for people. The review said that the duty to share information in such circumstances can be as important as the duty to protect patient confidentiality. Dame Fiona concluded that health and social care organisations should have the confidence to share information in the best interests of patients within the essential broader framework of protecting personal patient data. Again, the Bill will provide the same important safeguards as those in respect of the consistent identifier.
I do not for one moment pretend that these provisions alone will make fully integrated health and social care a reality, but I believe that they will certainly help to remove some of the obstacles.
The final part of the Bill—clause 5 and schedule 1 —sets out three objectives of regulation: public protection, maintaining public confidence in the professions and upholding standards. Again, the driver for this is the safety and care of patients.
The long title of the Bill states that it would
“make provision about the disposal of cases concerning a person’s fitness to practise a health or social care profession”.
That was indeed my intention. Some of the regulatory bodies have been frustrated by the limitations on their ability to deal with a person’s fitness to practise. However, I have subsequently learned that such was the level of detail required to introduce the provisions that they would have made the legislation too long and complex for a private Member’s Bill. This Bill therefore concentrates on the vital overarching duty to protect the health, safety and well-being of the public.
When the serious failures set out in the second Francis report were debated in the other place, the noble Lord Hill, then Leader of the House, said:
“the regulatory bodies in particular have difficult questions to answer. The Nursing and Midwifery Council and the General Medical Council need to explain why, so far, no one has been struck off. The Secretary of State for Health has today invited them to explain what steps they will take to strengthen their systems of accountability in the light of this report, and we will ask the Law Commission to advise on sweeping away the Nursing and Midwifery Council’s outdated and inflexible decision-making processes.”—[Official Report, House of Lords, 6 February 2013; Vol. 743, c. 320.]
The Law Commission, to which we are greatly indebted, has produced an excellent draft Bill with an accompanying report, “Regulation of Health and Social Care Professionals”, dealing with these matters. It states:
“Given the importance of health and social care professionals regulation, it is a matter of some concern that its UK legal framework is fragmented, inconsistent and poorly understood.”
It describes the piecemeal growth of that regulation since the establishment of the General Medical Council in 1858, which has become a framework that
“is neither systematic nor coherent and contains a wide range of inconsistencies and idiosyncrasies.”
As part of its work, the Law Commission therefore proposed in recommendation 13 that an overarching duty to protect the public should be established in a single statute for all the regulatory bodies. The recommendation states:
“The main objective of each regulator and the Professional Standards Authority should be to protect, promote and maintain the health, safety and well-being of the public. The regulators and the Authority also have the following general objectives: to promote and maintain public confidence in the profession and to promote and maintain proper professional standards and conduct for individual registrants.”
It is that recommendation that will be given effect by clause 5 of my Bill.
It might reasonably be asked why we do not simply wait for the entire Bill, with all the details of changes to regulatory body powers, and introduce the overarching duty then. Let me be clear that I am a very strong advocate of introducing the Law Commission’s entire Bill at the earliest opportunity; indeed, I would urge the next Government to do so. However, I believe—this is supported by regulators who have written to me—that introducing the overarching duty to protect the public, together with maintaining public confidence in the professions and promoting and maintaining proper professional standards and conduct, is a very important matter. It should not be left any longer. The commission’s report explains why:
“fitness to practise panels have, in some cases, adopted an overly restrictive approach to the test of fitness to practise impairment… In particular, the concern is that in cases of clinical misconduct or deficient professional performance they are more likely to look at whether the instances of clinical misconduct or performance are remediable than to fully consider all of the factors, including the public confidence in the profession.”
It concludes:
“If this concern is correct, then we think that the panels in question have misunderstood the correct legal position—namely that regard must be had to all of the factors reflected in the objectives when deciding impairment, irrespective of the particular grounds being considered. Our intention is that the wording of the general objectives in the draft Bill and duties to have regard to them should help to clarify the existing legal position.”
I have enormous respect for the health care professions—in fact, three members of my closest family work in or are training for them. These professions have led the world in many ways. Indeed, hundreds of health care professionals are at this very moment showing their courage and commitment by volunteering to tackle the Ebola epidemic in west Africa. One of the most important things that we as legislators can do is to provide them with the framework they need so that poor practice will not be tolerated and the public will have the highest degree of confidence in them. Clause 5 will help to achieve this.
I said at the beginning that this Bill is all about patients. It will put safety at the heart of health care by making the Secretary of State responsible for bearing down on avoidable harm. It will help the vital integration of health and social care services, thereby improving both quality and safety by introducing a consistent identifier and a duty to share information. It will make it clear that the main objective of each regulator of the health care professions is the promotion, protection and maintenance of the health, safety and well-being of the public.
None of this will absolutely guarantee that the failure of safety and care described in Sir Robert Francis’s first report, and the failure of the NHS and regulators set out in his second, will not happen again. That depends on other things that cannot be legislated for, such as culture and leadership, and those that can, such as the commitment of resources. However, it is my belief and hope that it will make a recurrence much less likely. My constituents in Stafford, and those of my hon. Friends the Member for Stone, for Cannock Chase (Mr Burley) and for South Staffordshire (Gavin Williamson) will then know that all they have gone through over so many years will not have been in vain.
Mr David Nuttall (Bury North) (Con)
I congratulate my hon. Friend the Member for Stafford (Jeremy Lefroy) on introducing this Bill. He has set out its content comprehensively, in great detail and with great clarity. I also congratulate him on having the foresight to include as one of the sponsors of the Bill my hon. Friend the Member for Mid Norfolk (George Freeman), who is now of course the Minister speaking for the Government on it. That was a smart move.
Perhaps everyone in this country sometimes takes our national health service for granted as something that is always there. Whatever the political arguments may be about the NHS, we all know that it is part of the bedrock of British society—part and parcel of the fabric of this country. In essence, it boils down to two things. First, there is the scientific element: the technical expertise of the scientists, the doctors, and the people who put the drugs together and study the biology of the human body and the interaction of drugs within it.
There is also the human side—the care side. When someone is ill, they rely on the scientists to come up with a solution, but sometimes there is no solution and the scientists say, “We’re sorry—we can’t help you.” Sadly, even after decades of advances, there are still all too many ailments that afflict the human condition. In those cases, and in those where people, for whatever reason, may be nearing the end of their lives, it comes down to the human touch—the care and the everyday things that are not really related to science at all, just to common humanity. Regrettably, as seen most notably in the constituency of my hon. Friend the Member for Stafford—the reasons have been well explored—sometimes that care is not there. I am not going blame A, B or C for what happened—whatever happened has happened and we are where we are. Terrible things have happened and care has not been up to standard—we all accept that.
What we must now consider is whether it is possible to redesign the regulatory framework in such a way as to try to reduce the risk of what has happened in the past ever happening again. I do not pretend that this Bill will achieve that 100%. My support for it is based not on that premise, but on the premise that, on balance, it will be an improvement.
The Bill’s first proposed provision for a duty—an obligation—to inspect care makes absolute sense. Millions of people outside this Chamber will, frankly, be amazed that that is not already the case. It would be entirely uncontroversial to enshrine in law that requirement of the NHS regulator.
Secondly, the proposal for a common identifier is common sense. When members of my own family have had to go into hospital—this has happened recently and, sadly, it happens on too many occasions—they tell me, time and again, “The only thing that really annoys me is that I constantly have to give information.” Surely a common identifier would save time for our NHS. I am pleased that the professional bodies support the proposal. There are one or two technical and minor concerns, and clause 2 goes a long way to dealing with them. I am sure that any further concerns can be dealt with in Committee.
On balance, this is a sensible Bill, which has been very carefully explained to us this morning. I wish it a speedy passage through this House and the other place.
Fiona Bruce (Congleton) (Con)
May I begin by congratulating my hon. Friend the Member for Stafford (Jeremy Lefroy) on his Bill, which, if implemented, has the potential to provide significant improvements right across this country to the treatment and care of patients requiring medical assistance? Indeed, the improvements proposed by the Bill would have an immediate and real impact.
The national health service is an institution of which the whole nation can be proud. It serves our society with outstanding professionalism and admirable compassion. However, as a few specific, terrible instances have shown, there is room for improvement.
I salute my hon. Friend’s tireless work to do everything possible to ensure that this country never again experiences tragedies of the type reported from Mid Staffordshire hospital. Indeed, my hon. Friend’s constituents have cause to be extraordinarily proud of him as their elected representative and of the thoughtful, tireless and effective work he has done on their behalf in response to the issues raised at Mid Staffordshire hospital. I do not believe that any other Member could have worked harder for their constituents in this connection. He has raised their concerns in this House countless times.
The Bill is another carefully considered and utterly compassionate response—so characteristic of my hon. Friend—to those events. It is a focused, effective and, above all, practical proposal. It has one overriding focus: patient care. It deserves to be fully supported in its passage through the House. Its proposals are specific, realistic and immediately applicable. It will bring about real changes in the lives of real people right across the country at their weakest and most vulnerable moments.
As I have said, particular situations hit the headlines. Although they were extreme, the House must remember that they are part of a wider national picture. We must use the lessons to inform future policy, and the Bill does just that. It is all about patients and their care, and about promoting consistency across the country so that all patients are cared for safely, and are seen to be cared for safely, to an accepted and understood standard. The NHS is an institution that the British people own, fund and use, and it is right for us to be concerned about public confidence in the quality and safety of the care it provides.
I understand the concerns of those who say that the NHS cannot be run on the basis of public opinion—I will speak about that when I come to clause 5—but that does not negate the fact that public confidence in the NHS is an essential concern, not an optional extra. Indeed, an NHS or local hospital that loses the confidence of the public will quickly cease to be able to serve effectively the community for which it is designed.
The first purpose of the Bill is to set in stone the priority of patient safety in NHS standards not just as a power but as a duty of the Care Quality Commission, as my hon. Friend has said. We have learned from the Francis report that patient safety is not an optional extra; it is essential and should be at the heart of good health care. The recognition of every single person’s dignity and value has characterised the proud history of the NHS and must always remain central to its practice, no matter what pressures it comes under on a wider scale.
The priority of safety in the work of the CQC will help to enshrine the dignity of individuals in a system that must inevitably focus on what is efficient in the wider structural picture. Putting safety first will ensure that it is not lost within bureaucracy and procedures. The nature of the NHS clearly means that health care professionals are always under all sorts of pressures to decide how they can most effectively allocate their resources of time, expertise and treatments.
Clause 1 will be a buttress to the rights and dignity of each and every individual within the larger picture. It will make sure that safety is one of the key non-negotiable factors that guide professionals and institutions as they make decisions. The clause acknowledges that there is no such thing as risk-free health care, and it allows for a certain margin when those providing the service cannot reasonably avoid risk. The responsibility that the clause will permanently place on health care professionals, institutions and those assessing the CQC should ensure that the recent tragedies in patient care are far less likely to happen in future. Ideally, no one in the House would want them to happen and to be reported again.
The second aim of the Bill relates to transparency and the integration of health care. A more integrated health care system must surely be a better system. It would promote shared expertise, shared learning and greater safeguards. The care provided for patients should reflect the fact that disconnected and fragmented health care is weak health care. These provisions will aid heath care professionals with regard to not just safety, but good practice across the board. I hope that it will simplify, rather than—as some fear—make more complex, the system of health care provision for patients. A consistent patient identifier and wider information sharing should create clearer channels for the integration of health and social care for individuals. This is the way of the future, particularly given the needs of our increasingly elderly population. I applaud my hon. Friend for those practical proposals.
As I have said, the NHS is a unique institution with a unique connection to the public. Public confidence is not an optional extra, but to achieve it requires transparency. I am sure that many health care professionals in the NHS will welcome greater transparency. The overwhelming majority of those who work in the NHS do an outstanding job, of which they—and we—can be proud.
The British Medical Association has certain concerns about the NHS number being used as a universal identifier, so I am pleased to highlight the fact that the Bill does not require any particular identifier to be used. The Bill seeks to promote the principle and merit of having an identifier, but which identifier is to be used can be left to the discretion of the Secretary of State, who I am sure will consult interested parties.
Provisions for sharing information in the Bill are also important. They will facilitate better health care treatment for every individual across all areas of their treatment, allow professionals to do a better job, and allow patients to know with confidence that those looking after them are fully informed about their care requirements before they provide treatment. Currently, patients cannot be sure that their medical and care history and priorities are being shared between professionals responsible for their care. My hon. Friend has cited cases where that has caused problems, which is no doubt typical of many.
Care must be taken to ensure that information is shared in a responsible way that upholds the privacy of the individual—that is critical. Questions of who information is shared with and how consent is assumed or obtained from patients are important, and there will be the opportunity to discuss such matters further in Committee. As the Bill rightly points out, patient data should not be shared where that is not appropriate, or in an unsafe manner—for example, where a person’s medical record contains confidential information about another person. Critically, the sharing of information must always be in the best interests of that person’s care and treatment. The Bill would not require the sharing of identifiable information for purposes other than direct care. As Dame Fiona Caldicott said:
“For too long, people have hidden behind the obscurity of the Data Protection Act or alleged rules of information governance in order to avoid taking decisions that benefit the patient. Personal data must be protected lawfully, but common sense and compassion must prevail.”
The third and final aim of the Bill is to ensure that the various health care regulators, including the Professional Standards Authority when making decisions on cases of conduct or misconduct, have consistent overall objectives in mind: the maintenance of public safety, public confidence in the relevant profession, and proper professional standards of conduct on the part of health care professionals. The proposals have not sprung up in a vacuum; they are consistent with recommendations in the Law Commission’s report, “Regulation of Health and Social Care Professionals”. It noted with concern the inconsistencies in the way different professional regulators assess individual fitness to practise. The relevant section of the Bill, recommended by experts, should ensure fewer examples of poor practice, and that it is properly addressed. Everyone—practitioners and regulators —should know the primary principles by which professional performance in the health care system is to be judged.
I understand that some professionals, and the BMA, are concerned that the link to public confidence could lead to an inappropriate link between volatile public opinion and the decision of regulators. Those are reasoned concerns but they underestimate the capacity of regulators to make appropriately sound judgments against set benchmarks. The legal position already requires attention to be paid to public confidence. The Law Commission’s report stated that
“the concern is that in cases of clinical misconduct or deficient professional performance they—”
that is the regulators, and for the benefit of the House I will elaborate a little on what “the regulators” means, because it is an extensive group of organisations—
“are more likely to look at whether the instances of clinical misconduct or performance are remediable than to fully consider all of the factors, including public confidence in the profession.”
The Bill addresses that concern.
Concerns that this will lead to inappropriate links between regulation and public opinion, perhaps especially as it relates to so-called scare stories in the press, should prove unfounded. Far from it: the Bill should encourage greater clarity and rigour in the grave task of regulators in assessing professional standards and promoting best practice. The impact of the Bill in this regard should not be underestimated. The extensive list of regulators—the bodies that regulate health and care professionals in the UK and will be affected positively by the Bill—includes: the General Chiropractic Council, the General Dental Council, the General Medical Council, the General Optical Council, the General Osteopathic Council, the Health and Care Professions Council, the Nursing and Midwifery Council and the General Pharmaceutical Council.
Jeremy Lefroy
I am most grateful to my hon. Friend for taking on the role of enunciating all the regulatory bodies. Does she agree that we would be wrong to downplay the great common sense of the British people when talking about public confidence? Public confidence in health care professionals, by any objective reasonable measure, is at a very high level and we do not just need to look at press headlines for that. Does she agree that, when it comes down to it, the British people have a huge amount of common sense and the profession should not be afraid of public opinion? It is very much on its side.
Fiona Bruce
I entirely agree. In saying what I have said, I in no way want to denigrate my hon. Friend’s intervention. I absolutely agree with him.
In closing, let me repeat my support for this profound and potentially far-reaching Bill. If passed, it would influence the life of every citizen in this country. Let me repeat my support for the excellent work my hon. Friend has done in bringing it to the House, and in working to drive up standards in the NHS, both locally in his constituency and nationally, and protect people across the country from a repetition of the sad and tragic events documented at Mid Staffordshire. The Bill will strengthen relationships between patients and health care professionals, and between the NHS and the public in general. It will help to lift confidence in the NHS even further. Most of all, it will help to ensure that every person who relies on the NHS in their most vulnerable moments will be safer wherever they live and whatever their condition. For that reason, I commend my hon. Friend’s Bill to the House.
Mr Jamie Reed (Copeland) (Lab)
The House has a lot of business to attend to today. That said, this Bill deserves consideration in some detail. It clearly has widespread support across the House, including on the Opposition Benches, and from medical professionals across the NHS. Some groups have raised a number of concerns. I know that the hon. Member for Stafford (Jeremy Lefroy) will want to address them.
The Bill is made up of three key areas. Part one relates to provision of care that avoids harm. It requires the Secretary of State to bring forward regulations setting out the requirements on providers registered with the Care Quality Commission to ensure that the services they provide do not cause avoidable harm. Clearly, that is a principle we all support. All of us have learnt the lessons of what happened in the hon. Gentleman’s constituency and none of us wants to see that repeated in any part of our health economy or anywhere in our country. We want the very best care for our family and friends. Harm-free care should be something we all strive for at all times. We know that our doctors, nurses and other medical staff work incredibly hard, as Government Members have said, often in exceptionally trying circumstances. The Government—any Government—must do everything within their power at all times to support those professionals. That is surely beyond question.
The second part of the Bill relates to the continuity of information and how it is shared between providers of care. For effective health care to be provided in the 21st century, data must be utilised as effectively as possible. I am sure the Minister shares that viewpoint. Macmillan Cancer Support has shown in north Trent that local data, when used effectively, can be used to redesign the follow-up care that colorectal cancer patients receive. On analysing the data, it discovered that more than a third of people who survived for more than five years had an additional, non-cancer complication such as type 2 diabetes or heart problems. By using these data—and, by extension, knowledge—it could better plan the future care of those patients. The principle of using complete data to identify patients’ needs must be applied more often to ensure that patients get the care they require. There are some tremendous examples of GPs in Salford deploying this care model. I urge Members to take a look at the innovative techniques being developed there.
I ask the House to indulge me for a moment. Like everyone, I understand how such data can lead to better patient outcomes. Two weeks before the last general election, as an undiagnosed type 1 diabetic, I was rushed to hospital—once again, I place on the record my gratitude to the West Cumberland hospital for saving my life—and now every day my life is governed by data: blood glucose readings, insulin ratios and so on. I want such data to be easily available to me: I want them on my smartphone, and I want them provided to pharmacists and GPs, to help me and others in my situation better to control the condition. Incidentally, such a huge innovation would also save the NHS a lot of money and improve outcomes for patients with a variety of long-term conditions. In that regard, the Bill is doing exactly the right thing.
I would be grateful if the hon. Gentleman could set out again how the Bill would make data sharing more consistent across the whole health service, because this is a challenge. Where individuals’ personal data are concerned, there are clearly issues of privacy to address. That debate rages across many sectors and is routinely discussed on and offline and in the House. I have been here almost a decade now—it is hard to believe—and issues of individual personal data have been discussed throughout that time. Nowhere is that felt more sharply than with medical data.
It was regrettable—and avoidable—that the Government failed with the care.data scheme, as it severely eroded public trust in how data protection matters are dealt with. I do not think that anybody would take issue with the principle that medical confidentiality should always be respected and protected. I hope the hon. Gentleman will outline what safeguards are in the Bill to ensure that only relevant patient data are shared. Sharing unnecessary information could undermine patient trust, particularly regarding the use of personal data, and, critically, could slow down treatment, which we do not want.
Jeremy Lefroy
I am grateful to the hon. Gentleman for setting out from personal experience how important this matter is. I can assure him that the aim of these provisions is to ensure that data are shared only for the care of individual patients. This is not about data collection, but about patient care and safety, for which, as he rightly says, data are often so important.
Mr Reed
I thank the hon. Gentleman for that response. We will drill down into this in Committee because it is important that we get the details absolutely right.
This is about the efficacy of the care provided, and if we do not get it right, we will be storing up trouble for the future. The sharing of relevant health information is already governed by professional obligation, as the hon. Gentleman will know from his marital circumstances, and the British Medical Association has said it would be unnecessary to replace that with a statutory framework without clear justification. I hope to hear some justification for a new framework. One of the lessons of my party’s time in office, and one of the lessons that should be learned by this Government, is that we need to take medical professionals with us. If we do not, we will put ourselves and patients in a difficult position. We can devise all the statutory and regulatory frameworks we want, but if we do not take medical professionals with us when we apply those strategies, we will be in difficulty.
The third part of the Bill relates to objectives for the regulation of health and social care professions. This part, and the draft order on the objective of the General Medical Council, amends the objectives of health and social care regulators and the Professional Standards Authority. Professional bodies such as the GMC and the BMA have differing views on the impact this will have in practice. The GMC states that while this Bill will not impact on the GMC per se,
“The newly worded statutory objectives in the draft order address the aim of protecting the public and set out clearly the importance of public confidence issues when deciding on appropriate action in the public interest.”
The GMC also believes that the Bill will align other regulators’ statutory purpose with their own. The BMA, however, believes that the now separate role of protecting the public while maintaining public confidence in the professions could lead to regulatory committees and panels punishing professionals who do not pose any threat to the public.
The details of this part will be subject to further scrutiny in Committee, but I would be grateful if either the hon. Member for Stafford or the Minister explained how this scenario articulated by the BMA could be avoided. Let me repeat that it is essential to take the medical professions with us on this, in view of the lack of appetite for the application of the Francis recommendations with regard to the individual duty of candour. I think this has been dropped because the medical profession did not believe it to be enforceable. The Government listened, but we should explore those concerns in greater detail.
It was disappointing that the Government did not bring forward in the Queen’s Speech a Bill to deal with the wider reform and regulation of health care professionals. An opportunity was missed, and I hope the Minister will explain why. Wider reform is clearly needed. The Nursing and Midwifery Council was disappointed not to see such a Bill in the Queen’s Speech and still says that wider legislative reform is needed. We must remember that this Bill is an essential component of the implementation of the Francis recommendations and that, without it, some of the important changes recommended by Robert Francis simply cannot take place. We support the superb efforts of the hon. Member for Stafford principally in that context. This is an issue that many in the professions wanted to see addressed by the Government in the Queen’s Speech. They should have brought forward a Bill, and it clearly cannot be through a lack of parliamentary time or because of a packed legislative agenda that no Bill has been introduced. I hope an explanation for that will be forthcoming.
Other issues need to be addressed. The principle of the Bill is one that we support and we will not divide the House on it. The details will be scrutinised further in Committee, and I hope that both the Minister and the hon. Member for Stafford will be able to deal with some of the issues I have raised.
Finally, although the Bill is an important step, cultural change in any organisation or profession is difficult and takes a long time to achieve. There is no magic bullet, as has been said, and we should always recognise that. I was grateful to the hon. Member for Stafford for mentioning the regulation of the nuclear industry, of which I have a lot of experience. I think I was the first person to introduce this regulatory example into this whole debate, and it is a very important comparison.
What is the point of the comparison? Effective regulation is an iterative process that relies on an effective partnership between the regulator and the regulated. Too often, regulatory bodies in a number of sectors can play cat and mouse or hide and seek with respect to those they regulate, which can have a serious, damaging and counter-productive effect. We are beginning to see that with Ofsted—the comparator often used nowadays for the Care Quality Commission. Of course we want to see education standards driven up; of course we want to see pupils receiving the best education in the world; and of course the pursuit of excellence must be constant and consistent. We must, however, consider what happens when regulators begin to damage the cause they exist to support. None of us wants to see the medical profession becoming as beleaguered as those other essential public servants in the teaching profession.
That said, public services exist first and foremost for the benefit of the public, not for the public servants—an essential principle. Iterative regulation is undoubtedly the way forward, as is demonstrated by the safety and performance improvements that have taken place in the nuclear industry over the past decade and a half. Those changes accompanied a major regulatory recalibration in the early part of this century. Cat-and-mouse, hide-and-seek regulations were actually making performance in the industry worse. Regulators should not wait for failure to occur and then seek to punish; they should work to prevent failure from occurring in the first place, and that requires a partnership between the regulator and the regulated.
There is a great deal in the principle of the Bill that unites the House. I am exceptionally grateful to the hon. Member for Stafford for all the work that he has done, and his Bill has the Opposition’s support.
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (George Freeman)
I am delighted that this important Bill appears to have cross-party support. I strongly support it, as do the Government, and I pay tribute to the tireless commitment shown by my hon. Friend the Member for Stafford (Jeremy Lefroy) to the cause of public safety. I think that I speak for the whole House—although many Members are not present this morning—when I say that he has commanded all our respect in campaigning so tirelessly, with such good grace and diligence, and with cross-party support to ensure that the lessons of the appalling tragedy at Mid-Staffs are properly learned. He has demonstrated the integrity of that work again today, which is reflected in the degree of support for the Bill.
Let me begin by echoing the support that my hon. Friend expressed for Julie Bailey, my hon. Friend the Member for Stone (Sir William Cash) and Ken Lownds, all of whom have done a huge amount of work behind the schemes in support of the Bill and the wider cause of patient safety. My hon. Friend spoke extremely powerfully about the 4,000 unavoidable deaths and the many thousands more unavoidable incidents of harm. Such incidents will, of course, be avoidable if we are better equipped to track, monitor and collect data in the way that is proposed in the Bill, and to develop the culture of transparency and accountability for which it provides.
My hon. Friend spoke about the concept of zero avoidable harm, which sits at the heart of the Bill, and spoke particularly powerfully about the culture of health and safety. In the aviation and nuclear industries, as we heard from the hon. Member for Copeland (Mr Reed), it is a culture that involves actively looking out for near misses, and actively welcoming the reporting of problems by staff members from top to bottom of an organisation as soon as they have been identified, that has enabled those industries to develop such exemplary health and safety records. One of the great lessons that emerges, loud and clear, from the Francis report is the need for a change of culture.
My hon. Friend referred to the science of safety and the elimination of variability from the system, and to the good work that is being done in this country, not least as a result of the Francis report. That is another example of an area in which the NHS is leading in global medicine. He also spoke of the importance of integrating information and data. His account of the journey made by his constituent Janet Powell as she helped to escort her mother across the health and care landscape will have resonated with many Members. It certainly resonated with me, because over the last 18 months I have been in a similar position, supporting my own mother through a journey from primary care to hospital care to community care in Norfolk. As many Members and many millions of carers outside will know from experience, it is often the carers, parents and loved ones of patients who are carrying the best information about the patient through the system. That information is often too slow and does not keep up with the patient on their journey.
My hon. Friend spoke very powerfully about the risk-averse attitude to sharing information. That is a problem, and the Government are committed to trying to tackle it. That is another reason why we are supporting this Bill. Key to that, as my hon. Friend touched on, are the recommendations of Dame Fiona Caldicott, and I am delighted that she has agreed to take a lead role and to accept the invitation of the Secretary of State to look at the safeguards we need to be putting in place across the whole of the NHS and Department of Health care and data provisions. That will help provide a strong degree of reassurance to both Members in the House and people outside that patient concerns about confidentiality are being met.
My hon. Friend also spoke very powerfully about his support for health care professionals, and I would like to put on record my support for his comments about the NHS staff who are in Africa on the front line of the fight against Ebola. We owe them all a huge debt of gratitude.
We also heard from a number of other Members who spoke very powerfully. My hon. Friend the Member for Bury North (Mr Nuttall) was kind enough to congratulate me on my role in managing to get the data-sharing measures included in this Bill. They were raised before this House in my ten-minute rule Bill, which fell, but I am delighted to see those measures picked up in this Bill.
My hon. Friend also spoke very powerfully about the NHS as a bedrock of British society, and I could not agree more. He made some interesting points, too, about the difference between the science of health care and the human and compassionate and cultural side of health care, which this Bill goes right to the heart of. That has always been a great strength of the NHS, which in its founding charter is a scientific and research-led organisation, and which has always put compassionate care at the very top of its mission.
My hon. Friend the Member for Congleton (Fiona Bruce) spoke very powerfully and again paid tribute to both the NHS and its staff. She also spoke about the importance of transparency and of there being public confidence in the data confidentiality aspects of this Bill and more generally across the health care system.
I was pleased by the tone and spirit of the speech of the hon. Member for Copeland and to hear that there is cross-party support for this Bill. Although parliamentary time is short in this Session, I think that with that support this Bill has every chance of reaching the statute book.
I was particularly pleased to hear the hon. Gentleman’s powerful—and personal—support for the importance of data sharing in 21st-century health care. He rightly highlighted Salford as a beacon of what can be achieved, and that stands as a tribute to the NHS in the north-west, which is leading the way in the use of informatics and medical data for both research and treatment.
The hon. Gentleman also spoke powerfully about his personal experience as a diabetic patient, and about his reliance now on data as a patient and his active embrace of telehealth and the use of smartphones. He also spoke very powerfully about how that is allowing him to have better control of his condition. Patient empowerment, through data and electronic health records and putting in place a landscape so that patient medical information flows with the patient and reflects the patient journey across the system, is key to both this Bill and the Government’s wider proposals for building the integration of health and care and a 21st-century model of the NHS in which health care moves from being something done to patients when the system is able to do it to a system in which active health citizens are empowered and enabled and encouraged to take more responsibility for their health care so they can drive through the system in the way that suits them.
We might not have a packed House here on this Friday morning, but we have certainly packed in the arguments. We have heard a lot of high-quality contributions. I want to talk about the thinking behind the Bill and answer some of the key questions that have been raised.
The need to maintain minimum levels of quality much more consistently was put into sharp focus by the landmark public inquiry report, published in February 2013, on the terrible, shocking and serious failings in the care provided at the former Mid Staffordshire NHS Foundation Trust. I think everyone in the House would accept that the subsequent Francis report shook the health system to its core. Francis’s call for a fundamental culture change across the entire health and social care system that would put patients first at all times still resonates loudly in this Chamber and throughout the health and care debate.
Sir Robert Francis QC, the chair of the inquiry, made a compelling call for action across six core themes: culture; compassionate care; leadership; standards; information; and openness, transparency and candour. That is a checklist that all of us who are involved in health care need to keep close at hand. The inquiry represented a watershed in our thinking on safe and better care. That in turn is driving a culture change across the NHS as we resolve never again to allow the system to fail patients and service users in the shocking way that it did.
The Government published their response to Robert Francis’s public inquiry on 19 November 2013. That response, “Hard Truths: The Journey to Putting Patients First”, demonstrates the Government’s commitment to creating a culture of openness, with greater accountability and a relentless focus on safety in an NHS that puts compassion at its heart. In response to the events at Mid Staffs, to Robert Francis’s recommendations and to Don Berwick’s excellent review of improving patient safety, the Government have already introduced a number of measures to improve safety. First, a new statutory of candour on providers will help to ensure that patients are given the truth when things go wrong and that honesty and transparency are the norm in every organisation. This new duty will be overseen by the Care Quality Commission. It will come into force for all NHS bodies soon and for other registered providers by April 2015. We expect staff to reflect the duty in their everyday activity.
An organisation is made up of its staff, and providers will be expected to implement the new duty through staff across their organisation. Training and education of staff will also support the establishment of an open culture. The General Medical Council, the Nursing and Midwifery Council and the other professional regulators will introduce a new explicit and consistent professional duty of candour, making clear a requirement to be open, whether the incident is serious or not.
Secondly, the Secretary of State announced in March a new Sign Up to Safety campaign, a platform on which all NHS organisations and patients can share, learn and improve ideas for reducing harm and saving lives. It was launched in June, and health care leaders have been invited to set out what their organisations will do to strengthen patient safety, including by producing a safety improvement plan. Sign Up to Safety aims to achieve much more than just the numbers of NHS organisations joining; it is about motivating participants actively to get involved. The campaign will go beyond institutions and seek to sign up as many individual NHS staff as possible, and everyone who chooses to join will commit to the new patient safety ambition.
In order to realise the Berwick report’s vision of the NHS as an organisation devoted to continual learning and improvement, NHS England and NHS Improving Quality have established a new national patient safety collaborative programme. This will spread best practice, build skills and capabilities in patient safety and improvement science, and focus on actions that can make the biggest difference to patients in every part of the country. The safety collaboratives will be supported systematically to tackle the leading causes of harm to patients. The programme will include establishing a patient safety improvement fellowship scheme to develop 5,000 fellows in a national faculty within five years.
We are absolutely committed to changing the culture of patient safety through investment in leadership. NHS England is now working with The Health Foundation to help develop proposals for a safety fellowship initiative. The NHS is on a transparency journey, through the NHS Choices patient safety section, to become completely open and transparent. More information about our local health services is now more publicly available than ever before. As well as using the information to drive improvements, it is vital that a patient or member of the public can easily find and understand what it says about their local health services.
In June, NHS Choices began publishing new and existing information in a new safety section, complementing the wealth of information available about our hospitals and wards. It specifically provides information on: nurse staffing levels, including at ward level; infection control and cleanliness; CQC national standards; whether the unit is recommended by staff to their relatives and friends; patients assessed for risk of blood clots; the response to patient safety alerts; and open and honest reporting. The NHS is one of the safest health care systems in the world but there is always scope to improve health care standards universally and reduce avoidable harm further. That is why the Secretary of State for Health set the ambition to reduce avoidable harm by half and save 6,000 lives over the next three years.
As well as the devastating effect that health harms can have upon patients, service users and, as hon. Members have mentioned, their carers and families, a recent report by Frontier Economics has estimated that poor care could be costing the NHS up to £2.5 billion every year. That is why the Government have thrown their full support behind this important Bill, which will do much to improve the safety of patients.
Jeremy Lefroy
I am grateful to the Minister for the argument he is developing. Does he agree that the Bill is vital for staff? They do not want to be involved in instances of avoidable harm; it preys on their minds and can blight their careers. If the institutions to which they belong are not seeking to avoid harm, it is often the professionals, rather than the institution, who carry the can, and that is not right.
George Freeman
As ever, my hon. Friend makes an incredibly powerful point. An institution is only as strong as the staff within it, and when an institution is not taking seriously an issue that the staff confront as a daily reality, it puts them in an impossible position. He rightly says that by changing the culture of the institution, NHS staff will be able to do their jobs more easily and with more confidence, safe in the knowledge that when they raise issues that may be of concern, whether or not there is in fact a risk, they will be welcomed and supported. That culture change is vital if we are going to turn things around in the way that we are committed to doing.
There are three key sets of provisions in the Bill: the ones that will mandate patient safety as a key requirement of CQC registration; the provisions ensuring the integration of data across the health and care pathway; and the provisions dealing with the regulation of professional standards. They represent real and significant steps to support and develop patient safety in the NHS, and we are delighted to support them. Let me deal with each of the three in turn.
On the CQC requirements to include safety, clause 1 is central to the Bill’s focus on safety and quality, and, in particular, the elimination of the avoidable harm that flows from the provision of poor care in health and adult social care services. Safety is paramount and must be the focus of care providers at all times. The experience at Mid Staffs underlines the importance of that and of what can happen when providers put other priorities before safety. The CQC’s role in protecting patients is vital, and safety and the avoidance of harm are key elements of the CQC’s regulation of providers, in two key ways. First, monitoring registered providers against safety requirements and taking enforcement action when the requirements are not met is central to the CQC’s objective to protect and promote the health, safety and welfare of people who use services.
Jeremy Lefroy
Does the Minister also agree that the Bill’s provisions, in seeking to get that focus right to the top and make it the responsibility of the Secretary of State, ensure that, right here in this House, patient safety is of the essence?
George Freeman
My hon. Friend makes another important point about the role of leadership in the culture change that we are seeking to drive. I believe all hon. Members would acknowledge the Secretary of State’s personal commitment to this crusade for patient safety, and it is symptomatic of the level of leadership that is required. If the leader—the accountable senior executive—in every trust and organisation in the NHS makes clear their personal commitment to this agenda, it helps to change the culture and to create the conditions in which the reporting of patient safety issues and concerns is welcomed and encouraged.
Safety is also a critical component of the CQC’s new inspection regime and one of the five key questions the chief inspectors ask when rating the quality of services. Currently, it is at the Secretary of State’s discretion as to whether registration requirements should cover safety of care. Clause 1 removes that discretion and instead places a duty on the Secretary of State to impose registration requirements about safety of care. We welcome that duty, because it absolutely fits with the Government’s wider commitment to putting patient safety right at the heart of our health and care system. The duty will cover all providers registered with the CQC across health and, importantly, adult social care, and will help ensure that no avoidable harm will come to patients and service users when they are being provided with a regulated service. It is important to say at this point that the duty will not place an obligation on the Secretary of State to ensure that care or treatment is risk-free—no Secretary of State could ever give that undertaking. Health care provision is of its nature a risky business and can be so. Chemotherapy, for example, saves lives but can have significant side effects. A test of reasonableness must be applied in assessing whether harm is avoidable. The registration requirements that are before Parliament do cover safety and will allow the CQC to take action against poor providers in a way that has not been possible up to now. The Government therefore welcome the clause, which reinforces what the regulations are seeking to achieve and will ensure that the key message of safety and harm reduction runs consistently through the CQC regulation, and across the system as a whole, for years to come.
Clauses 2 and 3 deal with the key changes requiring a common identifier and imposing the duty to inform other health care professionals along the care pathway. Far too often in the health care system, patients lead and their information follows and, particularly as patients migrate between primary, hospital and community care, they and often their loved ones are left driving the patient journey without access to the necessary information. Too often, the health care professionals do not have access to the very latest information on the treatment that their patient has received in another part of our health and care system. That is why we welcome the clauses.
Clauses 2 and 3 concern the sharing of information by providers and commissioners to support people’s direct care and treatment, as an essential part of the delivery of safe, effective and high-quality care. The sharing of timely, accurate and relevant information facilitates the provision of integrated care and treatment tailored to people’s needs and wishes, yet we know that that sharing does not always happen as it should. Anxiety about information governance and data protection can stifle the sharing of information between staff and organisations working together to care for an individual. Clauses 2 and 3 will require that providers and commissioners of publicly funded health and adult social care share the information which is so essential to the delivery of safe and high-quality care. That will relate only to the way in which information is shared by organisations directly involved in an individual’s direct care.
Clause 2 places a duty on providers and commissioners, within scope, to record and use consistent identifiers in people’s health and care records and correspondence. There is a requirement to include the identifier when sharing information with other organisations directly involved in that individual’s care. Clause 3—
Madam Deputy Speaker (Dame Dawn Primarolo)
Order. May I say to the Minister that he does not need to explain the whole Bill; the promoter has already done that. The Government have said that they support the Bill, so I am at a bit of a loss as to why the Minister does not appear to be giving us any new information, but is reiterating what has already been said. Perhaps he could clarify some things a bit more, but we do not need a commentary on every clause.
George Freeman
I completely understand, Madam Deputy Speaker, and I do not intend to give you a commentary on every line of the Bill; that happens in Committee. However, given that the Government are supporting this private Member’s Bill, I thought it was important that, as part of our wider commitment, I set out why and on what basis we are supporting it, and give some guidance to the House on where in Committee there may be differences and where and why the Government are taking the view that they are. None the less, I will heed your comments and ensure that I keep my remarks at an appropriate high level.
Madam Deputy Speaker
Order. I absolutely agree with the Minister. We would be interested to hear any qualifications from the Government and where they were, as that would give the House time to consider what will be occurring in Committee. I look forward to hearing him say that.
George Freeman
It is important to recognise that clauses 2 and 3 relate only to how information is shared by organisations involved in an individual’s direct care. My hon. Friend made the point that this Bill is solely focused on the needs of the patient; it is not in any way about the Government or the NHS seeking to collect information for any other purpose other than to ensure that patient care is first and foremost in the system.
Clause 3 places an express duty on direct care providers and commissioners of publicly funded health and adult social care. When providing care to an individual, organisations within scope would be required to ensure that the relevant information is shared with staff within their organisation, and also within other organisations along the care pathway, where it is in the individual’s best interests. That duty would apply only if it directly facilitated the individual’s care and if it was in his or her best interest. That will not only support the delivery of safe, effective and integrated care, but improve people’s experience of their care and support, sparing them the frustration of having to tell their story over and over again as they move along the care pathway.
Simply sharing is not enough. To realise fully the benefits of sharing information, it is vital that the information shared is accurate, relevant and timely. In order to provide safe and high quality care, especially where it is urgent or where multiple care teams are involved, information needs to follow the person, so that professionals can access the right information at the right time. Using a consistent identifier is essential to that aim, as it ensures that the information being shared relates to the right individual.
A number of people have asked about the common identifier. Clause 2 places a duty on the Secretary of State to make regulations that will specify the consistent identifier to be used. It is the intention of the Government that the prescribed identifier should be the NHS number.
The universal use of the NHS number is a long-standing priority of the Department. Ensuring that records include a person’s NHS number, especially when they move between providers on their care pathway, is vital to the safety and quality of care. A number of Members asked about our view of the appropriate identifier. We believe that consistent use of the NHS number will facilitate the co-ordination of care, reduce errors and support the integration of records.
Ensuring a reliable and seamless transfer of information is all the more vital when the patient is a vulnerable person. That vulnerable person could be an elderly patient with dementia and many complex needs, for whom large institutions can be difficult to navigate at the best of times. I must stress that these duties are strictly limited to sharing for direct care purposes, with only those organisations directly involved in the provision of care, and only where it is in the patient’s interests.
Let me be clear: this will not permit or require sharing of information for any other purpose. The duty would not apply where there were good reasons for it not to apply. Such reasons could include: when an individual objects to his or her information being shared, or to his or her NHS number being used; where the individual would be likely to object; or when an individual receives, or may receive, services, such as sexual health services, anonymously.
Jeremy Lefroy
Should this Bill command the support of this House on Second Reading, does the Minister agree that one thing we would need to consider in Committee is this real issue of the mixing up of personal information and patient information within records? How best that can be addressed will require quite a lot of discussion.
George Freeman
My hon. Friend makes an excellent point. As he is aware, there are a number of initiatives on data across the health and care system, which is why the Secretary of State has appointed Dame Fiona Caldicott to advise the Government and to look at the pilots that NHS England is currently running on the care.data programme. It is important that the data provisions of this Bill and the confidentiality provisions and guarantees are closely examined in Committee and that there is no confusion over the purposes for which the data provisions are being used, which are solely to do with patient safety.
Clause 4 creates a power for the Secretary of State to make regulations to exclude certain persons or their functions that would take them outside the scope of the new duties for continuity of information. The Government intend to make regulations that will exclude providers and commissioners of children’s social care and providers and commissioners of children’s health care within the Department for Education’s purview. Those exclusions will include local authorities and other organisations exercising educational functions and children’s social service functions, children’s homes and residential family centres, fostering and adoption support agencies and certain schools, nurseries and educational institutions. I am delighted to tell the House that the Department of Health and the Department for Education are working together to support information sharing and use of the NHS number, where appropriate, by those organisations.
The use of patient data can arouse significant public concern and controversy and lead to highly charged debates. The public rightly expect to see their data held securely and used only for their benefit. That sits full square at the heart of these proposals, which is why NHS England has taken back the care.data proposals to review, revise and pilot, and why we have appointed Dame Fiona Caldicott. The information-sharing provisions of this Bill are solely concerned with the sharing of information between health and care providers where it is in an individual’s direct care interests.
To summarise, the consistent patient identifier and information-sharing provisions will support three key things: better informed care decisions, leading to care and treatment being better tailored to people’s needs and preferences, and better health and care outcomes; safer care, with a reduced likelihood of errors, adverse events and sub-optimal care stemming from a lack of information;, and improved experience of care, with individuals being called upon less often to repeat their story, and having increased confidence that the person caring for them has all the information that they need.
Let me turn now to the third and final section of the Bill, which deals with the regulation for the Professional Standards Authority and the professional regulator. We welcome these clauses, which will bring in a consistent objective for the PSA and for the regulators of certain health and care professionals, including dentists, nurses, midwives and opticians.
That will ensure that public protection is at the heart of what the regulators do. This measure is about not changing what the PSA or the professional regulators do in relation to professional regulation, but ensuring a coherent, strategic approach by them in the performance of their functions. Patients and the public need to understand the role and purpose of the organisations that regulate our health professionals in order to have confidence in what the regulators do. Having clear and consistent objectives is vital to that.
Let me touch now on the automatic erasure provisions, which my hon. Friend said had been withdrawn. The intent of the policy is to enable the regulators automatically to erase from a professional register individuals tried and convicted of certain serious crimes. However, it would be necessary to amend the existing statutory framework for each of the regulators properly to achieve the policy and would result in a Bill that is much longer and more complex than is usually acceptable for a private Member’s Bill. In the light of that, and given the complexity of the drafting required to achieve the policy, we took the position that automatic erasure should not be taken forward.
Automatic erasure was one of the areas considered by the Law Commission in its review of the regulation of health professionals. The Government remain committed to legislating on this important issue at the earliest opportunity. We have explored all other possible legislative options for taking forward issues arising from that piece of work and therefore propose to take forward automatic erasure in a future parliamentary Session alongside other measures in response to the Law Commission’s review. The long title of the Bill, which sets its scope, specifically mentions the intention to provide for automatic erasure, but I believe that my hon. Friend the Member for Stafford has indicated his intention to table an amendment in Committee to remove that from the long title.
When I talk to people about the Bill, I am asked one or two key questions, which I believe those watching the debate will want to hear us answer, and which the hon. Member for Copeland has asked me to deal with. The first is, “Are my medical records already shared with others involved in my care?” Unfortunately, the sharing of information about one’s care is not as widespread in the system as it needs to be. Those who use the NHS the most often are often those who have the most to remember. It can be very frustrating for health professionals, and too often that lack of information is involved in the misdiagnosis and the mistakes that my hon. Friend the Member for Stafford spoke of.
The second question that we are often asked is, “Don’t these regulators already put patient safety at the heart of everything they do?” The CQC and the professional regulators are all there primarily to protect us. The measures in the Bill are not a reflection of any failure in that respect. However, these organisations are given legitimacy through legislation; their remit and ability to act are defined in law, and it is important, we believe, that their legislative basis is explicit about their respective roles and duties in public safety. It is not our intention that the Bill, if it becomes law, should result in a dramatic change to the way in which the regulators operate on a day-to-day basis. We know that they are already focused on patient safety. The Bill enshrines that focus and ensures that those organisations are never hindered in their important work.
The Bill is a big step forward. I urge hon. Members from both sides of the House to support it.
Later in the year, we shall publish a comprehensive update on achievements to date and the progress towards Sir Robert Francis’s vision of a system delivering safe, compassionate care.
The events at Mid Staffs were a shocking reminder of the systemic failings in patient safety and care that occur when the culture and practice of healthcare institutions cease to prioritise the human, the compassionate and the cultural aspects of health care. I am delighted to support the Bill, which fits very well with the Secretary of State’s crusade for accountability, transparency and patient safety. It complements the measures that we are putting in place, as a Government, to support patient empowerment, to integrate health and care, and to meet the need for seamless information that follows patients, rather than patients so often traversing the care pathway without that information to hand.
There are two other questions that I was—
Madam Deputy Speaker (Dame Dawn Primarolo)
Order. With respect to the Minister, I spoke to him nearly 15 minutes ago with regard to his comments on the Bill. He has now been speaking for 37 minutes to tell us how much the Government agree with the Bill. There are other Bills to be debated this morning. I tried asking the Minister very nicely and gently. Now I am saying to the Minister directly that it is not his job to use up time in the House. Could he please conclude what are the major points on the Bill?
George Freeman
Thank you, Madam Deputy Speaker. I have concluded my prepared remarks. I just want to deal, if I may, with the questions that were asked of me in the House.
Madam Deputy Speaker (Dame Dawn Primarolo)
With respect to the Minister, he should have integrated those into his remarks on the Bill, because I presume he was listening to the comments of the other speakers. He has now been speaking for nearly as long as the rest of the debate, and this is not really acceptable, Minister, given that there are other Bills to be debated this morning, and that this Bill seems to have the wholehearted support of the Department. The word succinct must be in the Minister’s mind, which means brief, and I will interrupt him again if he is not.
George Freeman
Thank you for that clarification, Madam Deputy Speaker. In that case, perhaps it would be appropriate for me to list the questions now and then deal with them by writing to Members.
There were important questions about the Law Commission, some of which I have addressed, but I will write more fully. The hon. Member for Copeland asked me about the duty of candour dropped under pressure from professionals. If he is happy, I will drop him a line on that. The hon. Gentleman also asked about the care.data issue. I think I have dealt with that in my comments, but he should feel free to contact me if there are any omissions. There were important comments about the BMA, Madam Deputy Speaker, which I am taking your guidance to mean I should not address. Its briefing arrived on my desk this morning, and obviously I will look at it very carefully and write to Members with our position on the concerns that it has raised, although I note that its report also seems to have a lot of support for the intent of the Bill.
Lastly, there was a question about making data sharing much more consistent. I want to confirm that the Department of Health is working with our partners, and will produce guidance to support compliance across the system.
On that basis, Madam Deputy Speaker, following your guidance, I express again our support for this important measure and resume my seat.
Jeremy Lefroy
With the leave of the House, Madam Deputy Speaker.
Should my Bill receive a Second Reading today, I shall take very clearly from this important debate the points raised by my hon. Friends the Members for Bury North (Mr Nuttall) and for Congleton (Fiona Bruce), the hon. Member for Copeland (Mr Reed) and the Minister, and I am grateful to them.
There are two things that we must discuss very seriously in Committee. The first is justification of all the clauses. I believe they are justified, for the reasons that I set out in my earlier remarks; I will not rehearse them again. Secondly, we must discuss the details, particularly around privacy. With that, Madam Deputy Speaker, I thank you very much for your indulgence.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
On a point of order, Madam Deputy Speaker. I am sorry to detain the House briefly. You may be aware that the shadow Home Secretary has asked the Home Secretary to make a statement on the publication of the Wanless report on whether the Home Office misplaced files relating to child sex abuse allegations, and yet the Home Secretary has so far declined to say that she will. This morning the media are reporting details from the Wanless report. Madam Deputy Speaker, I wanted to ask you whether, after the bungling of the child sex abuse inquiry, you think it would be appropriate and wise, given the seriousness of this, for the Home Secretary to make an oral statement on Monday, so that the House is able to have complete transparency on the important issues around the Wanless report?
Madam Deputy Speaker (Dame Dawn Primarolo)
That is not a point of order for the Chair today. I understand that the Wanless report is to be published. I am sure that those on the Treasury Bench heard the hon. Gentleman’s points very clearly. It is open to him to pursue that subsequently if he is not satisfied with the response, but it is not a point of order for me today.
Off-patent Drugs Bill
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jonathan Evans (Cardiff North) (Con)
I beg to move, That the Bill be now read a Second time.
Only a handful of MPs are ever successful in the private Members’ Bill ballot, so I am delighted and honoured that, 22 years after I was first elected to the House, and now in my final year of parliamentary service, I have at long last joined this rather select group and have the opportunity to promote a Bill on such an important matter.
First, let me thank the Bill’s sponsors, and MPs from all parts of the House, who have shown such support and interest in my Bill. The passionate welcome it has received has been truly amazing, although not surprising given the challenges it addresses.
Just yesterday, the letter page of The Times led with a joint appeal to the Minister and the Government in favour of the Bill from the Association of Medical Research Charities, the Breast Cancer Campaign, Leukaemia and Lymphoma Research, Breakthrough Breast Cancer, the Alzheimer’s Society, the Multiple Sclerosis Society, Leukaemia Care, Breast Cancer Care and the Cure Parkinson’s Trust. I should particularly like to thank Jenny Goodare and Mia Rosenblatt of the Breast Cancer Campaign for all the help they have given me in introducing my Bill.
Why question access to off-patent drugs? The problem goes back many years and is caused by a gap in the licensing system. The system is set up on the basis that a pharmaceutical company that wants to market any new drug acts as the drug’s sponsor throughout the process. That is fine and clearly understandable when the company anticipates many years of patent protection for its new product, but the essence of the problem that my Bill addresses is that no mechanism is in place to ensure the routine availability of existing drugs where patent protection has expired and where the drugs may be clearly shown later to be clinically effective but in a new way and for a new purpose.
Every time previously licensed drugs are shown to be effective for a new purpose, a new licence is needed to certify the drug’s safety at whatever the dose may be and for that purpose, and it must then be authorised to be marketed for such use. However, if a drug is no longer patent protected, no organisation or individual will take on the role of seeking any necessary licence for that treatment, because, after the patent has expired, other drug companies can produce and market generic versions of the drug, so the price of the product is driven down through the simple expedient of competition. It follows that the incentive for any pharmaceutical company to act as an advocate or sponsor for an off-patent drug and apply for a new licence is lost.
The outcome of all this is that off-patent drugs that should be routinely available at extremely low cost effectively have no sponsor. Without a change in the system, no one is ever likely to make licence applications for off-patent drugs, even when they may be effective for new purposes. In fact, it remains illegal to advertise and sell such drugs for such purposes if the drug is not licensed. What this all boils down to is that off-patent, repurposed drugs are not routinely available on the NHS, despite minimal costs to the taxpayer and the clear, clinically proven health benefits.
We may hear mention today of the ability of general practitioners to prescribe a drug outside the terms defined by the licence, which is known as off-label prescribing—in fact, Madam Deputy Speaker, given our earlier experience today, we may hear a lot about that—but the reality in clinical practice is much more complex and there are many disincentives to prescribing off label. A small number of clinicians may well be comfortable prescribing drugs off label in certain limited circumstances, but we know from the chemoprevention example, which the Minister quoted in the earlier debate, that this is not happening on any substantial scale. We also know that the absence of a licence is deterring many clinicians and GPs from prescribing these life-saving drugs in their new indications. Medical charities and senior distinguished clinicians have said that it is just not good enough to rely on the promotion of better information about off-label indications between clinicians.
Bob Stewart (Beckenham) (Con)
Are off-patent drugs likely to be found in a chemist’s shop? Do chemists keep stores of these drugs?
Jonathan Evans
Invariably, such drugs have been licensed for other uses, but it transpires that they are being researched, as I will outline in my further remarks, and that research is showing that they can be used effectively in another way. The kernel of the problem that I am seeking to highlight is that, without licensing, they are not being used in that way.
A licence gives a clear indication to GPs that a drug is both safe and effective, so it is preferable that indications that could achieve such a licence are supported. We face an unacceptable situation where cost-effective drugs are not made routinely available for new and proven effective uses. Although a small number of people might be fortunate enough to get the drug, a far greater number with exactly the same condition, in exactly the same clinical circumstances but with a different GP, will not. That is the worst form of inequality.
I want to highlight one scandalous example of the failure, red tape and bureaucracy of our current licensing system. The passive approach to the flaw that I have highlighted has meant that, for all of 15 years, the chemoprevention drug tamoxifen was routinely available to women in the United States of America to prevent the development of breast cancer but not to thousands of women at risk here in the UK, not because the research evidence is any different in the United States of America and the UK but because under our licensing system there is just no one to request that this treatment should become routinely available. So for 15 long years nothing whatsoever happened, and thousands of women here in Britain were denied treatment that it has been clinically proven could have prevented the development of breast cancer in many cases.
It was not until 2013 that the National Institute for Health and Care Excellence—NICE—eventually recommended the use of tamoxifen in the UK in its guidelines on the management of familial breast cancer, but that still stopped short of licensing, because of the flaw to which I have referred. As a result, the NICE guidance has proved insufficient to ensure equal access and there is no evidence that it has significantly changed clinical practice. The uptake of these treatments is lower and less uniform than if the drug were licensed. Furthermore, owing to the infrequency with which NICE guidelines are updated and their impact, this mechanism could not be widely employed to make off-patent drugs available, and I believe that the example of tamoxifen starkly confirms this.
Graeme Morrice (Livingston) (Lab)
I entirely agree with what the hon. Gentleman has said so far. Indeed, I want to lend my personal support to his private Member’s Bill and wish him well on its Second Reading. Several dozen of my constituents have contacted me in support of the Bill and specifically asked me to come along today to represent them in the Chamber and to vote for the Bill on Second Reading if, indeed, there is a vote. I certainly hope that his Bill is not talked out.
Jonathan Evans
I am grateful to the hon. Gentleman for that contribution. If he will forgive me, I will not go further down the path of responding because of the point that he made at the end.
Sadly, all existing off-patent drugs that reduce the risk of people developing breast cancer fall into this category. The leading proven chemoprevention drugs are tamoxifen and raloxifene. These drugs, which reduce the risk of breast cancer developing in high-risk women by around a third, are not licensed for this purpose. With nearly half a million women in England and Wales eligible for these low-cost treatments, there is an urgent need to address the barriers to chemoprevention drugs being prescribed. The cost of tamoxifen is 6p a day; the cost of raloxifene is 61p a day. A third chemoprevention drug, anastrozole, originally developed as a hormone therapy, has been shown to reduce the risk of breast cancer developing by a half, and with fewer side effects. The evidence is there, but what action can be taken to ensure the routine availability of these treatments? The answer is none, or very little.
Bob Stewart
Without trying to talk out anything, may I say that I totally support what my hon. Friend is trying to do? Could NICE not do this sort of thing?
Jonathan Evans
My hon. Friend, yet again, anticipates another part of my remarks. The second part of my Bill is about giving a certain responsibility to the Secretary of State to encourage NICE to promote technology appraisals. I will deal with that in a little more detail in due course. He is quite right, but not exclusively: licensing is the major problem.
Major new research will be published in the next few months that provides evidence that bisphosphonates—drugs that were originally licensed for the treatment of bone fractures in adults with advanced cancer—are effective in the early stages of breast cancer in reducing the risk of the disease spreading to the bone in post-menopausal women. That analysis of phase 3 clinical trials is likely to show that, in post-menopausal women with early breast cancer, this therapy reduces the 10-year risk of breast cancer spreading to the bone by 34% and the risk of dying from breast cancer by 17%.
I should like us to reflect on that for a moment: a 17% reduction in the risk of women dying from breast cancer. What would be the cost of any new treatment that could deliver such results? It would probably be tens of thousands of pounds, and we would want to pay that for such impressive results. However, zoledronic acid, a type of bisphosphonate drug, can be given to post-menopausal women every six months for three to five years, and that can reduce the risk of breast cancer spreading to the bone by a third and the risk of death from breast cancer by a sixth, and it would cost less than 5p a day.
Yet bisphosphonates are off-patent drugs that are produced relatively cheaply by numerous pharmaceutical companies as generic drugs, as my hon. Friend the Member for Beckenham (Bob Stewart) mentioned earlier. It is therefore pretty certain that under the current flawed licensing system no organisation would seek a licence to use that treatment in preventing secondary breast cancer, even when the evidence is published, so the drugs will not be routinely available to the women who clearly need them.
I want to pay tribute to the distinguished breast cancer clinicians and researchers who have been speaking out about this issue for years. Sixteen of them wrote to The Times on the day of the Bill’s First Reading, stating:
“For some time it has been clear that there is a real barrier to licensing old drugs for new purposes, even when there is evidence that they are effective. This means that treatments which could bring real benefit to the lives of people and in some cases be life-saving, with minimal cost, are not routinely available”.
It is not just access to cancer treatments at stake; the current system will fail us for any medical condition in future if we do not correct the flaw. The Multiple Sclerosis Society makes it clear that strong preliminary evidence has shown that a number of repurposed medicines could be effective in the treatment of multiple sclerosis, but the UK currently lacks a system by which old drugs can be relicensed. In the past week the society wrote directly to the Minister in support of my Bill, in a letter co-signed by Professor Sue Pavitt, chair of the UK’s MS clinical trials network, and other leading specialists in the field. They cited the example of simvastatin, a drug originally licensed for treating high cholesterol that has been shown to be effective in slowing brain atrophy in secondary progressive MS by over 40%. Although final evidence from a phase 3 clinical trial is required to confirm those results, if successful that drug would address a significant unmet need, as there is currently no treatment that can slow or stop the deterioration seen in progressive MS.
The MS Society has pointed out that, given that simvastatin’s patent has expired, the treatment would require a licence in order to be made widely available on the NHS to people with multiple sclerosis, and it argues that the mechanism to achieve that just does not exist, despite the repurposing of previously licensed drugs being a fast and cost-effective way to provide new treatments. Those eminent clinicians and the MS Society strongly support my Bill and the mechanism it would create to provide access to medicines that could help tens of thousands of people with untreatable multiple sclerosis.
The treatment of Parkinson’s disease could greatly benefit from the Bill. I know that Tom Isaacs, president and co-founder of the Cure Parkinson’s Trust, has written to the Minister in the past week to point out clearly the charity’s full support for the Bill. Tom has said:
“Parkinson’s may not be a death sentence, but at the moment it is a life sentence. There is increasing evidence that a number of off-patent drugs have the ability to slow, stop or reverse our condition. Under these circumstances, the ability for patients to have a clearly defined way to make these medications accessible is now imperative.”
I think that it is now appropriate to turn to the detail of the Bill, given that the Minister might do so, Madam Deputy Speaker. To address the anomaly I have outlined, the Bill introduces a new advocate—the Secretary of State or a body appointed by him—for off-patent, repurposed drugs in the existing UK licensing system. The advocate would have to act in the public interest, and in circumstances where no other body had taken on the role of seeking a licence. The level of evidence required to trigger the advocate to seek a licence for an off-patent drug in a new indication would have to be significant. The treatments referred under the mechanism would be required to meet exactly the same standards for a licence for any other treatment, so nobody is lowering the bar in the licensing process. The Bill does not seek to make any unproven treatments available to patients; it simply seeks to address a clear market failure in the current system and to allow proven drugs to be considered for a licence after their patents have expired.
Clinicians have also suggested the supplementary provision in the Bill for NICE to appraise off-patent drugs in new indications where these are unlicensed—the point made earlier by my hon. Friend the Member for Beckenham, who sadly is no longer in his place. It is anticipated that that exceptional route would be used rarely. Regulations would outline the specific and significant standards that would need to be met before the provision was triggered. Although it may already be possible under existing legislation for NICE to appraise drugs for an unlicensed indication, the Bill would simply place a duty on the Secretary of State to direct NICE to conduct a technology appraisal for an off-patent drug in a new indication that satisfies the evidence threshold.
The Minister has stated publicly:
“The Government firmly believe that cost-effective, clinically appropriate drugs and devices should be routinely available to NHS patients.”—[Official Report, 1 September 2014; Vol. 585, c. 141.]
I recognise and applaud the admirable steps that this Government have taken to improve access to new cancer treatments. The cancer drugs fund has been established for England and now has a budget of £280 million a year. It is an incredible scheme that has improved access to treatments for thousands of patients in England, and I have seen for myself the disadvantages that my constituents have faced by not having an equivalent fund in Wales.
On the CDF, we are currently spending millions on new treatments, so why not improve access to treatments that cost just pennies but that we know can save or improve lives? In future there will be drugs for other conditions, including Parkinson’s, multiple sclerosis, breast cancer and Alzheimer’s, that could benefit from the Bill. We cannot wait 15 years longer than other countries for our constituents to get these treatments, as happened with tamoxifen, and then tolerate a postcode lottery in their availability to our constituents.
Mr Christopher Chope (Christchurch) (Con)
I congratulate my hon. Friend on bringing forward this brilliant Bill. If it does not succeed today, it will certainly succeed in future, because it seems to be based on unanswerable logic. Can he explain why he thinks the Government are against it?
Jonathan Evans
It will be for my hon. Friend the Minister to make the Government’s case, although I certainly hope that he will not be lengthier than I am being in endeavouring to make my case.
It is simply not acceptable to sit back and hope for the best: we will let our constituents down by taking such a stance. I have heard it said that the Bill is not necessary and that better information for GPs and clinicians may be the answer, but the reality is that addressing the licensing flaw in the current system, as I have outlined, is the only way to tackle the issue effectively.
I say to colleagues, let us take this opportunity to act and deliver real change for those affected by cancer, multiple sclerosis, Alzheimer’s, Parkinson’s and so many other conditions. That is what the charities supporting them, and the senior clinicians specialising in treating them, are asking for. If we take forward this Bill, we can save and improve lives. If we tinker at the margins, we will not. For those who really want change, who really want people in this country to have access to the best treatments available, the answer is before us and it is clear. A legislative solution is necessary. By passing this Bill, we have an opportunity to change and save our constituents’ lives. I hope that we take it.
Mr Jamie Reed (Copeland) (Lab)
I congratulate the hon. Member for Cardiff North (Jonathan Evans) on introducing this excellent and concise Bill, which Opposition Members support wholly. I will keep my remarks brief, because I think that there is plenty of time for us to do the business with the Bill this morning.
The principle of the Bill is one that the Labour party supports. We must do all we can to ensure that patients have timely access to safe drugs. As the hon. Gentleman has pointed out, the Bill would benefit very many people indeed. There is no doubt that the subject of off-patent drugs needs to be debated and, more importantly, requires action from this House. Now that we are aware of the issue, it would be remiss of us not to do something about it. We will support this Bill to ensure that people who are at risk of, or have been diagnosed with breast cancer, multiple sclerosis, Parkinson’s disease, Alzheimer’s, leukaemia and many others—as well as all those who may be diagnosed with any of these conditions in future—have access to treatments that they would otherwise be denied: treatments that are effective and low cost, and change lives.
I hope that the Government are also going to support this potentially life-saving—as the hon. Gentleman pointed out, life-changing—Bill. The Minister himself has stated that a central part of his mission
“is to accelerate the discovery, design and adoption of new drugs in the NHS, making the UK the best place in the world to discover and design 21st-century health care technologies”,
and for Britain to be
“once again the best place in the world to discover new medicines and to be treated by them.”—[Official Report, 1 September 2014; Vol. 585, c. 141-144.]
That is an aim we all share. We have our work cut out, but it is achievable.
Existing drugs can demonstrate great benefits but do not have licences under which to be marketed, meaning that access to them is low. Often a repurposed drug offers the best hope of a step change in treatment and therefore should not be forgotten or deprioritised. The views of clinicians on this issue have been exceptionally powerful. I will quote just a few. Harking back to the previous debate, we should listen to medical professionals when they are giving us advice that is, frankly, beyond dispute. Professor Anthony Howell, professor of medical oncology and research director of the Genesis breast cancer prevention centre at the University Hospital of South Manchester NHS Foundation Trust, says:
“Clinically-proven therapies to reduce the risk of breast cancer developing and spreading could bring a step change in breast cancer survival rates, but without the Bill we will not see a step change in the availability of these treatments.”
Professor Robert Coleman, Yorkshire cancer research professor of medical oncology at Sheffield cancer research centre, says:
“Repurposed bisphosphonate drugs could significantly reduce the risk of breast cancer spreading, and ultimately killing women, and would cost the NHS very little. However, without the Bill we are unlikely to see the wholesale change in prescribing behaviour that would be required to make these drugs routinely available.”
Dr Jeremy Chataway, consultant neurologist at the National Hospital for Neurology and Neurosurgery, University College London Hospitals NHS Foundation Trust, and St Mary’s hospital, Imperial College Healthcare NHS Trust, says:
“There are currently re-purposed medicines that have shown strong preliminary evidence that they could be effective in the treatment of multiple sclerosis (MS), however the UK is currently lacking a system by which old drugs can be re-licensed for new purposes. This Bill would create a mechanism to potentially provide access to medicines that could help tens of thousands of people with untreatable MS.”
It is also powerful to see that, as the hon. Member for Cardiff North pointed out, the Bill is supported by a whole spectrum of medical charities: the Association of Medical Research Charities, the Breast Cancer Campaign—I praise it for its absolutely phenomenal work on the Bill—the Multiple Sclerosis Society, Cure Parkinson’s Trust, Breakthrough Breast Cancer, Breast Cancer Care, Leukaemia CARE, the Alzheimer’s Society, the Teenage Cancer Trust, and Leukaemia & Lymphoma Research. All agree that we have a one-off opportunity to change the law and would like the results of research to be translated into clear, demonstrable, deliverable patient benefit.
We are talking about clinically proven drugs that cost virtually nothing but could bring a step change in survival rates. Zoledronic acid costs less than 5p a day per patient and could reduce the risk of death from breast cancer in post-menopausal women by 17%. This Bill is not about bringing untested drugs forward for use in the NHS—it is about ensuring that the drugs that can benefit patients, but in which pharmaceutical companies have no commercial interest, are available to treat myriad conditions and bring real patient benefits.
We must remember, though, that drugs are not the only tool to fight these conditions. With specific regard to cancer, we must ensure that bringing new drugs through is not to the detriment of patient access to radiotherapies and surgeries. We should remember that it is crucial that patients can get tested quickly if cancer is suspected. That is why a future Labour Government will guarantee that NHS patients will wait no longer than one week for cancer tests and results by 2020. Labour supports the principle behind the Bill, and we will support its Second Reading.
There is something else to consider. This Bill provides a simple remedy to an obvious and avoidable problem. It is underpinned by irresistible logic. To thwart it would represent an act of vandalism. Right now, our country is facing a collective nervous breakdown. Faced with internal separation and separation from the European Union, fear and loathing stalks this septic isle. Every day, people ask themselves, “What is the point of politics? What is the point of Parliament?” Unless we act to address these legitimate concerns, this place will drift towards not only irrelevance but illegitimacy. The purpose of each of us in this House, on both sides, is to make better the lives of the people who sent us here. That is our principal aim. I urge Members in all parts of the House, and the Government, to do what we were sent here to do—act to make life better and to demonstrate that Parliament, and politics, can work.
Mr David Nuttall (Bury North) (Con)
I congratulate my hon. Friend the Member for Cardiff North (Jonathan Evans) on bringing this fairly short, but very important, Bill before the House. I am delighted to be named as one of its sponsors. I have to say that I am perhaps the least well qualified of them all. My right hon. Friend the Member for North Somerset (Dr Fox) and my hon. Friends the Members for Bracknell (Dr Lee) and for Totnes (Dr Wollaston) are all real doctors. The fact that they are real doctors and have felt it appropriate to lend their names to this Bill is, in itself, something of which the House should take careful note.
This Bill is required because when a drug whose patent has expired is found to be effective in treating a different condition from that for which it was originally licensed, doctors are reluctant to prescribe it because it is not licensed for its new use. As I understand it, the Bill would put the onus on the Secretary of State to take steps to secure licences for clinically proven off-patent drugs for their new use when no other body has taken on that role.
In essence, the Bill would put an end to a postcode lottery. Patients are left in limbo. Until they go to their GP, they do not know whether they are registered with a GP who is prepared to take this risk. The Bill would remove that postcode lottery and give security to millions of patients. If the process has been followed and the drug licensed for its new use, whichever GP they are registered with will have the confidence and security of being able to prescribe it for its new use.
I am pleased to say that the Bill has the support of many charities: the Association of Medical Research Charities, the Breast Cancer Campaign, Leukaemia & Lymphoma Research, Breakthrough Breast Cancer, the Alzheimer’s Society, the Multiple Sclerosis Society, Leukaemia CARE, Breast Cancer Care, and the Cure Parkinson’s Trust. That is a wide range of charities, all of which, for their own individual reasons, can see the sense of having a new procedure in place to bring back to life drugs that are found to be of new use but are off-patent.
The Bill also has the support of many of my constituents. I thank all those who have taken the time and trouble to write to me personally to express their support for the Bill and to urge me to continue to support it. I am delighted to do so.
Bob Stewart
A lot of us have received letters from constituents, including me, and I am absolutely delighted that we are here to support the Bill and get it through as fast as possible.
Mr Nuttall
I am grateful to my hon. Friend for that intervention.
This Bill will cut through the red tape that exists at the moment. It aims to get drugs off the shelves and into the hands of the patients who need them. I hope it receives the wholehearted support of this House.
The Parliamentary Under-Secretary of State for Health (George Freeman)
I am delighted to have the opportunity to address the Bill. I start by congratulating my hon. Friend the Member for Cardiff North (Jonathan Evans) on bringing it before the House and raising this very important issue. As he has said, he and I have met Department officials and we very much agree on the Bill’s objective to promote off-label use of medicines. The only disagreement is on the mechanism to achieve that and whether the mechanisms proposed by the Bill are the right ones. That disagreement continues, and for that reason the Government want to work with my hon. Friend and the campaigners and charities that support the Bill to find a way to achieve our agreed aims.
I want to set out some of the background, outline my proposals and explain why the issue is not quite as straightforward as we would all like to think it is. If only we could legislate to get the right drugs into the right patients at the right time, the world would be a lot easier, but we are not able to do that.
Bob Stewart
Do I take it from what the Minister has just said that the Government support getting through the Second Reading as fast as possible?
George Freeman
Let me be clear. What I am saying is that the Government support the intention behind the Bill, which is to achieve greater use of off-label drugs in different indications, but we disagree with the Bill’s proposal for legislation to require the Medicines and Healthcare Products Regulatory Agency to license them. For reasons that I will set out, we do not think that is the problem or, therefore, that the proposal is the right solution. Nevertheless, I welcome the fact that the issue has been raised. It sits foursquare with my mission as the Minister with responsibility for life sciences. I am already working on it and am very keen to make sure that the active work streams I am pursuing embrace the intent behind the Bill.
I pay tribute to my hon. Friend the Member for Cardiff North for his work. The House has often debated this issue and I am well aware of the strength of feeling among Members of all parties about the importance of, and urgency involved in, getting both new and existing medicines to patients more quickly.
I should also like to take this opportunity to pay tribute to my hon. Friend for his service in this House. As he has said, this is his last year, and I am sure I speak for all of us in paying tribute to and thanking him for all he has done, not only in contributing to the quality of this institution, but in campaigning on this issue.
As my hon. Friend and others may know, I came to this House and my ministerial position after a career in biomedical research—a subject that is very close to my heart—so I am delighted to be able to discuss it and the Bill this morning. During my 15 years working in biomedical research, I saw first hand the serious challenges involved in bringing a new drug to market. I want to address how the landscape of drug development and discovery is changing; the profound way in which technology is changing what is possible; how the economics of 21st-century drug discovery are changing; and the resulting challenges and opportunities for us to do exactly what my hon. Friend seeks to promote, which is greater and more novel use of existing drugs for those patients who will benefit. I will then deal with the key points raised by him.
A rapid transition is taking place from a model of 20th-century drug development whereby the NHS, patients and the health system waited passively and all too patiently for the introduction of new drugs that had been tested, proven and developed with the claim that they would work and were safe for everybody. Over the past several decades, the regulatory barrier required to justify that claim has got higher and higher, as have the costs of developing drugs. On average, it typically takes 10 to 15 years and £1 billion to £1.5 billion to develop a new drug.
My hon. Friend referred to patent life. Members will know how the industry works, but it is worth repeating that, in order to justify the enormous sunk cost of the billions of pounds required to bring a new drug to market, the law provides for the inventor of a new drug to have a patent for 20 years. That mechanism ensures that those who successfully bring an innovation to market are able to get some exclusivity on sales, which allows them to pay for those sunk costs. When a drug becomes off-patent, the generics market kicks in and anybody can make the drug, provided it is made to the right standard and is safe, which allows all of us to benefit from that drug at a vastly reduced price. Indeed, one of the major challenges facing the sector is that, as the cost and time taken to develop a drug increases, the pharmaceutical industry’s pipeline of new drugs is not sufficient. The problem is referred to as the patent cliff, and the sector is going through a radical transition to try to deal with it.
The problem is that the more we know about genetics and the way in which different patients respond to different drugs and diseases, the more we realise that the blockbuster, one-size-fits-all drug that we have got used to the industry giving us is not what we need. What we need are drugs that are much more targeted at patients and their underlying genetic and pharmacokinetic profile. We want drug discovery to be driven by our increasingly sophisticated understanding of how different patients respond to different drugs and diseases.
Underlying that problem is an extraordinary opportunity for this country. In order to reorientate drug discovery around patients, we need an infrastructure that allows people to work in world-class research hospitals with access, at the very highest ethical and regulatory level, to tissues, biomarkers, electronic patient data and longitudinal cohort studies. Nowhere in the world is better equipped to lead that model of translational, personalised and stratified medicine than Britain with the NHS, and through my appointment the Government have signalled their commitment to exploit that opportunity.
We believe there is a real opportunity for the UK and the NHS to lead in the emerging field of stratified and targeted medicines, because no other territories in the world have our 50-year history of an integrated public health system, the records that go with it, its ethical and regulatory standards or its world-class centres of research excellence. If we embrace that model, using genomics and data to understand better how different patients respond, we will also be able to look back at the pharmacopoeia of known and existing drugs and re-profile them for use in particular patient groups, because it will have become clear that they will be effective for them.
My hon. Friend might be interested to know that the re-profiling of drugs is itself a major subsector of the life sciences sector. Whole companies, analysts and investors are devoted to mining the pharmacopoeia to find secondary uses, with the intention, of course, of re-patenting the secondary, novel use of an existing drug through tweaking the chemistry and providing the basis for a proprietary claim. Good luck to them—I wish them well—but what my hon. Friend and I want to see is the ability better to use that information in order to find existing drugs which, in their current form, would have a benign impact on a particular patient group. Doctors are perfectly free to use those drugs at the moment.
The truth is that whichever model of drug discovery we pursue, any drug has to be licensed as safe by the MHRA—or, in Europe, by the European Medicines Agency—and then NICE carries out a technology appraisal and makes a recommendation to the NHS about whether such a drug or device has a sufficient cost-benefit to be worth using. Despite all that, the decision on what to prescribe in the end rests, rightly, with clinicians. We cannot and should not legislate to tie clinicians’ hands. Rightly, it is up to clinicians to decide what to use for their patients.
I want to submit to the House and to my hon. Friend that the challenge does not relate to passing legislation to require the MHRA to license the new use of an existing drug, because the lack of a licence is not the restraining factor. In this landscape, the restraining factor is the lack of information for clinicians about off-label use. We need to encourage greater off-label use through NICE, and to have a culture within our health system that actively supports it. In a moment, I will talk about what we are doing and might do to encourage that.
I want to pick up the confusion that may exist about the difference between off-patent and off-label drugs. A drug is off-patent when its patent protection has expired, which means that anyone can produce an identical drug at their own cost. A drug is off-label when it can be used for a new indication for which it was not originally intended. However, clinicians are perfectly able to use drugs for off-label purposes: we do not require the MHRA to license drugs for such a reason, and many drugs are already used in that way.
Let me assure my hon. Friend and other hon. Members that, as the new Minister for life science, I have responsibility for the National Institute for Health Research, which underpins clinical research in the NHS with £1 billion a year. It looks not just at new drugs, although we are very good at that, but at the whole pharmacopeia and how existing medicines are used, and provides research on side effects, efficacy and outcomes for the MHRA and NICE.
We have created a new department at the heart of the Government to tackle precisely the issues that my hon. Friend has raised. I have been in post for only 100 days, but I want to talk about what we are doing to try to accelerate access for patients to new medicines, and to existing medicines with novel indications. I am sure that he is delighted to know that, as the hon. Member for Copeland (Mr Reed) reminded the House, my principal mission is to accelerate access to new drugs, including to new uses for existing drugs, for the benefit of NHS patients.
My hon. Friend the Member for Cardiff North was kind enough to refer to the Government’s commitment to the cancer drugs fund. He rightly identified that our real commitment is to ensure that if patients suffer because of NICE recommendations in relation to particularly expensive drugs, additional money is made available to prevent that from happening. The problem is one of health economics and NICE appraisals, rather than of licensing by the MHRA.
My hon. Friend made a very eloquent case, which I support, for the use of off-label drugs. We disagree not on the aim of promoting off-label use, but merely on the mechanism for doing so. As the Minister with responsibility for NICE, I am delighted to assure him and the House that we already have the power to instruct NICE to undertake technology appraisals. I hope that what I will say in a moment about how we intend to use that power and about the work we are doing on a series of ways to accelerate access to new drugs will reassure him that, far from our having any sense of complacency, we are bending our backs to consider every avenue in order to find value within the current pharmacopeia and to support clinicians actively embracing innovative uses of drugs.
It is for that reason that we have decided—controversially in some quarters—to support Lord Saatchi’s Medical Innovation Bill, which is in the House of Lords. It seeks to contribute to this landscape by making it clear in statute that clinicians have the freedom, and should be supported in using the freedom, to embrace innovative uses of both existing and new drugs in the treatment of cancer. His Bill is about making very clear that those freedoms exist, and that clinicians have a duty, under their Hippocratic oath, to explore every innovative opportunity that there is a good clinical basis for believing will be safe and to the benefit of their patients.
The truth is that the problem is as much cultural as legislative. That is the principal reason why the Government are not able to support this Bill, but very much support its aims. I want to say something about what we propose to do to achieve the progress that we all want more quickly and effectively.
So that there is no doubt, let me say that our position is basically that the Bill is not needed. Anyone can apply for a licence for a medicine, and doctors can already prescribe medicines for uses outside their licence, where that is in the best interests of their patients. Doctors do so every day: when they make such a judgment, it is safe, legal and right for them to do so if they feel that they have a basis for doing so.
The truth is that licensing gets a medicine licensed; it does not get it into clinical practice. Whether clinicians use the medicine is driven by NICE guidance, and doctors ultimately decide what is best for their patients. That is why pharmaceutical companies invest so heavily in promoting their products. In turn, NICE exists, as an independent source of advice in the NHS, to provide our clinicians with independent, world-leading advice on the cost-effectiveness and the clinical cost-benefits of new drugs.
If we want to accelerate the uptake of innovative medicines, I suggest that we focus our efforts on NICE guidance and on supporting our medical profession to adopt innovation. Our concern is that the Bill may, completely inadvertently, impede progress on that by making doctors feel that they should not use medicines except for their licensed indications, which is the opposite of the message that we want to send. I understand that that is not the intention of the Bill, but we believe that it might be an inadvertent side effect.
What are we doing? The Government believe that the real issue involves better informing and enabling clinicians to embrace new indications, not dealing with a supposed problem of licensing. We are taking steps with NHS England and NICE to support local drugs and therapeutics networks, and improve how they pick up new evidence and translate it into clinical practice. Indeed, one role of the NIHR is to gather data—that word again—on which drugs are working and on outcomes across the system, and to feed such information back into guidance that is continually updated.
We are also working with hospitals and GPs to support them to work together on delegated prescribing, and to consider how they can change clinical pathways to reflect the very latest evidence across the system. The truth is that we need more evidence about what is working, and we are now gathering that evidence through the NICE associates network and our contacts with local clinicians.
As I have explained to my hon. Friend in our meetings and conversations, we will set up a round-table discussion in the new year, alongside NHS England and NICE, to bring everyone together, review the evidence and agree a strategy and a timetable for action. I am more than happy to extend an invitation to him and those supporting his Bill, as well as Association of Medical Research Charities, to engage actively in that process and to help us to develop a strategy for achieving what we all want, which is the greater use of off-label medicines in areas where the evidence suggests that they can deliver patient benefit.
I can go further and confirm that that is part of a major piece of work that I am leading on how we can and should reissue and revise our guidance to NICE and the MHRA—and review our ambitions as a country in this 21st-century landscape—to make Britain genuinely the best model of patient-centred research. Through the NIHR and our NHS infrastructure, we want to be the best place in the world for people to come to and develop new medicines, or indeed new uses for existing medicines. We want specialist tertiary research hospitals with cohorts of data, to develop new models of commissioning through evaluation, and evaluation through commissioning—two sides of the same coin—so that we can get drugs to patients far quicker than under the traditional model of 10 to 15 years and the £1 billion drug development.
There are undoubted benefits to the use of off-label drugs where there is evidence about their safety, efficacy and side effects. Guidance from the MHRA and the GMC is clear that there is a hierarchy in the use of medicines. In treating patients, clinicians must first consider using a licensed medicine within its licensed indication. If that will not meet the patient’s needs, clinicians can consider a licensed medicine outside its licensed indication. Only if that is not suitable should they consider a medicine that is not licensed at all. A great many medicines can offer benefits to patients when prescribed outside their licensed indications—my hon. Friend has already mentioned tamoxifen and raloxifene for the prevention of familial breast cancer.
My hon. Friend also rightly identified that there can be delays and barriers to using off-patent drugs for new indications. The reasons for that are complex—if only they were so simple that we could solve them with one private Member’s Bill—and in part relate to reluctance by some clinicians to prescribe drugs for conditions for which they are not licensed. There are also issues about the system’s ability to pick up emerging evidence and translate it into new guidance and clinical practice, and about how hospital specialists and GPs can work together to achieve that, by adapting pathways where needed.
What the Bill seeks is already allowed. That is the key reason why, despite agreeing with the Bill’s aim that patients should have access to appropriate drugs, the Government are unable to support it. Medicines are already prescribed legally, safely and appropriately outside their licence indications to large numbers of NHS patients, both in hospitals and in general practice. No funding, legal or regulatory barriers in the system prevent patients from being prescribed a clinically necessary medicine that is not licensed for the treatment indicated. Indeed, doctors regularly prescribe drugs outside their licensed indications. For example, many medicines prescribed to children are unlicensed for paediatric use because historically they have not been formally trialled in children. Two key conditions must be met in such prescribing. First, the clinician must be satisfied that the unlicensed indication meets the clinical needs of the patient and that no suitable licensed alternative is available. Secondly, he or she must explain to the patient that the drug is not licensed, so that they are clear about that.
Evidence suggests that patients trust their clinicians, and that those who are suffering actively embrace research medicine and are keen to be made aware of available drugs that may be not have been originally licensed for that purpose, as long as there is good evidence for it and the clinician supports its use. That position is well established and supported explicitly in guidance to prescribers by the General Medical Council and the Medicines and Healthcare Products Regulatory Agency. Therefore, if a doctor chooses not to prescribe a medicine off label where one is indicated for the patient, that is unlikely to be simply because of the medicine’s licensing status. If a clinician believes that the lack of a licence prevents them from prescribing a drug, that is a different issue to which I will return in a moment.
Under the law regulating medicines, anyone can apply for a licence for a new use for an existing out-of-patent medicine. The Bill seeks to place that responsibility on the Health Secretary, so that he either takes steps to secure licences for off-patent drugs and new indications, or appoints a body to do so. In truth, licensing gets a medicine licensed, but it does not do what we want, which is get it into clinical practice. That requires clinicians to use and prescribe drugs, which is why we have NICE guidance.
The Department of Health holds a small number of licences for anthrax vaccine in the case of national emergency, but the Government rightly view that very much as an exception. Our concern is that if the Secretary of State were to become a routine applicant, or instructed someone else to do that on his or her behalf, they might be open to accusations of interfering in the market and a conflict of interest. There might even be a case for claiming a conflict of interest between the Secretary of State’s role as an applicant competing in the medicines market, and their statutory role as overseer of the system. Ultimately, we worry that that could compromise the Secretary of State’s responsibility for the UK medicines licensing system, were they to become a regular applicant. The idea of a body set up by the Secretary of State to apply for licences does not seem proportionate to the scale or nature of the challenge. If the issues under consideration will not be resolved simply by granting more licences—I do not think they will—there is no need for such new bureaucracy.
We believe that the provisions on NICE in the Bill are unnecessary. The fact that NICE has recommended the unlicensed use of tamoxifen and raloxifene in its clinical guidance should reassure hon. Members on that point, and I stress that we are actively discussing that matter with NICE and wish to promote it. I know my hon. Friend is concerned about the level of uptake of those drugs, despite NICE’s approval, and by focusing on the NICE appraisal process and guidance with an associated legal funding requirement, the Bill seeks to remove a perceived funding barrier to the implementation of off-label drugs that are proven to be clinically and economically effective. However, we believe that in practice it is unlikely that drug costs will be the key factor determining prescribing behaviour, when we are talking about generic drugs that in many cases will cost a few pence a day.
The framing of NICE’s clinical guidelines reflects the strength of the underpinning evidence. For example, where evidence strongly supports the use of intervention, NICE often states that that should be offered to patients. On the other hand, where the evidence of benefit is less strong, NICE typically states that intervention should merely be “considered”. It is entirely appropriate that the uptake of NICE’s recommendations reflects the strength of the evidence base. For the two drugs mentioned by my hon. Friend and me, NICE concluded that the evidence strongly supports their use for women at high risk of breast cancer, but was less strong for women at moderate risk. As such, its recommendations are worded differently, depending on a woman’s risk levels. Specifically, and importantly, NICE states that the drugs should be “offered” to women at high risk, and “considered” for women at moderate risk.
The Bill would require the Secretary of State to ask NICE to appraise certain new indications for off-patent drugs, whether licensed or unlicensed, rather than issue any form of guidance. Again, the Government believe that that is unnecessary, as there is currently no legislative barrier to Ministers asking NICE to appraise drugs outside their licensed indication. We tend to do so only exceptionally where there is clear evidence that that is the right course of action—an example would be drugs used to prevent transplant rejection in children. More frequently, NICE looks at the off-label use of drugs in the context of its clinical guidelines across the whole care pathway. Guidelines are generally considered a more appropriate vehicle for guidance on off-label indications, as they can set use more clearly in context. The question of mandated funding is unlikely to be critical if the drugs concerned are older or lower cost generics. NICE recognises the primacy of the medicines regulator in matters of safety and efficacy, and liaises with the MHRA in developing any clinical guidance recommendations relating to off-label use.
Let me explain why I am concerned that supporting the Bill could be counter-productive. That is not my hon. Friend’s purpose or intent, but it is a possible accidental side effect. The Government are concerned that the Bill could lead to clinicians and patients being concerned that something is not right about the use of a medicine outside its licensed indication, and that clinicians may be deterred from prescribing a drug, and patients from taking it. As I have explained, off-label prescribing is safe, legal, and when it is the right clinical choice for the patient, that is the right thing for the clinician caring for them to do. Given the large amount of such prescribing that goes on in the NHS every day, seeking to license every drug for every indication or each potential combination would be a gargantuan task. In many cases, the formal evidence base may not exist in a form that would support a licensing application.
Access to medicines that are important to patient care could be impeded because we worry that we would be seen to have set a new higher threshold for their use. That is precisely the opposite of what the Bill is seeking to achieve. We are, however, keen to take proportionate action to investigate whether non-legislative improvements can be made to support the use of appropriate medicines and benefit NHS patients. I was struck by the opinion and evidence that has been presented on access to medicines, such as the potential issues in transferring care from a specialist to a GP.
I might add that such issues are in no way unique to unlicensed medicines’ use. There are areas where there is far too much variation in the use of licensed NICE-appraised medicines. We are working hard with the NHS to address that, but there is no single magic bullet.
George Freeman
I am not sure it is quite as simple as that. There is a significant and substantial ongoing series of discussions in the sector at the moment on issues such as the cancer drugs fund, specialist commissioning and whether we should be ring-fencing different medicines and therapeutic areas. The truth is, for reasons I described earlier, that the landscape is changing dramatically. I totally understand that charities that rightly support greater use of off-label medicines would like to think it is possible for us to legislate for these drugs to be put into use, but from the conversations I have had, it is apparent that clinical opinion is very varied. Nobody I have spoken to in the clinical profession wants the Government to go down the slippery road of starting to legislate for particular uses of particular drugs, which is effectively what this mechanism seeks to begin to do.
I commit today to working with NHS England, the MHRA, NICE and patient and professional groups to explore in depth the issues around the cultural challenges on unlicensed and off-label prescribing in general. We know that we need to look at the issue of clinical leadership. We need to take steps to improve how new evidence is translated into prescribing practice, and how hospitals and GPs work together and how that works within the care pathway. I am absolutely committed to doing what needs to be done and what can be done now within the existing system, and to looking at the evidence to ensure we adopt the approach most likely to succeed. Most trusts have robust governance arrangements set up to consider innovative treatments that clinicians may want to prescribe. A trust’s drug and therapeutics committee, or indeed the clinical ethics committee, provides an opportunity for doctors and pharmacists to explore the clinical and patient safety implications of doing so.
I am delighted to confirm that we have begun to work with NHS England and other stakeholders including NICE to get a handle on this and to accelerate the use of off-label drugs. I restate the invitation to interested Members to come and join the project. We are absolutely committed to looking at why there may be delays in translating new evidence and research into clinical practice, including why some clinicians are reluctant to prescribe drugs outside of their licensed indications when many others are not, and to consider what further arrangements might be put in place to assist in implementing new evidence into care pathways. This is a problem we face across the system, with variable uptake of NICE guidance. It is one of the central objectives of my new role in the Department of Health to drive consistency of uptake across the system.
I believe this offers the prospect of a more appropriate, sustainable and rapid approach to this problem that can apply to a range of different drugs and clinicians.
Mr Nuttall
The Minister has just used the word “rapid”. How quickly will these drugs become available?
George Freeman
I am not clear which particular drugs my hon. Friend is referring to, but let me answer in a generic way. I would like us to become a place where, instead of it taking 10 or 15 years and $1 billion to bring innovative drugs to market, we use the NIHR platform and our investment in genomics to become a country where for some cancers we could be getting drugs to the most needy patients through the early access to medicine scheme that I have been championing and that the Department launched earlier this year. Potentially, we could be getting drugs to patients five, six, seven or eight years earlier than would normally be the case through the traditional model of phase one, two, three, four.
Jonathan Evans
The drugs the Minister is talking about are new drugs. They are not a mechanism for using existing licensed drugs for which the patent has expired, which, under current circumstances, are not being prescribed to people who need them. That is what this debate is about.
George Freeman
I well understand that. The off-patent is a distraction; it is the question of off-label. The truth is that clinicians are free today to do it. My hon. Friend’s point about timing is very well made. I would merely say that at this stage, with the working party I am putting together and the strategy I would like us to launch—I would very much appreciate his input—I think we should be looking at setting some very clear goals and targets for speeding up that use. In particular, we should ensure that where there is evidence of an innovative and new use for an existing drug off label and there is good evidence to suggest it, we roll it out across the system. It is both the speed of first adoption and the speed of roll-out across the system.
This offers the prospect of a more appropriate and sustainable approach that can apply to a range of different drugs. We can use it to tackle this problem much more quickly and to get new drugs into use much more effectively. More specifically, we are looking to gather further evidence around potential barriers by focusing first on NICE’s updated guidelines on familial breast cancer, through the NICE associates network, and asking it further to promote its implementation. I will also ask NICE whether it would be prepared to use one of the patient decision aids it is piloting for further support.
To draw all the strands together and look at the issues at national level, we plan to arrange a national round table of the key stakeholders to be co-hosted by my Department with NHS England and NICE. We intend to use the initial meeting to identify what the various participant stakeholders might usefully do to help to address the cultural and clinical leadership issues and what other practical steps might help. The request I make to those who support the Bill is that we review the need for any further guidance or legislation in the light of that work when it has been completed. I am delighted to extend an invitation to my hon. Friend to be a part of that.
In conclusion, I very much appreciate the points that have been made today. I recognise the very real concerns that have led to the drafting of the Bill. I am absolutely committed to investigating and getting to the bottom of the reasons why new evidence is not being picked up and implemented consistently, as well as why some clinicians may be reluctant to prescribe in this way, and, crucially, the important role of NICE in supporting that with updated guidance. I am committed to doing so with the involvement of all interested parties.
The Government remain firmly of the view that improvement in this area can best be achieved through a combination of measures, and that resorting to legislation to demand regulatory measures is not a magic bullet. It will not solve the issues we believe are actually responsible for this problem, and it carries the risk of some serious and unintended consequences. It is for those reasons that the Government cannot support the Bill. However, I reiterate that we support the intention of promoting greater use of off-label medicines. We are committed to looking seriously at this and to launching a strategy and a work plan, with specific targets for increasing the rate of use of off-label medicines, with all the key agencies and to invite stakeholders in the sector, in particular medical research charities and the AMRC, to help us with that. New uses for existing drugs is something we actively support. The truth is that, as much as we would love to, we could not and should not go down the slippery road of starting to legislate for the use of medicines that should be, and are rightly, a matter for clinicians.
Jonathan Evans
I thank all who have contributed to the debate, including the Minister. In fact, other than the Minister everybody has spoken in favour of the proposition contained in the Bill. I am especially grateful to my hon. Friend the Member for Bury North (Mr Nuttall), who has been involved from the inception in supporting the Bill. I am grateful for the intervention of my hon. Friend the Member for Christchurch (Mr Chope), who has been such a source of great support in this process, which, even after 22 years, is relatively new to me. He, of course, is something of a Friday expert. I am also grateful to my hon. Friend the Member for Beckenham (Bob Stewart) for his interventions and his clear articulation of support for the Bill. Let me also thank the shadow Minister and those on the Labour Benches who have made it clear to me and to the charities their complete support.
The problem is that the Government take one view on the Bill, whereas charities, clinicians and others are saying that the current situation is unacceptable. It is not good enough to argue against going down the road of legislation, given that we already have a legislative process for licensing. For instance, it is the law that if a drug has not had a licence, it cannot be effectively marketed in the UK. The reason GPs often do not routinely prescribe life-saving medicines is that the rules in essence make it illegal to market them in that way. It is not surprising, therefore, that GPs, given that legislative background and the litigious world of the medical and legal profession, decide to avoid something unless it is licensed. It is not as though the charities sector has not provided the Department with a welter of information on why GPs are not doing it. The lack of licensing is at the core of it.
As the Minister knows, I respect him and his background career, and we have had several conversations about the Bill, but the proposition that passing the Bill would damage the current situation is simply laughable. I do not know who wrote that line for the Minister, but that proposition needs to be re-examined. Nothing in my Bill would cause a GP to say, “Well, actually, I was going to prescribe something, but I’m not going to now.” With due respect to him, that was the weakest of his arguments.
We heard earlier from the Labour Benches that several colleagues have received representations on the Bill from a wide coalition of charities covering a range of medical conditions. Yesterday, I spoke to several of my colleagues on a day trip to a constituency in southern England, and everyone spoke of having 50 or 60 constituents urging them to support the Bill and of being pleased to have received a response saying that the Government were speaking to me as the Bill’s promoter. Many people interpreted that to mean that the Government would be broadly supportive of the Bill.
For that reason, I am deeply disappointed to hear now that the Government are opposed to the principle of the Bill. I do not need to rearticulate its provision—it is a very simple Bill—but it says that in the absence of somebody applying for a licence, the Secretary of State has the duty to make that application or to appoint another public body to do it. Thereafter, the Bill makes provision for the drafting of regulations that present widespread opportunities for the Minister to address his concerns.
George Freeman
To clarify, we agree with the objective of the Bill, which, as I understand it, is to get greater off-label use of medicines for new indications, but we disagree about the mechanism. The Bill is very clear on the mechanism: it is to pass legislation to require the MHRA to issue licences. We believe that this is the wrong solution, but we are in alignment on the problem that needs to be solved.
Jonathan Evans
That is very helpful. I have always understood that a Second Reading debate is on the principle of the Bill; we then deal with the detail in Committee, and then we proceed to Report. Ever since I was first elected 22 years ago, that is how I have understood it to work. If my hon. Friend is saying, “We are not against the principle, but against the mechanism”, that is a reason to support the Bill on Second Reading and then to debate in Committee how we adjust it to take into account his concerns.
George Freeman
I congratulate my hon. Friend on making an extremely eloquent argument, but I cannot let that go. The point is that the principle to which we object is the passing of legislation to require the MHRA to issue licences. That is more than a vague guiding philosophy; it is the mechanism suggested, and that is why we are opposed to it. I genuinely believe we will make more progress in the next few months using my office and the organisations for which I am responsible, working with the supporters of the Bill, to drive forward these measures.
Jonathan Evans
So we are back to the Government being opposed to the principle of the Bill. It might have helped if Ministers had said, in response to those Members who wrote to them saying they were aware of my Bill, that they were opposed to the principle, as we have just heard from the Minister. Members were led to believe that the Government were not against the principle but were discussing these matters and that we might ultimately reach an accommodation. Now we understand that the Government are opposed to the principle.
The principle is one advanced by the clinician community and the AMRC and supported by editorials in leading newspapers in the UK this week. It is not surprising that almost every leading newspaper has urged the Government to pay attention to the arguments. The hon. Member for Copeland (Mr Reed) highlighted how people outside the House look at what we do here. As I said in my opening remarks, it is important that we pay attention to the clinician community and the AMRC. For that reason, I hope the House will support the Bill.
Question put, That the Bill be now read a Second time.
Mr Jamie Reed
On a point of order, Madam Deputy Speaker. I seek your guidance on whether or not it is in order for Government Whips to instruct their own Members not to vote in order to ensure that the Division was not quorate.
Madam Deputy Speaker (Mrs Eleanor Laing)
I understand why the hon. Gentleman wishes to draw the House’s attention to what happened, but he knows as well as I do that the behaviour and actions of Government Whips is no business of the Chair.
School Admissions Bill
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Christopher Chope (Christchurch) (Con)
I beg to move, That the Bill be now read a Second time.
This is a very small Bill. It consists of two clauses, the second of which merely deals with the extent, commencement and short title, and the first of which is also very short. Gaps, anomalies, inconsistencies and injustices in the law or regulations are often brought to our attention as a result of constituency cases, which is what happened in this instance.
The Bill deals with the very narrow issue of whether
“pupils with a parent with a terminal or seriously disabling illness”
should
“receive priority in the admissions process to maintained schools”
in the same way as, for instance, looked-after children. It arises from the case of my constituents Mr and Mrs Amey. Mrs Amey is extremely unwell: she suffers from what is thought to be a terminal condition. She was distraught when her son George was unable to join his sibling at Mudeford infant school, which said that it had no space for him. An appeal was made through the county council system, and was rejected.
I took the view, on behalf of my constituents, that that was absurd. I was able to secure the support of the then Secretary of State for Education, who very helpfully wrote to the county council saying that he agreed with me that the situation was wholly unsatisfactory, and hoped that the council would do something about it. The council set up another appeal hearing, the outcome of which was that George Amey was able to go to that school. However, a similar problem arose earlier this year, when George wanted to move to Mudeford junior school. I will not go into all the details, but ultimately, after an enormous amount of anguish, he has obtained a place there.
Looked-after children are given special priority when it comes to school admissions, and I do not criticise that at all. They are given special priority because they live with foster parents or are in the process of being adopted, which means that they may need to move to a different catchment area. If the adoptive parents of a looked-after child are unable to get the child into the local school, all sorts of additional problems will be created as attempts are made to ensure that the child can have as normal a life as possible.
I think that giving such children priority is perfectly sensible, but I think that it is also sensible to take account of the circumstances of children whose parents are terminally ill or suffer from a seriously disabling illness. The journey to school may be much more burdensome for such a parent, and the child will be under a lot of pressure because of the parent’s illness. A parent with a disability may have to move away from the catchment area of a school that is already attended by his or her child’s elder sibling in order to live in specialist housing such as a bungalow, so that there is no need to climb stairs. Accommodation of that kind may not be available in the catchment area. As a consequence, the child will lose its priority in the system.
I know that the principle of my short Bill has been accepted by the former Secretary of State for Education, because it was on the basis of the very narrow anomaly with which it seeks to deal that he intervened so helpfully in the case of Mr and Mrs Amey and their son George. It seems to me that one way of resolving that anomaly would be to ensure that, as clause 1 proposes,
“Any reference to a looked after child in the Schools Admission Code issued under Section 84 of the School Standards and Framework Act 1998 shall be taken to include a reference to a child with a parent or guardian who is terminally ill or suffering a seriously disabling illness.”
I do not think that there is any need to elaborate on that.
Mr David Nuttall (Bury North) (Con)
Does my hon. Friend think that one way of resolving the problem would be to clarify the existing code by ensuring that it includes those crucial words when it is next issued? Perhaps the Minister could give such an assurance.
Mr Chope
I agree with my hon. Friend, and I thank him for his intervention.
I have a great deal of respect for my hon. Friend the Member for West Worcestershire (Harriett Baldwin), who I see is sitting in the Minister’s place. I am not sure whether she is, in fact, now a schools Minister.
The Lord Commissioner of Her Majesty's Treasury (Harriett Baldwin)
Let me reassure my hon. Friend: I am not only a Minister in Her Majesty’s Government, but the Whip for the Department for Education.
Mr Chope
I am grateful to my hon. Friend for her clarification. As you will know, Madam Deputy Speaker, there is a difference between being a Whip and being a Minister. I am delighted to know that my hon. Friend, who is a very distinguished Whip, has the responsibility of being the Whip for the Department for Education. She has more credibility on the Front Bench than, for example, a Whip dealing with a different Department would have. When she responds to the debate, she will obviously be able to speak with more authority on behalf of the Secretary of State for Education, which is what I wanted to ensure would happen.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a rare honour and privilege for me to speak from the Dispatch Box. Indeed, it is first time I have had that honour and privilege. I hope that Members, including the hon. Member for Christchurch (Mr Chope) and the Minister, will indulge me if I make any mistakes.
It has been a privilege to listen to the hon. Member for Christchurch—who has a long and distinguished history in the House, and whom I have heard speak on many occasions—and to learn about some interesting and concerning cases and some of the discrepancies that exist in the school admissions system.
The hon. Gentleman also compellingly set out the circumstances that face children and families where a parent has a terminally or seriously disabling illness. I know from my own constituency the impact of such circumstances on many aspects of the lives of families and children. They not only impact on educational provision and travel to school, but many of the young people take on caring responsibilities, which have very significant impacts on their lives.
As many Members on both sides of the House will know, school admissions come up time and again in our constituency surgeries and in our inboxes. The School Standards and Framework Act 1998 remains to this day a signature piece in the last Labour Government’s reform agenda. It enshrined in law a limit of 30 on infant class sizes. Unfortunately, we have seen a 200% rise in the number of infants taught in classes of more than 30 since the formation of this coalition Government and following their decision to relax the rules on infant class sizes.
The legislation we passed in 1998 abolished grant-maintained schools, prohibited the expansion of partial selection and, crucially for this debate, introduced an admissions code and the Office of the Schools Adjudicator. We are proud of having taken that step forward, putting fairness into the system and seeking to ensure that every child got a fair start.
Labour Members welcome the recent decision by Ministers, although late to the party, to allow all schools, including maintained schools, to prioritise admission for children who are eligible for free school meals—those in receipt of the pupil premium. My hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) made the case for that in June 2013, and we have committed to going further, because while we have seen big improvements following the last Labour Government’s reforms, we can be confident that although the letter of the code is enforced, it is not always followed in spirit.
In the last report from the schools adjudicator published last November, Elizabeth Passmore concluded that the system is so complicated that parents may need to study for several years before applying for a case. I therefore ask the Minister what action the Government are taking to address the complications presented by the schools adjudicator?
As I said, we have gone further. The appeals process for academies and free schools is at present too opaque. Many academies will have nothing to fear, but to ensure greater transparency and parity Labour has committed to extending the powers of the local government ombudsman to investigate academies and free schools on admissions, because parents should not have to write to the Secretary of State to complain about the processes of a local school. Under Labour, local authorities will also have the power to direct all schools to admit hard-to-place children, and to ensure that all schools fulfil their commitment to equitable access—both to the letter and the spirit.
I thank the hon. Member for Christchurch (Mr Chope) for bringing forward this Bill and for raising this important issue, and I ask the Minister to respond to the following questions. First, what consultations and discussions have Ministers and officials had with the groups representing children with terminally ill or seriously disabled parents, and with organisations representing children with caring responsibilities? Secondly, during recent revisions of the code undertaken by this Government, what consideration was given to this specific group? Thirdly, are the Government undertaking, or do they plan to undertake, scoping work to determine the feasibility and merits of making the changes suggested by the hon. Gentleman? There are some important questions here, and the hon. Gentleman has raised some important cases, and I am grateful for the fact we have had the time to debate this matter today.
The Lord Commissioner of Her Majesty's Treasury (Harriett Baldwin)
It is a great honour for me to respond to the Bill on behalf of the Secretary of State for Education, who specifically requested that I do so. I thank my hon. Friend the Member for Christchurch (Mr Chope) for raising what is a very important issue. His constituents in Christchurch and Mudeford are fortunate to have as their MP someone who is a doughty champion of local issues on their behalf. We heard evidence of that in his opening remarks; he has already achieved a fantastic result for his constituents, Mr and Mrs Amey. I am sure they are delighted that their son, George, has been able to join his sibling at the Mudeford junior school, and I am pleased to hear that that constituency case was resolved on appeal.
I must also pay tribute to my hon. Friend for being legendary in this House for using the vehicles available to all Back Benchers in the form of private Members’ Bills to raise substantial and important issues on behalf of his constituents. Even today he has demonstrated his ingenuity in this regard by having not just this Bill on the Order Paper, but several further Bills: the Illegal Immigrants (Criminal Sanctions) Bill, whose Second Reading debate was adjourned on 24 October; the House of Lords (Maximum Membership) Bill, which he hopes will have its Second Reading today; and the EU Membership (Audit of Costs and Benefits) Bill, which is also due its Second Reading. That is just a small sample of the various different Bills on important issues he has been able to raise on behalf of his constituents through his great knowledge and understanding of parliamentary methodology.
As my hon. Friend said, the Bill before us is fairly short even by the standards of brevity we often see with private Members’ business. In its two short clauses it makes
“provision to ensure that pupils with a parent with a terminal or seriously disabling illness receive priority in the admissions process to maintained schools in England.”
The word “England” is used because my hon. Friend makes very clear in his Bill that his proposed changes would extend to England only. It is important to highlight that, as it shows how much proposed legislation, particularly on education, now comes forward that covers only England. I know he shares my enthusiasm for ensuring that we as a Parliament are in future able to ensure that those who represent English constituencies, such as Christchurch, can carry forward legislation that applies to England only.
I would like now to set out the Government’s views on the Bill before us. We believe my hon. Friend’s proposals are already covered by the existing provisions in the statutory schools admissions code and its supporting legislation. I have with me a copy of that code, published in February 2012, and I would like to draw his attention to paragraph 1.16, as it is important that we look at exactly what the code currently says. This effectively gives some discretion to local authorities but encourages them to take into account social and medical need in a situation such as the one he so eloquently described, where a particular set of circumstances needs to be taken into account.
Paragraph 1.16 of the school admissions code states that, if admission authorities decide to use social and medical need as an oversubscription criterion, they
“must set out in their arrangements the criteria against which places will be allocated at the school”.
They must state how they will define the need and give clear details of any supporting evidence that will be required, such as a letter from a doctor or social worker. They must then make consistent decisions based on the evidence provided. In the example given by my hon. Friend, I believe it would have been possible for Mr and Mrs Amey to provide that level of medical detail in order to support the case of their son, George.
As I have said, the school admissions code was published in February 2012, and the Government consulted on further, limited revisions to the code this summer. I note that one of the respondents to the consultation was my hon. Friend’s own county council. He did not respond to the consultation in person, however, and I regret to tell him that it closed on 29 September. I confess I do not have a copy of the response of Dorset county council children’s services in front of me, but evidence will be available on the Department for Education’s website. I would be happy to let my hon. Friend know what his county council’s response was, if it did not send him a copy at the time, in order to reassure him that it is engaging fully with the Department and is keen to ensure, as he is, that his constituents are able to access their preferred school.
Mr Nuttall
My hon. Friend mentioned the fact that the Government carried out a consultation on the content of a revised code between 22 July and 29 September. Given that the Bill was ordered by the House of Commons to be printed on 7 July, which I think would have been the date of its First Reading, will she tell us whether the consultation took its content into account?
Harriett Baldwin
I thank my hon. Friend for his pertinent question. I understand that the Bill received its First Reading earlier this year. One would like to think that, although the views expressed in the Bill were not formally a part of the 444 responses to the consultation, they would none the less be taken into account by the Department. I am sure that my hon. Friend the Member for Christchurch will also have sent a letter on behalf of his constituents under the previous Secretary of State. The 444 responses are listed in the back of the Government document. I looked through it earlier to see whether the Bill was included in the responses, and I can confirm that it is not specifically mentioned in the Government’s documentation. However, he has used the mechanism of this proposed legislative change to make his views known.
I can summarise the results of the consultation for my hon. Friend. They have resulted in the Government proposing specific, limited revisions to the admissions code. As I have said, 444 written responses were received by 29 September, and the Government have held discussions with interested groups. The hon. Member for Cardiff South and Penarth (Stephen Doughty) asked whether discussions had taken place with people with specific caring responsibilities. Having looked through the list of 444 responses, I note that none of the organisations stood out as the kind of organisation that he would put into that category. I can assure him, however, that discussions are ongoing with all the interested groups with a view to meeting their needs for the admission code. I hope that that answers his question.
The overriding aim of the code is to ensure that admission authorities have clear, objective and fair oversubscription criteria. It is for the authorities themselves to decide which criteria to adopt, but the code sets out the most common ones, including giving priority based on social and medical need. I have drawn the House’s attention to the fact that that is set out in paragraph 1.16 of the code.
The Government want children to be able to attend a school of their parents’ choice whenever possible but, when a school receives more applications than it has places available, we believe that those places must be allocated in accordance with the school’s published oversubscription criteria. I am pleased to say that the vast majority of parents are offered a place for their child at their preferred school. In the most recent entry year, 2014, 86.5% of parents in England were offered a place at their first preference school. In addition, 95.6% of children—so nearly 97%—were offered a place at one of their top three preferences, and 96.6% were offered a place at any of their preferred schools.
The Government have just agreed to some specific, limited revisions to the code. They are designed to improve the fair and open allocation of places and, it is worth emphasising, to support fair access for the most disadvantaged children and provide additional clarity to some provisions that had not been found to be completely clear. The limited time scale did prevent more substantial changes from being considered but, subject to parliamentary approval, which we hope is imminent, the revised code will come into force on 19 December.
Harriett Baldwin
I thank my hon. Friend for, again, being assiduous on behalf of his constituents on that drafting. He has a copy of the code in front of him, as I do. I have read the wording from paragraph 1.16 into the record, and it is my view that individual schools would have some latitude on taking into account social and medical need because of the following wording:
“If admission authorities decide to use social and medical need”.
He would like things spelt out in statutory legislation, but the wording allows admission authorities some leeway without putting things on to a statutory footing. I reassure him that we will evaluate the impact of the new proposals once they have come into effect, and will certainly do that ahead of any future revision of the code. We will examine his proposal, along with any others made as part of the process. On the question raised by my hon. Friend the Member for Bury North (Mr Nuttall), one thing that my hon. Friend the Member for Christchurch has clearly done by highlighting this issue today is ensure that the circumstances he has described so eloquently are fed into that ongoing review of the code.
The hon. Member for Cardiff South and Penarth (Stephen Doughty) touched on other aspects of the code. The code requires only that priority be given to a specific group of vulnerable people: those with a statement of special educational needs or an education, health and care plan naming the school; looked-after children; and previously looked-after children. Beyond that, the code states that admissions authorities must have their oversubscription criteria clearly, objectively and fairly set out. It is for admission authorities to decide exactly which oversubscription criteria to adopt, but the code does set out the most common criteria.
The Government believe that paragraph 1.16 is a broad provision, which can be interpreted to cover the social and medical condition of the child, the parent or both. We have no definitive data on this, but we do know anecdotally and from correspondence to the Department that a number of admission authorities do use social and medical criteria in their oversubscription criteria. At this point, I cannot say from the Dispatch Box whether Dorset county council is one of those, but I would be happy to follow this up and write to my hon. Friend the Member for Christchurch about it. We believe it is for admission authorities to decide whether to adopt these criteria and, where they do, to decide what ranking they should have, based on local needs and circumstances.
Any proposal requiring that all admissions authorities must give priority to pupils with a parent with a terminal or seriously disabling illness would require a change to the statutory code and the supporting legislation. It is not the Department’s intention at the moment to do that, other than in terms of the minor adjustments the Government have agreed to in the consultation that has just been responded to.
The overarching aim of our changes is to improve the fair and open allocation of school places. The changes are intended to provide greater freedom to schools and to clarify some of the existing provisions. For example, they allow all state-funded schools to give priority in their admission arrangements to children eligible for pupil or service pupil premium funding. In this of all weeks, it is important to emphasise the way in which the Government have tried to make it easier for the children of our armed forces to get an education in the school of their parents’ choice.
The changes also allow all admission authorities of primary schools to give priority in their admission arrangements to children eligible for the pupil or service pupil premium who attended a nursery that is part of the school. As part of that change, barriers to schools offering optional wrap-around care will be removed or reduced by ensuring that any charges paid by parents for such child care would not prevent their children from being prioritised.
The Government intend to make the following minor changes: to revise the timetable for admission arrangements; to bring forward dates for admission authorities to consult locally and to reduce the duration of such a consultation from eight weeks to just six weeks; to require the admission authorities to amend their admission arrangements to comply with the code within two months of a decision by the school’s adjudicator where the adjudicator rules that the arrangements are unlawful; to clarify the provisions relating to the admission of summer-born children to aid decision-making for admission authorities. I am sure that everyone is familiar with the particular challenges faced by children who are born towards the end of August, and the question over which year at school they should be entered. Madam Deputy Speaker, I note that you are vigorously nodding your head in agreement. I am pleased to draw your attention to that particular clarification.
Other minor changes include: extending priority for admission to all previously looked after children—I am talking about children not only who are currently being looked after but who have previously, at any time, been looked after—and making a number of minor technical drafting changes to improve the clarity of certain existing provisions. For example, we wish to make it explicit to parents that their child is entitled to a full-time place in reception.
I have run through some of the minor changes to the admissions code that the Government will bring forward. I hope that I have reassured my hon. Friend the Member for Christchurch that his case is exactly what paragraph 1.16 of the code is designed to address. I know that he has been fantastically effective at not only representing his constituents in this particular case but using the vehicle of the private Member’s Bill and the full armoury of this House to raise, on behalf of his constituents as their voice in Parliament, these important matters. Having outlined the limited changes that we propose to make to the code, which will take effect on 19 December 2014, I hope that my hon. Friend will see that the case and the circumstances of his constituents are exactly those that the code is designed to cover.
I am happy to go through some more examples that would be covered by the school admissions code. I think I have answered the questions of the hon. Member for Cardiff South and Penarth, and of my hon. Friend the Member for Christchurch.
Given the comprehensive nature of my remarks, I hope that I have convinced my hon. Friend that we do not need to move forward on a legislative basis. The extensive school admissions code, which runs to more than 38 pages, covers the situation that he described on behalf of his constituents. I therefore urge him to withdraw the motion.
Mr Chope
With the leave of the House, Madam Deputy Speaker.
I shall respond briefly to my hon. Friend the Minister. I had not realised that she was, effectively, a fully fledged Education Minister. Certainly her performance this afternoon would suggest that she has years and years of experience of speaking at the Dispatch Box on these important matters. I congratulate and thank my hon. Friend for what she has done to serve the House today. She asks whether I am convinced and the short answer is that I am convinced, and it is not often that I can say that in response to a Minister.
My hon. Friend has given a full and constructive response, and has helpfully put on record the Government’s view that when we define “social and medical need” in paragraph 1.16 of the school admissions code, we are referring not just to the social and medical need of the child or children but also to the social and medical need of the parents. That is an important point of clarification, and will be useful to admissions authorities when they consider whether to adopt the provision.
I am with my hon. Friend on the need to combine as much permissiveness as possible with the minimum amount of prescription. It seems, on the basis of the code, which is to be revised and brought into effect on 19 December, that the Government have managed to establish a balance between those two sides. I am delighted that we have been able to make progress on the general application of an issue arising from a specific constituency case and I am sure that will give my constituents substantial reassurance.
I beg to ask leave to withdraw the motion.
Motion and Bill, by leave, withdrawn.
Football Governance Bill
Damian Collins (Folkestone and Hythe) (Con)
I am grateful to Members for enabling us to make enough progress, on this day of private Members’ business, to reach the Football Governance Bill.
The Bill has been a journey for me as a Member of this House. It started with my involvement with the Culture, Media and Sport Committee’s 2011 inquiry into football governance. The Committee’s work in that inquiry built on a number of reports that had been produced by the all-party football group, and by other Members of Parliament dating back very many years. Although I have sought to bring forward some measures that I believe will help in the administration and good governance of football in England—I shall go through those briefly—I would say that the Bill is the architecture of many hands in this Parliament.
When I presented the Bill I was grateful for the support of Members from across the House, many of whom have taken a particularly strong interest in issues of football governance because of problems in their constituencies.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I should be grateful for some clarification. The hon. Gentleman mentioned football governance in England, but obviously his Bill also extends to Wales and Scotland. That is crucial, because many of us in Wales have had very similar concerns to the ones that he has outlined.
Damian Collins
I am grateful to the hon. Gentleman. The 2014 Bill is an England Bill, largely because I was advised that in Scotland and Wales these were devolved matters. My original version of the Bill was a Scotland and Wales Bill too, and I believe that this Bill’s provisions could easily be extended to Scotland and Wales as well. I look forward to hearing Members’ remarks on that in Committee; I would welcome their views.
I want to mention the support for the Bill, when it was presented, of the hon. Member for Coventry South (Mr Cunningham), who has done much to highlight the plight of Coventry City football club in Adjournment debates; of a former Minister for Sport, my former colleague on the Select Committee, the hon. Member for Bradford South (Mr Sutcliffe); and of my colleagues on the Government Benches. My hon. Friend the Member for Portsmouth North (Penny Mordaunt) has been tireless in her campaigning to relieve the plight of Portsmouth football club. My hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman) has raised issues to do with governance in non-league football, particularly in the case of Hereford United, which is one of the worst examples of a failure of football governance that could be seen. A great and fighting football club with a proud tradition has been completely trashed by its poor ownership. I am also grateful for the support of my hon. Friend the Member for Maldon (Mr Whittingdale), the Chairman of the Select Committee.
The Bill seeks to address what I believe are some of the major failings in the governance of football. I do not believe that it is the role of the Government or Parliament to seek to regulate and control football, which is a private enterprise. Football clubs are private organisations; they are community-based and run; and the Football Association is rightly an independent body. I do not believe that it is necessarily the role of the Bill or Parliament to seek to regulate and control football. A series of failures in governance has led to recurring problems, certainly with the failures of ownership and the financial control and regulation of football. The Bill proposes some measures that would address that and that are relevant to some of the issues that football clubs have faced.
Clause 1 deals with the public declaration of the ownership of football clubs. During our Select Committee inquiry, no one knew who the leader of Leeds United football club was. In fact, the club’s then chief executive—Mr Shaun Harvey, who is now chief executive of the Football League—told me in a Committee hearing that not even he knew who the club’s owner was. Since then, the Premium League requires the public declaration of the ownership of football clubs, but the Football League does not require that public declaration.
Such public declaration should be mandatory because fans have the right to know who owns their football clubs. We should have the right to know what other interests, either in football or outside football, that the owners of football clubs have, particularly as we have recurring problems with the business interests of football club owners seeming to prejudice their suitability to be the chief executives or presidents of football clubs. I therefore believe that, with public declaration, fans and investigative journalists can see and inquiries can be made into the nature and interests of the owners of football clubs.
Coventry City, I believe, has been poorly served by an ownership model whereby it was owned not by a named individual but by an investment trust. That club has been badly run and it is still trying to overcome some of the many issues that it has faced. I am pleased that Coventry City have returned to playing football in Coventry, but many of the issues about its running remain of grave concern to its fans.
I believe in such public declaration of interest in and ownership of football clubs. Anyone who has a 1% stake in a football club should be on a public register. That is in keeping with the reforms that the Government have put in place to ensure that the beneficial owner of any UK-registered company must be declared at Companies House, and it would ensure that football continued to fall in line with that requirement.
Clause 2 deals with the fit and proper person test—the owners and directors test—which has continued to be a problem for football clubs, and Leeds United is a particularly topical example. Massimo Cellino—a business man from Italy, with previous convictions for fraud, whose case relating to tax evasion is going through the Italian courts—sought to buy and take control of Leeds United football club. The Football League objected to his acquisition of the club. He successfully challenged that in the courts and was allowed to acquire it.
The football bodies have a real problem in that they have no discretionary power over how they administer the owners and directors test. If someone has convictions, such as Mr Cellino’s, for fraud-related offences, some people might think that they are unsuitable to own a football club. If the offence is considered spent in UK business law, there is no barrier in law to anyone taking over a club. The Football League would probably have been challenged in the courts had it sought to stop Mr Cellino taking over the club in that way. The club’s ownership could still be in balance. The fate of Leeds United could rest in the appeal courts of the Italian legal system: a final ruling against him would mean that he is in breach of the owners and directors test and unable to take over the club.
Many Leeds United fans are concerned about Mr Cellino’s background and whether he is a suitable owner. The Football League clearly had concerns but no power to do anything about them, and the Football Association seems to have no power to intervene either. I believe that here is a clear example of where some statutory underpinning of the owners and directors test would be of huge benefit to football as a whole to help to keep out bad owners.
I suggest in my Bill that the Football Association act as the governing body of football—all football clubs need to be members of the Football Association to play in the upper football leagues in England—and that it have a discretionary power similar to that exercised by Ofcom under the 1990 and 1996 Broadcasting Acts. Ofcom applies its own fit and proper person test to the issuing of a broadcasting licence. It has the power to remove broadcasting licences from broadcasters who have fallen foul of that test—indeed, it has done so. It is a discretionary test based on its view of whether a licence holder has complied with UK broadcasting regulations and whether it is likely to do so in the future. I believe that the Football Association, based on its own memorandum and articles of association, should have the same power when looking at a potential owner of a football club; to be able to say that in its view that person is not a fit owner.
We have had problems with people who are not considered fit owners. Carson Yeung, former president of Birmingham City football club, is a good example. He was found guilty of money laundering offences in Hong Kong, so it was ruled that he could not hold an executive office within the club, but the rules do not stop his son or other business associates being on the board. I believe that the Football Association should have the power to step in and say, “No, we do not feel this is right. We are not happy with this ownership model, so we will not allow you a licence to own this football club.”
There is also a question about new owners coming in. In the recent debate in the House on non-league football, the hon. Member for Wrexham (Ian Lucas) asked whether there should be a process of prequalification, whereby someone must be declared a fit owner before taking on the ownership of a club. I think that would have stopped many of the problems we have seen. I also agreed with the view, expressed by my hon. Friend the Member for Hereford and South Herefordshire, that there should be transparency when the Football Association investigates an owner under its own owners and directors test, and transparency on the outcome so that fans know what it is. I think that is very important. To set up those powers would give the Football Association, and with it the Football League and the Premier League, the power to have tighter controls over who comes into the game.
Mr Yeung’s money-laundering offences certainly make him a poor owner, but they also highlight a grave area of concern. Many people have raised the concern that football is open to abuse from money laundering. It is a sport and an industry that deals with assets of intangible value, with cash transactions through the gates, so tracking the money that flows through football is very important. We should rightly be very concerned about someone who has been convicted of money-laundering offences owning a football club. We should also be concerned about whether someone has heavy interests in gambling or other sporting interests around the world that might lead us to question their suitability to take on the ownership of a football club. This Bill would give the football bodies in this country discretionary power to intervene and prevent poor owners from coming into the game.
That point is particularly important when we look at clause 3, which deals with something called the football creditors rule. The Select Committee examined that in great detail during our inquiry and strongly recommended that it be abolished. Ministers have agreed at the Dispatch Box that the football creditors rule has had its day. It has been challenged by Her Majesty’s Revenue and Customs in the High Court, unsuccessfully against the Football League. It remains a grave anomaly and, I believe, a shame on football in this country.
Football in this country has never been wealthier; there has never been more money in the game. The Premier League, in particular, is a great success. It has taken the English game around the world and brought huge amounts of money into football in this country, and I would not for one moment decry it. However, since the Premier League was founded, over 40 of the professional clubs in the 92 top positions in the football leagues have gone into some form of administration. There is a problem at the heart of finance in football that creates a lot of the problems we have in club ownership today, and it is the fans and the communities who suffer and have to pick up the cost of the poor regulation of football finance.
I welcome the measures on financial fair play that have been introduced into football, particularly as a consequence of UEFA requiring anyone playing in its competitions to comply with financial fair play, but I think that we need to go further. I believe that getting rid of the football creditors rule will be an important step forward. It cannot be right that when a football club goes into administration, the football debts are honoured in full, whether debts of transfers to other clubs or payments to players, in order that the club can carry on playing, but any other debts that are owed, particularly to businesses in the community, are settled with whatever is left. A company that maintains the grounds or prints matchday programmes, for example, might get a penny in the pound or less, whereas all football debts are honoured in full. That is morally wrong. The former chairman and chief executive of the Football League told the Select Committee in evidence that there was no moral justification for the existence of that rule. Nevertheless, it persists.
I believe that the football creditors rule also has an important knock-on effect: it does not encourage any sort of financial responsibility in the way clubs deal with each other. A club selling a player on to another club, perhaps at an inflated price in the transfer market— most of the money that comes into football goes back out through transfer fees and payments to players—would not really be concerned about whether the other club could afford the transactions it had entered into. If the club was going to pay a transfer fee in instalments, it would not be worried about whether it could really afford to pay it, because it knows that the football creditors rule effectively guarantees it the value of the transfer fee. If there were some element of shared risk between football clubs, there would be more honesty and transparency in transactions, and they would require more public declarations from each other as to their true solvency. This could be an important measure to stop clubs getting into the sorts of financial difficulties that we want to avoid.
I have raised this matter with the Department for Business, Innovation and Skills, which oversees the Insolvency Service, which, ultimately, is the responsible body that would look into the football creditors rule. There are grounds for amending insolvency legislation, as set out in the Bill, to get rid of this power so that the administrators of a football club would have the right and the power to settle all debts equally. It would then be a matter for the football creditors to come to an understanding with the football club on how outstanding debts were settled and whether it would be over a future period, but at least all existing debts should be settled equally so that local communities do not lose out when their football club goes into administration, getting nothing while the football players, the other football clubs and the football agents get all the money. That cannot be right.
Clause 4 deals with the ownership of football clubs. I suggest that there should be no bar to community trusts owning and running football clubs in the upper leagues and that any restrictions in that regard should be lifted. I would welcome the views of other MPs on what we can do to encourage more community ownership of football clubs. Ultimately, we cannot and should not seek to impose ownership models on football clubs by legislation, but it is worth bearing it in mind that the community supporters trust is an excellent model that has served many football clubs in the lower levels extremely well. AFC Wimbledon and FC United of Manchester are great examples of clubs that have been transformed through fan ownership. Clubs that have previously got into difficulties, such as Exeter City, have been transformed by fan ownership. It is a very good model that we should look to progress.
I greatly support the view expressed by Supporters Direct that we should see whether there can be incentives in the tax system to give non-league football clubs a similar status to community amateur sports clubs. At the moment, because of the level at which they may pay their players, even if it is as little as £100 a week, they may fall outside the threshold. It would be good to give clubs the opportunity to enjoy some of the status of community amateur sports clubs as an incentive for them to adopt a proper, robust supporters trust model of ownership. I have suggested a starting point for that process, but, again, I would welcome the contributions and ideas of other Members as the Bill progresses.
The Government have been looking at football governance for some time. The previous Sports Minister, my right hon. Friend the Member for Faversham and Mid Kent (Sir Hugh Robertson), took up the challenge in response to the Select Committee inquiry. The time has come for the House to set out its own proposals and measures. I hope that I have started that process with this Bill. I certainly look for the contributions of other Members as it progresses. I believe that it would send out a clear message to the football authorities that unless they finally act on these measures, this House will intervene, as it has the right and the power to do. I commend the Bill to the House.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I now find myself on the Back Benches. I do not want to detain the House long, but I feel particularly passionate about this issue. I pay tribute to the hon. Member for Folkestone and Hythe (Damian Collins) for bringing it before the House. I know of the extensive work that he and many other hon. Members have done. I pay particular tribute to my hon. Friend the Member for Eltham (Clive Efford)—the House will enjoy hearing from him shortly—who has set out an extraordinarily ambitious and progressive agenda for supporters’ involvement in their football clubs. I very much hope that that comes to fruition.
I should put on record a declaration of interest as a member of the Cardiff City supporters trust, Cardiff City supporters club, and Supporters Direct. As a Labour and Co-operative MP, I find this issue particularly interesting. I am a big supporter of community trust models and co-operative and mutual solutions in a whole series of areas, whether football or others.
I have a particular interest because of the recent, but also longer-term, experiences of my own football club, Cardiff City, which I have supported for 28 years this year, and for which I have been a season ticket holder. My father was briefly its club secretary during a quite turbulent period of ownership. The hon. Member for Folkestone and Hythe is probably aware of the series of owners the club has had over a number of years, all of which have involved significant ups and downs, including Tony Clemo, Rick Wright, the Kumar family, Sam Hammam, Peter Ridsdale and, more recently of course, Vincent Tan, who is widely known across the country and in football circles. He has made significant changes to the club, particularly to its colour, its badge and many other aspects of its heritage. Personally, I opposed those changes and I have made that clear to Mr Tan and in public. Indeed, I spoke about it in my very first speech in this House, when I made clear that my colours remain as deeply blue in my football as they are red in my politics.
A number of the issues addressed by the Bill are crucial and closely related to the ambitious plans that my hon. Friend the Member for Eltham has set out recently. We have to look at how fans and community figures can engage much more positively with clubs, so that they are not just left to those with the money and resources. I was reminded this week of one of the founding figures in Cardiff City’s history, Lord Ninian Crichton-Stuart, who was a predecessor of mine as a Cardiff Member of Parliament and who was sadly killed in the first world war while still serving as an MP. He is remembered fondly and his name was given to our original club home, Ninian Park. He was known as not only a great benefactor and fan, but a keen community supporter who engaged in the governance of the club. It is a shame that we have moved away from that sort of local involvement and understanding of the local heritage and the concerns of fans, and towards the current governance models and the challenges outlined by the hon. Member for Folkestone and Hythe.
As I have said, specific issues have included the change to the club’s shirt, colours and badge, and now red seating is being installed in the new stand being erected at Cardiff City football club, even though the traditional colour is blue. Cardiff City fans care deeply about such things and they go to the heart of the matter.
Many of us welcome the investment that Mr Tan has made, as well as his business acumen and a number of things he has done in the community. Indeed, he generously donated £1 million to local charities, which was a compelling offer. On other issues, however, including regular consultation with fans and the engagement of club officials below Mr Tan and the board, there has, sadly, been a lack of understanding. That makes me very sad, because, although Mr Tan has shown business acumen and invested money, and although he remains committed to the club, which is a positive thing, at the same time the heritage and history of the club have faced huge challenges and changes.
As the hon. Member for Folkestone and Hythe has said, we have to get the balance right between the principle of the rightful autonomy of owners and businesses to go about their business and the retention of the crucial involvement of fans and communities in their clubs. Football clubs are not like any other business: they are part of the heritage, community and history of many areas and are deeply related to other concerns in the local area, including those of the communities that immediately surround them. For example, I often deal with parking problems around Cardiff City stadium. Clubs also engage with local charities.
Unfortunately, we do not seem to be getting the balance right. That represents a contrast not only with the German model, where there is 51% ownership by fans’ organisations, but—I rarely praise other clubs in Wales, certainly not on the pitch—with the different approaches taken by Swansea, Merthyr, Wrexham and Newport.
I do not want to make the speech of my hon. Friend the Member for Eltham for him, but we have set out ambitious plans, which I thoroughly support. The plans have been welcomed by many supporters trusts across the country. Indeed, they were developed as a result of a very strong and lengthy consultation with those trusts and other organisations. The Cardiff City supporters trust welcomed them and I am sure the measures proposed by the hon. Member for Folkestone and Hythe will also be welcomed.
As I asked in an intervention, will the hon. Gentleman, when he responds to the debate, clarify the extent of the Bill? The Bill clearly states, if I have an accurate version, that it
“extends to England and Wales, and Scotland.”
It also makes it clear that it relates to English football authorities and the Football League. Cardiff, Swansea and other clubs are in an unusual situation in that they are based in Wales but play in the English football pyramid, as they have done for many years; Cardiff is the only club to have taken the FA Cup out of England, geographically, as it famously did in 1927. It would be useful to understand such issues, but they can perhaps be explored in detail in Committee, should the Bill reach that stage.
I certainly want many of the hon. Gentleman’s measures to apply to Welsh clubs, and I am sure that my hon. Friend the Member for Eltham does as well. I pay tribute to the hon. Member for Folkestone and Hythe. Such concerns matter very much to the people of Cardiff, Cardiff City fans and the Bluebirds alike. I very much hope that the Bill and the wider discussion can proceed apace in the House, and that some serious changes are made to get the balance right and to increase fans’ involvement in the ownership and operation of their clubs.
Clive Efford (Eltham) (Lab)
I congratulate the hon. Member for Folkestone and Hythe (Damian Collins) on his Bill. I commend him for his consistency on this issue—he has frequently spoken out, particularly on the football creditors rule—and for being a consistent fighter on behalf of football clubs and fans.
I also congratulate my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) on his speech. I am grateful to him for his comments about our policy, which we announced a couple of weeks ago, on fans’ involvement in the management of football clubs. As he said, we undertook an extensive consultation over a long period.
Like the hon. Member for Folkestone and Hythe, we concluded that fans should be given more powers, and that they should at least be represented at board level in football clubs. That is not to give fans a veto over what an owner does with their club—that would be foolish—but to give them a voice. In our consultation, they were quite clear that they wanted to be heard, so we concluded that they should have the power to elect representatives to the board of directors of a football club. They should be able to elect up to 25% of the members of the board, and be able to remove them when necessary.
We recognise that it is a two-way street: the policy is not just about giving fans the keys to the sweet shop; they must be held responsible. We have spoken to fans about that. They must ensure that they have a proper democratic process, and that the people they elect are representative. They must be responsible in carrying out the functions of a board member, and they must respect the confidentiality of matters that are under negotiation. We are very much in tune with the hon. Gentleman, and our proposals have been very much welcomed by fans, trusts and supporters groups across the country.
We have also said that fans should have the right to buy a stake in their club. When 30% or more of a club is up for sale, fans should have the right to buy up to 10% of the shares on offer until they own up to a limit of 10% of the club. That cannot be used as a means to take over a club, but it is a means of taking a stake in it. In our consultation, fans were quite clear that they wanted to be able to do that. We would welcome such a right.
We welcome the fact—I am sure that the hon. Gentleman, a former member of the Culture, Media and Sport Committee, does so too—that the Government have finally set up the expert working group. They said they would do so in their response to the Select Committee’s report in 2011, but it took three years to the month for them to do it. We have all been very patient, and it has finally been set up.
In their response, the Government said that they would investigate and deal with the issue of fan ownership. Just before the announcement about the expert working group, the Minister said that it would also look at ticketing and ticket prices, seating, the naming of grounds and so on, but those consumer issues were not part of the original proposal. Will he shed some light on the scope of the expert working group, and about whether it will consider the issues raised by the hon. Gentleman in his Bill? I am sure we would all like to know whether the Government intend to deal with those issues.
On the detail of the Bill, the hon. Gentleman is right to call for a declaration of ownership of football clubs, because there is widespread concern about people who are completely anonymous—as he pointed out, at one stage the chief executive of Leeds United did not know who owned the club he was running. That is a ridiculous situation, and it is a surprise that football associations have not tried to sort it out before. The hon. Gentleman is right to try to move clubs down that road with this Bill, and he has Labour’s full backing.
I agree with the hon. Gentleman about the fit and proper person test. Mr Cellino was able to enter into a financial arrangement with Leeds before it had been determined whether he was acceptable to the Football League. I am sympathetic to the view that we should have some sort of pre-test. We should be able to determine whether somebody is acceptable as an owner of a football club before they enter into any financial transaction, because football authorities have to make a decision about whether they plunge the club back into more financial turmoil, or accept the person who has already put money into the club, as seems to have been the situation with Leeds at that time. I am sympathetic to the idea of having some sort of pre-examination of whether someone is a fit and proper person, and I look forward to considering that in detail in Committee—I sincerely hope that the Bill makes it that far.
On the football creditors rule, the hon. Gentleman makes the powerful point that extraordinarily wealthy footballers can be further ahead in the queue than some local small business person. That cannot be right or fair. There are always unintended consequences to changing rules such as this, but the hon. Gentleman has raised an important point that is worthy of further examination and discussion with the leagues and football authorities, while we deliberate on the matter in Committee. Current arrangements frequently fall into disrepute when clubs go into administration, and there is clearly a strong moral case for changes to the rules. We can examine in detail what those changes may be in Committee, and the hon. Gentleman is right to raise the issue. It has been Labour policy to encourage more fan ownership of clubs through co-operatives or provident societies, and we are sympathetic to and welcome clause 4 on the community trust aspect of that.
I commend the hon. Gentleman for introducing this important private Member’s Bill. He raises a number of issues that are worthy of detailed discussion, and I look forward to having those debates in Committee should the Bill make it that far.
Madam Deputy Speaker (Mrs Eleanor Laing)
I call the Minister, Eddie Vaizey.
The Minister for Culture and the Digital Economy (Mr Edward Vaizey)
Thank you, Madam Deputy Speaker. Your use of the name “Eddie” indicates how long we have known each other. I have gone from being Edward at school, Eddie at university, to Ed today, as Hansard will record. [Interruption.] As the hon. Member for Cardiff South and Penarth (Stephen Doughty) says, it is no doubt only a matter of time before I move on to Teddy.
This has been an important and lively debate on an important subject, and I register my interest as the president of Didcot Town football club, the winners of the FA Vase in 2005, and now flying high in their league following an astounding 7-0 victory against one of their opponents the other day. As many in the House have already done, I pay tribute to my hon. Friend the Member for Folkestone and Hythe (Damian Collins) who has done such an amazing job over the past three years to bring this issue to the attention of the House. As he knows, I take a keen interest in all his constituency work. I will not repeat the joke I normally trot out about his appearance in Folkestone with Prince Harry. I was tempted to repeat it simply to prove that almost anything said in this House never gets noticed, and it would be treated as a new joke, but I will not do that. I will, however, commend him for his ability to tweet about the Folkestone job fair he hosted and attended yesterday while also speaking in the Chamber on the matter of football governance. If anyone underestimates the talent and ability of my hon. Friend, that is proof of his phenomenal ability to be present in the digital and physical worlds at the same time.
My hon. Friend will also know that the other reason I take a keen interest in his constituency is my passion for culture and the work of Roger De Haan on the Folkestone Triennial, which sadly I missed this year. Given that it only comes around every three years, that is a pretty poor show by me. I had not quite got the dates in my head. Funnily enough, I was planning to visit last Monday only to find that it had closed on the Sunday. Such is life.
Damian Collins
Does the Minister agree that it is a matter of great regret that the Banksy artwork was removed from Folkestone, instead of being on public display?
Mr Vaizey
Yes, I do agree. Sometimes it makes one wonder about the motivation of one’s fellow man that, when Banksy is prepared to be public spirited enough to create community artwork in public spaces for the benefit of the local population who take it to their hearts, somebody should seek to use that windfall because it happens to be on their private property. I very much hope it will be returned and donated to the community in Folkestone and Hythe, showing the same public-spirited approach that Roger De Haan has shown in supporting and regenerating Folkestone.
My hon. Friend has made football governance, which is so close to his heart, such an important subject that I sometimes wonder whether, if he wanders into a football stadium, the fans start chanting, “There’s only one hon. Member for Folkestone and Hythe, there’s only one hon. Member for Folkestone and Hythe.” That may not happen because, of course, he is a Manchester United fan. We know that Manchester United fans do not sing, because very few of them actually come from Manchester. The point is well made by my hon. Friend, who grew up in Hereford and represents a constituency on the south coast, yet claims to support Manchester United. Leaving that aberration to one side, there will be a lot of sympathy for the motivation behind the Bill. The examples of Leeds and Coventry have been mentioned. Transparency in our national game is of huge importance for the health of the sport, the fans and those participating at the grass roots.
The Under-Secretary of State, who has responsibility for sport and tourism, meets the Football Association regularly to talk about a whole range of issues, including governance. Recently, she heard updates on the steps taken to ensure clarity on ownership of football clubs at all levels. She has been updated on the cumulative progress in the handling of the thankfully increasingly rare number of clubs going into administration, the adoption of the financial fair play rules and improving the financial monitoring of clubs, particularly in the lower leagues where clubs are often operating in the most challenging financial circumstances. She also asked for further consideration of the owners and directors test, the current mechanism by which potential owners are approved by the football authorities.
Individual clubs must play their part in the ongoing stewardship of their heritage. I note what the hon. Member for Cardiff South and Penarth said about the interesting developments in the heritage of the great football team of Cardiff. I think all of us were interested to see that the colour of the football shirt was changed at the behest of the new owner. Certainly as a supporter of Chelsea football club, another great team that plays in blue, I would be surprised and perturbed should an owner decide to change the strip to red, but I digress.
It is critical that football authorities continue to play their part in protecting our long-standing clubs from undesirable owners. Most recently, the Government launched an expert working group to consider the barriers to supporter ownership and engagement. The group was developed in partnership with Supporters Direct, whose mission is to increase the influence of supporters through ownership and involvement in their clubs and with the support of football authorities, and relevant experts and stakeholders will be called on to contribute to the discussion of the group’s agreed priorities—I hope that the hon. Member for Eltham (Clive Efford) will take part in that discussion and bring to it the benefit of his considerable expertise, gained over many years.
The sport and tourism Minister will continue to press football authorities for reform, and she will support their ongoing efforts, but she stands ready to legislate should they fail to deliver progress. It is important to make that point—that we would be prepared to legislate—and that is why the Bill is well made in principle. I echo the hon. Gentleman’s comments that we stand ready to intervene, but in the first instance we want the football authorities to get their own house in order. We believe they need more time before legislation is considered appropriate.
Use of the football creditors rule is in decline, because all the relevant football authorities encourage a more responsible framework of financial operations. We have considered a thorough exploration of the barriers to supporter ownership and continue to discuss wider governance reform with the football authorities. These measures show significant progress and we are confident at this stage that we should continue to work with the football community, rather than bring in legislation.
Damian Collins
On the scope of the Bill, this version was intended to apply to England only. I was advised by the Public Bill Office that these were devolved matters, and I would not seek to interfere with the devolved Administrations in Wales and Scotland. However, I believe that the provisions could easily apply across the whole of the UK, and I would certainly welcome the views of the House on that.
I am grateful for the support of the hon. Member for Eltham (Clive Efford) and to the Minister for saying that the Government supported the principle of the Bill but wanted more time to work with the football authorities. I hope they will continue this active dialogue, but I think it would be helpful for the authorities to see the collective view of the House. It was the opinion of my right hon. Friend the Member for Faversham and Mid Kent (Sir Hugh Robertson) that a football Bill need not be a Government Bill, but could be a private Member’s Bill with cross-party support, and it would now be helpful to see how the Bill takes shape in Committee so that the football authorities can see the will of the House and understand its desire to see action taken and to legislate if the authorities do not deliver that reform. I will be the first to applaud them if they act without Parliament’s needing to intervene, but so far they have seemed reluctant to do so. Therefore, I ask the House to give the Bill a Second Reading.
Question put, That the Bill be now read a Second time.
Road Traffic Regulation (Temporary Closure for Filming) Bill
Iain Stewart (Milton Keynes South) (Con)
I beg to move, That the Bill be now read a Second time.
I am grateful for the opportunity to present the Bill, not just as one with a long-standing interest in transport measures, but as the representative of the great town and new city of Milton Keynes. It may not immediately be thought of as a great film venue, but I shall seek to correct that misapprehension. Next week a great film, “The Imitation Game”, part of which was shot at Bletchley Park in my constituency, will be on general release, and many other big Hollywood films, including “The Fourth Protocol” and one of the Superman films, were shot in Milton Keynes. For those two reasons, I seek to introduce this measure.
Before I move on to the substance of the Bill, I would like to thank Creative England, Film London and the British Film Commission, who have shown strong support for the Bill. Finally, I would like to thank the councils in London, Kent, Hertfordshire and Buckinghamshire, who have all shared their wisdom and expertise and helped to prepare for it.
The film industry is hugely important to the UK economy and contributes over £1 billion a year to GDP. We want to ensure that the industry continues to grow and that it maintains its competitive edge, and remove barriers to growth. This Bill seeks to do just that by amending the Road Traffic Regulation Act 1984. It will make it easier for traffic authorities in England and Wales to close roads for the purposes of facilitating filming. Importantly, these powers already exist for other types of road closures, such as street parties and road cycle events, but there is no express power to close a road for those who want to shoot a film.
Some local authorities, including in Greater London, Kent and Hertfordshire, have already realised the benefits of this and have sought their own powers through local Acts of Parliament to enable them to close roads for filming. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) has brought forward a private Member’s Bill for that purpose covering Buckinghamshire. My Bill will provide a national provision for all traffic authorities in England and Wales to prohibit or restrict traffic for the purposes of facilitating filming or reducing disruption to traffic likely to be caused by filming.
The current law is unsatisfactory. My Bill will provide a sound legal basis on which all local authorities can act, as well as remove the burden from local authorities of taking forward their own private Bills, which are both costly and time consuming. The Bill will create a level playing field for all local authorities. It will benefit the film industry and the economy, making it easier for film production companies to shoot in areas outside London and other selected areas. It will also make the UK an even more attractive filming destination for domestic and inward investment productions.
Such laws already exist for other purposes. This is a simple measure that will bring the laws into line, and it will also boost the film industry, and I therefore commend the Bill to the House.
Mr Christopher Chope (Christchurch) (Con)
I had not intended to speak for long on this subject, but as my hon. Friend the Member for Milton Keynes South (Iain Stewart) says—I congratulate him on bringing forward this Bill—the Buckinghamshire filming Bill is a private Bill which is currently going through this House and is due to have its Third Reading on Monday, or perhaps Tuesday, next. That is the right way to deal with Buckinghamshire, rather than through a piece of national legislation. When that Bill gets on to the statute book, Buckinghamshire will be able to carry on filming in accordance with the provisions of that Bill.
What I do not like about my hon. Friend’s Bill is the power it gives to repeal or amend other local Acts. He referred to the Kent county council highways Bill and provisions in place in London, and I think it is important that those authorities who have tailor-made legislation on the statute book in relation to filming should be able to keep them in place. We should not pass legislation that says the Secretary of State can, by regulations made by statutory instrument, amend or repeal any provision of a local Act. That would be a dangerous precedent.
I also think such measures on closing the highway for particular purposes should be brought forward by the Government—if they want to change the primary legislation and impose that change on the whole of the country—and I think some other Bills on the Order Paper today should be brought forward by the Government, too, so they can be properly considered by this House with sufficient time. It is not my hon. Friend’s fault that we have only limited time to discuss his Bill today, and I hope that in due course there will be more time available so that we can go into more detail. Unlike the School Admissions Bill which we were discussing earlier, this is not a short Bill. The explanatory notes alone extend to six pages, and there is an impact assessment that sets out the effects of the proposed legislation. The Bill needs to have a lot more scrutiny—
Business without Debate
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Hon. Members
Object.
Bill to be read a Second time on Friday 21 November.
House of Lords (Maximum Membership) Bill
The Minister of State, Cabinet Office (Greg Clark)
I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 21 November.
Wild Animals in Circuses Bill
Motion made, That the Bill be now read a Second time.
Mr Christopher Chope (Christchurch) (Con)
On a point of order, Madam Deputy Speaker. On my Order Paper, we have next the EU Membership (Audit of Costs and Benefits) Bill.
Madam Deputy Speaker (Mrs Eleanor Laing)
The hon. Gentleman’s point of order has been noted. The Clerk will now read Bill No. 8 on the Order Paper.
EU Membership (Audit of Costs and Benefits) Bill
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Debate to be resumed on Friday 21 November.
Wild Animals in Circuses Bill
Motion made, That the Bill be now read a Second time.
Stafford Hospital
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jeremy Lefroy (Stafford) (Con)
It is a great pleasure to see the Under-Secretary of State for Health, my hon. Friend the Member for Mid Norfolk (George Freeman) back in his place this afternoon. I apologise for bringing him back to the House. In fact, I do not apologise, because this is a matter of great importance and I know that he shares my interest in it and my concerns.
On the first day of this month, Stafford hospital, now the County hospital, became part of the University Hospitals of North Midlands Trust together with the Royal Stoke University Hospital. The Mid Staffordshire Trust which had run Stafford and Cannock Chase hospitals was dissolved. I wish to speak first about the new arrangements, secondly about the transition and finally about the services that I and my constituents strongly contend are needed in Stafford. I welcome the coming together of our hospital into the larger university trust. I am also very pleased that Cannock Chase hospital will continue to offer an important service as part of the Royal Wolverhampton Hospitals NHS Trust.
Mr Aidan Burley (Cannock Chase) (Con)
I congratulate my hon. Friend on securing the debate and on his herculean efforts to support his local hospital. I have no doubt that those efforts will be rewarded at the next general election by his constituents. He has mentioned Cannock Chase hospital. Does he agree that it is important, in this transition phase, that all the services currently provided at Cannock should remain there and be increased and improved as we move towards the new model of ownership under the Royal Wolverhampton Hospitals NHS Trust? Will he also join me in congratulating the new Conservative candidate for Cannock Chase, Amanda Milling, on all her campaigning efforts to ensure that those services stay at Cannock?
Jeremy Lefroy
I am most grateful to my hon. Friend for fighting alongside me for the preservation of the Stafford and Cannock hospitals. We said at the time that there was not a cigarette paper between us because, when people were saying that one or other of the hospitals should close, we said, “Absolutely not. Both are essential for our communities.” I thank him for that work.
Stafford becoming part of a university hospitals trust brings many opportunities for patient services, for staff training and development and for the NHS in my constituency. The same opportunities will now be available to Cannock Chase hospital under its new arrangements in the Royal Wolverhampton Hospitals NHS Trust. Our hospital will receive substantial capital investment, resulting in refurbished theatres and wards, chemotherapy and dialysis wards and a larger accident and emergency department.
After the tragic events examined by Sir Robert Francis in his two reports, there has been a great deal of improvement at Stafford. That is not in any way to be complacent, but it is a measure of the hard work of the staff, under Antony Sumara, Lyn Hill-Tout and Maggie Oldham as chief executives, and the chairs, Sir Stephen Moss and Professor John Caldwell. I also pay tribute to the governors and directors of the trust, who have put in so much time and effort in these difficult times. However, the staff must receive the most credit. They have worked tirelessly, under great strain and tremendous scrutiny, to provide excellent care. With so much focus, and rightly so, on our NHS, it would be easy for people to walk away from serving in difficult situations, but most in Stafford have not done so. They wish to serve our community through thick and thin, without much recognition and sometimes facing criticism.
In the past few years, I have heard several predictions about Stafford hospital: that it would close; that it would be privatised; and that it would become a “cottage” hospital. None of those has come to pass. Through the determined efforts of staff and the local community, in particular, through the hard work of the Support Stafford Hospital group and others, and their representatives, we have shown the Government and the NHS that a district general hospital can and must thrive in Stafford, retaining accident and emergency and acute services. As a result, we will see unprecedented investment in Stafford, funded not through an expensive private finance initiative, but directly by the NHS, with refurbished theatres and many other things that I have already described. That is in addition to the new endoscopy unit, which I visited just two weeks ago. It is three times the size of the old one, which I experienced as a patient, with state-of-the-art equipment, and it was designed in full co-operation with the staff.
The investment we are receiving is much greater than was originally proposed; and I wish to pay tribute to the work of all involved in making the case: the University hospital of north Staffordshire, the trust special administrators and Mid Staffs. I have gone on record before, and will continue to do so, about the grave shortcomings of the TSA process, which I would wish on no one in its current form, but the TSAs did fight the corner for Stafford and Cannock, and achieved more than at one stage had seemed possible. The Prime Minister, the Secretary of State and Ministers at the Department of Health have also been extraordinarily supportive, even when being bombarded by e-mails, letters and demands for meetings from me, my hon. Friend the Member for Cannock Chase (Mr Burley) and other parliamentary and council colleagues from around Staffordshire.
The transition period is critical and presents many risks. We have been assured that no service will be moved from the County hospital, Stafford to the Royal Stoke, or indeed from Cannock to Wolverhampton, until it is safe to do so. That means that there should be not just sufficient capacity at the Royal Stoke or Royal Wolverhampton to receive patients, but adequate ambulance capacity to deal with many more patient journeys. I understand that emergency surgery and consultant-led maternity services are likely to be transferred early in 2015, possibly in January. In order for that to happen, we need firm assurances from the hospitals that the capacity is in place and from the West Midlands ambulance service that it will be able to cope with the additional journeys. We have been assured by the University Hospitals of North Midlands NHS Trust that a “double lock” will be put in place to ensure that, first, staff and management and, secondly, an outside independent body, including the clinical commissioning groups, approve any transfer of services and say it is safe for patients. The double lock is essential to public confidence in the process, especially the independence of the independent review—it is vital that we get it right.
The Royal Stoke university hospital’s A and E department has been at level 4— the highest alert—because of bed shortages, several times in the past few weeks. The main reason is that patients cannot be transferred out as there are insufficient step-down and community beds, or social care places. The additional acute beds being added at Stoke are welcome; but they will need to be operating before any service transfer happens. The problems with transfers out will also have to be dealt with. The board papers for the Stafford & Surrounds CCG meeting on 21 October show that the ambulance red 2 indicator—category A calls resulting in an emergency response within eight minutes—for the year to date is at 69.7% against the standard of 75%, and has been below the standard in each month since September 2013. The red 1 indicator has improved in August, but is at 66.7% for the year to date—again, that is against a standard of 75%. Will the Minister confirm what additional vehicles and paramedics the West Midlands ambulance service will have to ensure not only that it can bring its performance up to standard, but that it will be able to deal with extra journeys arising from the transfer of some services away from Stafford? Will he also confirm how closely the Trust Development Authority, to which the University Hospitals of North Midlands NHS Trust is accountable, is monitoring the transition period as County hospital, Stafford becomes part of the expanded trust? What support is the TDA giving to the University Hospitals of North Midlands to cope with any unexpected eventualities in the transition?
Finally, will the Minister also confirm that all the clinical commissioning groups in the area served by UHNM will be supported, too? Some of them, including Stafford and Cannock, face substantial underlying deficits of several million pounds per annum arising from what can only be described as unfair funding formulae. They are working hard to become ever more efficient, but what has been asked of them is almost impossible.
The transition period, which will last up to three years, is therefore extremely challenging. We have a newly expanded trust that is in deficit, an ambulance service that is failing to meet its current red 1 and red 2 targets, and CCGs that are underfunded. I firmly believe that we will succeed in seeing a stronger acute trust in Stoke and Stafford at the end of this, but the problems that I have set out must be addressed.
Finally, I turn to future services at the County hospital, Stafford. As a result of the campaign that we have all fought locally, the vast majority of services will remain. It is estimated that 91% of patient attendances will still take place there, as there will be an A and E department and in-patient beds for acute medical patients. But there are areas in which I will continue to make the case for improved services. The first is to return the A and E department to a 24/7 operation. Even now, staff are attending to patients up until the early hours of the morning. It would not take a great deal to extend the cover so that the A and E can remain open between 10 pm and 8 am.
I have heard of a number of cases of elderly patients who are so concerned about travelling what they see as a long distance, away from their friends and family, that even in emergencies they resist travelling, preferring to wait until the A and E in Stafford opens at 8 am. One such case in particular had tragic consequences.
There is welcome news that a doctor-led overnight service is likely to open early in 2015 at the County hospital, Stafford. That should enable those with non-999 emergencies, including those involving children, to receive advice and some treatment locally. But I see it as a stepping stone back to the service that my constituents need, which is a 24/7 A and E department.
I will also continue to argue for A and E services for children, with the ability to keep them in hospital for a period until they are ready either to return home or to be transferred to a specialist unit. It is vital that, wherever possible, children above all are treated near to or at home—close to their family and friends. It cannot make sense for a parent, who has other children and possibly no private transport, to have to arrange child care and undertake a round trip of perhaps three to four hours by public transport to visit a child who is in hospital but who does not need the most specialist care. I urge the Department of Health and the Royal College of Paediatricians and Child Health to look closely at that matter.
The in-patient paediatrics department in Stafford is not one of the smallest in the country, yet it will go next year, despite the fact that the cost per child is significantly lower than that at surrounding hospitals where they will now be sent. Will that really be the way forward for many other such departments? Surely there is a way to rethink in-patient care for children who do not need specialist treatment and who are likely to be in hospital for only a short period. At the very least, a 24/7 A and E department with a paediatric assessment unit staffed by paediatrically trained consultants would make sense.
Finally, there is the question of consultant-led maternity services. Originally the TSA proposed removing all births from Stafford. As a result of our campaign, it changed that proposal, and our hospital will remain with a midwife-led unit. When the Secretary of State announced that there would also be an NHS England-led review into the possibility of retaining consultant-led services at Stafford, we welcomed it. Stafford’s unit is small, but it is by no means the smallest in England. We contend that, in a network with the larger unit at Royal Stoke university hospital, it should be possible to maintain our unit and thus offer women who need obstetrician-led care the choice of giving birth in a smaller unit, as they do in most other European countries. When it comes to maternity services, I will continue to argue that big is not always better.
The review that was promised has not yet started, although I understand it will happen soon, but it will report after our consultant-led unit has closed. I would like an undertaking from the Minister that if the review recommends that smaller units such as ours should remain, it will reopen at Stafford and the resources will be made available for that.
I should also like the Minister to confirm when the review will begin, who will be doing it and how long it is likely to take. It is also essential that the review of Stafford and surrounding services only takes place first, and as soon as possible, to be followed by a national review coming later. The last thing that the expectant mothers of Stafford need is a long drawn-out process. I was promised a review, as were we all, of Stafford’s maternity in this House, and I should be grateful for the Minister’s confirmation that the commitment stands.
Maternity services, I believe, need to be commissioned more widely than just by CCGs. Government policy is to give women a good choice as to where they have their baby, and I welcome that, but CCGs in places like Stafford are too small to support the commissioning of a local unit. The original intention, I believe, in the run-up to the Health and Social Care Act 2012, was for maternity services to be commissioned by NHS England, not CCGs. That would allow the development of a proper national policy of choice for women, and I would ask the Minister to consider that very carefully.
In Stafford, great progress has been made in recent years. I am determined to do all I can to ensure that we, together with the Royal Stoke university hospital, have one of the finest acute trusts in the country. The retention of the County hospital, Stafford as a district general hospital with acute services and accident and emergency gives us the chance to show that a local acute hospital is not an outmoded institution which, as it was predicted only a few years ago, would soon be extinct. Instead, we can become a prime example of a thriving local acute hospital for the future.
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (George Freeman)
It is an absolute pleasure to be back at the Dispatch Box this afternoon. It is a tribute to the tireless commitment of my hon. Friend the Member for Stafford (Jeremy Lefroy) that, not content with successfully piloting the Health and Social Care (Safety and Quality) Bill through its Second Reading this morning, he has called me back this afternoon for a debate on services at Stafford hospital. I think I speak for the whole House, including Members not present today, when I pay tribute to his tireless commitment, both to his constituency and to the local NHS in his area. The way in which he has gone about it has commanded respect across the House.
My hon. Friend raised many important points, as did my hon. Friend the Member for Cannock Chase (Mr Burley), in support of new investment, importantly paying tribute to the work of the staff as well as the directors and governors. On behalf of the Department, I would echo his comments. He also raised important points about the transition period, the specific needs of children, the ambulance service and the review of maternity services, and the significant point that Stafford appears to be demonstrating that it is perfectly possible to be a thriving local acute hospital. I shall try to deal with all my hon. Friend’s points, but If I do not, perhaps he will be good enough to allow me to write to him and deal with them properly that way.
The configuration of health services is an important issue for many hon. Members across the House and their constituents, particularly those who have previously experienced poor care from local health services. We all agree that all patients should receive high-quality, compassionate care. That is why the Secretary of State has made care a crusade in his leadership at the Department. We are all aware of the appalling lapses of care that were all too often received by patients at Stafford hospital in that terrible period.
The first of November marked a new beginning for local health services, with the dissolving of the Mid Staffordshire NHS Foundation Trust and the launch of the new University Hospitals of North Midlands NHS Trust. Over £250 million of investment is being put into health services in Staffordshire, including significant investment into County hospital.
Past events at Mid Staffordshire will not be allowed to cast a shadow over the future of health services in Stafford. Thanks to the hard work of many, not least my hon. Friend the Member for Stafford, County hospital has a bright future and will offer modern, safe, sustainable services for local people now and in the future. As my hon. Friend has said, much progress has already been made and significant investment is being made in health services in Staffordshire to ensure that that progress continues. The current service specification at University Hospitals of North Midlands NHS Trust is that recommended by the trust special administrator and has been subject to consultation and endorsed by the Secretary of State for Health. Changes to the service specification will only occur on the grounds of patient safety.
Let me reply to the specific points made by my hon. Friend the Member for Stafford. Accident and emergency departments are often the most visible hospital service, and local people therefore often focus on A and E services when looking at changes to their local hospital. Local protests have been held on the grounds of County hospital against the transfer of services. There has been some speculation that A and E at County hospital will be downgraded. Let me take this opportunity to say that that is not the case.
The A and E service will continue to operate 14 hours a day, seven days a week. In fact, thanks to significant investment, the A and E department at County hospital will double in size and have a dedicated space for treating children. That expansion will address overcrowding. The number of staff working in A and E will increase and all consultants working in the department will be trained in paediatrics.
I understand that my hon. Friend and some of his constituents would like County hospital to operate a 24-hour A and E service. It is important to note that the A and E in Stafford has operated 14 hours a day since overnight services were removed in 2011. Of course the decision to close A and E overnight was taken in the interests of patient safety.
Work by the trust special administrators has confirmed that a 24-hour consultant-led A and E remains unsustainable at this time. However, a GP-led service is planned to operate overnight in County hospital from April 2015. Therefore, those patients with conditions that are not life-threatening but that require medical treatment or advice will not need to travel outside of Stafford, no matter the time of day or night. I understand that work by local commissioners is under way to look at the possibility of an interim solution until 2015.
Investment is being made to improve A and E performance across the University Hospitals of North Midlands NHS Trust. Indeed, £80,000 of winter money has been allocated to an improvement plan that aims to have the trust consistently meeting the A and E target by March 2015. In total, £4.5 million will be invested in supporting A and E performance at the trust and a further £4 million across Staffordshire.
My hon. Friend mentioned the West Midlands ambulance service. The continued good performance of that service will be important to ensure success in both service transitions and to improve A and E performance. WMAS has been thoroughly involved in planning, and my hon. Friend has had regular and productive meetings with Dr Anthony Marsh, the trust’s chief executive.
Of course, as with all other ambulance services, WMAS is dealing with increasing demand, but I can assure my hon. Friend and his constituents that WMAS is fully engaged in the changes across Staffordshire. As he knows, A and E hours were reduced in 2011 in the knowledge that the ambulance service could and would ensure that patients were taken to neighbouring hospitals.
Jeremy Lefroy
I am grateful to the Minister for that reassurance. I pay great tribute to the staff, paramedics and everyone at WMAS—they do a fantastic job—but sometimes what is said at the top of the service and what is actually going on at the bottom are slightly different. I am not trying to point the finger at anyone. Everyone is trying to do their best. People do not want to admit sometimes that there are real capacity problems, because they want to be seen to be getting on with the job. I ask the Minister to look at this case quite closely, particularly as the indicators have been red for so long.
George Freeman
My hon. Friend makes a really important point, and I shall be happy to look at it, as he suggests.
Ambulance diversion from Stafford to larger hospitals for life-threatening conditions—stroke, cardiac arrest or serious trauma—had been in place for some time before the overnight suspension, as my hon. Friend will know. In other words, the ambulance service already has a number of years’ experience of these arrangements. The local clinical commissioning group commissioned additional ambulance service provision to cover both overnight and daily divert activity. That extra provision will remain in place.
Stafford & Surrounds CCG reports that the ambulance service’s performance on the red 1 target in its local area has shown a general upward trend. The target was met in six of the eight months between January and August 2014, and the figure was 77.8%, against a 75% standard, in August 2014. The red 1 target measures performance on the most critical calls that the ambulance service receives: calls to patients in immediately life-threatening situations where a rapid response is vital.
Across the whole trust area, the service met all three performance targets in September 2014, the latest month for which centrally verified data are available. Its performance on red 1 calls was 83%, against a 75% standard. It also met the red 1 and category A19 standards in the six months between April and September.
As I know from my Norfolk constituency, rural areas, such as those served by large parts of Stafford & Surrounds CCG, present challenges to ambulance services across the country. West Midlands ambulance service and local commissioners are working together to ensure that the ambulance service continues to cope with the changes in Stafford and the wider challenges of serving a rural region at a time of increased ambulance pressures across England.
I will touch on the transfer of maternity services. Early next year, in line with best practice guidelines, some services will transfer from County hospital to the Royal Stoke University hospital. That will begin on 16 January 2015 with the temporary transfer of consultant-led maternity services. A stand-alone, midwife-led maternity service will open at County hospital.
Jeremy Lefroy
We were given assurances that no services would be transferred without the double lock, which assures that the capacity and safety of the services would be guaranteed in the case of transfer. We now have a specific date for the transfer of services. When can we see the evidence of the double lock for safety and capacity?
George Freeman
My hon. Friend makes a good point. I will undertake to look into that and get back to him.
Women who require care provided by an obstetrician or anaesthetist will be cared for in Stoke, and transport between the two hospital sites will be improved. Those changes to maternity services are temporary, as I have stressed, pending the outcome of the review, which is due to report in June 2015. Other services will transfer permanently to Stoke, including acute and emergency surgery, which will move in February 2015. In-patient paediatrics, including in-patient paediatric surgery, will move by the end of March 2015.
These decisions are made in the interests of patient safety. Let us not forget that the root of past problems was unsafe services at Stafford. The local NHS, led by local doctors, has therefore made the decision to transfer services based on clinical evidence, with patient safety rightly at the forefront of all decision making.
Consideration has also been given to patients’ wider needs and travel distances. For example, the movement of in-patient paediatric services will create access to high-dependency services and intensive care and to tertiary specialist opinions, reducing the need for patients to travel to Birmingham. Provision will also be made for parents to accompany their children to Stoke when travel is required out of hours, including supplying accommodation if needed.
It is understandable that people have concerns when change is proposed. I have no time for those who want to frighten patients in the face of change. It is important to remember that change is sometimes needed to ensure the best outcomes for patients. We know that there were serious failings at Stafford, and it is important that the University Hospitals of North Midlands NHS Trust is able to make changes to services where they will benefit patients and ensure that County hospital provides the high-quality, safe care that local people deserve.
Turning to the future of County hospital, over £250 million is being invested in health services in the years ahead. The hospital’s A and E department will double in size and see an increase in its staff numbers. Out-patient facilities will be expanded, particularly for emergency access clinics. Wards and operating theatres will be refurbished and upgraded to be fit for 21st century medical care. There will also be new services, including a £1.2 million MRI scanner that will offer advanced diagnostic services in Stafford for the first time, which means that more than 6,000 patients who currently travel to Cannock and Stoke will be treated closer to home. Eye surgery, orthopaedics, dermatology and a new assessment unit for frail elderly people are also services that County hospital will begin to offer.
Progress is already well under way. On 1 November the Mid-Staffordshire NHS Foundation Trust was dissolved and County hospital joined the Royal Stoke University hospital under the new University Hospitals of North Midlands NHS Trust. Thanks to the hard work of many people, the process of transferring County hospital to the new trust has gone smoothly. A number of assurance processes were in place leading up to the transfer, including oversight and scrutiny of the quality and safety handover documents. That process has been overseen by the local transition board, chaired by Sir Neil McKay, an independent chair who is accountable to the CEO of the NHS Trust Development Authority. The local transition board will continue to provide oversight to ensure the safe implementation of the new service model at the new trust.
Finally, turning to CCG funding, in December 2013 NHS England adopted a revised funding formula for local health commissioners that more accurately reflects population changes. The new funding formula is based on up-to-date and detailed information and takes into account the three main factors in health care needs: population growth, deprivation and the impact of an ageing population. All CCGs have received a funding increase matching inflation for 2014-15.
The people of Staffordshire were badly let down by the local NHS in the past. The appalling difficulties that were too often uncovered gave people in the area reason to fear for the future of the hospital and to be very disappointed, rightly, at the level of service that was provided. The local NHS has worked hard to address the failings in care and to bring about substantial improvements. I pay tribute to the work it is doing. The opening of the new trust on 1 November marked a new beginning for the NHS in Staffordshire. I want to put on record the debt we owe to all those who have worked so hard to get the hospital turned around.
There is still work to be done to ensure that services in Staffordshire are of high quality and sustainable. My hon. Friend has encouraged his constituents to support County hospital and to access local treatments where appropriate, and I give the same message here today. Local engagement and support are key to the development of local services. I assure him that if his constituents are anxious about the quality of services, they can be sure that County hospital in Stafford will be under a level of public scrutiny that nowhere else in the NHS has seen. In my hon. Friend, the people and patients of Stafford could have no more doughty a champion.
Question put and agreed to.
Written Statements
(9 years, 6 months ago)
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Competition Appeal Tribunal and Competition Service
(9 years, 6 months ago)
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The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)
The triennial review of the Competition Appeal Tribunal (CAT) and the Competition Service (CS) commenced on 21 August 2013 and I am now pleased to announce the completion of the review.
The CAT was established by the Enterprise Act 2002, which came into force on 1 April 2003, to hear appeals against certain decisions of the UK competition authorities and economics regulators. It is a specialist body with cross-disciplinary expertise in law, economics, business and accountancy. The Enterprise Act 2002 also created the Competition Service: a body corporate and executive non-departmental public body whose purpose is to fund and provide administrative and legal support services to the Competition Appeal Tribunal.
The review has concluded that the CAT has a vital role to play in determining regulatory and competition appeals, which have important consequences for the wider economy and the Government’s growth agenda; and should therefore remain as a specialist tribunal NDPB.
The review also concludes that the functions performed by the Competition Service should be retained but should be merged with those of the CAT to form a single body, a specialist tribunal NDPB with its own support functions. The merger should be taken forward as soon as parliamentary time allows.
Stage 2 of the review examined the governance arrangements for both the CAT and the CS to assess compliance with statutory accountabilities and confirm that appropriate governance arrangements were in place. The review concluded that overall compliance with recognised principles of good corporate governance was good and should be rated green. However, the review also identified a number of recommendations to improve how the governance functions will operate in the context of the new merged body.
The full report of the review of the Competition Appeal Tribunal and the Competition Service can be found at: https://www.gov.uk website and copies have been placed in the Libraries of both Houses.
Council for Science and Technology (Review)
(9 years, 6 months ago)
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The Minister for Universities, Science and Cities (Greg Clark)
Commencement of the Triennial Review of the Council for Science and Technology (CST) was announced in Parliament through a written ministerial statement on 15 April 2013 and I am now pleased to announce the completion of the review.
The Council for Science and Technology was established in 1993 in response to the Government White Paper “Realising our potential: a strategy for science, engineering and technology”. It replaced the Advisory Council on Science and Technology. It is an advisory non-departmental public body to the Prime Minister but, for administrative purposes, it is sponsored by BIS and was therefore included in the programme of triennial reviews undertaken by BIS.
The review concludes that the functions performed by the Council for Science and Technology are still required and that it should be retained as an advisory non-departmental public body. The review also examined the governance arrangements for the Council of Science and Technology in line with guidance on good corporate governance set out by the Cabinet Office. The review concluded that the council operates in line with the principles of good corporate governance for an organisation of its size, but there are a number of opportunities to improve it functions.
The full report of the review of the Council for Science and Technology can be found at: https://www.gov.uk website and copies have been placed in the Libraries of both Houses.
ECOFIN
(9 years, 6 months ago)
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The Chancellor of the Exchequer (Mr George Osborne)
A meeting of the Economic and Financial Affairs Council will be held on Brussels on 7 November 2014. Ministers are due to discuss the following items:
Revision of VAT and gross national income (GNI) own resources balances 1995 -2013
The Commission will provide information on adjustments to EU budget contributions, focusing on the revision of VAT and GNI own resources balances between 1995 and 2013.
Financial transaction tax
The Council will hold a state of play discussion on the proposal for a Council directive implementing enhanced cooperation in the area of a financial transaction tax.
Standard VAT return
The Council will hold a state of play update on the proposal for a Council Directive amending directive 2006/112/EC on the common system of value-added tax, as regards a standard VAT return.
Parent subsidiaries directive
Ministers will aim to reach political agreement on the proposal for a Council directive amending directive 2011/96/EU on the common system of taxation applicable in the case of parent companies and subsidiaries of different member states.
EU statistics
Ministers will be asked to agree the annual set of Council conclusions on EU statistics.
Preparation of the 20th conference of parties to the United Nations Framework convention on climate change (UNFCCC).
Ministers will be asked to agree a set of Council conclusions in preparation of the 20th conference of parties to the United Nations framework convention on climate change (UNFCCC), which will take place in Lima from 1 to 12 December 2014.
Employment Allowance
(9 years, 6 months ago)
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The Financial Secretary to the Treasury (Mr David Gauke)
Today I am announcing the latest figures for take up of the Employment Allowance scheme that came into effect in April this year.
The Employment Allowance allows businesses and charities across the UK to claim an allowance of up to £2,000 every year to reduce their National Insurance contributions (NICs). The allowance is part of the Government’s commitment to support small businesses: by reducing the cost of employment, the Employment Allowance will help small businesses seeking to grow by hiring their first employee or expanding their existing workforce.
Today I can confirm that take-up of the Employment Allowance has been very positive. The most recent HMRC figures to 5 October 2014 show that around 856,000 employers have benefited from the allowance. That represents around 68 % take up across the UK as a whole after only 6 months of the operation of the allowance.
In total around £900 million of employer NICs relief has been claimed by businesses through the allowance.
These latest figures demonstrate our commitment to increase employment by reducing burdens for small businesses and show that businesses have recognised this and are responding to Government policies in this area. I will update the House in due course about the Employment Allowance when more information becomes available.
The latest figures are available on HMRC’s website and, in line with the commitments made during the passage of the National Insurance Act 2014, a copy of this statement and the latest figures have been placed in the Libraries of both Houses.
I know that all Members have an interest in promoting business opportunities in their constituencies, so I would urge Members to help make businesses aware of the benefit of the Allowance.
Financial Policy Committee(Leverage Ratio Framework)
(9 years, 6 months ago)
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The Economic Secretary to the Treasury (Andrea Leadsom)
The Government have today published a consultation on granting the independent Financial Policy Committee (FPC) new powers over a leverage ratio framework for UK banks, building societies and investment firms.
On 26 November 2013, the Chancellor wrote to the Governor asking that the FPC undertake a review of the leverage ratio and its role in the regulatory framework. On 11 July 2014, the FPC published a consultation paper setting out its initial proposal for a leverage ratio framework and sought the views of the industry. On 31 October 2014, following almost a year of work and extensive consultation with stakeholders, the FPC published its response, the Review of the Leverage Ratio. The review recommended that the FPC be given new powers of direction over the leverage ratio framework for the UK banking sector. Specifically, the review recommended that the FPC should have a power of direction to set:
The minimum leverage ratio requirement to be set at 3%;
The supplementary leverage ratio buffer rate to be set as a proportion of the systemic
risk-weighted capital buffers using a scaling factor of 35%; and
The countercyclical leverage ratio buffer rate to be set as a proportion of the countercyclical capital buffer rates using a scaling factor of 35%.
In response to this recommendation by the FPC, the Government are consulting on legislating to give the FPC powers of direction over leverage ratio requirements. Currently, the FPC can only make recommendations in relation to these tools.
The consultation that has been published today contains draft secondary legislation that will provide the FPC with the new powers of direction. The Treasury seeks responses to the consultation by 28 November 2014, in advance of laying the secondary legislation before Parliament in early 2015.
The consultation document The Financial Policy Committee leverage ratio framework has been published on the Gov.uk website and found using the following link:
https://www.gov.ukgoverment/consultations/financial-policy-committees-leverage-ratio-framework.
Religious Studies (GCSEs and A-Levels)
(9 years, 6 months ago)
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The Minister of State, Department for Education (Mr Nick Gibb)
In April this year, the Government announced that GCSEs and A-levels in religious studies, design and technology, drama, dance, music and physical education––and GCSEs in art and design, computer science and citizenship––would be reformed for first teaching in September 2016.
The Department has already consulted on proposed subject content for art and design, computer science, dance, music and physical education, and is currently consulting on proposed subject content for drama, design and technology and cooking and nutrition. Today, we are publishing for consultation new subject content for religious studies. At the same time, Ofqual, the independent regulator of qualifications and examinations for England, will consult on the proposed assessment objectives for this subject.
These new qualifications are intended to provide students with the knowledge and understanding that will prepare them for further and higher education and future employment. In common with all our reformed GCSEs and A-levels, they will be high-quality, demanding and academically rigorous qualifications.
The revised content for religious studies GCSE and A-levels is designed to provide students with a broader and deeper understanding of religion than previous specifications. For the first time, students studying the religious studies GCSE will be required to study two religions. As well as studying key scripture and religious texts, students will have the opportunity to learn about critiques of religion and other non- religious beliefs through the study of philosophy and ethics. In addition, it will be a requirement for students to be aware of the diverse range of religious and non- religious beliefs represented in this country and the fact that the religious traditions of Great Britain are, in the main, Christian.
For the thousands of church and faith schools in this country these reforms will enable them to build on their strong academic performance and the important role they play in their communities and wider society.
In future, all RS GCSE students will spend at least half their time engaging in an academically rigorous study of two religions. In all, students will have the option to spend up to three-quarters of their time studying one religion. These changes are an important part of ensuring the new GCSE is as broad and rigorously demanding as other GCSE subjects. In the same way that a well-educated GCSE history student would be expected to learn about more than just British history, we expect well- educated religious studies GCSE students to know about more than one religion. It will also help to prepare students for life in modern Britain, foster an awareness of other faiths and beliefs, and encourage tolerance and mutual respect––key British values that are non-negotiable and a vital part of a secure future for Britain.
At A-levels, students will study at least one religion in depth through two of the following three areas of study: the systematic study of religion; textual studies; and philosophy, ethics and social scientific studies. These broadly reflect the main areas of study at higher education and will ensure that students have sufficient breadth and depth of understanding to support progression to higher education.
This consultation is an important part of the reform process enabling all those with an interest in this subject to provide their views. We will consider carefully all responses received in determining the final content. The consultation on reformed subject content for religious studies GCSE and A-levels will be available today at: https://www.education.gov.uk/consultations. Ofqual’s consultation on assessment arrangements will be available on its website at: http://ofqual.gov.uk.
House of Lords
Assisted Dying Bill [HL]
(9 years, 6 months ago)
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Lord Falconer of Thoroton
That the House do now resolve itself into Committee.
Lord Newby (LD)
My Lords, it may be for the convenience of the House if I highlight the estimated rising time of 5 pm that is advertised in this morning’s edition of today’s list. Noble Lords will be aware that it is a firm convention that the House normally rises by about 3pm on Fridays but in view of the level of interest in this Bill, as reflected in the volume of amendments tabled, we anticipate that the House may wish to sit a little beyond 3 pm on this occasion. As ever, progress on the Bill of the noble and learned Lord, Lord Falconer, and our rising time will ultimately be in the hands of the House.
Lord Trefgarne (Con)
My Lords, before the House resolves itself into a Committee on the Bill, as I have no doubt it will in a moment, can the noble Lord who has just spoken say whether there are any further plans? There are 175 amendments on the Order Paper today and I doubt very much that they will be finished. Are there any plans for a further day in Committee and does the noble Lord realise what effect that will have on all the other Private Members’ Bills waiting in the list?
Lord Newby
My Lords, it would not be conducive to making progress and good use of the time available today if we started thinking about what happens after today. We will decide what we do after today after today.
Lord Deben (Con)
On a further point, may I ask my noble friend two things? First, what discussions took place with the interested parties? I do not mean the parties on either side because this is, after all, a cross-party division. Secondly, what are the precedents for this and will he ensure that this does not become a precedent for all kinds of Bills in the future?
Lord Newby
My Lords, my noble friend the Chief Whip had numerous discussions earlier in the week with the principal protagonists on the Bill. On precedents, noble Lords will remember that we sat beyond 5 pm for the Second Reading of the Bill from the noble and learned Lord, Lord Falconer, as we did in the 2005 Parliament when the noble Lord, Lord Joffe, brought forward a Bill on the same subject. The House sat beyond 5 pm for its Second Reading on that occasion. If your Lordships look at the pattern of Fridays, we have risen at 3 pm or thereabouts on the vast bulk of them. This Bill is clearly unusual in its significance and the amount of attention that it has generated, both inside and outside your Lordships’ House. I do not think that either my noble friend the Chief Whip or I detect any mood to move beyond 3 pm as a normal finishing time on Fridays.
Lord McAvoy (Lab)
My Lords, to follow up on that issue, will the Minister indicate how much consideration was given to noble Lords who do not stay in London? If no consideration was given to the inconvenience, extra travel time and all the rest of it for anyone who does not stay in London, that would only confirm the trend towards this place becoming a metropolitan House rather than a House of the United Kingdom.
Lord Newby
My Lords, consideration was given to that, which is why we are not suggesting that the House sit beyond 5 pm, although it is conceivable, given the number of amendments, that one could go on beyond even then. The other thing that was in my mind, although I cannot speak for anyone else, is that for the country, looking in at our deliberations, the idea that it would be impossible to sit beyond 3 pm on a matter of this importance does not necessarily put your Lordships’ House in a good light.
Lord Jopling (Con)
My Lords, to avoid confusion, and because the Minister tends to mumble, may I make it clear that the noble Lord, Lord Joffe, who presented the previous Bill was not me?
Lord Pannick
Lord Pannick (CB)
My Lords, it is a privilege to open the Committee stage of this important Bill, the significance of which is demonstrated by the very large number of your Lordships who are present today. The Second Reading debate on the Bill was commended by many observers outside the House as illustrating the expert scrutiny that this House applies to legislative proposals, and I am confident that your Lordships will demonstrate again today the enormous value of this House.
In the first group I shall speak to Amendments 1, 4 and 24, which are in my name and those of the noble Baronesses, Lady Neuberger, Lady Mallalieu and Lady Shackleton of Belgravia. I shall speak briefly because we have much business to get through. I support the Bill, but I think that adequate safeguards are essential. It would be improved, and some of those who are concerned about it may be reassured, if judicial safeguards were to be added.
These amendments would require that the person concerned must satisfy a judge of the Family Division of the High Court that they have made a voluntary, clear, settled and informed wish to end their life. Judges of the Family Division already decide the most profound questions of life and death. Can doctors separate two Siamese twins, knowing that one will die but that the operation is necessary to save the life of the other? Should the life support system be turned off for Tony Bland, a victim of the Hillsborough disaster who was in a persistent vegetative state? Judges already decide these questions of life and death—and, tragically, there are many of them—in a principled manner but also with great compassion, and, where necessary, they decide them speedily.
In the Nicklinson case, decided in our Supreme Court in June—I declare an interest because I represented the organisation Dignity in Dying—some of the judges suggested that a judicial safeguard for assisted dying would be appropriate and would provide greater protection for the vulnerable than they have under the present law. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, said at paragraph 108 of his judgment, that less protection for the vulnerable is provided by the current system of a lawyer from the DPP’s office inquiring after the event into the motives of the person who provided the assistance, and whether the individual concerned was voluntarily ending their life, than under a new law that would require a judge to be,
“satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way”.
The noble and learned Lord, Lord Wilson, at paragraph 205, and the noble and learned Baroness, Lady Hale, at paragraphs 314 to 316, spoke to similar effect. I respectfully agree with them, and I hope that your Lordships will too. Amendments 1, 4 and 24 would provide for these judicial safeguards. I beg to move.
Lord Carlile of Berriew (LD)
My Lords, I have put my name to Amendment 2 along with the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth, and I wish to speak to Amendment 2 now. It is always a pleasure to follow the noble Lord, Lord Pannick, and I both agree profoundly and disagree profoundly with the amendments that he has just proposed. I need to explain very briefly why I agree, because he has given a very cogent argument for that aspect of the matter, and, at a little more length, why I disagree. I and the two other noble Lords who have signed Amendment 2 have also signed a number of others and I will explain why in a moment. They propose a very different judicial system from that which has just been advocated by the noble Lord, Lord Pannick.
I agree with the noble Lord that there should be a court-based system. Indeed, that is what the Supreme Court, in the case in which he appeared with distinction, appears to have advised. The judgments in the Supreme Court are not uniform, of course, and a degree of interpretation is required to distil common themes from them. But in my view there are some. I often take train journeys from Euston to the north-west or mid-Wales and as I get on the train I show my ticket to the person standing at the platform entrance. Then the train manager comes round and asks for my ticket again, and, to my intense annoyance, never asks me for my senior railcard—he takes it for granted that I have one. I am sure other noble Lords here suffer the same indignity from time to time and wish it were otherwise. In a sense, that is a metaphor for my view of what is proposed by the noble Lord, Lord Pannick. What he has proposed is not a robust, analytical, court-based, evidence-founded system of whether it is right in law for a person to be given assistance to commit suicide. The way it has been drafted gives the court the opportunity to verify whether the procedures set out in the Bill have been carried out. There is no merits-based assessment in his recipe and I reject that approach.
That said, I agree entirely with the noble Lord that the Family Division of the High Court is extremely well equipped to deal with these cases. The adjudication on the switching off of life support machines, on Jehovah’s Witnesses refusing operations that involve blood transfusions and on other similar issues was very nobly pioneered by the Family Division of the High Court, particularly under the presidency of the noble and learned Baroness, Lady Butler-Sloss, who I am delighted to see in her place. The Family Division of the High Court contains on its bench real experts on issues that cover not only the nuts and bolts, complex as they are, of family life, but also the moral, ethical and even philosophical issues that may move decisions as to whether, for example, deaths should be allowed to take place in a particular way by the switching off of a life support machine. There is no doubt that the expertise lies there.
The clue to what I and the other two noble Lords who have kindly signed my amendment wish to do is actually to be found in another amendment, which we will debate in the next group. I think it is right to draw your Lordships’ attention to the very last amendment on the Marshalled List, Amendment 175, which provides that an applicant may,
“apply to the High Court of Justice for assistance with suicide if they consider that in the absence of such assistance their rights under Schedule 1 to the Human Rights Act 1998 would be breached”.
In other words, our court-based system is an evidence-based system which would require the High Court of Justice Family Division to decide whether there had been a breach of convention rights and, in particular, the convention right under Article 3 and, as it is always spoken of in this context, the article right which covers family life, privacy and so on.
The philosophical difference between me and the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, on this is about where the real decision-making should lie. In what I am sure I can be forgiven for calling the Falconer-Pannick approach—I hope I will be forgiven for the shorthand—we have a medical model for decision-making. In my approach, with the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries, we have a court-based approach to decision-making. I much prefer the experience of the courts and the court-based approach.
My father was a general practitioner. He was born in 1904. He practised in two countries in two very different capacities, spending the last decades of his life practising as a general practitioner in Lancashire. He was a very wise and reasonable man—my mother used to say I took after her. He always used to say to me that there are some wonderful people in the medical profession, but there are some terrible rogues as well, including famous ones, such as Dr Shipman. I spent 10 years, to my father’s great delight, as a lay member of the General Medical Council, and I saw a procession of outrageously badly behaved doctors going through the GMC conduct and health committees. They were very difficult to detect. It certainly did not amuse me as it amuses one or two senior Members of your Lordships’ House sitting opposite me who really should not find this a laughing matter.
I turn to the reason why we propose what we do, for there is a rational basis to this. I turn to exactly the same points as the noble Lord, Lord Pannick. I refer to the judgments in the Supreme Court of the noble and learned Lord, Lord Neuberger, the president of the court, and Lord Wilson. As the president of the court, the noble and learned Lord, Lord Neuberger, obviously has a very important role to play and is seen to represent a view, perhaps a corporate view of the court, although it does not flow from this case necessarily. Lord Wilson, as he pointed out during his judgment, has a very important role to play because he is by experience a very senior family court judge and has widespread experience of matters relevant to this issue.
It seems to me—other noble Lords may disagree with this—that two themes emerged from the Supreme Court judgment, if one can draw themes from 130 or so pages of several judgments, which is not easy. The first theme that emerged is that their Lordships thought that there is a possibility—they did not put it much higher than that—or perhaps something between a possibility and a probability, that there may be cases in which the Suicide Act, as amended, is incompatible with the European Convention on Human Rights and that therefore there might be a case, which has not arisen as yet, in which there might be what is called a declaration of incompatibility between existing United Kingdom statutory law and the European Convention on Human Rights. I am going to leave out of all today’s discussions that I raise any question about whether we should still have the European Convention on Human Rights because I think all reasonable people agree that if we did not have the European convention, we would have a convention with at least the same rights in it, so I park that point and hope that we do not have to return to it later.
Lord Wilson said that Parliament might consider setting up a situation in which the Family Division of the High Court would consider a large number of matters upon which evidence would be required to satisfy the court that there would indeed be a breach of convention rights justifying a declaration of incompatibility. My view is that declarations of incompatibility between European convention law and UK statutory law are extremely undesirable because they stir up the sort of political argument which I adverted to briefly a moment ago about whether we should have the convention at all. Lord Wilson said in paragraph 205 of his judgment that,
“Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a person’s wish to commit suicide was … voluntary, clear, settled and informed”.
He then set out in his list a to r—a long list—factors which the court might wish to investigate before deciding whether it could be so satisfied.
My Amendment 2, and all my other amendments on the judicial model, which we will be debating later, seek to provide exactly what Lord Wilson had in mind. I shall not go through the list from a to r because I do not want to take up undue time in your Lordships’ House as we have plenty to debate, although I would strongly recommend to your Lordships that nobody should speak on this issue without being able to put their hand on their heart and say that they have read Lord Wilson’s judgment, or at least paragraph 205. However, it includes, for example, the nature of the individual’s illness, physical incapacity or other physical condition; the aetiology of the condition; the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; the motive of the person proposing to give assistance; and any financial recompense or other benefit likely to be received by such person in return for or in consequence of the proposed assistance. Those are just five of the factors in the a to r list which he set out.
What I propose to your Lordships—in my view this is something that should have been taken up by the noble and learned Lord, Lord Falconer, in redrafting his Bill, as I believe he should have done, to a court-based model—is intended to provide—I do not speak for perfection in drafting—a complete court-based model in which the merits could be considered by a court in a proper way, just as it is done in other cases now. I believe that a system of this sort—contrary to the views which I conscientiously hold, by the way—might allow some cases of assisted suicide in those cases where it was shown beyond reasonable doubt that there was a breach of the relevant articles of the European convention.
Lord Framlingham (Con)
My Lords, I am not a lawyer, but I want to get something quite clear. Is all this happening while the family and the patient are wondering what is going to happen? Just how long is it likely to take?
Lord Carlile of Berriew
That is a very good question and I am very happy to answer it. Those who have studied these cases as they go through the Family Division know that it is capable of dealing with them very quickly indeed, according to the needs of the case. I believe that these cases would be given sufficient priority for them to be dealt with within a reasonable time—by which I mean days rather than months if necessary. There is really no difference between me and the noble Lord, Lord Pannick, on this subject because we both require the cases to go before the courts.
I should like to complete this because I have taken nearly a quarter of an hour and I do not want to take more than that—[Interruption.] This House must not seek to stifle debate on serious issues.
Lord Carlile of Berriew
I have in mind the words of the Companion. I say to any noble Lord who is intending to make this less than the sort of the debate we would hope for in this House that we will, if necessary, have a full discussion on all the issues. Please bear with me for another minute and a half or so.
I hope that the noble and learned Lord, Lord Falconer, will take back and consider in due course what is proposed in Amendment 2 as I do not wish to force the House to decide on these issues today. What is proposed is the sort of court-based model which could make the United Kingdom an exemplar to the world of how we have a judicial system that is flexible enough to take in cases at the extremes but sustains the principles in which it has long believed.
Baroness Tonge (Ind LD)
I thank the noble Lord for giving way. I would just like to ask a very simple question, because I am ignorant of these matters. How much would this cost for a dying patient who desperately wants to end his suffering surrounded by his family, and would he get legal aid?
Lord Carlile of Berriew
I am grateful to my noble friend. I believe that legal aid would be available if necessary under the exceptionality provisions. When I was asked this question yesterday, I reflected on the cost of the recent funeral of my own mother. I anticipate that these costs would potentially be about the same as for a funeral. We are talking about life and death here. My noble friend is a distinguished member of the medical profession. We are talking about taking a huge constitutional step which would allow a medical practitioner to participate in the killing of another human being, deliberately bringing about their death. This is very different from the doctrine of double effect, about which the noble Baroness, Lady Finlay, and other noble Lords have spoken on numerous occasions in your Lordships’ House. I do not regard the cost issue of life and death as being very significant in this context.
In conclusion, I hope that I have made the basic—
Lord Carlile of Berriew
When I have finished my sentence, I will give way. I hope that I have made the basic reasons clear. Now that I have finished my sentence, I will delay sitting down in order to respond to the noble Lord opposite.
Lord Warner
I am extremely grateful to the noble Lord. Does he accept that, under the amendment in the name of the noble Lord, Lord Pannick, the family court would have to have regard to the Human Rights Act in forming its judgment?
Lord Carlile of Berriew
I accept that the family court would have to have regard to the considerations which are set out in the amendment of the noble Lord, Lord Pannick. The difference between that amendment and ours is that ours sets out a very clear way in which the convention issues would have to be considered by the court rather than what amounts to verifying that a process has been followed. On the one hand, we have a process-driven amendment; on the other, we have a legal framework. I will happily give way to the noble Baroness.
Baroness Farrington of Ribbleton (Lab)
My Lords, I cannot speak for anyone else on these Benches. I smiled while the noble Lord was speaking because, when he was referring to the fact that there are occasionally rogue doctors, it occurred to me that rogue lawyers have occasionally been known, too.
Lord Carlile of Berriew
First, I would say that, when I see the noble Baroness smile, I always assume that she is smiling at me rather than at anything I am saying. She is known in this House for her ineffable charm and courtesy.
Lord Carlile of Berriew
Secondly, the noble Baroness has reminded me of something which I intended to say, did not say and therefore will say now. Yes, there are rogues in the medical profession and there are most certainly rogues in the legal profession and in politics. What we are talking about under this Bill is a model that relies, unacceptably in my view, on the medical profession.
Baroness Williams of Trafford (Con)
My Lords, before we continue, may I refer noble Lords to the Companion, which suggests that, in debates where there are no formal time limits, contributions are kept to 15 minutes?
Baroness Butler-Sloss (CB)
My Lords, I should like to continue on this subject of the law. I was in the Bland case in the Court of Appeal. As President of the Family Division, at one stage I tried nearly all the permanent vegetative state cases. On the assumption that this Bill is passed, it seems to me critical and essential that the court should have an input. I would prefer the version of the noble Lord, Lord Carlile, but, speaking as a former judge, I would say that the version of the noble Lord, Lord Pannick, would actually require the judge to take account of all the relevant factors. I would be astonished if the High Court did not wish to confirm that it is satisfied, and that is a high standard. The judge would have the power to require, for instance, a psychiatrist or other medical opinion, if the judge was not satisfied that the patient—we are talking about the rights of the patient—had the full capacity necessary to make this absolutely crucial decision.
As to how the case would be tried, it would likely go before a Family Division registrar. It would go before a High Court judge. In my day, I was able to try cases on the day that the problem came before the High Court and it was able to go to the Court of Appeal on the same day if it was sufficiently urgent. I would expect the President of the Family Division to treat all these cases with the utmost seriousness and would see it as crucial that they be heard as quickly as possible. It would be a matter for the Government of the day as to whether legal aid were given, but in a matter of this absolutely enormous importance as to whether somebody is entitled and has the capacity to make the decision that they wish to end their life, I would think it quite shocking if legal aid were not granted.
Baroness Neuberger (CB)
My Lords, I rise to speak to the amendment of the noble Lord, Lord Pannick, to which I have put my name, and to add to that of the noble Lord, Lord Carlile. I agree with almost everything that has been said but, if responsibility is given to the Family Division in some way or other, there might be reason for a ticket system, as happens in serious sex or murder cases. That way, the judges within the Family Division who are going to hear these cases very quickly will have had training in how to look at them and, where necessary, examine the medical evidence in detail. A ticket system and specific training for members of the Family Division in this area would be an improvement on simply saying that it was available to everybody. I support the amendment of the noble Lord, Lord Pannick.
Baroness Wheatcroft (Con)
My Lords, we have heard from three lawyers. I am not a lawyer—I have to confess that I have not read even paragraph 205 of Lord Wilson’s judgment—but I feel obliged to stand up and say that I think we are missing the point, as I see it, of the Bill of the noble and learned Lord, Lord Falconer.
This is not about medical decisions or judicial decisions; it is about compassion for people nearing the end of their lives. These people have decided that they have had enough. The thought of having to go through a legal process—even if, as we have heard, it has been curtailed as far as possible—and incurring legal bills is the last thing that they want to deal with, if they have complied with the law that the noble and learned Lord, Lord Falconer, is suggesting and have actually come to a reasoned decision that they have gone on long enough and the time has come for them to die. We ought not to prolong that procedure for any longer than we have to. I do not think that lawyers have the final view on all that is right.
Lord Deben
My Lords, my noble friend is assuming that every one of these cases is of someone who had voluntarily made all those decisions. We are here concerned that there will be some cases—from my long experience as a Member of Parliament, rather more than some people think—in which that is not so, and somebody has to protect them against being thought to have made that decision when in fact they have not done so.
Baroness Wheatcroft
My Lords, there may indeed be one or two occasions on which that is the case. However, we are looking for at least two medical opinions here, both of which will regard the sanity of the individual. If that individual decides, in full knowledge of what is going on within the family, that that is the decision they want to take, then, on balance, I suspect that we should let them.
Baroness Mallalieu (Lab)
My Lords, I have put my name to the amendment. I support the Pannick version of judicial intervention for the reasons already given with great care by the noble Lord, Lord Pannick. I also listened with care to almost all of the 129 speeches at Second Reading on 18 July in this House. There is a need to address two major reservations expressed by a number of noble Lords, which I accept have validity.
In essence, those reservations relate to two undeniable traits of human behaviour which we must accept exist and which no Bill of Parliament or amendment can extinguish. The first is selfishness. I see the noble Lord, Lord Tebbit, was trying to speak and I hope that he will shortly. He referred in his Second Reading speech to “the vultures”: relatives or friends who might have a financial or other interest in the death of a dying person and be tempted to put pressure on that person to end their life, to bring forward the date of the realisation of their expectations or, perhaps, to save care fees—albeit that, under the Bill, they would only have to wait a maximum of six months in any event.
Secondly, there is selflessness: those who feel guilty about the expense, trouble, time, worry and distress which they are causing those whom they love, and who may be tempted to shorten the process—not because they truly wish it—not for themselves, but for others. There are, of course, subdivisions: the relatives who cannot bear to see mother suffer, and so on. I accept that those are genuine concerns and they are the reasons why I primarily support the amendments of the noble Lord, Lord Pannick.
Although neither selfishness nor selflessness can be eliminated, through judicial oversight it can be guarded against, possibly even better than it is at present. The medical condition of the applicant can be assessed by a medical expert and by a wholly independent, experienced judge—although there are crooked lawyers and experts of every kind, our judiciary is still, thankfully, totally respected—who by training and expertise is qualified to judge pressure, coercion and genuine or false wishes, and to examine or evaluate evidence as to whether somebody has capacity, is acting voluntarily and has a clear understanding and a settled wish to end his or her own life. I want someone like that to have the ultimate say on the decision.
However, it is not a question of a decision being made by a doctor or by a judge; I want the decision to be that of the person who is facing death. We have got to get back to that. Judges, especially in the Family Division, are dealing with judgments of that kind—about what people really want, whatever they say, and about pressure and coercion—day in and day out. I will of course listen carefully to the amendments in the next group that have been tabled by the noble Lord, Lord Carlile, and others on judicial oversight. However, on the basis of what we have heard already from the noble Lord, they appear to present a bureaucratic, legalistic obstacle race which is bound to be both lengthy and costly to the applicant. One of the objects of the Bill is, I hope, to leave behind the absurd anomaly we have at present whereby, if you are rich enough, you can go to Zurich, but if you are not you have no choice but to endure possibly totally unnecessary suffering at the end of your life.
Lord Tebbit (Con)
My Lords, I worry a little, because I do not quite understand some of the proposed legislation. It is very much about process, which is very important. However, it should also surely be about deterrents against wrongdoing. I recollect that, when I had responsibility for taking legislation through Parliament, some of which one or two noble Lords opposite will remember quite well, one of the things I had to constantly ask myself was, “What are the means of deterring people from wrongdoing?”.
This is about going to the High Court and all sorts of other things, with doctors doing this and that. Supposing there is wrongdoing, how do we deter it? At the moment, if somebody wrongfully puts pressure on, or wrongfully assists, a suicide, they know that the law is there and that its hand may fall on their shoulder. I may be wrong but, as I see it, if we enacted these measures we would only be adding to the procedures, not to the deterrents against wrongdoing.
I speak with some feeling. I have had the prime responsibility of the care of my wife for the last 30 years. She has been in constant pain. It is getting worse. She requires more and more care. I fear for the day when she will say again to me what she said to me a little while ago: “You know, you would be better off without me”. There are many ways in which pressure can be brought to bear to make people who are perhaps approaching the end of their lives—although I hope that my wife is not—to “do the decent thing”. These amendments do not do anything to avoid that, and that is what worries me.
Lord Condon (CB)
My Lords, I declare my registered interest in policing. I support the amendments put forward by the noble Lord, Lord Pannick, and other noble Lords, for the reasons that he outlined. At Second Reading I expressed a wish that the involvement of the High Court was perhaps the way forward on this issue. Like many of your Lordships, I had the privilege and honour of sitting through the previous debates on this issue, and like everyone in this House, past and present, we felt enormous compassion and wanted to find a way through this issue, which resonated with the feelings out there in the wider community.
For my own part, I have never been able to be satisfied that abuse, coercion and the prospect of malpractice of the sort outlined by the noble Lord, Lord Tebbit, were addressed in our previous attempts to deal with this tragic issue. However, we are now tantalisingly close to finding a way through this issue. It will assuage those of us who fear abuse, coercion, the right to die becoming the duty to die, and so on. Therefore I hope that we will find a way through this issue that involves judicial oversight and scrutiny.
At the moment I find myself favouring the approach of the noble Lord, Lord Pannick, in his amendments, as a medical-based approach but with judicial verification and oversight, because it is not quite so bureaucratic as the way forward suggested by the noble Lord, Lord Carlile. However, I hope we will find a way through this issue through judicial intervention.
Lord Tebbit
What does the noble Lord feel about the fact that a number of doctors who, quite wrongfully, signed chits, or whatever they are called, to allow sex-selective and frequently late abortion of patients whom they had never seen and whose names they did not know, have gone unpunished? Where is the deterrence to that?
Lord Condon
The noble Lord raises a very vital issue. We can and will address it in two ways: first, through the judicial oversight, and secondly, by amending Section 10, which at the moment has insufficient offences, but which can be amended to have a range of offences that will satisfy just the concern that the noble Lord has raised.
Lord Phillips of Sudbury (LD)
My Lords, it is in the very best traditions of this House that there is standing room only at this debate on a Friday. It is entirely appropriate, is it not, given the profound issues that are involved? I have no doubt at all that the country will be watching and listening to this debate in a way in which it perhaps has not done since the last of these debates, because this is one in a series. Like other noble Lords, I have taken part in all those debates; I come at the subject from having spent six years in the early part of my legal career as a part-time assistant to a part-time coroner and occasionally deputising for him. I was very vividly thrown up against the issues that are at the root of this legislation. I have to confess—I see the noble Lord, Lord Joffe, sitting yonder—that whereas I was wholly unconvinced when the noble Lord started his pilgrimage, the Bill contains the sort of protections that could make it one which we should support, given that it blocks off the thin-end-of-the-wedge fears that many of us had formerly.
I will make only one major point. We do not want to go from a situation where, as now, you have to be rich enough to go to Switzerland to get some sort of justice in these complicated matters. However, we could be in a comparable if lesser dilemma because of the cost which will attach to going to the High Court—with representation, as one would have to have—and getting an order. I have no doubt that the cost will be more than most of us expect and more than some of us fear, and legal aid is now available only to people at a very low level of income, and it will leave at least 80% of the public of this country unsustained if they wish to use the remedies that the Bill will provide. That is not right in a matter of death. One of the things we need to contemplate is whether we have some special arrangements for this life and death matter.
Secondly, the noble Lord who produced the Bill has done wonderful work, and those who tabled the amendments—the noble Lord, Lord Pannick, and my noble friend Lord Carlile—have also done great work. However, there is a huge number of problems at the back of either amendment; a great number of issues that have not been considered carefully, in the round, and reported on. I hope very much that we will not vote on these amendments now or indeed at all today, because we all need time to reflect on and contemplate them. However, I would like us to think about—and, if necessary, to form— an ad hoc group to report on whether one could not deal with the issue at the heart of these amendments just as well by having either a county court judge or a special panel of justices of the peace to determine the issues concerned. Some may think, “That’s not good enough”. As one who spent a lot of time in magistrates’ courts and county courts in years past, I do not hold that view. In some ways, given that the issues are—how shall I put it?—common-sense life experience issues that will have to be determined by whoever adjudicates on this, I am not so sure that a county court judge or a panel of magistrates might not be at least as good, competent and able to undertake the decisions involved.
Lord Harries of Pentregarth (CB)
My Lords, my name is down in support of the amendment in the name of the noble Lord, Lord Carlile, with the noble Lord, Lord Darzi, and I very much support the reasons he set out so cogently.
I was very glad to see the amendment in the name of the noble Lord, Lord Pannick, because it points in the right direction. I cannot support it, because I believe that doctors should not be involved at all in the final decision-making process. Under the noble Lord’s amendment, the courts would check that a good decision had been made, and they may ask for witnesses, as the noble and learned Baroness, Lady Butler-Sloss, said.
We need, for all the reasons set out at Second Reading, to take doctors out of the decision-making process altogether. I remind your Lordships of points made at Second Reading about the erosion of trust if a Bill such as this went through Parliament, and the minority of doctors who are willing to take part in the system—four out of five doctors are totally opposed to taking part in it, so only a minority of doctors would be willing to do it. That would lead to a lot of looking around for the right kind of doctors. I do not want to get into the business of knocking doctors—they have been in my family for some time; my wife and my son are doctors, and my grandson is on the way there—or weighing the relative merits or demerits of rogue doctors and rogue lawyers. However, we are not talking about individuals, but about the Supreme Court. The Committee on Standards in Public Life carried out a series of polls about how the public regard various professions, which shows that trust has been eroded in so many professions, but not in judges. Trust in judges remains at about 80%. That is a very significant factor; decisions made by the court on this issue, if we eventually went down this road, would be trusted by the general public.
I would just like to mention one point that has not been mentioned. I have a quotation from the noble and learned Lord, Lord Neuberger, in the judgment that the noble Lord, Lord Carlile, was discussing. He said:
“Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.
Lord Ribeiro (Con)
My Lords, I should like to speak as we have heard many noble Lords speaking but we have not heard from the medical profession. Noble Lords will have heard that the majority of doctors are not supportive of being involved in the decision-making process. The reason is very clear. I, as a surgeon, on more than one occasion had to deal with children and adults—but children particularly—whose parents were Jehovah’s Witnesses. If an operation was needed that required transfusion there was a dilemma between my opinion that surgery and transfusion were necessary to save that child’s life and the parents’ decision that under no circumstances was a transfusion to be given.
What has made life easier for doctors is that we can now go for a judicial decision, made by the judges as to what should happen. That happens when, as was mentioned earlier, you have to divide a Siamese twin, to which the noble Lord, Lord Pannick, referred, or when you have to switch off the machine. These are important life and death decisions. Surgeons have always been referred to as people who play God and carry out life and death decisions, but the fact is that this is a situation in which they feel comforted that the decision is taken outwith their domain and taken by the judiciary. The same principles apply here, in this case.
I am slightly varied in terms of whether I support the noble Lord, Lord Pannick, or the noble Lord, Lord Carlile, but, in either case, doctors should be as far removed from decision-making as possible. If it is decided that assisted suicide should then happen, the mechanism and how it is done and whether it involves the medical profession is something to which we can then apply our minds. But the initial decision must be underpinned by the judiciary.
Baroness Finlay of Llandaff (CB)
My Lords, as another doctor I follow the noble Lord, Lord Ribeiro, who has explained so clearly why doctors do not feel that they should be involved in this. Indeed, my feeling is that the noble Lord, Lord Pannick, has made a very important first step, but I worry that his amendment does not go far enough. For that reason, the amendment tabled by the noble Lord, Lord Carlile, about which we will hear more in further groupings, is the way forward.
I reassure all Members of this House that compassion is at the heart of those who do not support this Bill. My objection is on public safety to protect those who are vulnerable. I declare an interest, having looked after these patients for more than a quarter of a century. I have looked after thousands of people—I have had hundreds of conversations with people who wanted their lives to end. Then we have done things, and they have not persisted with those requests.
I address very briefly the issue of finance. Please do not forget that many people who are dying are already reliant on charitable funds of different sorts to support them. I do not believe that it is beyond the wit of our society to find a way of having pooled funding that can be drawn on to support the fees for a legal process where it is absolutely right to go through one, and society deems that it is. It is dangerous to have the illusion that money would get in the way.
I address a couple of points that have already been raised in the previous excellent and outstanding debates, when examples were given of poor pain control. As a clinician, I was horrified at the bad care. There is no excuse for not redoubling efforts to relieve symptoms or to withhold analgesia from someone who needs it; even if you know that you are taking a risk and you are clear with it, there is absolutely no excuse, and our law does not require doctors to withhold all efforts to relieve distress. But doctors have to look after patients, and we are often in a difficult situation.
The noble Baroness, Lady Mallalieu, laid out very clearly the problem of coercion and coercive pressures, and I completely agree with her. There are external pressures, and pressures now coming from healthcare. Sadly, it is true that not all doctors are good doctors. At a meeting this week, we heard from the CQC that 2% to 3% of general practices will probably have to go into special measures and that 20% to 30% are below substandard. Yet the Bill without these amendments leaves decision-making in the hands of people—we know not what. We will go on to address all the inadequacies in the Bill.
There are families where there is carer fatigue—they are worn down. I have had families refuse to take patients home because they are fed up with their relative. That is a really difficult conversation to have with anybody. Indeed, I have had relatives pressurise me to give something to end a life and get it all over with—yet the patient has not wanted their life to be ended. As I have already explained to your Lordships, I discovered later, after the birthday of one female patient, that it was her fixed-term life insurance policy running out that drove the request to push up the drugs. After her birthday, they did not get the extra money and they visited less. I am afraid that I was taken in before I knew that, and I have been taken in time and again—because, while most parents love their children, sadly, not all children love their parents. It is difficult to detect coercive pressures, but then there is also the selflessness that patients may feel when they know that they are imposing a burden on their family.
Let me give a cogent example. I was asked to see a man by a GP who said that the man was a clear case for euthanasia or assisted suicide but that he could not give him a lethal injection. That was the only reason the GP was referring him. The consultant surgeon, oncologist and GP all thought that the man had a life expectancy of three months. His wife had just given birth to their third child. There was a small baby there. I went straight out and I was there until 11 o’clock that night. The distress was overwhelming. Weeks later, the distress was calming down. Much later, when I had conversations with that man, he said that the pain had been overwhelming and the prospect of becoming paraplegic and wheelchair-bound was overwhelming and terrifying but that also at the back of his mind he wondered how his lovely, beautiful postnatal wife could cope with their three children, particularly the new baby, and look after him as well. He felt that it might be best for everybody if he was not there. I spoke to him this morning. He said that I could relate his story. He can see the dangers of what is proposed because he lived way beyond three months. We will discuss prognosis and the difficulty of determining who is terminally ill later.
However, if the court were to receive evidence from experts, not the doctors described in the Bill, and assessment of capacity were done properly by experts, the court could make a balanced decision and that would not contaminate the way that clinicians behave. It would not put clinicians under a lot of pressures which are difficult to untangle and it would maintain their prime duty to relieve the distress of the patient in front of them, and to help the family and carers cope and redouble their efforts when they fail. It is for that reason that I think the Bill is wholly inadequate without such a control.
Lord Berkeley of Knighton (CB)
On a point of information, given my noble friend’s enormous experience, I would be very grateful if she would say whether she has ever been in the position—or what she would do if she were in that position—where she has felt that she should give a patient a dose of analgesia that might end their life. How would she deal with that situation?
Baroness Finlay of Llandaff
I shall answer that directly and attempt to be as clear as I can. I have seen patients who are in overwhelming distress. I have sat there with a syringe full of diamorphine—heroin—and titrated it in milligram by milligram, minute by minute, until the patient’s pain level changes from unbearable—usually, 10 out of 10 or even 11 out of 10—to a level that they can cope with where they tell me the pain score is three or four out of 10. When I have done that, I have known that I may suppress their respiration but that is a risk that I am prepared to take and I have adjacent to me what I would need to maintain their respiration if it dips. I have seen patients who have been given an inadvertent overdose, where their respiratory rate has dropped to critical levels but we have found ways round that and restored their respiration without having to reinflict pain. I have been in one situation which was, I think, the only time that I could say honestly that I have used the principle of double effect. I had a patient with a horrible head and neck cancer. The whole of his neck was solid. The nurses asked me first thing in the morning to go to see him—
Baroness Blackstone (Lab)
My Lords, I am extremely concerned about the time. I am certainly worried that we are drifting—
Baroness Blackstone
Please let me finish what I wish to say. This is a Committee Stage of a Bill and it is very important in Committee that we stick to the amendments on the Marshalled List and do not debate a whole lot of other issues when we are considering a particular grouping.
Baroness Finlay of Llandaff
My Lords, I am simply trying to answer the question as succinctly and honestly as I can and not to waste the Committee’s time. I hope that my intervention so far has not done that; it is still under 10 minutes.
I realised that the man I was talking about was unable to breathe and that there was no way we could restore his airway. He was terrified and standing in a panic. I therefore gave him what I thought was a tiny dose of midazolam to calm his anxiety from the breathlessness. Unfortunately, as he relaxed, he obstructed his airway and I was then faced with somebody with no airway but still conscious, so I injected all of the ampoule and another one that I had taken with me in case I dropped the first one, knowing that I may be bringing about the end of his life. As he became blue, purple and blotchy and collapsed, the nurse and I caught him and got him on the bed. After what seemed like an eternity, he started to breathe again. He lived for four and a half hours in a peaceful and comfortable state. As I administered the drug, I thought that my defence in court would be that of double effect. That is the only time that I have thought that I would need to use that defence.
I hope that explains to the noble Lord why we go up to the limit and we know the risks that we are taking. However, that is fundamentally different from deliberately foreshortening a life that would otherwise go on for days, weeks, months or possibly years because we cannot predict prognosis.
Lord Campbell-Savours (Lab)
My Lords, this issue is for me very personal. I have deep sympathy with those who are standing outside Parliament today, demonstrating on this issue, and with the millions of people who also feel strongly about it, many thousands of whom have written to Members of this House over recent weeks. I want to explain why this issue is very personal. I have now been ill for 31 years, and I have struggled on many occasions to survive different operations. Only last week I spent another week in hospital. Whereas five or 10 years ago I was opposed to assisted dying, I now realise that some people desperately want out. They want to leave the world. That has never crossed my mind but one day it might, and I want that right. To be frank, I do not want the courts to interfere in it. The courts will create congestion in the system which people want to avoid.
I also recognise that something is missing in the Bill to cover the issue of duress and coercion, which have been referred to by a number of noble Lords. We have to add something to the Bill to reassure people that that matter can be dealt with. I would go down the route referred to by the noble Lord on the Liberal Democrat Benches—forgive me, my memory is not too good at the moment—who referred to an alternative to court proceedings. We need a panel, perhaps comprising community-based guardians. I do not know whether they should be elected or appointed, or how they should be appointed if they are to be appointed, but they should be people who are capable of handling these sensitive situations. They need not necessarily receive a professional remuneration but they should be able to talk to people who have taken this decision. If, having talked to those involved, these people are uneasy, they should be able to instigate a further hearing of the issues, not necessarily in a court of law but in some forum. I say that because I am concerned that medical practitioners, whether the attending medical practitioner or the independent medical practitioner, may simply not have the time to sit down and ask the detailed questions that are necessary to secure the information to meet the criterion set out in the Bill.
When you are lying in a hospital bed—I have done it dozens of times over many years—you hear the conversations with doctors. They are going on around you all the time when they do their rounds in the morning or when they come back if there is a problem on the ward. I simply cannot imagine the circumstances in which doctors would be able to sit down and have that very meaningful, subtle conversation that can dig out the truth behind a particular application or declaration made by the person involved.
I therefore say to the House: please do not go down this judicial route; find another way of sensitively seeking to establish where the truth lies. If we do that, we will meet the objectives and concerns of all those outside who are basically worried that the Bill is going to be killed by the House of Lords because people have put up so many obstacles and amendments to wreck it. It would be a tragic day if that were to happen.
Lord Howard of Lympne (Con)
My Lords, I declare an interest as the chairman of Hospice UK, formerly Help the Hospices, which is the umbrella organisation for hospices in the United Kingdom. Hospice UK does not have a collective view on the principle behind the Bill, so everything that I might say in this debate is the view that I express personally, not the view of the organisation—although I hope that it is a view informed by the knowledge that I have acquired of the remarkable extent to which palliative care, an area in which we in this country lead the world, can alleviate the suffering, which is the backdrop to all the issues that we are discussing during the course of this debate.
I want to limit my brief remarks to the issues that arise in the context of the amendment. Palliative care is increasingly—not yet, alas, universally—available, but we are making good progress towards that objective. However, one of the problems that arise is that not everyone who could benefit from palliative care is aware that it is available. That has a direct bearing on the issues we are discussing and on these amendments. One of the things that it is vital to bring to the attention of someone who is contemplating the awful decision that the Bill makes possible is that they should be fully aware of the extent to which they could take advantage of palliative care to relieve their suffering.
In the context of these amendments, one of the factors that I would expect a court to take into account is the availability of palliative care for the person making the application, the extent to which that person knows about the availability of palliative care, and the extent to which that has been made available to the person concerned. I give way to the noble Lord.
Lord Blair of Boughton (CB)
I merely wish to ask whether the noble Lord is aware that Clause 3(4) requires both doctors to be satisfied that the patient has been fully informed of palliative, hospice and other care available to that person. In other words, this is in the Bill.
Lord Howard of Lympne
I am so aware but I would prefer that investigation to be carried out by the court. That is the issue between us. It is another reason why one or other of these amendments—I prefer the amendment in the name of the noble Lord, Lord Carlile—should be passed if the Bill is to become law.
Baroness Hollins (CB)
My Lords, as a doctor, I would also much prefer a judicial process. I had the good fortune yesterday to speak to Professor Peter Rubin, the chair of the General Medical Council. I asked him whether many doctors had yet been referred to the GMC because they had failed to provide adequate pain relief to someone in the last days of their life. He said he did not know the answer but kindly drew my attention to the GMC’s guidance, which I thought would be good information and useful for our discussion. It is entitled, Treatment and Care Towards the End of Life: Good Practice in Decision Making. He referred me in particular to paragraphs 24 to 27. I shall read just a short part of paragraph 27, which states:
“You must seek advice or a second opinion from a colleague with relevant experience … if … you and the healthcare team have limited experience of the condition … you are uncertain about how to manage a patient’s symptoms effectively”,
and if,
“you are in doubt about the range of options, or the benefits, burdens and risks of a particular option for the individual patient”.
I will not finish reading out the paragraph. Although we may lead the world in palliative care, it is still a developing but important specialty and area of expertise, and we should give it adequate opportunity to continue to develop without interfering and changing the role of the doctor.
Baroness Murphy (CB)
My Lords, I will stick to the amendment. I told the noble Lord, Lord Pannick, a few days ago that I would not support it for all the reasons that the noble Baroness, Lady Wheatcroft, mentioned, and the reasons raised by the noble Lord, Lord Campbell-Savours. This is a decision by patients—let us come back to them—it is not a decision by doctors. Any judicial intervention placed between the patient and the processes by which they could be helped in what they want is likely to be difficult. Remember also that patients every day make decisions to end their lives. They make a decision not to have that last chemotherapy offered to them. They have had perhaps a year of it and they do not want any more. That wish is respected, their capacity is rarely mentioned and they make that decision.
However, I have thought a great deal over the past few days and looked again at the Second Reading debate. The anxiety raised was sufficient to suggest that perhaps we need to put in a process that can be quick. Operating in the mental health world, I know that the courts can readily convene at 24 hours’ notice; I have often had to take a magistrate’s order and get a court decision quite quickly. It is possible for someone to have judicial oversight within a short time if the process is developed correctly. Looking at the range of options provided in this group of amendments, I would say that the amendments of the noble Lord, Lord Pannick, are worth supporting, and I will go with them despite my original anxieties. They will make the Bill workable and not destroy it, whereas the amendments of the noble Lord, Lord Carlile, would make it unworkable. For that reason, I urge all noble Lords who like the principles of the Bill to support the noble Lord, Lord Pannick, in his amendments.
Lord Cormack (Con)
My Lords, I hope we will not be called upon to vote on either amendment but very much hope that the noble and learned Lord, Lord Falconer, will reflect most carefully on what has been said. He knows that I totally respect, indeed honour, his motives in bringing the Bill before the House. He knows also that I have considerable misgivings. However, this House decided, rightly, to give the Bill a Second Reading, and it is now our duty to try to improve it so that those of us with misgivings have them allayed so far as possible, and so that those who believe in the Bill, and are a little impatient in their belief, will accept that we are in no sense seeking to retard the Bill’s progress, but rather to improve it. I make that point in particular to the noble Baroness, Lady Blackstone, who intervened a few moments ago.
Lord Stirrup (CB)
My Lords, I will speak very briefly. I intended to preserve my first intervention for an amendment to which I have attached my name in the second group, but a couple of things have been said in this excellent debate that we should reflect on and that need a little clarification. It has been said that the Bill is not about doctors or lawyers, but about patients and patients choosing to die. That is not the case. The Bill is about others being permitted to contribute to a patient’s death. This is not the dying Bill, but the Assisted Dying Bill. It is imperative that we focus our attention on the rules and safeguards that would be applied to those who will contribute to a particular patient’s death.
In his very moving speech, the noble Lord, Lord Campbell-Savours, said that people simply want out. I understand that entirely and I absolutely respect it. Some people will of course have religious objections to that. I do not. I get that, I understand it and I do not believe that anyone should stand in their way. However, this is not just about people wanting out, but about people wanting others to help them through the exit. That raises fundamental issues of ethos in a number of professions. As the noble Lord, Lord Ribeiro, has said, this is a significant issue for the medical profession. I am not a member of it, but I have family connections and have spoken to many doctors—some of them relatives—on this issue. There is huge concern about it. I will expand on those issues in a later amendment. However, we should not concern ourselves with who in this House feels compassion; we all do. I am sure that we are all very sympathetic to the motives behind the Bill. As I said at Second Reading, I have the profoundest respect for the people who have brought the Bill forward and for their motives. However, I also have the profoundest reservations that, in attempting to do something good, we may in the process do something that will be much more harmful in the long run.
Baroness Cumberlege (Con)
My Lords, I totally agree with what the noble and gallant Lord has just said. I come from a medical family. I am not a doctor, but I was made a fellow of the Royal College of Physicians, which asked me whether I would chair a working party to look at medical professionalism. That comes very much into these amendments.
We spent a very long time thinking about this extremely difficult issue. Do people care about professionalism? Where is it? How is it defined? What is it all about? We had a very interesting scribe—the editor of the Lancet, Richard Horton—who devised an extremely good definition, which was very long. I said to my working party that I would not remember that great paragraph if somebody said to me, “Lady Cumberlege, what do you mean by ‘medical professionalism’?”. We put our heads together and thought very strongly. We decided that medical professionalism is signified by the values, behaviours and relationships that underpin the trust the public has in doctors.
I very much support my noble friend Lord Carlile’s amendment. I fear that if we do not adopt something like this, which he described as a complete court-based model, trust in the medical professional will be eroded. That is surely the last thing that any of us wants. The noble and right reverend Lord, Lord Harries of Pentregarth, made a very interesting speech and I very much support what he said. However, I take issue with one thing. He talked only about doctors; we have heard only about doctors. Reference is made in the Bill to clinicians and to nurses. The noble Lord, Lord MacKenzie, and I have tabled a number of amendments, which we will come to later, on the role of nurses in this. They are mentioned as clinicians. I met with the Royal College of Nursing yesterday—I am also a fellow of its college—and we had a long discussion on this. There are one or two wrinkles on prescribing, but the same issues of professionalism are shared by nurses.
My noble friend Lady Wheatcroft dismissed very quickly the idea that there was a lot of abuse. We have already been urged to think about the patients. On 14 May, I initiated a debate in your Lordships’ House on elder abuse, in which 12 noble Lords took part. I had to research that topic. It was very interesting. If you look at things such as the Care Quality Commission and recent reports into Mid Staffordshire and all the rest, we know that a certain amount of abuse is taking place, certainly in residential homes, nursing homes, hospitals and prisons, but also in people’s own homes. The Department of Health estimates that just under 500,000 elderly people are subject to abuse in the community. That is why we want a differently shaped Bill and why we want to take the National Health Service—healthcare—out of making the final decisions. As my noble friend Lord Tebbit said, it is very hard to discover where the abuse is taking place, especially in people’s homes. That is why it is essential that we accept the amendment tabled by my noble friend Lord Carlile.
Lord Alton of Liverpool (CB)
My Lords, I support very strongly what the noble Baroness, Lady Cumberlege, has just said about the effect of the Bill on medics. I was struck by a recent conversation that I had with one of my sons, who is a fifth-year medic. He very much welcomes the stand that the BMA and the royal colleges have taken in saying that they would not wish to see a change in the law because of the position that it would place doctors in. He argues, as I would argue, that you do not need a doctor to kill you to die with dignity. I was very struck by what the noble Lord, Lord Howard, said about the roles that the hospice movement and palliative care can play.
However, I see the point of these amendments and I understand what my noble friend Lord Pannick and the noble Lord, Lord Carlile, are trying to do in improving the Bill. It is right that we should, at a Committee stage of the House, take the amendments extremely seriously, as we are required to do. Therefore, I honestly believe that today we should not be pressurised by either time or the thought that we are going to be railroaded into taking votes at this stage. I hope that those who have been calling for greater reflection on the amendments will be listening, too.
My noble friend Lady Murphy said that this is a decision for patients. However, implicit in the amendments is the fact that it is not just a decision for patients. This will require an assessment process. It is not an “on demand” situation, and therefore there is the possibility that from time to time such proposals will be rejected as well by the courts.
My noble and gallant friend Lord Stirrup rightly made the point that there will be people who are unable to take these decisions for themselves. That returns to one of the cases raised during the opening remarks of my noble friend Lord Pannick. He mentioned the case of Tony Bland, who went into a persistent vegetative state as a result of the football game that took place at Hillsborough. On Monday, I went to Warrington. I was incredibly impressed by the extraordinary resources and time that have been put into the new inquest process and by the work being done by the Independent Police Complaints Commission in reinvestigating the events. I made my own deposition there.
I was thinking not about the Tony Bland case—although I am well aware of it and well aware of those of my then constituents who died at Hillsborough—but about the case of Andrew Devine, who was a constituent of mine and who also went into a persistent vegetative state. It was predicted at that time that he, too, would die. Of course, Tony Bland was never on a life support machine; he had food and fluid withdrawn—a decision made through the court process. I just reflect that Andrew is still alive and is loved and cherished by his family. Having been in a persistent vegetative state and been told that he would never be in a position to take solid foods again, within a couple of years he was able to do so. Therefore, we have to be careful about prognosis. We have to be very careful in assuming that we will always get these things right.
Every single case matters, and that is what I would say to the noble Baroness, Lady Wheatcroft, following the intervention made by the noble Lord, Lord Deben. Every single case matters; it is not just about the one or two people who will not be able to take decisions for themselves. Public safety goes to the very heart of the concerns raised by my noble friend Lady Finlay and in the amendment put before us by the noble Lord, Lord Carlile.
I was struck by what Lord Sumption said in the Supreme Court judgment. He said:
“It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties”,
by suggesting that,
“the current law and practice is less humane and flexible than it really is”.
So we are not at a settled point as far as this legislation is concerned.
I have been genuinely surprised that another place has not been given the opportunity to reflect on the extraordinary moral and ethical issues in this legislation, which are also contained in the questions raised by this amendment. One should recall that the Guardian said about the Bill:
“It would create a new moral landscape. It is also, potentially, open to abuse”.
That is what I think the amendment of the noble Lord, Lord Carlile, seeks to address. The newspaper went on to say:
“Reshaping the moral landscape is no alternative to cherishing life and the living”.
The Daily Telegraph said:
“The more assisted dying is discussed, the more its risks will become apparent”.
That was the point made in the eloquent remarks of the noble Lord, Lord Tebbit, who reminded us today of the pressure that can be placed on vulnerable people. We should recall the speech made at Second Reading by my noble friend Lady Campbell of Surbiton: it is not just the BMA and future medics; it is not just the hospice movement; it is also the disability rights organisation, whose representatives are standing outside this House today. I spoke to them this morning on my way in. They hope that, if we proceed with the Bill, we will do everything we possibly can to put in greater and stronger safeguards. Therefore, I hope that we will have a chance between now and Report to reflect on the different approaches contained in these two amendments and that the noble and learned Lord, Lord Falconer, will also go away and reflect on them following today’s debate.
Lord Reid of Cardowan (Lab)
My Lords, I will probably make the shortest speech that I have made in this House, and your Lordships will no doubt be relieved about that. I am not a medic or a lawyer, nor have I put in the hours that many noble Lords have obviously put in on the details of this legislation. However, we should ask of this group of amendments: “What is the essence of the subject that we are addressing?”. Surely it is the essential question of whether a decision of this nature should be based on the free will of the patient and the expertise of the medical profession or whether we ought to go further than that, whether through legislation, via the amendments of the noble Lords, Lord Carlile and Lord Pannick, or whether through the suggestions of my noble friend Lord Campbell-Savours.
I have a view based on a very banal and simple old principle. Perhaps I may paraphrase one old philosopher who said, “Yes, men and women do have free will but they don’t exercise that free will in circumstances of their own choosing”. Surely what we are essentially asking is whether there should be an examination of the circumstances in which men and women operate their free will and make a decision. I believe that, on such a profound question, there should be, and I do not believe that the medical profession is adequately equipped to do that in all aspects of the circumstances.
Therefore, I say to those who are proposing and advocating this Bill: please do not believe that those of us who think that circumstances affect a decision that people make of their own free will are somehow opposing the principle behind the Bill. It is a safeguard that recognises an eternal reality.
Lord Deben
My Lords, I speak from a position in which I must declare an interest, although it is a surprising interest and your Lordships will wonder why I am declaring it. I am chairman of the Association of Professional Financial Advisers. I declare that because the organisation has at its heart a determination to make sure that, if you advise someone on finance, you should be on their side and there should be no question over which side you are on. It is quite difficult to fight that battle because people feel that they can do both: they feel that they can be on both sides perfectly reasonably. Of course, people outside do not feel that. They want to be absolutely sure that the person advising them has only one interest, which is them and their concerns. If that is true in finance, it ought to be true in matters of life and death.
For me, at the heart of this—and, with apologies to the noble Lord, Lord Winston, it is why I wanted to follow the noble Lord, Lord Reid—is ensuring that at no point, in the mind of the patient or in the minds of the patient’s friends and relations, should doctors be equivocal. That is just as important when a patient himself is making the decision to end his life quite decently and honourably as it is when there is pressure. If the patient is making that decision, his family and friends want to feel that it is a decision in which the doctor has not played a part, for the doctor ought to be, right to the last moment, concerned only with the nature of the illness, the palliative care that can be carried through and the way in which new techniques might be applied.
I hope that the noble Baroness who intervened earlier will accept that there are many of us who do not approach this from a prejudiced or religious point of view. As somebody who fought very hard for same-sex marriage, I can hardly be accused of always taking the view of the church to which I belong. I take this view after 40 years as a Member of Parliament or candidate. I have seen so many people in circumstances in which they begin to doubt the advice of their doctors. Although I have no connection at all with the medical profession, I care about it so much that I do not want it to be treated with less care than the Association of Professional Financial Advisers. It should be on one side and not on the other. That is why we must have an external decision-making principle.
I am not qualified to intervene in the discussion between lawyers about what would be best. I intervene partly because I do not think that lawyers should have it all their own way in any circumstances. I agree with the noble Lord, Lord Alton, and my noble friend Lord Cormack. We have to say to lawyers that this is a situation in which getting an answer that satisfies everybody is something that we lay people would like to see. Frankly, what lawyers have to do for us, as the noble Lord who spoke previously said, is to provide us with an answer in which we feel that the decision is made outwith the medical profession so that the medical profession can do what it is there for and can never be questioned.
I finish with a comment to my noble friend Lady Wheatcroft and the noble Baroness, Lady Blackstone. It is not possible to debate this whole issue or any of the amendments unless you recognise that there is a serious issue of pressure on individuals. I am afraid that after 40 years in Parliament, seeing people at the level that you do if you are a decent Member of Parliament, you discover man’s inhumanity to man is very much further advanced than the comfortable views of many people who do not get to that level. We have to protect people and this is an essential protection.
Lord Winston
My Lords, I was delighted to give way to the noble Lord, Lord Deben, because I agree with so much of what he has just said. I want to echo something that the noble Lord, Lord Alton, said. This is an extraordinarily important Bill, which goes to the heart of our society, and it is desperately important that the Government Front Bench and Members of this Committee allow full and adequate debate on it. If this House is to survive, flourish and be respected, it is very important that it debates these issues adequately and fully and takes as much time as is necessary. If we have to come back on another day to complete Committee, we should do so. It is essential that we understand that, no matter how inconvenient it might be to come back on another Friday.
I always find myself agreeing with the noble Lord, Lord Cormack, but I feel that there is a massive difference between this Bill and the Medical Innovation Bill, which is completely unnecessary. That is why it troubles me that we should be comparing the two Bills.
Very briefly—I shall not detain the House greatly—I want to say why I disagree with my noble friend Lord Campbell-Savours. I apologise to him for disagreeing. It is essential that we have something like the amendment in the name of the noble Lord, Lord Pannick, to protect our society. The reason for that is absolutely clear. It was raised to some extent by the noble Baroness, Lady Cumberlege, in her short speech. The issue, of course, is that in our hospitals we have increasing numbers of elderly people who come into hospital, a foreign environment, and find themselves distressed and not understanding what is happening, and are seen almost as demented; certainly, they will be people who are completely out of touch with what is happening to them and they will not understand. Therefore, it is essential that we have some kind of legal process that ensures that the Bill, if it is to succeed, is properly policed. That is essential. It cannot be left to members of the medical and nursing profession to make their minds up. For that reason, I absolutely support the amendment introduced by the noble Lord, Lord Pannick.
Lord Hunt of Kings Heath (Lab)
My Lords, it is not for the Opposition Front Bench to state an official view as to what action should be taken in relation to these sets of amendments. It is up to our own individual consciences to make our own minds up. However, it is an opportunity for me to say to the Government that it is important that we have sufficient time to debate this important Bill. I hope the government Chief Whip will take to heart the comments that have been expressed—by noble Lords who have different views but who certainly think that we should have further time to discuss this.
Although the noble Baronesses, Lady Wheatcroft and Lady Hollins, and my noble friend Lord Campbell-Savours expressed doubts about bringing the courts into this process, essentially these two sets of amendments, although they differ about the role of doctors, bring the courts into the process, and can be said to respond to the debate at Second Reading about the need for safeguards. Given that, I want to put two points to the Minister, which I hope he will be able to respond to.
The first is about the capacity of courts to deal with applications in a timely manner. The noble and learned Baroness, Lady Butler-Sloss, spoke from great experience and she was clear that the courts would be able to respond very rapidly. I think she said that they would be able to deal with the process in a matter of 24 hours. Of course, we do not know how many cases are likely to be brought. I hope the Minister will be able to say a little about how the Government would respond in relation to capacity in the courts if it were needed.
The second point I want to put to the Minister is about the financial support available to persons who would go to court under the process envisaged in either set of amendments. It surely must be open to everyone to be able to go to court without fear of the financial consequences. We know that legal aid has been heavily reduced in previous years. I ask the Minister to reassure us that if either set of amendments appeared in the Bill, and it was eventually enacted, that public funds would be available to allow people to go to the courts.
It is important that the Minister clarifies these points as clearly they have an important bearing on the attitude that noble Lords may take to these amendments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I congratulate the noble and learned Lord, Lord Falconer, on steering his Bill to a stage that no previous Bill on this difficult and controversial issue has reached. I know he will have listened very carefully to all contributions from your Lordships and that he will respond carefully to this amendment and to the others that will be debated here today. The number of amendments tabled is testament to the careful scrutiny of legislation that is characteristic of this House. The debate on this Bill at Second Reading was much admired outside the House, as well as within it, of course. The respect that was shown by those with very different views was remarkable for its lack of rancour. That has been echoed today and I am sure it will continue to be the case throughout the debate, whenever it concludes.
It may be helpful, in order to save time later—and perhaps your Lordships’ patience for listening to me—if I make some more general remarks while addressing this group of amendments. As I said at Second Reading, the Government believe that any change to the law in this sensitive area is an issue of individual conscience and a matter for Parliament to decide rather than one for government policy. It follows that the Government will take a neutral position in today’s debate and that these Benches will have a free vote should the House divide.
Inevitably, the extent to which I may usefully contribute to the debate is limited from a position of neutrality. It is for the noble and learned Lord, Lord Falconer, to respond to the amendments moved, and to respond as appropriate on whether the clause should stand part of the Bill. My role, as I see it, is to assist the Committee in any way that I can without compromising the Government’s position, and to draw the attention of the Committee to any discrepancy that I might identify at this stage between the intended purpose and actual effect of any amendment.
Lord Falconer of Thoroton (Lab)
My Lords, I express my gratitude to everybody who has contributed to this short debate. It has been an excellent debate. I completely agree with what the noble Lord, Lord Winston, said: there should be a proper and full debate, because the sorts of decisions that this House has got to make are extremely grave.
I think that the issues in this short debate can be divided into effectively two: should we have any court-driven process to give greater protection; and if we should, what should that court-driven process be? The noble Baroness, Lady Wheatcroft, put most clearly the view that there should not be any court-driven process because it might deprive some people of the opportunity to use the Bill. The fear of going to court, the expense of going to court and how they feel at the time might well be a barrier. I am very conscious of that argument—from time to time, it has been high in the mind of many people—but my own view, having heard the debate at Second Reading, having heard the debate here and having spoken widely to people who might be involved in the decision, is that what would give much greater confidence regarding the Bill would be some sort of judicial process that raised the minimum barrier to people using the Bill but provided protection.
In the course of this debate, people have sought to say, “Well, it’s got to be the judges and not the doctors”. I think that it has got to be both, because you cannot even get to the judge unless two doctors have indicated that the person is terminally ill and, as far as they are concerned, the person has a firm and settled view to do it. However, I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity. I have been worried about whether the courts could deal with this quickly enough, but I have looked quite deeply into that. I am very influenced by points of the sort that the noble Lord, Lord Ribeiro, made. I think he will agree that the blood transfusion cases to which he referred are inevitably incredibly urgent, and the court could deal with them. The noble Lord, Lord Patel, referred me, not in the debate but separately, to the emergency caesarean section cases. Again, they are urgent. The noble and learned Baroness, Lady Butler-Sloss, who has experience in this matter, spoke very persuasively of the speed with which the courts can deal with such cases, and the conjoined twins case was done very quickly.
I am worried about the costs issues. The noble Lord, Lord Faulks, gave some reassurance by referring to the exceptional funding. I cannot imagine a more grave decision than one such as this, and I hope that well meaning people in the Government would make sure that it applied to it.
In principle, therefore, I think that judicial process, although it may deter some people, will ultimately give greater protection. Which of the two options should one choose? Under the Lord Pannick option, if I may call it that, one could get the prescription,
“only if the High Court … by order, confirms that it is satisfied that the person … has a voluntary, clear, settled and informed wish to end his or her own life”.
That means that the High Court will have to decide whether the person has voluntarily decided to do this, which means that there is no coercion. In addition, the court has to be satisfied that the person has the capacity to make the decision. So it will be a primary decision for the courts.
In addition to those requirements, the amendment in the name of the noble Lord, Lord Carlile, says that the court can allow this to happen only if it is satisfied that the person is suffering what is the equivalent of “torture”—that would satisfy Article 3—and that not to allow it would be a breach of their Article 8 rights. I respectfully submit that those are very high hurdles and are utterly inappropriate to a Bill that basically says, “Your free will should determine it”, but I completely adopt what the noble Lord, Lord Reid, said about free will, properly examined, as being right.
This is a very difficult issue and the main one that we have got to decide today. I have heard what the noble Lords, Lord Phillips and Lord Campbell-Savours, said. They asked whether we could find an alternative, perhaps the magistrates or a committee of well meaning people in the community. Honestly, those ideas sound great, but they just will not work. I think that you need the highest-quality judges to decide these issues, and I do not think that the proposals being made there are really sensible.
People have said, “Let us not have votes today”. I think that we should resolve this issue today. We have had a very full debate. It is a matter for the noble Lord, Lord Pannick, whether he wishes to divide the House, but I am strongly of the view that we have debated this long enough. We have debated it very fully today, and very fully at Second Reading. My position is that I accept the arguments made, that there needs to be some degree of additional oversight. I believe that the proposal made by the noble Lord, Lord Pannick, is the right one, and I think that the time has come for this House to make up its mind on this very important issue.
Lord Pannick
My Lords, it has been a valuable and informed debate on the most profound moral issues. Like the noble and learned Lord, Lord Falconer of Thoroton, I of course respect what the noble Baroness, Lady Wheatcroft, says—that people who wish to end their life should not be impeded by a legal procedure. However, I think that the judicial safeguards, as so many of your Lordships have said today, are essential to protecting vulnerable people, which was one of the main concerns expressed at Second Reading. A judicial process will also bring home to the individual seeking assistance to end their life the gravity of the decision they are taking. A judicial process will also assist the doctor, as the noble Lord, Lord Ribeiro, pointed out. The noble Lord, Lord Tebbit, in his moving speech—
Lord Mawhinney
I am grateful to the noble Lord. I am one of those who was against the Bill, but I am being persuaded that there is a court role that might go a considerable way to being helpful to the outcome of this legislation. There were a number of suggestions that, rather than going to a vote in Committee, it would be helpful if the noble and learned Lord, Lord Falconer, with the noble Lords, Lord Pannick, Lord Carlile of Berriew, and others, sat down to see whether it would be possible to produce an amendment on Report which did not require all of us to be legal experts and have read paragraph 205, but which showed a degree of continuity and cohesion among those who have led the House to this position. Would the noble Lord be willing to put off a vote until Report so that such conversations could prior take place?
Lord Pannick
I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,
“a voluntary, clear, settled and informed”,
decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.
Lord Carlile of Berriew
Does the noble Lord not think on reflection that Report stage on a Bill of this kind is an extremely important stage for your Lordships’ House? Does he not think that it would be far better for your Lordships to discuss and reflect so that when we come to Report we are able to make a considered decision in which even those of us who feel strongly about these issues will understand the essential need to be prepared to compromise, through a proper discussion reflective on the debate of the past two hours? In that context, I am certainly not going to vote on any of these amendments either way. I invite the noble Lord to reflect for one moment on what has just been said. I think that others may well agree.
Lord Pannick
Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.
Lord Harries of Pentregarth
There are some issues that need to be further clarified. The noble Lord, Lord Carlile, has a whole range of amendments going into more detail about what his proposal would actually mean in practice. The House has not had a chance to hear those amendments, which I think will go some way to addressing the point that the noble Lord made against the point that the hurdle was too high. I very much support those who urge that the noble Lord should get together with the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Falconer, to see whether there is some more common ground.
Lord Mackay of Clashfern (Con)
I had intended to make a short observation but the intervention came from the opposite Front Bench, so I did not find it possible to speak. I rather go with the form of the amendment proposed by the noble Lord, Lord Pannick, subject to this. It is essential in the Bill that there should be a terminal illness. That is a very important issue which requires determination before the Bill operates. The amendment tabled by the noble Lord, Lord Pannick, as far as it goes, does not actually require—if I have understood it right, and I am subject to correction like everybody else—the judge to be satisfied that the patient is suffering from a terminal illness. I think that that is a part of the definition that requires to be taken into account.
For my part, I was rather expecting that the detail of the amendment would be settled before Report. In the mean time, what we are really considering is whether, as the noble and learned Lord, Lord Falconer, said, there should be judicial intervention at all. On that point, I think that a very large proportion of the noble Lords here today are rather in favour of it. However, the precise detail of it is quite important. Therefore, I find it hard to believe that it is right that we should settle on the particular form of the amendment today.
Baroness Butler-Sloss
I very strongly support the noble and learned Lord, Lord Mackay of Clashfern. I actually think that the amendment tabled by the noble Lord, Lord Pannick, has a great deal to commend it, and I would have said that to him. However, the point made by the noble and learned Lord is terribly important. Who is going to be the deciding factor on the terminal illness? I believe that this is an enormously important issue for Report—and I am at the moment assuming that the Government will give us time to have Report. I refer to what was said by the noble Lord on the Front Bench. This has got to a point of such importance that I really do not think that it should be addressed at this stage.
Lord Cormack
What can possibly be lost by having further conversation and discussion? If the amendment is put to the vote and is carried, other amendments cannot then be discussed because a number of them will fall by the wayside. That is not going to assist our progress in having a full-ranging discussion. I would beg the noble Lord, Lord Pannick, not to press his amendment today so that discussions can take place. I make this suggestion, as I did in my speech, in a wholly constructive manner. I would beg of the noble Lord to heed that, because pre-empting other amendments is not the best way of taking this forward.
Lord Pannick
I am grateful to all noble Lords who have put to me pleas, begging—or however it is put—and I do take them very seriously indeed. However, it seems to me that after two hours we have had a very considerable debate on an issue of principle relating to the Bill. There is widespread agreement that there should be a judicial protection included in the Bill. As I understand it, only two real concerns have been expressed. The noble Lord, Lord Carlile, has suggested that the protections in my amendment are not sufficiently robust. With great respect, I do not accept that. The other objection raised is that it should not be judges of the Family Division who hear this. I think that this is so grave an issue that it is right and appropriate that the judicial protection is at that level. As the noble and learned Baroness, Lady Butler-Sloss, will confirm from her experience, there is nothing formal about the Family Division in appropriate cases. Judges hear the disputes around the bedside of the patient when necessary.
The noble Lord, Lord Tebbit, in his moving speech, was concerned about wrongdoing. I say that if the judge is satisfied on hearing evidence that the decision is,
“voluntary, clear, settled and informed”,
by a person who has capacity, then the noble Lord’s concerns about wrongdoing will be met. It is time that we came to decision on this matter of principle, encouraged as I am by what the noble and learned Lord, Lord Falconer of Thoroton, says. I willingly give way.
Baroness Finlay of Llandaff (CB)
I am grateful to the noble Lord, Lord Pannick, for giving way. We have had a wide-ranging discussion. I felt that we were at the point of getting people to come round a table to find a solution. Like others, I am concerned about this process, but I respectfully state that I do not believe that we have heard the full debate. Other amendments in the next group in the name of the noble Lord, Lord Carlile, will expand on what he has proposed, and they have not had a fair hearing. I fear that to vote now may force the House to amend the amendments of the noble Lord, Lord Pannick, at Report. If that is what he wants, I am concerned about that. The House’s debate to date has been balanced and careful. I do not understand what is to be gained by having a vote now, rather than going through the issues, because we agreed that a lot in the Bill needs to be debated and sorted out. I state clearly that I am not aware of any wrecking amendments; the debate has been extremely informed.
Lord Pannick
I am not suggesting for a moment that anyone has proposed wrecking amendments, but I certainly do not accept that the noble Lord, Lord Carlile, has not had a fair hearing. He made a speech of 15 minutes or so—most appropriately—in which he set out his case, and the House has heard the arguments for and against. I do not think that there is anything unfair or unbalanced about putting to the opinion of the House an issue of principle so that we can make progress. I wish to test the opinion of the House.
Lord Carlile of Berriew
Lord Carlile of Berriew
My Lords, we come to a group of amendments, starting with Amendment 3, which stand in my name and those of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Darzi, and, I am pleased to say, in one case, the noble and gallant Lord, Lord Stirrup. I am grateful to him for putting his name to that amendment.
I am gratified that we have had a serious and detailed debate on court intervention. I applaud the noble and learned Lord, Lord Falconer—
Baroness Jolly (LD)
My Lords, please could those leaving the Chamber do so quietly, as we have moved on to the second group.
Lord Carlile of Berriew
My Lords, I was about to say that I applaud the way in which the noble and learned Lord, Lord Falconer, accepted something that was not in his Bill and which, in my view, should have been: court intervention. That is an important principle. I agree with the noble Lord, Lord Pannick, whose amendment has just been carried, that it would not be right to say that we have not had a proper debate on the previous group of amendments. I make no complaint about that. However, I make clear that if there is a Report stage of the Bill, there will be further detailed debate on the issues we have discussed and those in this group, to which I will turn in a moment.
I just wanted to pick up on three remarks made in the excellent previous debate. One was made by the very distinguished lawyer, whom I admire greatly, the noble Baroness, Lady Mallalieu—which I suppose is an inevitable preface to disagreeing with her—when she referred to a legalistic obstacle course. The noble Lord, Lord Campbell-Savours, referred to congestion in the system, and the noble Baroness, Lady Murphy, who I see has left her place, said that my proposals were unworkable. I reject all those concerns. Indeed, I and those who have put our names to the amendments have sought to provide a very straightforward road map. It may at the moment look a bit like a menu, but this is a House of Parliament and your Lordships are Members of a debating Chamber. Like any other noble Lord, I hope, I accept that parts of what looks like a menu may be accepted and others rejected in due course. I respectfully submit that the amendments are worthy of consideration.
Briefly, I refer your Lordships to the rationale of each amendment, other than Amendment 3, which speaks for itself. Amendment 64 requires the court to be satisfied beyond reasonable doubt of certain things. Why “beyond reasonable doubt”, given that these are civil, not criminal proceedings? I have spent—I wrote on a piece of paper last week that I had spent 42 years at the Bar, but I had to consider afresh and added another two years as I was writing the piece I was preparing—44 years at the Bar and, throughout that period, I have dealt mostly with criminal cases in which there has been an assertion that death has been caused unlawfully. It always has to be proved beyond reasonable doubt so that the court is sure, as judges say to juries in murder cases. It is a straightforward proposition that, if Parliament is to allow one human being deliberately—not through double effect, of which the noble Baroness, Lady Finlay, spoke so eloquently earlier—to take the life of another human being, the standard should be “beyond reasonable doubt”.
Secondly, Amendment 64 requires the court to be sure that there would be breaches of Articles 3 and 8 of the convention. I mean by that that the court should be sure that the person concerned would be suffering from inhumane and degrading treatment by not being allowed to have their life taken with the assistance of another, and that there would be, to use shorthand for time’s sake, a breach of their right to privacy and family life.
Further, in Amendment 64, I suggest to your Lordships that it is important that the rights of others should be considered if they are affected by the applicant’s potential suicide. By that, I refer to wives and husbands, children and grandchildren, carers and other people who feel on strong grounds that the applicant is taking the decision—albeit with capacity—on an entirely mistaken basis that does not amount to breaches of Articles 3 and 8 of the European Convention on Human Rights. It seems to me common sense that they should be heard.
Finally, I suggest that the court may, in its discretion—please note that those words mean exactly what they say—allow other persons in addition to the applicant to be heard. In that context, we are aware, because the noble Lord, Lord Pannick, told us about it, that in the Nicklinson case the noble Lord appeared on behalf of an interested party—no doubt to enormous value, as one can see from the judgments in the case. It seems to me right that the court should retain the discretion, which might be useful in very early cases, to permit such interventions.
I turn to Amendment 67, which sets out part of the road map by which the Family Division would decide these cases. In personal injury cases and indeed in some others, the court is free to appoint an independent medical expert to assist the court. What that expert can do, if he or she is a good expert, is to look at the medical evidence produced by the parties, draw its threads together, discuss the medical evidence with other experts—it can be done at high speed—and present an independent medical view to the court. It is of course not the independent expert who decides; it is the judge and the court that decide. But I believe, and I have seen this happen in personal injury cases on one or two occasions, that such independent experts add considerable value, particularly if they put their report into writing. That does not mean necessarily that there has to be a dissertation. What I mean by writing is that there has to be a written record of the doctor’s view, which is always available to others.
Lord Davies of Stamford (Lab)
I am grateful to the noble Lord for giving way. How long does he think that the whole of this process would take? What is the minimum amount of time that realistically would be involved if an independent report were required in writing? Does he not recognise that we are going to be dealing here largely with people who are suffering extreme pain or other discomfort and who would really wish to reduce the time to an absolute minimum when they have to continue to suffer that kind of condition?
Lord Carlile of Berriew
I do not know whether the noble Lord was here during the last debate—I apologise if he was—but I thought that that question was answered clearly. These things can be done very quickly indeed. Some of the answers could possibly be given in less time than it took the noble Lord to ask the question that he just asked.
Also in Amendment 67, a simple system is provided which involves the intervention of another independent person about how the act of assisted suicide would take place. That seems to be a straightforward safeguard.
Lord Richard (Lab)
If the noble Lord will allow me, why does he make the provision of an independent medical examiner mandatory and not discretionary? In the word that he uses, the court “shall”; it is not that the court “may”.
Lord Carlile of Berriew
I am grateful to the noble Lord, who has great experience in law, for asking that question. It is one that I considered carefully. It seems to me that in cases where one human being is having their life ended deliberately by another, the court should have the safeguard in all cases of an independent expert, albeit that that expert may in the end be able to deal with the matter briefly.
Amendments 67 and 68 also deal with the way in which the assisted suicide, if it takes place, is to take place. It seems a wise, safe course that the independent person who oversees any act of assisted suicide should submit a report to the chief coroner. I think that it is the view of most lawyers, at least, that the chief coroner—currently, his honour Judge Peter Thornton—is doing an absolutely superb job and has shown how the coronial system can be made to work much better than it ever did in the past, so that seems to be a reasonable provision.
I turn finally to Amendment 172, because I referred to Amendment 175 briefly in the earlier debate. Amendment 172 provides for a form of declaration which in my respectful view should go with every one of these decisions, if they are to be made, and which will stand as a record of what occurred not only for the court but as an explanation to the individual’s family and descendants as to why he or she decided to act as they did.
Those are the very brief reasons why these amendments, in my respectful submission to your Lordships, have merit. Despite the passing of the earlier amendment in the name of the noble Lord, Lord Pannick, these are issues that remain for consideration. I repeat that I do not propose any votes in this House on any of these issues today. These are serious matters which require debate and then reflection. I reserve the position as to what would happen on Report.
Baroness Finlay of Llandaff
My Lords, I stated earlier that I saw merit in the amendments tabled by the noble Lord, Lord Carlile, because they took doctors out of the gatekeeping role. I would like to expand on that briefly now.
The advantage of an independent medical expert is that you will know that you have somebody who has been properly trained, whose assessments are audited and, where there is monitoring in the process, that they have to be updated in that area and discipline—and that they carry credentials, as well as being able to negotiate the court process. As part of that assessment, it seems essential that others affected by the death are also considered in the process—in particular, children. I have spoken before in this House about the problems for children who are bereaved. I do not think that the House should underestimate the emotional problems for a child whose parent has committed suicide or had an assisted suicide, or the difficulties that they may go on to feel: that their love was inadequate to support the person whom they loved—their parent—through the last days, weeks or months of their life, and how damaging that can be for the rest of their lives.
I also strongly support the concept of having a court-appointed person who could take the drugs out to the person who has gone through the process and for whom assisted suicide is being agreed. The way that the Bill of the noble and learned Lord, Lord Falconer, is written at the moment is completely impractical because in reality not all patients die rapidly on ingesting their drugs. Some die within minutes but the median time is actually 25 minutes, if we base it on the Oregon experience. However, some take 41 hours to die. That is going to tie people up for a very long time.
We are talking not about therapeutic drugs but about a massive overdose of a drug at a fixed point. Later we will come on to debate lethal drugs and the difference between those and medication. There can also be monitoring of whom the drugs go to when they go out, and the return of drugs to a central point if they have not been used—as well as having someone who is trained to deal with the complications that occur, which has not been addressed and which, I respectfully point out to the House, almost no doctors are equipped to cope with at the moment. Yes, they may learn, but that would be at the expense of patients.
The other reason why I see the merit of having a completely independent process of assessment is, as I said before, that it does not contaminate the care that is being given to the person by the clinicians. It allows conversations to go on without the patient feeling that they have locked themselves in—that in a way they can pursue a parallel track. They can be assessed by the court but they can still have their own practitioner working to improve their quality of life, not believing that, now they are applying to fix a date for their death, some of the interventions feel pointless and futile.
Lord Jopling
My Lords, the noble Baroness has just said something that has totally appalled me: that in these circumstances—in Oregon, particularly, I believe—it can take 41 hours for the injections to take effect. I am horrified to hear that. Would she be kind enough to try to give us rather more of an explanation from her background and experience about how this happens? It has come as a shock to me.
Baroness Finlay of Llandaff
I will certainly try to explain. The data come from the Oregon Health Authority’s own reports, which are written annually, based on the returns by the doctors. We know only the information that is given by the doctors; we do not know what goes on otherwise. If a doctor does not report it, it is not known. We also know from the Oregon health reports that three patients actually woke up again and did not go on to die.
The point is that you are giving a massive dose of barbiturates that is at least 20 times what you might use therapeutically to render someone unconscious but leave them alive; it is a huge dose. When someone is frail and very near death, they may well die rapidly from ingesting a small amount of an additional drug, but I would also point out that in its data the Oregon Health Authority says that the shortest time was one minute, and that is before any drug would be absorbed. I found that interesting because, in my own clinical experience, there are patients who, when the family says to them: “It’s okay, you can let go”, die within minutes of that statement being made. In other words, when they are given permission to die, they let go of the drive to stay alive. I wonder whether the figures in Oregon showing a very short time demonstrate that the person has signalled that now they are letting go, and that is it. I am worried by the prolonged figures, however, and I would point out that the median means that half the cases take longer than 25 minutes. That still seems to me to be quite a long time, but we will discuss complications later in the debate, not in relation to these amendments.
There is merit in not using the clinical team that is looking after the patient, whoever they are, but using an independent assessment by people who are properly trained in assessing capacity and who have the ability to ask questions about the family that the doctor who was looking after the patient may, for whatever reason, feel uncomfortable or inadequate about asking. They may not be adequately trained, because very few doctors are properly trained in assessing capacity. I also emphasise to the House the merit of having an independent person give the drugs.
My final point is that it is important to look at those jurisdictions that have changed the law regarding what happens if you do not have the kind of control that the amendments of the noble Lord, Lord Carlile, have been trying to put in. We know from Belgium that 32% of its physician-assisted euthanasia—that is how its law is framed—now happens without the explicit request of the patient, and we know from Belgium’s own data that it estimates that 47% is not reported. So without having these kinds of controls, you develop a very leaky system. The thought of people’s lives being ended without their explicit request is something that I find horrifying.
Baroness Cumberlege
I return to the point raised by my noble friend Lord Jopling about 41 hours. Does the noble Baroness envisage that there would then have to be a turnover of the staff with that person because we do not want people to die alone? I am thinking of how nurses operate their shift systems. This would possibly mean that you would get different people unknown to the patient coming in to sit with them during the 41 hours. Normally, nurses will try to stay with their patient for as long as possible.
Baroness Finlay of Llandaff
I thank the noble Baroness for her intervention. She has made a very important point. You would be tying up healthcare staff for an extremely long time. Indeed, there would have to be a change of shift. That is important for whoever has been involved in whichever process. The court-appointed person could change shifts and be in attendance to make sure that there was no foul play. It is not adequate just to deliver the drugs because the patient might not take all of them, and then what happens to the residue? I know the noble and learned Lord, Lord Falconer, has tried to address that. You need somebody there to make sure that people do not think, “This is going on too long. Why haven’t they died yet?”, and put a pillow over their head. If the patient is going to be one of the people who wakes up again—and the number is very small—it is worth noting that those who woke up again in Oregon did not go for a second attempt at physician-assisted suicide but continued living until such time as they died naturally of their disease. There is something much more important going on here, but it would be extremely dangerous not to have that court-appointed person or system provide for accompaniment.
Baroness Butler-Sloss
I would like to add something to what the noble Baroness, Lady Cumberlege, said. In case of permanent vegetative state, it is well known that a number of nurses are not prepared to work with those who are bringing the person’s life to an end. Therefore, it is necessary to place the patient in a permanent vegetative state from whom nutrition and hydration have been withdrawn with those who are prepared to look after that patient, who may sometimes live for a week. This is obviously a much shorter time, but if one takes 41 hours as a possibility, I suspect there will be nurses who will not be prepared to have anything to do with what is happening. That is another point that needs to be taken into account.
Baroness Masham of Ilton (CB)
I shall tell the noble Lord, Lord Jopling, about the death penalty in America where the lethal drugs had a disastrous effect, with prisoners dying very slowly.
Lord Harries of Pentregarth
My Lords, I have my name down in support of the amendment tabled by the noble Lord, Lord Carlile. He has explained the rationale behind it with his usual clarity and I am not going to repeat his arguments. I support very strongly what the noble Baroness, Lady Finlay, said about the importance of taking the whole process—the independent assessment and the administration of the drug—out of the hands of doctors and making it from beginning to end in every detail a court-controlled process.
I shall address briefly one question which may be on the minds of many noble Lords. Indeed, it has been said before that this may be to set the bar too high. It is true that under this amendment the tests are very stringent and rigorous, but surely on an issue of life and death such as this, they need to be as stringent and rigorous as possible. Provided that a decision can be made quickly—we have heard many reassurances that the courts can make decisions like this quickly—surely the test cannot be too stringent or too rigorous. What many of the opponents of the Bill are worried about is not that they are failing in compassion for people who find their life unbearable, but about the overall effect of the erosion of the value of human life in our society by decisions on this kind of issue. If the tests are rigorous and stringent and are made from beginning to end by a court process, people will be able to see that these are truly exceptional cases and there will be less effect in terms of eroding more generally the value of human life and in the way we nurse the sick and treat other people who feel their life is a burden.
Lord Deben
My Lords, I do not believe that hard cases make bad law. I have always thought that that is one of the phrases which make it difficult to have a sensible conversation. I believe that you have to be careful not to make law because of a stereotyped position. One of the difficulties in this debate is that we tend to have stereotyped views about what is happening at the bedside. It is important to realise that a whole range of different things happen at the bedside and the relationship between the patient and his or her friends and family is never the same.
I listened with great care to what the noble Lord, Lord Carlile, said. I am not a lawyer and I cannot be precise as to whether his particularities are the best that we can achieve, but I hope that the House will think seriously about the need for three key elements. First, there is speed. If we are going to have this Bill, we want someone to be able to make this decision with the courtesy that speed demands. The process needs to be fast enough to be commensurate with the seriousness of the decision. Otherwise it lengthens something which someone is in desperate need to finish.
Secondly, it needs rigour. The noble and right reverend Lord, Lord Harries, said that. There is nothing wrong with rigour, unless it is of a kind which makes speed impossible. I do not think that the rigour which the noble Lord suggested makes speed impossible. It says to the public as a whole that we have made this change in the law, but it is not a change in the way in which we think about human life. Those who support this Bill believe that it is an enhancement of their view of human life and that the rigour is the mechanism whereby society says that it still believes deeply in the standards and values which respect human life. On this specific and particular occasion, according to these very rigorous rules, they believe it right for someone to take their own life with the assistance of someone else.
Thirdly, we have to do this in a way in which the aftermath is as manageable as possible. I hope that noble Lords will think very carefully about the effect of assisted suicide on the family and friends after it has happened. I believe that the Victorians spoke far too little about sex and far too much about death. The reverse is true today. We do not understand—because very often we are unprepared to talk about it—the effect of death on the rest of the family. I remember receiving a very considerable rebuke when I allowed—and, indeed, organised—my children to see their dead grandmother. I thought it was necessary to start the whole process of grieving. I have become more aware of the different ways in which people react today and of the difficult issue of how someone might react to death before it happens. Anyone who has been involved pastorally—whether in parliamentary or religious terms or just in terms of neighbourliness—recognises that it is hard to know how a particular person will react ultimately to what has happened.
Changes in the law along the lines that the noble Lord, Lord Carlile, has proposed are very important. We should be prepared to recognise that, although this is a decision of the patient, guaranteed by the law to be an individual decision, we as legislators have to legislate in a way which also respects and protects the effect of that decision on society. In an odd way, that is actually our biggest job. We represent society in trying to make these tough decisions. I hope that your Lordships will take seriously the need to do as my noble friend Lord Carlile has suggested, not just for the patient, not just for the doctor and not just for the assurance that we have really professional assessment of the medical advice, but also to make sure that when the children look back on the occasion, they are protected in the best possible way and are able to accept it. After all, whichever side of this argument you are on, that is crucial. Anyone who does not realise what grieving has to be if the future is not going to be seriously tarnished and damaged has not been through that experience.
Lord Blair of Boughton
May I ask the noble Lord, Lord Carlile, about the declaration in Amendment 172? I have no difficulty with the declaration except that it changes the nature of the Bill. Is this a typo or a deliberate change? The declaration declares that the person is going,
“to die within three months”.
However, the Bill says six months. If we are going to change what is in the Bill by such a significant amount, it would be better if it were an amendment in its own right.
Lord Carlile of Berriew
The intention is to reduce the period. That does appear in other amendments.
Lord Stirrup
My Lords, my name is attached to Amendment 67. At Second Reading I made it clear that my principal concern with the Bill was the way in which it affected the medical profession. The medical profession is essentially about saving, protecting and enhancing life. It is true that doctors can make decisions to withhold or withdraw artificial support for life. It is also clear, as has been said today, that they make decisions that will result in death; for example, choosing between a mother and child on occasion, or between Siamese twins. However, the intent—the driving purpose—is always to save and protect life.
In the Bill, the medical profession will be called on to cross a distinct line. It is invited to participate in the active termination of someone’s life—to participate in killing them. That is a very serious line to cross. Once it is crossed, as I said at Second Reading, there is no easily defensible position behind it. No one knows when the retreat will end.
This amendment does not allay that concern; indeed, I am not sure that any possible amendment to the Bill would address that concern completely. However, it does at least ease it to a degree. The crucial point is to remove the medical profession from the decision-making part of the process. Of course it has to be involved, and of course you need medical opinion. However, doctors are called on in the Bill to decide things that are, frankly, not even within their competence. Whether they are in the competence of anybody, including lawyers, is a matter for debate, but it is better that they should be removed from the medical profession.
The medical profession is of course called on to make a prognosis. My son is a cardiologist and has made it clear to me that, although he is called upon to make prognoses and does so, they are guesses. They are educated guesses—I have to say that they are very expensively educated guesses—but they are nevertheless guesses. They turn out to be right sometimes; they turn out to be wrong quite often—far more often than the medical profession would wish. It is an entirely different matter for a doctor to say to a High Court judge, “In my opinion, the most likely outcome in this case is X, but of course it could be Y or Z”, and for the court, on the basis of that expert opinion and all the other evidence that it has sought and assembled, to reach a comprehensive judgment. However, to ask doctors to do that is to put too great a burden on the shoulders of those who are already heavily burdened.
One of the concerns about this whole process is getting doctors to be involved in it in the first place. We know that a great many people in the medical profession are very concerned about the Bill, and would be unwilling to participate in the process. It might just be that if we are able to come up with some better decision-making process such as the one that has been outlined in the various amendments put forward by the noble Lord, Lord Carlile, we might get more of the medical profession engaged than would otherwise be the case. Surely, for those who are proposing the Bill that would be a good thing. Therefore, for those reasons, I support the amendment in the name of the noble Lord, Lord Carlile, including Amendment 67, to which I have put my name.
Baroness Grey-Thompson (CB)
My Lords, I will briefly pick up on a few points that my noble friend Lady Finlay of Llandaff raised, and on the point made by the noble Lord, Lord Deben, on stereotyping. Quite rightly, we are spending a lot of time thinking about the process of the Bill. It is absolutely important that we get this right. However, we also have to think about what someone’s end of life may be.
I have never met anyone who wants to talk about their own death or think about the process of dying. The purpose of the noble and learned Lord’s Bill is for people to die without pain. However, we also have to remember that death, in some cases, is not a stereotype. It is not always a Hollywood death, whereby people just slip away. We have to be very careful of that.
A German documentary was shown in August 2004 about the scandal of Auhagen’s death, in which the man in question wanted to use a machine to end his life, not wanting any assistance from another person. He was hooked up to the machine, and 24 hours later, he had not died. The nurse who was with him said:
“The machine … couldn’t pump all the poison into his system. The man was partially poisoned, in agony and thrashing around in a coma, frothing at the mouth and sweating”.
That cannot be allowed.
In Oregon, some of the data have shown that in the last few days of life patients who have requested assisted suicide go through more pain than they did before the legislation was introduced because the palliative care is not there. If the Bill progresses, we cannot allow it to happen that, if someone wants to end their life, goes down the path of requesting suicide and then goes through the cooling-off period, the proper and appropriate palliative care is not there to support them all the way through.
Lord Davies of Stamford
My Lords, I will make three points, which are important at this stage of the debate.
First, I very much deprecate the frivolity with which the noble Lord, Lord Carlile, answered my question about the time involved in producing an independent expert’s report. It is quite wrong to be frivolous about such a very important subject. Clearly, there has been a tendency to put forward a number of amendments in this group, all of which would increase both the time and the cost required to enable someone to benefit from the new regime brought in under the Bill. It is quite wrong of us in this Committee to underestimate the fact that if we passed these amendments we would add a considerable degree of cost and time. There would be the need to go to a coroner, the need for an independent medical expert, and for another independent expert who would be supposed to collect the drugs and oversee the process, and so forth. All that would mean more people, that arrangements would have to be made—in practice they cannot be made in a second or two—and that reports would have to be produced. We all know that people take some time to produce written reports, and on a matter of this kind one would take particular care to get every word in the report right. Therefore, I was not wrong to raise the issue of time and cost.
On costs, we heard with great relief some of the remarks made by the noble Lord, Lord Faulks, about the possibility of using legal aid, but we know that, however generous the Government will be, not all the costs involved in this process will be defrayed from public funds. Therefore we do not want to produce a certain situation but, as a matter of fact, we already have a situation whereby if you have enough money you can go to Zurich and solve the problem that way. There is a significant gulf at present between those who have greater financial means and those who do not as regards the choice they have as they reach the end of their lives and how they want to go. We do not want to exacerbate that, and by increasing the cost we are doing so. We simply have to take that into account and it should not be frivolously dismissed, as it was this morning.
Secondly, I want to pick up the point made by the noble Baroness, Lady Grey-Thompson, a moment ago. I see no reason why palliative care should not be continued until the moment when the patient decides to exercise his or her option to terminate his or her life under the procedures laid out in the Bill, if it becomes law. I see no reason why there should be any need to withdraw palliative care some days or weeks beforehand. That seems to me a problem that should not arise at all.
Finally, I want to address the point made by the noble and gallant Lord, Lord Stirrup, whose main objection to the Bill seemed to be that the medical profession should not be involved in decisions about the deaths of patients. That is a very serious point; I made a point along those lines at Second Reading. At present, what most of us face if we have a slow death is palliative care, which generally ends up with palliative sedation. That means that the patient is put into a medically induced coma and all means of life support, including food and liquids—not invariably so but certainly in many cases liquids as well, so that the patient is dehydrated—are withdrawn, along with any life support in the form of oxygen and antibiotics. If the patient has had kidney failure and been on dialysis, that is withdrawn, so the patient dies from blood poisoning. The patient dies in a coma, which takes a great deal more than the 25 minutes that is the average in Oregon, when people use that regime for the right to die. It takes many days, in many cases; I have known at least one case when dehydration took two weeks to kill the patient, who of course did not awaken from the coma during the whole of that period. That is the reality: every day of the week and every hour of the day, doctors and nurses take decisions determining the timing and cause of their patients’ death. They are taking the decision to withdraw antibiotics and life support, putting the patient into a palliative coma.
It is the alternative to that regime that my noble and learned friend Lord Falconer is proposing this afternoon, so that people have a choice. The whole object of the Bill is to give the patient a vote. At present, in many cases, the patient does not even know about the decision being taken by doctors and nurses, which will determine the precise means and timing of their demise. Under the Bill, undoubtedly the patient would be in the front line and the driving seat, taking the key decision, and the doctors and nurses would respond to a decision made explicitly by the patient. That seems to me an enormous improvement. I hope that even those of us who do not want this particular regime and would not want to use it ourselves will not want to deny others the opportunity to have a choice between death in a palliative coma and death as it could be chosen under this Bill.
Lord Cavendish of Furness (Con)
My Lords, there seems to be developing some suggestion that people opposed to the Bill are introducing amendments simply to add time and cost and to make it unworkable. Would the noble Lord, Lord Davies, understand that those of us who were in principle opposed to the Bill from the very outset realise that it is intended to be compassionate—as we all feel compassionate—but just find it impossible to reconcile compassion and the objectives of the Bill with the necessary safeguards? That is at the heart of the whole matter.
Lord Davies of Stamford
I am grateful to the noble Lord for giving way, but I must intervene on him. I said nothing designed to impugn the good faith and sincerity of anyone in this House, let alone people who have gone to the trouble of producing these amendments. What I said was that, whether it is intended or not, many of these amendments would have consequences in terms of time and cost, and it would be wrong of us to underestimate those consequences—and certainly very wrong frivolously to dismiss that whole issue, as happened this morning.
Baroness Finlay of Llandaff
Would the noble Lord accept the premise that we are trying to provide the evidence based on what we know happens elsewhere? My noble friend Lady Grey-Thompson outlined a reality—that we know reports come from those countries that have changed the law about patients whose symptoms are not being addressed in the days between the time that it has been agreed and when they have their lethal overdose. That is a reality that we abhor.
I would like to correct the perception about palliative sedation to which the noble Lord referred, as it is important that people out there do not have the misconception that patients are either not consulted about treatment decisions or that they are put into some kind of coma by those who are looking after them.
The evidence from Holland was presented at the international conference on clinical ethics in Paris in April this year. In Holland, about 2.7% of all deaths are from euthanasia or physician-assisted suicide. Their regime of palliative sedation is used in between 12% and 16% of cases. That is completely different from what we do here. In this country we may use sedation, titrating the drugs up temporarily to get on top of symptoms but then lowering the dose again and adjusting it to meet the patient’s needs. That is quite different from deliberately using a dose of drugs to induce coma and using uncontrolled escalations of opioids and benzodiazepine cocktails to produce absolute loss of awareness as a therapeutic goal. There is concern among those of us who are operating in palliative care in this country about that way of managing patients at the end of life. That is not standard practice here.
If the noble Lord would like to look at the recommendations on the use of sedative drugs at the end of life, I would be happy to take him through them. They are on various therapeutic websites. However, I hope he will accept that what may be said casually by people and propaganda is not necessarily what should happen, and that nobody condones the withdrawal of fluids and dehydrating people until they die. That was exactly why the noble Baroness, Lady Neuberger, undertook an inquiry into the Liverpool care pathway. It was misused because that was not what the relevant document said should happen. That was abuse, not treatment.
Lord Empey (UUP)
My Lords, I wish to speak on Amendment 67 in the name of the noble Lord, Lord Carlile, but, before doing so, I want to say how much I regret the direction of travel of our Committee stage today. I should have thought it would be more profitable to debate all the amendments in Committee and make decisions on Report. However, noble Lords have decided to take the proceedings in a different direction and we will have to deal with that.
There is no perfection to be found with this Bill or without it. As we have said many times, the Second Reading debate gave an opportunity for a large number of noble Lords to express their views and the compassionate arguments that were expressed throughout that debate were very moving. Indeed, there have been similar contributions today.
I have no complaint about the way that the amendments have been grouped today, but that does mean that certain amendments are more relevant to certain issues than others. That is inevitable. My anxiety, as I expressed at Second Reading, concerns the position of the medical profession. I am not a doctor but a close relative is starting out on that road. We have given insufficient consideration to the impact that the Bill, if it is enacted, will have on the profession. As I see it, it would completely change the status of a doctor and the doctor-patient relationship.
How often have we said that, in order to provide a lethal dose or drug, the best medical person to judge that is somebody who knows the patient because no two patients are the same? Even then, that is no guarantee because you have to have some people who are specialists in the delivery of certain substances. Even then, as we have heard from the noble Baroness, Lady Masham, when people deliberately set out judicially to end a life, it turns out to be a mess. By introducing an independent element, the amendment at least separates out from this process the role of the carer and the medical profession up to that point. That is extremely advantageous. Simply to assume that we can subcontract to a profession that does not want this, against its will and without even having a discussion on it, is presumptuous, to say the least.
Lord Alton of Liverpool
My Lords, I echo very strongly the remarks made by the noble Lord, Lord Empey, about the special and sacred relationship between doctor and patient. It is worth reminding the House of what the General Medical Council said unambiguously and robustly:
“A change in the law to allow physician-assisted dying would have profound implications for the role and responsibilities of doctors and their relationships with patients. Acting with the primary intention to hasten a patient’s death would be difficult to reconcile with the medical ethical principals of beneficence and non-maleficence”.
I agree with what the noble Lord said about relationships, but I also agree in particular with the importance of Amendment 68, in the name of the noble Lord, Lord Carlile, which is about the importance of independent safeguards. I will speak to it in a moment. I come from a region where Dr Shipman was a general practitioner. He was referred to by the noble Lord, Lord Carlile, in his opening remarks on this group of amendments. Hundreds of cremation forms were signed by doctors who were not Dr Shipman; they were signed and those patients went to their deaths. That is why we are right to talk in detail about the safeguards that I know the noble and learned Lord, Lord Falconer, wants to see incorporated in the Bill, should it proceed.
I am particularly enthusiastic about what the noble Lord, Lord Carlile, said about providing an independent element in this process. I think back to an exchange in a constituency surgery. The noble Lords, Lord Deben and Lord Empey, are right to remind the House that sometimes the exchanges one has on the ground as a local politician can inform the way we think about these moral and ethical issues, on the basis of human behaviour and human nature. Just after the Toxteth riots in Liverpool a man came to see me in my surgery about the death of his father. His father had divorced from his mother. They had lived in Germany and at the end of the war they went to Holland. After their divorce the mother and son came to live in England. After his mother died, the son wanted to be reunited with his father, whom he had not known since childhood. He went to Holland, only to find that, under the Dutch laws, his father, in a state of deep depression, had taken his own life.
What really distressed this young man was that he had a half-brother who had inherited all his father’s wealth and had given permission for his father’s life to be ended. That reminded me of something that the noble Baroness, Lady Cumberlege, said to us on an earlier occasion. I thought it a wry but very accurate remark. She said that where there is a will, there is a relative. There are profound implications. People can gain from these circumstances. That is why an independent element is so important.
One thing that has united the House is the sense we all have about public protection. For me it is the key question for whether we support the Bill or not. Public safety is the issue. Polling data have been referred to, but those data reduce massively to only 43% approval for a change in the law if people believe that public safety will be compromised. That is the issue that your Lordships have to deal with if the Bill is to go on the statute book.
Amendment 68 takes us to the point where we can have an independent overview of any decisions that are to be made. It builds on what the noble Lord, Lord Deben, said on how we assess the effects of any individual act in the context of society as a whole: how we look at the aftermath of these decisions.
We heard from the noble Lord, Lord Howard, about the role of the hospice movement in palliative care. I am a patron of a couple of hospices, I suspect like many of your Lordships. I know the wonderful work that they do, particularly on Merseyside, which I have been involved with throughout my political life. Every year at one of those hospices there is a walk of witness through the local community, where they raise significant sums of money. It costs a lot of money to keep those hospices going. However, for me, what is really wonderful about those walks of witness is the therapeutic effect that they have on all those who participate. It is a healing process in grief.
I accompanied my father in the last moments of his life. He had a healing moment, believing that he had seen his brother who, as a member of the RAF, had died in the Second World War. I do not know whether this was a near-death experience or whether it was accurate, but it certainly helped him. If he had been given a lethal injection earlier, he would have been denied that moment. I believe that the concept of a good death—the one that historically we have always treasured in this country—could be lost if we proceeded into the mechanistic view that authorised assisted dying would probably introduce. Therefore, for me, safeguards are important.
People have been talking of their own experiences during these debates. My father was one of five brothers who were in the Armed Forces. He was a Desert Rat. One of his brothers lost his hearing and took his own life after the war was over. I remember it even though I was very young at the time. It had a profound effect—a point made by the noble Lord, Lord Deben—on everyone in our family and it still has to this day. Therefore, the idea that these decisions are purely acts of autonomy and matters of private choice that have no effect on others is simply wrong. Indeed, it was your Lordships who said precisely that in 1994, when my noble friend Lord Walton of Detchant, who cannot be here today but who, in his 90s, still plays a very active part in the House, chaired the Select Committee in question. I know that the noble Baroness, Lady Warnock, has changed her mind since then but she has played a significant part in the debates around these issues over the years, and she, too, was a member of that Select Committee. The committee said:
“Individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions … Dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole”.
I repeat:
“We believe that … the interest of the individual cannot be separated from the interest of society as a whole”.
I profoundly believe that. There is great wisdom in what the Select Committee said at that time. We have to weigh up that issue as we consider this and all the other amendments that will follow. Are we able to provide the necessary public safeguards? Are we sufficiently concerned about what will happen in the aftermath? And are we sure that we can proceed without safeguards such as the independent element that the noble Lord, Lord Carlile, is suggesting to your Lordships in this amendment today?
Lord Singh of Wimbledon (CB)
My Lords, I very much agree with the sentiments expressed by the noble Lord, Lord Alton, and I agree about the importance of total independence if we must go in the direction of this legislation. However, I still have great concerns about the direction in which we are going, especially in relation to independent capacity and settled will. In everything that we do we need to place ourselves in the position of the patient. Everything we do is influenced by those around us. A person suffering mentally or physically will undoubtedly be affected not only by the pain but by his or her view of what effects their disability is having on the lives of others. A desire not to be a burden can sometimes be induced by others, but little thought seems to have been given to that.
Equally, uncaring or selfish attitudes of others cannot but have an adverse effect on one’s desire to live. I fail to understand how a couple of doctors or even independent judges can know the finer points of a family’s interactions and what pressurises the individual to say, “I wish to end my own life”.
Then there are the wider effects not only on the family but on society as a whole of going in the direction of this legislation. What are we saying to future generations when we know that palliative care can do so much? However, I know that so much more has to be done to improve it. Only this week we had a report saying that only 10% of nurses felt that they were properly equipped to deal with end-of-life decisions and end-of-life care. We can do much more in this direction rather than taking the easy route, which sets a marker to future generations that says, “You can go in this direction, you can end life”. That is something that I personally find totally wrong.
Lord Tebbit
My Lords, as I have listened, my mind has turned to the practice of those who may be seriously ill or handicapped in some way or another signing DNR—do not resuscitate—forms. Are they affected by these restrictions? Should we indeed be allowing DNR forms to exist? We do not ask whether the person who signs it is mentally competent to do so, nor do we involve the High Court or anybody else. Are doctors obliged to respect a DNR form? I am not quite sure—is anybody else here?
Lord Stirrup
Will the noble Lord accept—perhaps he will not—the proposition that there is a distinct difference between a doctor failing to resuscitate or withholding artificial support to life and actually participating in the taking of a life? That is why there is such a focus in this debate on the roles and responsibilities of those people. There is a difference of very great magnitude between that and the DNR case. Does he agree?
Lord Tebbit
My Lords, I entirely agree with the noble and gallant Lord. I think there is a distinct difference but I do not think that we should just go on, forgetting the existence of those forms or forgetting the role of the doctor in deciding whether or not to respect them. It is not an easy question to answer, always, is it?
Baroness Finlay of Llandaff
My Lords, it might be helpful to the House if I intervene very briefly. The whole policy of cardiopulmonary resuscitation is being revised. The noble Lord, Lord Tebbit, has raised a very important point. Resuscitation can be a whole batch of treatments. Giving insulin to a diabetic whose blood sugar has gone dangerously high is resuscitative. Similarly, giving sugar if they are hypo is resuscitative. I would like to park resuscitation per se and focus on cardiopulmonary resuscitation, which is a specific intervention to try to restart the heart when it has stopped.
We know that the chance of that having any effect is exceedingly low when people are already dying of a disease. It is in those patients, where death is anticipated and accepted by everybody and is a natural process at the end of life, that the forms are there so that a nurse who does not know the patient, who has just come on duty and finds that they have collapsed, does not have to run down the corridor and get the trolley and so on. That is completely different from the person who collapses on the station and people, rightly, grab the defibrillator and attempt to resuscitate them, as has happened in your Lordships’ Chamber—gladly, successfully. We have a very good track record of resuscitation in this Chamber.
DNR forms are completely different because you are talking about a life that is coming naturally to a close. This Bill is about taking the decision to deliberately give lethal drugs, irrespective of how long that life may go on for, because, as we will come to in later amendments, we just do not know. I wonder if that helps the noble Lord.
Lord Tebbit
I think, my Lords, it does. It is a matter of whether it is a positive or a passive intervention. That is the distinction.
Lord Hussain (LD)
My Lords, from day one, I was minded not to support the Assisted Dying Bill and made my views known to fellow Members of this House. However, I have listened to today’s debate. My reasons for not supporting the Bill are my faith—everybody has their own faith and can choose whether to follow it—but also a personal experience.
Some 25 years ago, my father was critically ill. After he had been many days in hospital, I was told that he was going to die and that, if we wanted to take him home, we could. And we did. I was told that it could be a few hours, a few days, a few weeks or even a few months, but that he was on his way to dying and that there was nothing we could do to help him to live longer.
In the condition that he was in, I was feeling my father’s pain. I would do anything in my control at that time to help him, but I could not. However, when we took him home, he surprised not only me but the doctors and everybody else. Not only did he pull through that situation but he is still alive. He is nearly 90 now. I am glad that this Bill was not approved at that time and that we did not have the ability to assist him to die, otherwise we would have helped to kill a person who is still alive after 25 years.
Lord Hunt of Kings Heath
My Lords, perhaps I may ask the noble Lord, Lord Carlile, a couple of questions. On his Amendment 67 and the question of independent medical experts, I think that it is right to say that in our first debate we reached a pretty satisfactory conclusion on the capacity of the courts to deal with these issues if the Bill was enacted. However, the noble Lord will know that sometimes the availability of medical experts can be problematic and I wonder whether he has given some thought to the issue of their availability.
The second question is about the connection between that amendment and Amendment 68, which provides that each report that was submitted to the court by the medical expert would be submitted also to the chief coroner, who would determine whether an inquest should be held into the death of the applicant. Could the noble Lord clarify the purpose of that amendment? Is it intended in effect that the chief coroner is almost put in a position of second-guessing the original decision of the court or the advice of the medical examiner? It would be helpful if he could clarify a little more his purpose.
Lord Carlile of Berriew
I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.
Lord Faulks
This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.
Lord Falconer of Thoroton
I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.
In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.
Lord Carlile of Berriew
My Lords, first, I am grateful to all noble Lords who have participated in what I think has been a high-quality debate lasting something like 1 hour and 20 minutes—a debate that I suspect almost everybody in the House would agree has not been marked with any frivolity whatever.
I reject what the noble and learned Lord just said. I am not proposing that the court should make a judgment of the quality of the person’s life. That is a caricature of what I am suggesting. I, and those who support these amendments, suggest that there should be an assessment of the quality of the decision that is made by the individual, which is quite different. Yes, it should be at a high bar. We deliberately set the bar high and we do so on conscientious and ethical grounds. Of course, I acknowledge that the noble and learned Lord, too, has conscientious and ethical grounds for his viewpoint.
Those of us who lie in the bath or climb out of the shower at 7.45 in the morning are fortunate to hear the wise vignettes of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Singh. We get our bonuses in this House, as we have enjoyed moments of real wisdom from both of them this afternoon, as we do fairly regularly on Radio 4. I am grateful to the noble Lords, Lord Empey and Lord Alton, for highlighting the issue about introducing some independence into this decision-making process.
Indeed, I have in my hand a press release issued yesterday by the senior public affairs adviser, David Knowles, acting on behalf of the British Medical Association, of which the noble Baroness, Lady Finlay, is president. As I understand it, the BMA represents all doctors in one form or another. It states:
“Legalised assisted dying could have a profound and detrimental effect on the doctor-patient relationship, even where doctors’ involvement is limited to assessment, verification, or prescribing”.
That was only one of its grounds. The noble Lords, Lord Empey and Lord Alton, answered that point. The noble and gallant Lord, Lord Stirrup, added to that observation by saying that, if we were to introduce the amendments, we might get the medical profession to participate in the process, rather than being opposed to it. In our reflections before we may have to vote at Report stage, if there is one, that point should be taken into account.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I must advise the Committee that if Amendment 4 is agreed, I shall be unable to call Amendments 7 to 11 for reasons of pre-emption.
Amendment 4
Lord Pannick
“(2) Subsection (1) applies only if the High Court (Family Division), by order, confirms that it is satisfied that the person—
(a) has a voluntary, clear, settled and informed wish to end his or her own life;(b) has made a declaration to that effect in accordance with section 3; and(c) on the day the declaration is made—(i) is aged 18 or over; and(ii) has the capacity to make the decision to end his or her own life; and(iii) has been ordinarily resident in England and Wales for not less than one year.”
Lord Carlile of Berriew
“(2) Subsection (1) only applies where the person—
(a) has capacity commensurate with a decision to end his or her own life and has a clear, settled and voluntary intention to end his or her own life;(b) has made a written declaration to that effect in the form of the Schedule before two independent witnesses, one of whom must be a solicitor in practice; and(c) on the day the declaration is made—(i) is aged 18 or over; and(ii) has been ordinarily resident in England and Wales for not less than one year immediately prior to making the declaration at paragraph (b).”
Lord Carlile of Berriew
My Lords, in speaking to this group of amendments, I propose to short-circuit a number of them and draw the Committee’s particular attention to Amendment 65, which stands in my name and in the names of the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth.
This is about capacity. There is an awful lot on the Marshalled List today relating to capacity. There is hardly a Member of your Lordships’ House with an interest in the Bill who has not had a stab at producing a good capacity provision. We have proposed this capacity provision because we do not believe that Clause 3 goes anything like far enough. There are two particular aspects of Amendment 65 which go further than Clause 3 and which, I suggest to your Lordships, would provide significant reassurance. I would be really disappointed if we were brushed off, in the way in which we have been, in relation to these amendments and in respect of the two particular matters.
I draw your Lordships’ attention to paragraphs (a) and (d) of the proposed new clause in Amendment 65. In defining capacity, we talk about a,
“capacity commensurate with a decision to end his or her own life”,
thereby highlighting the importance of the decision. In paragraph (a), we then suggest that it should be required that it should be proved that a person,
“is not suffering from any impairment of, or disturbance in, the functioning of the mind or brain”,
then come the additional words,
“or from any condition which might cloud or impair his or her judgement”.
For those of us who have taken an interest in mental illness over, in some of our cases, decades and studied the subject in detail, there is a real concern that if those words or something like them are not included then people may determine that their own lives should be ended as a result of a mental condition of a permanent nature, which is easily defined as such, or by a temporary medical condition.
I am an absolute rank amateur in that I think I know a bit about mental health but it is as a layperson. I know that there are people in this House—I can see at least one present—who have a great deal of expert knowledge and are internationally admired for their knowledge about mental health. Of course I defer, as the House quite rightly deferred earlier to the noble Baroness, Lady Finlay, on palliative medicine, to any such views on the precise diagnostic criteria. What is known—it is certainly known to lawyers because we have had to deal with this all the time during our careers—is that there are manuals of diagnostic criteria. One which I am accustomed to is an international document, ICD-10, which contains the details of many different mental conditions. Among those volumes there are mental conditions which could cloud or impair a person’s genuine judgment, making it a judgment that was led by that mental condition and not by a person’s general state. When mental illness occurs in a family—there will be people in this House who have had this experience—it can be very frustrating for the rest of the family because they know that the individual in question is not exercising an objective or genuine judgment but, worse still, not exercising what is in reality their own normal, rational judgment, which when they are not suffering they possess. That is the purpose of paragraph (a).
Paragraph (d) requires it to be shown that the person,
“is not the subject of influence by”—
that is in the Bill—
“or a sense of obligation or duty to, others”.
Almost all those of us who have been fortunate enough to have our parents survive to a very great age will have heard that parent saying, “Oh, I shouldn’t be doing this to you because there’ll be less for you at the end”, or, “I’m causing you immense trouble because you have to come 200 miles across the country when I have a small crisis”, or, “You’re paying people to look after me”, and so on. We all know these scenarios; they are extremely common. They happen all the time, sometimes even in the best regulated families. Those are situations in which not all, but some, feel a sense of obligation or duty to die—“You’d be better off without me”. In my view, it is a matter of simple ethics—if ethics are ever simple—that we should not be willing to countenance any person choosing to end their own life because they feel that that is going to benefit others.
Baroness Warnock (CB)
My Lords, why is it thought wrong for someone to ask to die out of a sense of duty or a wish not to continue in a condition that is intolerable—the condition of being disruptive, indeed often destructive, to the well-being of their own family? All the way through their life until this point, putting their family first will have been counted a virtue, and then suddenly, when they most want to avoid the trouble, bother, sorrow and misery of disruption to their family, they are told they are not allowed to follow that motive. I simply find this extraordinarily puzzling and I would like the noble Lord to explain it to me.
Lord Carlile of Berriew
People with much less strength of character than the noble Baroness, who is known for her views and her enormous strength of character, are at risk of those feelings being adopted, condoned and co-opted by their family. Those of us who have practised law for many years have come across such cases. Indeed, there will be people who have observed it in the lives of friends and family. It is our view that a sense of obligation—“It would be better for my children if I were carried away”—is not a sufficient basis for allowing an individual to do what is anticipated by the Bill, which is deliberately to end the life of another person.
Lord Alton of Liverpool
My Lords, I am grateful to the noble Lord for giving way.
Lord Ashton of Hyde (Con)
My Lords, I think it is usual not to intervene before the noble Lord has moved the amendment.
Lord Carlile of Berriew
I believe that I moved the amendment right at the beginning of my speech, so I am very happy to give way to the noble Lord, Lord Alton.
Lord Alton of Liverpool
I am grateful to the noble Lord. I was aware that he had moved the amendment. On the point about the pressure that can be placed on people to take decisions that they might involuntarily be asked to take, does he agree that the “right to die”, as it is sometimes described, can easily morph into a duty to die? I understand the point made by my noble friend Lady Warnock. However, I recall that in 2008 she made the point that you can become a burden to the National Health Service if you have something such as dementia and then you can become a burden to society. I am personally disturbed by the idea that we place on people’s shoulders the idea that somehow they are a burden not just to their families but to the rest of us as well.
Lord Carlile of Berriew
I agree with the noble Lord. Indeed, there is a very slippery slope from saying, “I feel an obligation to my family or the NHS” to it being said, “Well, we have to deal with people who are an obligation to their family or the NHS”. The safety that this provision would introduce into the system is, in my view, very important.
Lord Beecham
Before the noble Lord sits down, for the third time he has referred to a person ending the life of another person. Will he concede that that is not a description of what the Bill sets out to permit?
Lord Carlile of Berriew
I do not concede that for one moment. The purpose of the Bill is for a person to be put in the position of facilitating the death of another person in circumstances in which that death would not otherwise occur. It seems to me to be a distinction completely without a difference. Indeed, if one were to analyse it as a matter of criminal law, there is no difference. I beg to move.
The Deputy Chairman of Committees
I must advise the Committee that if Amendment 5 is agreed to, it is not possible to call Amendments 7 to 11 for reason of pre-emption.
Amendment 6 (to Amendment 5)
Lord Mawhinney
“(iii) has made a second written declaration to that effect in the form of the Schedule before two independent witnesses, one of whom must be a solicitor in practice on the day immediately before effect is given to his or her decision.”
Lord Mawhinney (Con)
My Lords, I was interested to note, subsequent to putting down this amendment, that it covers similar ground to Amendment 65, to which the noble Lord, Lord Carlile of Berriew, has just spoken. I should start by saying that my amendment is an addition to his Amendment 5. No one should assume from it any implication that I am dissatisfied with that amendment as far as it goes; I just took the view that it does not go far enough.
If noble Lords read my amendment, what will strike them is that I am suggesting that there should be a second written declaration, but I want to come to that at the very end because that is not the main motive for putting down this amendment. I read Amendment 5 a number of times with an intellectual itch that I could not quite resolve. There was something about it that I did not like, but I was not sure for some time what it was. I finally realised that it was the word “settled”. We use the word “settled” regularly in daily language, but it actually has two quite distinct meanings. It can be used to say that something is settled—I have thought about it, I have given it due consideration, and I have come to a view, so it is settled—but “settled” can also mean that a decision has been made from which there can be no variation, turning back or deviation. It was that second aspect that bothered me in terms of this Bill.
We all know examples of “settled” in everyday language. We probably all know a fellow and a girl who fell in love and announced their engagement, and it was all settled, and then one of them walked away before they got to the altar. I was just smart enough not to say to my constituents in Peterborough, “We don’t need to bother you at this general election because you voted for me last time and the issue is settled”. I knew that they would respond by saying, “Actually, Brian, a number of things have changed since we settled it last time, so we want to settle it again”. Bless them, five further times, they settled it. Closer to home, Governments settle things all the time. We call them government policy announcements, and they are settled, until a U-turn occurs.
I hope it is not too wearisome to your Lordships’ House if I add my name to the list of those who recite examples of experiences when we served at the other end of the corridor, because I know of very few aspects of human experience and behaviour that teach you more about people than being a constituency MP. I remember the day when a lady came into my surgery. She did not really want any help from me. She had to tell somebody that she had decided to get a divorce. She wanted some advice as to how to go about it, but what she really wanted was to tell me that what had once been settled was not settled anymore. I advised her to get legal advice from a solicitor. I do not know what other colleagues did, but it was my custom never to recommend a particular solicitor. Some weeks later she came back in floods of tears—she was in floods of tears before she saw me. When she had calmed down, she said, “It’s terrible. We got to the point where there was only one step to go in the divorce process. I told my solicitor that he was not to go that last step without consulting me, but I have been told by him this morning that he went ahead and I am now divorced. I do not want to be divorced. I have changed my mind, but I am divorced. What can I do?” Something that was settled that became unsettled then became settled in an entirely different manner.
The use of the word “settled” in this Bill bothers me. I have no problem about the person involved going through the steps set out in the Bill and coming to a settled view. That is fine. However, time will pass between the achieving of that settled view and the use of the lethal injection or whatever the cause of death might be. What happens in that period? Are we as a legislative body making an assumption that nothing of any significance is going to happen in that period which might call into question the settled nature of the settlement? I do not think we should make that assumption. I think we ought to be quite specific that whatever may have been settled earlier needs to be reaffirmed on the eve of the decision being implemented. There needs to be an opportunity for a second and final thought as to the seriousness and finality of what is about to take place.
I come back to the second written declaration. I could not put down an amendment for your Lordships’ consideration which said that we ought to redefine “settlement”. That would have been seriously boring and nonsensical. I put down one way in which settlement could be affirmed or confirmed, and that is that a second written declaration had to be undertaken 24 hours before the final event. Other noble Lords who may agree with me may have a better way of confirming what settled means than the option I have chosen.
Lord Avebury (LD)
I just want to point out that the individual concerned has the right to revoke the decision right up to the point when he takes the medication. In fact, 40% of patients in Oregon do so.
Lord Mawhinney
I am aware of the point that the noble Lord makes. On the other hand, I have a lingering concern that the pressure of family and events can create circumstances in which it is quite difficult for people to express that reservation if they feel they are being a burden. At Second Reading, I gave the example of my own mother and the last years of her life. I quite accept that that provision is there; I know it and welcome it. However, it does not go far enough. There is a judgment call to be made at the very end which nobody can escape, which has to be affirmed, confirmed and made. It is one last chance. That does not seem unreasonable given the substance and significance of what the legislation is about.
In my earlier intervention I sought to persuade the noble Lord, Lord Pannick, to defer his vote. He and the noble and learned Lord, Lord Falconer, exercised their rights absolutely; I have no complaint about that. They disappointed me, but they were perfectly entitled to do so. Let me therefore be explicit: I do not intend to push this to a vote today. I want to stimulate people to think about whether a settlement made some time ahead is a sufficient safeguard or whether it ought to be mandatorily reaffirmed just before the act takes place. I would like your Lordships to think about that. If my proposal finds favour, that is good and we can come back to it on Report. If not, I am interested in hearing other suggestions.
Baroness Richardson of Calow (CB)
My Lords, on Amendment 65, on capacity, it is hard to imagine how anybody who has just been told that they have less than six months to live, and who is in such pain that they do not want to continue living, should have absolutely no impairment or disturbance of the mind. This must be part of the condition—but I am not convinced that it would necessarily cloud or impair their judgment. When a person gets close to death, it clarifies the mind rather than clouds it, and gives them much more of an incentive to make decisions that will affect them in a very real way.
On the sense of obligation or duty to others, at the risk of sounding too much like a Methodist minister, there used to be in our Methodist hymnbook a hymn which started:
“Rejoice for a brother deceased;
Our loss is his infinite gain”.
There are occasions when people, feeling not just a duty to others but a delight and a joy in leaving behind a mortal body in order to find a fullness of life—which some of us already experience—will want to do so at the moment of their death.
Baroness Butler-Sloss
My Lords, I will speak to Amendments 66 and 84, since I understand that I cannot speak to Amendment 9. Before I do so, I have one point about Amendment 6 of the noble Lord, Lord Mawhinney. I am not terribly happy about it. The written declaration in Amendment 5 of the noble Lord, Lord Carlile, ought to be adequate. We have to bear in mind that we are talking about people, according to the wording of the Bill, who have either six months to live or, if the noble Lord, Lord Carlile, is right, three months to live. To expect a second declaration in addition to a first, when one would expect the first declaration to have been seriously considered before it was signed, is probably a step too far and would, in my view, probably be unjust to a patient.
On Amendment 66, I need to explain to the House why on earth I am producing another amendment on capacity. There are three reasons. One is that I am not happy with the word “commensurate”. This is a highly technical point, for which I apologise, but speaking as a lawyer the Mental Capacity Act 2005 talks about capacity. Nowhere, to my knowledge, is any word attached to “capacity” to explain it. One of the most important areas of capacity is the capacity to make a will. Perhaps it is not as important as the capacity to live or die, but it is certainly of great significance to lawyers and to those who witness a will. You should not use the word “commensurate” for a will, and neither should you use it for this matter we are now discussing. However, that is a technical point.
Lord Tebbit
Perhaps the noble and learned Baroness can help me with that question of capacity. There are some elements, such as depression, which come and go at various levels. A depressed person may sometimes have capacity and sometimes not. An alcoholic may not have capacity but, on the other hand, he may have it when he sobers up for a while. The same applies to a drug addict, who may or may not have capacity according to how much he has taken. I find that rather difficult to judge against the more permanent and unchanging stages of capacity and incapacity; for example, in a patient with Down’s syndrome, whose capacity would be limited but probably more or less unchanging, or somebody in the later stages of Parkinson’s disease, where that mental capacity was beginning to go but could only get worse. I am a little puzzled as to how one would make the decisions between those varying states.
Baroness Butler-Sloss
If I may be anecdotal, as other noble Lords have been, my mother died of multiple sclerosis in her early sixties. There was a point at which I, as a young lawyer, realised that she no longer had, in my view, the capacity to make decisions. However, that was at a very late stage of her illness.
If the doctor is not satisfied because someone is a drug addict or has been an alcoholic or has, for instance, a high degree of anorexia as a young person and is saying that they want to die, those are points at which a doctor should be saying, “I’m not quite certain whether he or she has capacity”. That is why I suggest in my amendment that, unless they are satisfied, they should pass it on to someone who has the expertise, who would then, as a psychiatrist, look at whether the person actually has the capacity. Okay, we are talking about someone with three to six months to live but, if they do not have the capacity to make this incredibly important decision, they should not be allowed to do so. That is how I would see it, in answer to the noble Lord, Lord Tebbit.
Lord Winston
I thank the noble and learned Baroness for giving way, but would she not agree that sometimes people who have capacity and say that they wish to die, as indeed my mother did, may then change their mind some months later, quite unexpectedly?
Baroness Butler-Sloss
Yes, that seems to me to present one of the problems with the Bill.
Lord Griffiths of Burry Port (Lab)
My Lords, may I offer something at this stage? The ground has been well worked in the past and I have here some of the hearings that took place 10 years ago, when we discussed this matter. The whole question of the psychiatrist was raised then. Again and again, in discussing competence, it is the psychiatrist who seems to be claiming that someone lacks it. Making a judgment about people near to death is very difficult. Some 25% to 40% of patients at the time of diagnosis, and a similar percentage at other times on the cancer journey, suffer from depression or despair, but those conditions can be reversed. It depends on when you take the decision. Indeed, a neurologist suggested that in some conditions the whole issue of cognitive impairment must be taken note of. For example, patients to the lay person might appear relatively normal but could have severe cognitive impairment and therefore be unable to give informed decisions in such an area.
The training is not just for the people that these provisions have in mind. Once we move the debate, as we have consistently through this day, into the hands of experts, we are removing from ourselves the recognition that the experience of death and dying belongs as much to the non-experts as it does to the experts. With great timidity, I have stood up to speak at this moment, having heard in this morning’s debate from some of the leading lawyers and medical people in the land, and from people with a long experience of public life. I wonder whether it is true, for example, that a judge is, at the end of the day, the person in whom we can deposit all our confidence.
I remember the debates in my childhood that took place around the movement towards the abolition of capital punishment. You have a judge and a jury in that case, counsel for the defence and the prosecution, due process and forensic evidence—justifiable or not. You have the whole process of the law brought to bear on one case and one person, guilty or not guilty. The reason we went forward to abolish capital punishment was because of the possibility of an error of judgment—that with all that happening we might have got it wrong. As a simple lay person, I simply want to say that in this area it is infinitely more likely that we might get it wrong. It is for that reason that I stand against this Bill: because of the high possibility of getting it wrong, even when judges and the top medical people are involved.
My life sees me alongside dying people from first news to last rites and, indeed, beyond last rites—I have dealt with the people with whom one has to deal when they feel that they have not done everything that they might have done for mum. These are unhealed wounds that pastoral people have to deal with on and on, beyond the moment of death.
To think of the autonomy of the person as if that alone constitutes where this debate centres is, in my experience, utterly wrong. Consequently, when I saw the amendment that refers to,
“capacity to make the decision”,
I wondered whether the capacity we were talking about was that which pertained to the decision-makers rather than to the person dying. This is an immensely complicated area and it seems to me that we must question these rather forensic points that are being made about the capacity of this person, that person or the other person. Death and dying are individual in every case, and sometimes a friend can do more good than an expert.
Lord Maginnis of Drumglass (Ind UU)
My Lords, I have wondered at what stage I should intervene in this debate in so far as I am not a doctor or a lawyer. I find myself with the problem that life has not for me been exclusively about doctors and lawyers and those erudite few who can argue about other people’s lives. I hope that those who would try to persuade us that this Bill is a necessity for this so-called sophisticated age in which we live are able to understand that the majority of us live our lives on the basis of a moral code—it has never let me down in 77 years—where, collectively, we have least difficulty in finding ourselves able to coalesce in defence of what we usually refer to as the common good.
I get the impression that it is not fashionable to admit to a faith that is based on the 10 commandments but that there is a prevailing view of our times that favours—indeed, espouses—individual morality where there is no absolute right and no absolute wrong. It suggests that each individual has at a specific moment some inherent right to choose what falls within one’s own moral compass. Surely that is a selfish, if not arrogant, position that in this specific instance must toss us on the horns of a dilemma. Should we, from within this comfortable and privileged Chamber, acknowledge the established right and wrong in how we seek to protect the vulnerable, the elderly and those unable to protect themselves, or do we absolve ourselves by criticising those like the extremists in the Middle East, those who mutilate young women through FGM or abortion doctor Kermit Gosnell as they comply with the tenets of their own moral compass?
All I have to say, because I am not a lawyer or a doctor, is that we can decide to look the other way, to pass on the other side, or we can show the compassion and the responsibility of the good Samaritan, however inconvenient that may be to those who would turn our lives into a philosophy that is questionable, contradictory and argumentative.
Baroness Murphy
My Lords, I have two amendments in this group which I wish to discuss briefly. I should say that I am an academic psychiatrist who practised in the community for many years. I have done more testamentary capacity cases than I care to remember, as I practised with elderly people for 30 years. Therefore, I reckon that I am as much an expert on capacity as anybody in this House.
Baroness Murphy
Can I just finish my points? Essentially, of course the capacity issue is one that doctors deal with every day. As the noble Baroness, Lady Hollins, has often pointed out, they are not very good at it unless they are specifically asked to do it. That is a crucial point. There is a difference between a doctor just ticking a box and those who have to say they are there to assess capacity. In this Bill, they are there to assess capacity. Should we have a “supercapacity” category? Should we ask for a solicitor? That would make it extremely difficult for the patient who would have to clear yet another enormous hurdle. It would be too much.
I have discussed this with the Royal College of Psychiatrists. There are, in fact, three fellows of the Royal College of Psychiatrists in this House; one is against the Bill while two of us are supportive of it. That indicates how most of the royal colleges are split. It is not that there is a split between those doctors who are for and those who are against, in the way that the BMA describes it. The BMA has never asked its members; it would not risk it. The Royal College of Physicians is consulting again but, in fact, most of the royal colleges are now neutral on the issue.
I suggest that we look seriously at how we can strengthen the Bill in relation to capacity as it is described at the moment. If those doctors who are not specialists in capacity, as happens now in relation to many decisions, have any doubt whatever, they should be able to refer to a specialist—a psychiatrist who specialises in capacity. I will sit down for a moment.
Lord Tebbit
I am grateful to the noble Baroness, because she has launched herself off into dealing with an argument that I did not make. She misheard what I said. I was not talking about people changing their minds. We all do that at times. I was talking about people whose capacity was changing. That is an entirely different argument, and it would help if she dealt with the argument I made, not with the argument she would like me to have made.
Baroness Murphy
I am happy to apologise to the noble Lord, Lord Tebbit. Of course people change in their capacity. The way in which the Bill is phrased and the way in which the code of practice needs to be devised must take account of people’s changing capacity. I accept that completely. The noble Lord is right; people change in their capacity.
Amendment 54 adds a provision in the Bill that a patient should be referred to a specialist if there is any doubt in the minds of the attending consulting physicians on the patient’s capacity. That safeguard is in the Oregon legislation and is worthy of being put in this Bill. It could easily be put into the code of practice also, and that is where those of us who originally were concerned about the Bill had in mind for that provision to go. However, if people would feel more reassured that it should be in the Bill, I would support that. We must get away from the notion that doctors somehow do not understand capacity or use it. They do so every day of the week—not always perfectly but sufficiently to this end. We cannot expect that people should have a sort of supercapacity over and above what is generally accepted by the courts.
This issue was given a great deal of thought during the creation of the Mental Capacity Act, but ultimately the way that Acts are implemented has to depend on the way that codes of practice are devised. That is where the professions must come in: to help us and to tell us what they would like and what people think. To take a very good point made by the noble Lord, Lord Griffiths of Burry Port, this is not just an issue for doctors to decide; it is about other people coming in to say what the code of practice would look like and what lawyers, relatives, indeed all of us would think was an appropriate level of mental capacity. It will, of course, be extremely high and quite different from testamentary capacity, where the test is quite low.
I propose that we support Amendments 54 and 59, but I do not support the amendments at the beginning of the group.
Lord Mackay of Clashfern
My Lords, technically speaking this is a debate on Amendment 6, which was moved by the noble Lord, Lord Mawhinney. Some of the observations that have been made are not very clearly directed to that. All the same, I will talk about one of them.
The amendment in the name of the noble Lord, Lord Mawhinney, is best dealt with by Clause 4(2)(c): that the doctors administering the poison are to be sure that they have confirmed that the person has not revoked and does not intend to revoke their declaration at the last minute. As has been said, the patient has the last word in this sense: they can stop the injection if they do not want to have it at that point. If they have changed their mind following the declaration, there is ample safeguard in the Bill against any, as it were, forced injection.
I will say one thing on the intervention by the noble Baroness, Lady Warnock. As I understand it, if we bring children into the world we have responsibilities for them. Those responsibilities should not be regarded as burdens that are somehow affected by the Bill. It would be extremely dangerous to take the view, for example, that a disabled child should feel responsible for the care responsibilities that they put on their parents. If that child thinks that there is an obligation to die, because it is the only way to remove that obligation from their parents, then that is a most dangerous doctrine. In view of what the noble Baroness, Lady Warnock, said, I felt that that was something that needed to be put on record.
Baroness Hollins
My Lords, I believe we are debating the whole of the group, although I do agree with the noble Lord, Lord Mawhinney, that the assessment of capacity and settlement of the decision needs to be done at the moment that that decision is finalised. I do not think that the other amendments in the group are rigorous enough. My Amendments 71 and 151 have three main elements. I am drawing on my experience as a psychiatrist working with disabled people—in particular people with intellectual disabilities—and of teaching medical students about the assessment of capacity for more than 30 years.
The first element to which I want to draw attention is that, in consideration of any request for assistance with suicide, positive action is taken to establish that there is no evidence of mental disorder. The second element is the need to establish the presence of a decision-making capacity that is commensurate with a decision of this nature, as has already been suggested by my noble friend. Thirdly, the amendments propose a regime for ensuring that clinical opinions about the absence of mental disorder and the presence of decision-making capacity are taken on the basis of expert assessment.
There are in England and Wales two circumstances when a person is not permitted to make healthcare decisions themselves. One is when they lack mental capacity in relation to the relevant decision. The Mental Capacity Act 2005 applies to many decisions but assistance with suicide is explicitly excluded. Other noble Lords will explain more about decision-making capacity and the findings of the recent post-legislative scrutiny Select Committee of your Lordships’ House which examined this Act and of which I was a member.
The other circumstance when people are not permitted to make healthcare decisions for themselves is when they suffer from a mental disorder of a nature or degree that warrants, for assessment under Section 2, or makes it necessary, for treatment under Section 3, for the person to be in hospital in the interests of their health or safety or for the protection of others. If a person was depressed or anxious and wished to kill themselves, they would normally be stopped from doing so with the authority of the Mental Health Act 1983, so the additional assessments that I am suggesting in this amendment should relate not only to impaired judgment but, first, to whether the person has a mental disorder.
I remind noble Lords that the definition of mental disorder is,
“any disorder or disability of the mind”.
The psychiatrist making such an assessment must be Section 12 approved, as required by the Mental Health Act. The Mental Health Act is risk based, not capacity based. If it is in the interests of his health, a person with a mental disorder can be detained and treated. It overrides personal autonomy. The Mental Health Act does not require any impairment of judgment or decision-making capacity to be present.
If you have a mental disorder then, whether you are capacitous or not, you will not be given assistance to die. The Mental Health Act would take precedence and the person’s mental illness would need to be treated effectively before any assessment of their decision-making capacity was made. Therefore, the Mental Health Act provides another safeguard.
As I read the Bill, nothing would stop patients detained under the Mental Health Act, if they retained decision-making capacity, from being given medication to end their life. That is clearly wrong. I shall go further: it relates not just to patients who are already detained but to those who, if assessed, would meet the criteria for detention in order to treat their mental illness.
Wishing to end one’s life is a common symptom of mental illness, normally regarded as constituting grounds for psychiatric assessment. Suicide itself is not unlawful but, as a society, we regard suicidal intent as a reason to protect a patient from self-harm. We do not take the view that we should intervene in a case of suicidal intent only if we have reason to believe that the person concerned lacks capacity; we assume that a person who announces or otherwise indicates intent to take his or her own life is not acting rationally, and we do everything possible to discourage or prevent him or her proceeding. That is what all the suicide watches and all the suicide prevention strategies that successive Governments have introduced in recent years are about. Indeed, the national confidential inquiry into suicide and homicide, NCISH, which I chaired from 2007 to 2010, was set up to inform clinical practice and health policy with a view to reducing suicide rates.
The noble and learned Lord’s Bill makes it clear at Clause 6 that it is seeking to amend the Suicide Act 1961. Some may not see the provision of lethal drugs to a seriously ill person as assistance with suicide but in law that is what it is. This leads me to conclude that the Bill is out of alignment with social attitudes to suicide.
The Assisted Dying Bill also fails to provide a strong enough assurance that a person requesting assisted suicide has the mental capacity to make this decision. Capacity assessment must be decision-specific. The more serious the decision, the greater the level of assurance required that the person making the decision has commensurate capacity; that is, a level of capacity appropriate to the decision in question. The key purpose of my amendments is to ensure that there is mandated, at least in outline, a proper process for establishing the absence of mental disorder and for taking positive action to ensure the presence of commensurate capacity.
Lord Deben
My Lords, I did not intend to speak on this group of amendments, but two interventions lead me to do so. The first was that of my noble friend Lord Mawhinney, who I think is wrong. I do not think that his proposal is necessary. I think that the Bill covers that. What my noble and learned friend Lord Mackay pointed to in that part of Clause 4 is right. It is important that even those of us who are very unhappy about the Bill should be extremely careful not to be presenting things that might be seen as merely holding up or interfering with the process of the Bill. That is why I would not support that proposal. It was the intervention of the noble Baroness, Lady Warnock, which particularly caused me to feel that I should join the noble and learned Lord, Lord Mackay, in his conversation.
Lord Mawhinney
I am grateful to my noble friend for giving way. Would he be willing to accept that there is a difference between an option being available to someone and a requirement to make a decision being available to someone? I am disappointed that my noble friend implicitly accused me of trying to slow down the process when I was, obviously inadequately, trying to draw a distinction which seems to me to be important. The opportunity to be required to make a decision is different, almost in principle, from the option to make one. I hope that my noble friend might on reflection agree that that is a distinction worth considering.
Lord Deben
First, I agree with the distinction. Secondly, the criticism that I made was not of my noble friend but of myself. It was that I would not like to be accused of supporting something merely for the sake of supporting it because it was another part of the debate. That is why I felt it right to say that I did not support this in order that no one should feel that one was elongating. What I would say to my noble friend is very simple: within the Bill it is clearly necessary before the final act takes place for the person doing that act to assure themselves that there has been no change of mind. That is not an option; it appears to me from the Bill that that is a necessity. If it is not a necessity, we ought to make it one. The noble Baroness spoke of the guidance. It would certainly have to be very clear in the guidance. Given those things, I would not want to change it in the way that my noble friend suggests.
I return to the noble Baroness, Lady Warnock, with whom I have had fascinating and interesting discussions over many years. One of the issues that we have not so far considered, but I hope we all have in our minds, is the fear that particularly older people should feel that they are no longer of use when they are of use. Very often, when people say, “I ought to end my life because I am a burden on you”, the answer ought to be, “You are not a burden”. I have been very fortunate in my life because I have had the ability—I mean by that the size of accommodation—for my wife and I to look after both our sets of parents until they died. It was an enormous privilege. If you asked our four children, they would tell you that it was one of the most important parts, if not the most important part, of their upbringing—to be brought up with aged grandparents and, in one case, with a grandmother who had long lost the power of communication. They would all say that all four of them contributed greatly to them and to their lives. The worry I have of the thought that the noble Baroness put forward is that it reaches to the thing in this Bill that for me is the deepest unhappiness, which is that people should feel that they do not matter because they cause trouble and difficulty and are a burden on others.
One of the things behind all this that leads me to take time and to be concerned is the awful way in which this nation in particular treats its older people in general and the attitude we have towards them. Of course, I suppose at my age I ought to declare an interest. However, I intend to be around, like most of my relations, for very much longer. I hope I will not be a burden, but it is not for me to judge whether I am a burden. That is why I think paragraph (d) of Amendment 65 is so important. I do not believe that people should end their lives because they make a decision that they are a burden. I think that is one bit we have no capacity to decide in any circumstances, however mentally agile we may be. It is utterly impossible for any of us to make that as an objective decision. Therefore, to put this into the Bill is an important affirmation of our belief that a person, even in their last days, may, in fact, far from being a burden, be someone who makes a real contribution to the people around.
It is difficult not to, and I know that sometimes it could become maudlin, but we can speak only from our own experience. I, too, was with my father as he died. We were very close. He died as I said the words of the Nunc Dimittis. He clasped my hand and was gone. I think that his last fortnight of pain and his difficulty in coming to terms with a failed operation, making a decision that he would leave his death as it would come, has had a bigger effect than almost anything else. I do not think that he knew that; although I believe that he does now. However, I do not think that he was capable of saying that he did not matter and I think that we ought to protect people from being asked to make that decision.
Baroness Masham of Ilton
My Lords, I support Amendment 71 in the name of my noble friend Lady Hollins. As in the case of those with terminal illness, we know that identifying depression is particularly challenging in some other groups, such as those with physical disabilities, intellectual disabilities or autism spectrum disorders.
Depression is more common in those with physical disabilities arising, for example, following a stroke, spinal cord injury or as a consequence of multiple sclerosis. Research shows that that is particularly so when factors including chronic pain, reduced mobility and poor social support are present. Identifying and treating depression and attending to contributory factors can improve both mental and physical health, but depression is difficult to detect in those with physical disabilities. That is because symptoms of the underlying disability can overlap with symptoms of depression—for example, fatigue, lack of interest in previously enjoyed activities, difficulties in sleeping and emotional lability. Depression can be missed by doctors who are not experienced in assessing mental disorders in the context of physical disabilities. Specialist assessment is often required.
Similarly, people with autism spectrum disorders may have characteristics such as social withdrawal, impaired communication and sleep and appetite disturbance which can mask symptoms of depression. Depression often manifests differently in those with intellectual disabilities compared to the general population.
Furthermore, detecting mental disorders in people with autism or intellectual disabilities, as well as assessing their mental capacity to make specific decisions, requires an understanding of their communication needs and how they may differ from the general population. For example, some people with intellectual disabilities may find it easier to communicate using pictures rather than words; others may demonstrate acquiescence, or a tendency to repeat the last words spoken to them. A doctor who has not had experience of or training in assessing mental disorders and mental capacity in people with autism or intellectual disability may be unable to identify the presence of disorders such as depression and may struggle to optimise the person’s decision-making capacity. Again, specialist assessment is vital.
Those vulnerable patient groups are not adequately protected by the Bill as it stands. That is even more reason to introduce a process to make specialist assessment of mental disorder and end-of-life decision-making capacity mandatory. Disability is very complicated, and everyone is an individual.
Baroness Grey-Thompson
My Lords, I speak in favour of the amendment tabled by my noble friend Lady Hollins. I felt, coming into the Bill, that I needed a much deeper understanding of mental capacity because my only personal experience of dealing with psychiatrists and psychologists goes back to when I was 11 years old. I have to thank my noble friend Lady Warnock for that because of her incredible work on special educational needs. At the time, I was not allowed to go to a mainstream school and my only gateway into it was going through mental capacity tests.
I have read so much on this but one article that I found stood out to me. It was written, I accept from a very particular point of view, with reference to Herbert Hendin MD, who is CEO and medical director of Suicide Prevention Initiatives. He is also professor of psychiatry at New York Medical College. He stated in congressional testimony in 1996 that,
“a request for assisted suicide is … usually made with as much ambivalence as are most suicide attempts. If the doctor does not recognise that ambivalence as well as the anxiety and depression that underlie the patient’s request for death, the patient may become trapped by that request and die in a state of unrecognized terror”.
The article also said:
“Most cases of depression … can be successfully treated …Yet primary care physicians are … not experts in diagnosing depression. Where assisted suicide is legalized, the depression remains undiagnosed, and the only treatment consists of a lethal prescription”.
We have heard a lot about the difficulties of diagnosis. My noble friend Lady Hollins mentioned the 6% of doctors who are confident that they can diagnose depression. If we look at the figures from Oregon, which the Bill is based on, back in 1998 31% of patients underwent psychiatric evaluation. In 2003-04 it was 5%, and in 2007 no patients underwent psychiatric evaluation. There is the case of Michael Freeland, who for 43 years had diagnosed mental health issues and suicidal tendencies—this was all recorded. He was able to obtain the drugs.
Several studies have shown that incidences of psychiatric illness, particularly depression, are linked to 30% of people with a terminal illness. We have to make sure that these safeguards are included. In my mind, we must make sure that anyone who wants to go down this route has to be evaluated in a clear manner by people who understand mental capacity.
Viscount Colville of Culross (CB)
My Lords, I have put my name to Amendment 66 because, as I said at Second Reading, I am concerned that there are not sufficient safeguards in the Bill to ensure that the mental capacity of the terminally ill person has been correctly assessed.
In subsection (2) of the proposed new clause, the emphasis is on the doctor not to countersign the declaration of intention,
“Unless the attending doctor is satisfied that a person requesting assistance to end his or her own life has the capacity to make”,
that decision. I listened carefully to what my noble friend Lady Hollins said about psychiatrists not necessarily being brought in. However, I should like to think that we can rely on the professionalism and training of our doctors and that if they were in any doubt at all, they would call in a psychiatrist to make this assessment to reach that very high level of satisfaction that the patient has the mental capacity.
The requirement to call in a psychiatrist if the doctor is concerned about the person’s mental capacity was included in the original Bill of the noble Lord, Lord Joffe, but is not in this Bill. As my noble and learned friend Lady Butler-Sloss said, subsection (2) of the proposed new clause points out that the person should not be,
“suffering from any condition, including … depression”,
which could impair his or her judgment. Recent medical evidence has revealed that the presence of depression in terminally ill patients is much higher than in other patients. In a report in the BMJ, Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying, the authors investigated terminally ill patients in Oregon who requested aid in dying and found that more than 50% met the criteria for depression or the criteria for anxiety that they were depressed. Depression can leave a person with unchanged mental capacity; it can also radically change a person’s mental capacity. There was rather a good article in the Journal of Clinical Oncology entitled “Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients”, which discovered that the risk of requesting euthanasia for patients with a depressed mood was 4.1 times higher than that for patients without a depressed mood.
This amendment would put the onus on the doctor assessing the mental capacity of a patient to bring in a psychiatrist if they were at all concerned about this condition. Proposed subsection (3) seeks to set out the criteria for the psychiatrist who is going to be involved. The 2005 mental capacity committee heard from Dr Geoffrey Lloyd of the Royal Free Hospital’s department of psychiatry that in more complicated cases only liaison psychiatrists have the expertise to assess a patient’s mental capacity correctly. The report said:
“There was a general consensus among our expert witnesses on one point—that the attending and consulting physicians who are envisaged as being effectively the ‘gatekeepers’ in regard to applications for assisted dying could not be expected to spot impairment of judgement in all cases”.
Proposed new subsection (4) asks for the psychiatrist also to be satisfied that the person making the request has the capacity to make the decision to ask for assistance with dying. Patients can be very good at deceiving even trained psychiatrists about their state of mind and can appear to be capable when they are not. The same often appears with people who are suffering from dementia. Psychiatrists may need to make another visit, maybe a month or so later, to make a proper assessment of their capacity. I can quite see that this sort of period can make the delay too long for many terminally ill patients. My answer must be that the most important thing is to get the decision right. I hope that this amendment will do just that.
Lord Swinfen (Con)
I support the noble Baroness, Lady Hollins, on her Amendment 71. Given the gravity of the decision to end one’s life, ensuring that a person requesting assisted death has the capacity to make this decision is of fundamental importance, yet the Assisted Dying Bill raises serious concerns about how decision-making capacity will be determined.
Furthermore, I think that the Bill is inaccurate from a legal standpoint with respect to the assessment of mental capacity. The Mental Capacity Act 2005 states at its outset that:
“A person must be assumed to have capacity unless it is established that he lacks capacity”.
Section 62 of the same Act makes clear that,
“nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961”.
Yet Clause 12 of the Bill of the noble and learned Lord, Lord Falconer, states that,
“‘capacity’ shall be construed in accordance with the Mental Capacity Act 2005”.
The Mental Capacity Act for England and Wales has established the legal criteria to be met if a person is to be considered to lack capacity in relation to the matter in question. There is a requirement that,
“at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in, the functioning of, the brain or mind”.
Mental capacity must then be functionally assessed, as it is decision specific and time specific.
In the context of this Bill, the person must have the capacity to make the decision to ask for and, if offered, accept a medical intervention, the consequence of which is death. Given the criteria set out for decision-making capacity in the Mental Capacity Act, the person concerned would need to understand and balance knowledge of their existing medical condition and any potential treatments, and the likely benefits of further palliative care, and be able to communicate this choice, being fully aware that the consequence if the doctor agreed to carry out the procedure would be his death.
From April 2007, the Mental Capacity Act has provided the legal framework in England and Wales for substitute decision-making with respect to healthcare treatment when a person lacks the capacity to make relevant treatment decisions for himself. This can be helpful to people nearing the end of their lives. Lasting power of attorney for health and welfare allows decisions to be delegated to one or more attorneys of your own choice. You can also give your attorneys the power to refuse or agree to any medical treatment you may need to stay alive, if ever you are unable to make that decision. This is called an advance decision and is legally binding if the circumstances are the ones you specified. Any action taken must, under the Mental Capacity Act, respect valid LPAs and advance decisions to refuse treatment.
Lord Faulks
My Lords, I am reluctant to interrupt the noble Lord, but the noble Lord will see the time.
Lord Swinfen
I have only a very short while to go.
I have no problem with codes of practice and I would expect that, if the amendment in the name of the noble Baroness, Lady Hollins, or a similar amendment is accepted, there will be a need for detailed procedures to be included in codes of practice to give effect to it. We cannot in this House agree to legalise assistance with suicide simply on the basis that others will decide what safeguards there should be. We need to see and to approve at least the outlines of those safeguards before we can responsibly take decisions on changing the law.
Lord Alton of Liverpool
My Lords, I support Amendment 65 and Amendment 71 in the name of my noble friend Lady Hollins. I also support what the noble Lord, Lord Swinfen, has just said. I thought that he made some incredibly important points. We are dealing with capacity, depression, burdensomeness and the ability to communicate. The last point made by my noble friend Lady Masham during her intervention is one that the movers of the Bill need to take very seriously.
I draw the attention of noble Lords to an Early Day Motion tabled in another place earlier this year. It deals with some of the points in these amendments and states:
“That this House notes the results of the Washington State Death With Dignity Act Report 2013, published on 10 June 2014, which concludes that the number of deaths through physician-assisted suicide has tripled since the first year of implementation and increased by 43% between 2012 and 2013; expresses grave concern that 61% of those who received lethal drugs in Washington in 2013 gave as a reason for seeking assisted suicide being a burden on family, friends or caregivers; recalls that those who introduced the law in Washington assured the public that it would only apply to terminally ill, mentally competent patients; and reiterates its belief that a corresponding change in UK law would endanger the lives of the most vulnerable in society”.
I agree with the sentiments expressed in that Early Day Motion. As the debate continues in the country at large, I hope that we shall have the chance to hear more voices from those who have been elected and who have had direct contact with their constituents.
It is not just in the state of Washington where we have seen things change from often good intentions—I pay tribute to the noble and learned Lord, Lord Falconer, whose motives in this I have never doubted—so that what comes out at the end is not always so. I draw the attention of the House to the comments of Professor Theo Boer in Holland, who said:
“I used to be a supporter of the Dutch law. But now, with 12 years of experience, I take a very different view … Pressure on doctors to conform to patients’ (or in some cases relatives’) wishes can be intense”.
He admitted that he was,
“wrong—terribly wrong, in fact”.
He had changed his mind. Since 2008, the number of assisted deaths in Holland has increased by about 15% every year, maybe reaching a record of 6,000 a year. It is worth pointing out that the law there changed at first simply by turning a blind eye—then voluntary euthanasia was introduced and then involuntary euthanasia. About a quarter of the deaths in Holland every year now are involuntary—that is, without the consent of the patient. These are the facts that we must consider as we consider whether or not we are putting sufficient safeguards in the Bill to safeguard the most vulnerable.
The noble Lord, Lord Deben, was right to point to the often fragile existence that many elderly people have. I saw figures recently that suggested that around 1 million elderly people do not see a friend, relative or neighbour during an average week: toxic loneliness. It is assisted living that we need in this country, not assisted dying. We need people who can help people in that kind of situation.
We have all experienced depression. Winston Churchill experienced the black dog. Depression is prevalent in many of our large urban communities. Certainly, in the areas that I represented, it was not heroin—although you saw heroin on the streets—it was antidepressants on every shelf of every home that you went into in the high-rise blocks, cluster blocks and spine blocks, where people were forced to live in depressing situations. That is why I was not surprised by the remarks of the noble Baroness, Lady Hollins, with all her experience as a former president of the Royal College of Psychiatry. I was not surprised to hear what she had to say, but I was particularly struck by a report published in April of this year by Price, McCormack, Wiseman and Hotopf. They said:
“Before mental capacity can be placed so centrally as a safeguard in the process, discussion needs to take place about what exactly is meant by the term ‘mental capacity’ in the new Assisted Dying Bill”.
The Bill does not require any treatment for depression, although it proposes in Clause 8(1)(a)(ii) that there should be a recognition of its effects on a person’s decision-making. It is not clear what that would mean in practice. Would it mean that a patient would have to receive treatment or a psychiatric assessment, or be refused altogether? There simply is no clarity on that key point.
I also draw the House’s attention to the evidence given to the noble and learned Lord’s own commission when it considered the issue of capacity and judgment back in 2006. It said that,
“in the context of such a serious decision as requesting an assisted death, the Commission considers that a formal assessment would be needed to ensure that the person concerned had capacity. The evidence given to the Commission made it clear that there are a number of factors that might affect an individual’s mental capacity, including temporary factors caused by physical or mental illness, and more permanent impairments such as a learning disability. It would be important that such factors were identified and that an assessment was conducted to explore whether the subject’s decision-making capacity was significantly impaired … the Commission does not consider that a person with depression, whose judgement might be significantly impaired as a result of this depression, should be permitted to take such a momentous decision as ending their own life”.
I know that the noble and learned Lord still holds to that view. I commend it to the House.
Lord Avebury
Does the noble Lord prefer the situation that exists at present, in which several hundred unassisted suicides of terminally ill people take place every year?
Lord Alton of Liverpool
The noble Lord is right—and every one of those deaths is a tragedy. That is why I said that we have to intervene to assist in living, providing unconditional care, support and love. Simply to provide opportunities for people to take their own lives does not seem a wholesome or good way for this country to proceed. I have known the noble Lord for a very long time and I know that he would not support that either. Let us therefore be careful not to institutionalise what he rightly says already takes place. Just because something happens is not a good reason to make it legal or more easily available. That is why I support these amendments.
Lord McColl of Dulwich (Con)
My Lords, can we have some clarity about the length of speeches? Several speakers have been interrupted by comments that they have gone on too long. I understood that the recommended speaking time was a maximum of 15 minutes for each speech—or am I wrong?
Lord Hunt of Kings Heath
My Lords, I sense that the House would like to make some progress. I will put a simple point to the Minister. He will know that the issue of capacity is clearly critical to our consideration of the Bill and he will have heard that we have had a number of amendments that seek referral on the question to a psychiatrist or other appropriate specialist. The noble Baroness, Lady Hollins, raised issues about the interconnection between the provisions in the Bill and the Mental Health Act and the Mental Capacity Act. My simple request to the noble Lord—and I do not suggest that he does it from the Dispatch Box—is that the Government help noble Lords with their analysis of the interrelationship between the two Acts and the Bill. That would be very helpful for the next stage of the Bill.
Lord Faulks
My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.
It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).
On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?
I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.
However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.
Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.
Lord Falconer of Thoroton
I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.
What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,
“satisfied that the person … has the capacity to make the decision to end their own life”.
In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.
Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.
My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.
My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.
I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.
The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,
“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.
Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,
“is not the subject of influence by, or a sense of obligation or duty to, others”.
With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.
The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,
“suitably qualified if that doctor holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.
I am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.
I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.
I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?
Lord Mawhinney
My Lords, while reserving the right to return to this subject on Report, for now I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
As Amendment 4 has been agreed, Amendments 7 to 11 cannot be moved, due to pre-emption.
Lord McColl of Dulwich
“( ) No other person apart from the person who is terminally ill may initiate a request for assistance to end a life.
( ) No registered medical practitioner, registered nurse or other health professional may suggest that a person consider seeking assistance to end his or her own life.”
Lord McColl of Dulwich
My Lords, my first concern about the Bill is the risk that has been already mentioned —that one might create a society in which the vulnerable, the dependent and the weak believe that they have a duty to die. My second concern is the risk to the doctor-patient relationship and the fact that the current approach of the medical team is to care and never to kill or assist in killing.
I have therefore tabled Amendment 12 with the noble Lords, Lord Browne and Lord Morrow, to add two new subsections to Clause 1. The Explanatory Notes to the Bill say of Clause 1:
“This clause would enable a person who is terminally ill to request and be given assistance to end their own life. The process is dependent upon a request being made by the person concerned and no other person, including the patient’s doctor, family or partner would be able to initiate the process of requesting an assisted death”.
We agree that should the Bill become law, it should be the person himself or herself who is making the request. Indeed, the commission of the noble and learned Lord, Lord Falconer, said on page 29 of its report that,
“we do not envisage that it could ever be appropriate for health or social care professionals to offer assisted dying as an option; only the patients themselves should be able to initiate a conversation about assisted dying”.
On page 43 of the Explanatory Notes accompanying the draft Bill, published by the All-Party Parliamentary Group on Choice at the End of Life in partnership with Dignity in Dying, it states:
“While doctors would be free to discuss other aspects of end-of-life care, only the patient themselves could initiate a conversation about assisted dying–a doctor could not suggest it and a relative could not make the request to a doctor on behalf of the patient”.
I fully agree with the sentiment behind these statements, but as far as I can see, there is nothing in Clause 1 as currently drafted to prevent the doctor initiating the discussion with the patient. There is nothing in the Bill that sets out the safeguard that a doctor cannot suggest that a patient should consider assisted suicide or that a family member could not have an initial conversation with the doctor.
I am operating on the premise that everything is legal unless it is illegal. The claim that only the patient can initiate the process seems unsustainable. I am sure that there are noble Lords who think that I am scaremongering here. However, on the basis of what has happened in Oregon, it seems unrealistic to assume that a doctor will not suggest assisted suicide as an option if the law is changed. A letter from an Oregon resident in 2011 set out how she overheard her doctor suggesting assisted suicide to her husband. She said:
“When my husband was seriously ill several years ago, I collapsed in a half-exhausted heap in a chair once I got him into the doctor’s office, relieved that we were going to get badly needed help (or so I thought).
To my surprise and horror, during the exam I overheard the doctor giving my husband a sales pitch for assisted suicide. ‘Think of what it will spare your wife, we need to think of her’ he said”.
Such a suggestion from a doctor is bound to influence a patient’s thinking.
I am concerned about this change in the doctor-patient relationship from advocating positive treatment to suggesting to somebody that they end their life. As the noble and learned Lord, Lord Falconer, previously stated, suggestions of this kind should not occur. However, doctors may feel obliged to make such a suggestion to a patient if the Bill becomes law. When the National Council for Palliative Care gave evidence to a House of Lords Select Committee in 2005, it foresaw a situation where:
“Physicians will be under a professional duty to raise it as an option with their patients if they complain of suffering unbearably, as it will be considered to fall in the category of ‘best interests’”.
The fact is that assisted suicide has been integrated into medical practice in Oregon. For instance, patients have been refused chemotherapy by their insurance company, but offered assisted suicide because it was covered by their insurance plan. They tell me that everything to do with euthanasia and assisted suicide in Oregon is working well. They can tell that to the horse marines. I beg to move.
Lord Browne of Belmont (DUP)
My Lords, I rise to speak in favour of Amendment 12, which was tabled by the noble Lord, Lord McColl of Dulwich, and which I have co-signed. Amendment 12 would have the effect of adding two additional subsections to Clause 1. The first new subsection would ensure that only a person who is terminally ill may initiate a request for assistance to end their own life. The second new subsection would ensure that no medical professional can make a suggestion to an individual that they consider seeking to take their own life.
Like many in this House, I have always opposed a change in the law to allow for assisted dying. I understand the sincere motivations of those who desire to change the law and I have listened to the many eloquent speeches given by Peers from across the House in favour of the change. However, I have never been convinced by the idea that such a law would be the right way forward. I continue to believe, as I said at Second Reading, that this is not a path we should go down. Such a change would have a detrimental impact on the lives of some of the most vulnerable people living in the United Kingdom today, especially those who are disabled, who may feel under enormous strain to take their own lives, even if they do not want to do so.
To that end, I welcome the opportunity presented by this Committee and specifically by Amendment 12 to highlight the fundamental flaws in this legislation. Amendment 12 very effectively helps to highlight the failure of the Bill to guard against the very real possibility of people encouraging others to seek assisted dying. I find it quite extraordinary that those drafting the Bill failed to have regard for such basic, elementary dangers arising from the legislation. While I am sure that no Member of your Lordships’ House would countenance such a possibility, unfortunately human nature is such that we must all acknowledge the real possibility of some people encouraging others to end their lives for financial or other gain if the Bill becomes law.
To my mind, it is easy to envisage a scenario where a family member who would perhaps gain financially from the death of an elderly relative or who was tired of having to care for that person could initiate a request for assistance in ending the life of their relative. The person might not want to die but, on seeing that their relative wants them to end their life, they go along with it, perhaps because, as we have heard, they do not want to be a burden. I think that your Lordships will agree that such a scenario is not far-fetched.
The second new subsection proposed in Amendment 12 is also imperative. I am not a medical expert, as I know some noble Lords are, including the noble Lord, Lord McColl, but, as a layperson, when I listen to the opinion of my doctors, I trust their judgment. If a doctor tells me that I should take a particular medication or go forward for an operation, I will do so on the basis of their judgment, although obviously within reason. I believe that I am like many in our society in this respect. We trust medical professionals who look after our best interests, and they are in a position of significant influence as a consequence.
Under the Bill as it currently stands, it seems that it would be legal for a medical professional to suggest that a person considers the option of assisted dying. To my mind, that is deeply concerning. If a medical professional were to suggest to a terminally ill person that they should consider the option of assisted dying, this could have the effect of putting significant pressure on that person to take their own life. This would especially be the case if the patient was not medically informed or trained. If a trusted physician who had been caring for a terminally ill person and had forged a relationship with them was to tell them that they should consider the option of assisted dying or, indeed, if they were to go further and try to sell the idea, it would be easy to envisage a person in that vulnerable state being swayed by the view of the physician. This is not sheer conjecture about what might happen in a doctor’s surgery if the law were changed.
An article entitled “Oregon Physicians’ Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death with Dignity Act”, published by the Journal of the American Medical Association in May 2001, reported under the section on changes in clinical practice since the law in Oregon came into being:
“Six percent of physicians had initiated a discussion about physician-assisted suicide with a terminally ill patient, including 10% of physicians who opposed the law and 6% of physicians who supported the law”.
Human nature says that doctors will make suggestions to patients and that there will be relatives who discuss the option of assisted dying with a doctor. I believe that we should protect individuals at a time of vulnerability and not bring more pressure upon them. I support Amendment 12.
Baroness O'Cathain (Con)
My Lords, I wish to raise a point for clarification. Amendment 12 states:
“No registered medical practitioner, registered nurse or other health professional may suggest that a person consider seeking assistance to end his or her own life”.
It does not mention whether they are terminally ill. That means that anybody could say to a person with a chronic hearing problem or even dementia, “Why don’t you seek assistance to end your own life?”. That person would not necessarily be terminally ill. I just want clarification on that point in the amendment.
Lord Phillips of Sudbury
My Lords, I rise also to point out what seems to be a flaw in the drafting of the second proposed new subsection in Amendment 12. As drafted, the registered medical practitioner, registered nurse or other health professional does not have to be treating the person referred to. That would mean that if my daughter was a nurse, she would be caught by such a measure if she said to me, “Dad, shouldn’t you seek assistance?”. That does not sound probable but you never know. I simply draw the Committee’s attention to what seems to be a fatal flaw.
Lord Cormack
My Lords, there are clearly deficiencies in the drafting but my noble friend Lord McColl made it quite clear what he was seeking to put across. There needs to be something to replace this in the Bill because we do not want anybody to be able to suggest this. That is the simple point that my noble friend was seeking to make. It is self-evident and I hope we will have a sympathetic response from the noble and learned Lord, Lord Falconer, indicating that he will look carefully at perhaps crossing a few “t”s and dotting a few “i”s.
Lord MacKenzie of Culkein (Lab)
My Lords, I endorse the points that have just been made. There may be some flaws in the drafting but we need something like this in the Bill.
I will have something to say about nursing ethics later on as we consider the Bill. But for any registered nurse, whether she is the daughter of the noble Lord, Lord Phillips, or anybody else, to suggest to anyone in any circumstance that they should consider ending their own life should see them being marched fairly swiftly before the regulatory body and struck off. That would be my view as a nurse. I hope that the noble and learned Lord, Lord Falconer, will help us and say that something like this should be in the Bill.
Baroness Finlay of Llandaff
My Lords, the noble Baroness, Lady O’Cathain, raised a question that has exposed drafting flaws in the amendment, but it actually makes a very important point. I say that based on my own experience of teaching junior doctors, particularly in the Netherlands, where they would frequently say to me that they were under pressure from families for a person to have euthanasia or assisted suicide. The requests were not coming from the patients themselves.
The other situation that we really need to be aware of, as has already been alluded to, is the vulnerability of patients to suggestions from their clinicians. I recall going on a house call with a general practitioner. The patient, who had lung cancer, was breathless and finding life difficult, and wanted to start the process of talking about euthanasia. I listened for a time but noticed that the patient was very wheezy. As the consultation went on—and I could understand a fair amount of it—I said, “Has she had an inhaler for her wheeziness?”. The conversation had gone so strongly down the route of processing her euthanasia request that the GP turned to me and said, “I had not thought of it”. We then had a discussion about how if she was wheezy it was worth trying, and the lady then said, “My grandson has an inhaler and he hates it”. I said, “Perhaps if you have one and he can teach you how to use it, it may help him adapt”. Her reply was, “Oh, at least I can be of some use again”. The request finished; we did not continue with it, but she got an inhaler to try, exactly the same as her grandson had, with the explicit request that she got him to teach her.
I put that in as an example of just how vulnerable people are to suggestion and how easy it is for a consultation to steer down one road and in that process inadvertently forget the other therapeutic options that might be open, might need to be explored and might need a little bit of thinking outside the box.
Lord Falconer of Thoroton
My Lords, perhaps I might I try to short-circuit this. I am broadly in favour of having something in the Bill that says, “You should not be making suggestions”. My anxiety is that I do not want to end up in a situation where there is a fine debate in court as to who first suggested it. It may be that somebody would say, “Can anything be done? Can this be brought to an end?”, and the doctors would say, “There are these options”. Would that be in breach? I do not know and I need to think carefully about the drafting in relation to this to avoid that sort of fine, purposeless discussion in court.
Baroness Grey-Thompson
My Lords, a doctor very explicitly suggesting to somebody that they end their life is one thing. But for me a much greater concern, which has been debated quite a lot already, is about the gentle suggestion that people should consider ending their lives—the arm around the shoulder. I am sitting in your Lordships’ Chamber only because many hundreds of thousands of pounds of NHS money have been spent on putting me back together. I have had some amazing doctors with a dreadful bedside manner, and I have had some doctors with a great bedside manner who have performed procedures that I did not ask for. It was recently reported that a young man, Mik Scarlet, turned down a certain procedure several times. When he was on the operating table, the surgeon completely ignored his wishes and carried out the procedure anyway, and it had to be reversed. He is in a better position now than he was previously. It is a very long and complicated story, which is detailed on the Huffington Post.
For me, this is about the constant drip-drip of “You’re not worth it”. I am a very resilient person. If I got upset every time somebody said to me, “I wouldn’t want to be like you”, I would be depressed. Somebody said to me recently, “Well, I wouldn’t want to be incontinent. That’s my worst thing in life”. I am technically incontinent. If it was not for self-catheterisation, I would probably be dead, because I would have pressure sores; I would not exist. I was having a debate in Central Lobby with somebody who strongly supported my view on where we should go with the Bill. He looked at me and sort of waved at the wheelchair and said, “Well, you must have considered killing yourself hundreds of times”. No, I have not, actually, and I think that it was a bit of a surprise to him. It is that sort of tone, where “You’re brave. You’re marvellous”. People do not realise that they are being demeaning. I think that they genuinely think that they are being empathetic, sympathetic and kind, but, actually, you are constantly being knocked down and told that you have no value and no worth. That is what is of much greater concern to me.
The noble Lord, Lord McColl, mentioned Oregon. In 1994, the Oregon medical assistance programme cut funding to 167 out of 700 health services. Four years later, assisted suicide started being referred to as a “treatment”. On the back of that, funding was cut to 150 services for disabled people. They started limiting funded doses of powerful pain medication and put barriers in the way of funding for antidepressants. Thank goodness we do not have an insurance system like the one they have in the United States. I would be dead because my parents could not afford to keep me alive. For me, the big issue is not the doctor saying that your life is not worth living; it is the arm around the shoulder. It is that constantly being told, “You’d be better off dead”. That is what disabled people face every single day. Disability hate crime figures are the worst they have ever been in 10 years of reporting. It is constant. There is not a group of disabled people and a group of terminally ill people; there is a huge crossover.
I am sure that many people have noticed that my noble friend Lady Campbell of Surbiton is not here today. She has a chest infection. She is watching at home on her ventilator. We all know what a chest infection does for her prognosis. It immediately switches her from being okay to fitting in with the category of having less than six months to live. That is not a situation that I am very comfortable with.
The Earl of Listowel (CB)
My Lords, the noble Baroness spoke about the young man who was operated on misguidedly by the surgeon. It reminds me that young people, 18 to 25 year-olds, might be particularly susceptible to this kind of suggestion over time. I am concerned that this particular group, who are not at the end of their lives but at the beginning and who represent a very small group within the group that we are discussing today, should be given plenty of thought, in particular because of issues around their maturity and the trauma that they may have experienced growing up.
We recognise that developmental delay can arise from trauma. We recognise that, while 18 is generally considered the age of maturity, we extend protections up to the age of 25 for young people who are leaving care. That is for a number of reasons, but in part because of the history of trauma that they have experienced. We recognise that it may take more time for them to develop. Where children or young people have not built up such large social networks, they are more dependent on those nearest to them and one should be very careful to avoid a situation in which they are drip-fed the notion that perhaps their life is not worth living and should be curtailed.
Lord Mackay of Clashfern
I wonder whether the noble and learned Lord, Lord Falconer, was referring to the first part as well as the second part of the amendment, although he spoke mainly about the second.
Lord Falconer of Thoroton
I was referring to both. Clause 1 says the applicant has to initiate it, but I want it to cover both.
The Lord Bishop of Bristol
My Lords, I may not be the only one who is a bit confused about what is happening. I stand to speak in support of Amendment 12 tabled by my noble friend Lord McColl, but I would like to address noble Lords’ attention to Amendment 77, which stands in my name. I rather hoped it might have been grouped with Amendment 85, but they stand separately grouped now. I would like to reserve the right to come back to Amendment 85 at a later occasion and I hope a later occasion will occur for that to happen.
Amendment 77 deals with something slightly different. Quite rightly, most of our debate today has focused on the decision to apply for assisted suicide and to sign the declaration. However, it is fair to say that the request for assistance with suicide involves two different and discrete decisions: first, there is the decision to apply for it, and then there is the decision to ingest fatal drugs. The Bill makes it clear that there has to be a minimum of 14 days between the application and the actual ingestion of the drugs, except in the case of somebody who is given a prognosis of a month or less and then the time lag reduces to six days.
I want to draw noble Lords’ attention to the fact that there can be quite a considerable time lag between requesting assistance and the act of having the drugs administered. I do not like to keep going back to Oregon because, quite clearly, there are some good things about the Oregon experiment. However, it does need to be said that in Oregon the range between the first request and death has been a minimum of 15 days and a maximum of 1,009 days. In Washington, there has been a range of between three weeks and 150 weeks.
Amendments 77 and 85 are an attempt to try at least to give the opportunity to the person, as they come to the moment when they will actually have the drugs administered, to return to that decision to make sure it is robust. In a sense, it asks questions about two things: the settled nature of their decision but also their continued capacity, given that there are two aspects to the decision that is going to be made. Each decision ought to be subject to some level of scrutiny. Clearly, the first one needs to be subject to a very high degree of scrutiny, but we need to give some attention as to whether the second decision also needs a degree of scrutiny.
These decisions will be made, as I say, at the very least after a 14-day interval in most cases, but some will likely occur after a much longer gap. Consequently, it is necessary to reconfirm that the conditions by which assistance was granted still apply. It is also necessary to confirm that the decision to accept assistance is free from,
“pressure, coercion or duress from others or from a sense of duty or obligation to others”,
and that there exists a level of,
“capacity commensurate with the decision”.
The actual decision to ingest a prescribed dose of lethal drugs should be subject to the same, or very near the same, scrutiny that the initial request for a prescription was.
Baroness Nicholson of Winterbourne (LD)
My Lords, I support Amendment 77, to which I have added my name. I am sure that many noble Lords will have had instances in which patients known to them, whom they are looking after or caring for in some way or another, have declared that, yes, they would want to commit suicide and would want help to do it. Then there is a gap. When the decision comes—when the decision is, “Do they actually want to take those drugs? —the decision is frequently no. I have known several instances of that. I therefore firmly support the proposal by the right reverend Prelate in Amendment 77, and I very much hope that the Committee will accept it.
Lord Falconer of Thoroton
My Lords, I congratulate the right reverend Prelate the Bishop of Bristol on focusing on the amendments, including one that is not even in the group—but I will happily deal with it anyway. As I understand it, he is saying in Amendment 77 that the lethal dose should be delivered only once requested by the patient. I see no difficulty with that. Perhaps I can think about the wording and come back at Report.
Amendment 85 is not in this group, but let us deal with it anyway, as the right reverend Prelate spoke to it—it is in a group of its own. I am against it because, as we discussed earlier, when I had the support of the noble and learned Lord, Lord Mackay of Clashfern, the point is dealt with by Clause 4(2)(c), which provides that the health professional has to confirm that the person has not revoked and does not wish to revoke their declaration.
Lord McColl of Dulwich
My Lords, I thank noble Lords very much for their contribution and for pointing out the errors in the drafting. I am very pleased with what the noble and learned Lord, Lord Falconer, said. I beg leave to withdraw the amendment.
Lord Newby
My Lords, noble Lords will have seen an unusual amount of toing and froing, as there has been a certain amount of confusion about the consequences of the pre-emption of several amendments as a result of the amendment passed earlier. Having spoken to noble Lords who have amendments affected by that pre-emption, or who have amendments that are due to be debated, I propose that for the rest of the afternoon we proceed as follows. First, the noble Lord, Lord Alton, should speak to his Amendment 11 as part of the debate on whether Clause 1 should stand part. If any noble Lord wants to speak to any of the amendments that were dropped, as it were, as a result of pre-emption, I suggest that they do so at the conclusion of that debate.
The amendments covered by pre-emption were the initial amendments in those three groups, Amendments 8, 10 and 11. The later amendments in those groups, Amendment 69 and onwards, Amendment 25 and onwards and Amendment 90 and onwards could be debated later, when we get to them. I propose that when we have finished the debate on whether Clause 1 should stand part, in the light of the fact that, by common consent, the debate on the following group will be very long, I adjourn the House.
Lord Alton of Liverpool
My Lords, given the advice of the noble Lord, Lord Newby, I will take the Committee to the arguments that would have been contained in the group led by Amendment 11. I think that was the guidance that we were just given. Noble Lords will realise that later amendments, Amendments 90, 92, 93, 105 and 122 will be reached when they get there. I will try to keep my remarks fairly short, because I think that the Committee is growing weary.
This is an important question, as are many of those that have been laid before the Committee today. It deals with the title of the clause, which is “Assisted dying”. I would argue that that is incorrect; it is assisted suicide. Those who support the noble and learned Lord’s Bill are at pains to tell us that assisted dying is not physician-administered euthanasia, whereby a doctor administers a lethal dosage of drugs to a patient, but physician-assisted suicide, whereby a doctor supplies a lethal dosage of drugs and the patient swallows or otherwise ingests them. I invite the Committee to look at the procedures set out in the noble and learned Lord’s Bill against these claims.
Clause 4 is perhaps the principal clause in this respect. Its subsection (4)(a) allows a doctor or nurse to “prepare” lethal drugs for self-administration. Presumably this means putting them into a form, such as a liquid, that the person can swallow—in a way, so far so good—but subsection (4)(b) then provides for a “medical device” to be put in place to aid self-administration. Again, I suppose that this is fair enough, although rather more precision is needed as to the object of such a device. That is why I have tabled an amendment to that effect.
Then we come to subsection (4)(c), which allows a doctor or nurse to,
“assist that person to ingest or otherwise self-administer”.
Here we really are on the borderline between physician-assisted suicide and physician-administered euthanasia. Subsection (4)(c) raises some important questions. Precisely what assistance, apart from preparing the lethal drugs and perhaps inserting a feeding tube, does “assist … to ingest” include? Does it include, for instance, holding a beaker to the lips of the person? It is not difficult to foresee a situation in which a doctor or nurse supplying lethal drugs under the terms of the noble and learned Lord’s Bill could cross the line, however innocently, between giving the patient those drugs and administering them. Subsection (4)(c) introduces a significant and dangerous grey area into the process of assisting suicide.
The noble and learned Lord has, I can see, recognised this ambiguity in subsection (5), which states that neither the doctor nor the nurse may administer the drugs to the patient, but it seems that as long as subsection (4)(c) stands, the ambiguity will remain. Moreover, subsection (5) says nothing about others administering the drugs, which brings me to my next concern. It is not just a matter of the doctor or nurse refraining from administering lethal drugs. There are others who might be inclined to do so, possibly from altruistic motives. It is therefore important that there is oversight by the doctor or nurse of what happens when the lethal drugs are delivered.
At this point, the noble and learned Lord’s Bill becomes rather convoluted. It states, reasonably enough, that the doctor or nurse must remain with the person to whom the drugs have been delivered until either they have been ingested and the person has died or the person has decided not to take them, in which case they are withdrawn. Yet subsection (6) defines remaining with the person as being,
“in close proximity to, but not in the same room as, the person”.
I understand and respect the noble and learned Lord’s wish to allow a person who is self-administering lethal drugs to die without strangers in the room but we have to balance that against the scope for others to intervene in a way that is not permitted in his Bill if the drugs are ingested without supervision.
We all heard the intervention that the noble Lord, Lord Jopling, put to my noble friend Lady Finlay much earlier in our debates about the circumstances in which people might die. I would have thought that the doctor’s presence need not be obtrusive. Apart from anything else, we have to allow for the possibility—this sometimes happens, according to the evidence from Oregon—that complications, such as vomiting or distress, arise when the drugs are taken. The doctor needs to be in the room if that happens.
For me, this is an issue that helps to distinguish between assisted suicide and assisted dying. If it is not the wish of this Committee that we should legalise outright euthanasia—I do not believe that it is—then it is very important that those clarifications are made. While I am unable to move Amendment 11, which was originally on the Marshalled List, that would have been its purpose. I am grateful to the noble Lord, Lord Newby, for providing us with the opportunity while debating the amended Clause 1, which I will not be opposing, to debate some of these questions.
Lord Cavendish of Furness
My Lords, with the leave of the Committee and with the agreement of my noble and learned friend Lord Mackay, I shall speak to Amendment 10 under the new regulation that we have. With that amendment, I would probably include Amendments 52, 164 and 170. When I left Cumbria, Amendment 70 was included in that grouping but it was moved while I was on the train. Before speaking further, I should perhaps declare an interest since, as I told your Lordships at Second Reading, I was co-founder of St Mary’s Hospice in Cumbria more than 20 years ago and, although I retired some two years ago as chairman of the trustees, I maintain my involvement as the patron. I have no professional qualifications in the field of palliative care, but my close association with a hospice over a good many years has done much to crystallise my thoughts on the matters under discussion in your Lordships’ House today. We have heard many deeply moving personal experiences, and of course I have my own, but nothing has moved me so much as witnessing not only the physical and mental relief of patients of the hospice but the sense of pure joy that the hospice movement sometimes brings through acceptance and the general level of care.
I feel sure that it is a view shared by both sides of this debate that anyone who is provided with assistance to end his or her life must understand clearly what he or she is doing; that much is surely beyond argument. However, as with many other aspects of the noble and learned Lord’s Bill, there is a significant gap between saying what should happen and putting in place provisions to ensure that it does. It is to fill such a lacuna in the Bill that I am proposing these amendments. Many of the arguments have been covered by my noble friend Lord Howard.
For a fully informed decision, the Bill as it stands requires simply that a person seeking assistance with suicide must be,
“fully informed of the palliative, hospice and other care which is available”.
But what does that mean? It means no more than that the doctor assessing the request must explain to the applicant for assisted suicide what the various end-of-life care options are. Such a doctor may well know little of what modern palliative care has to offer. It is a medical speciality that is making huge advances year by year, and it is unlikely that even a good doctor, with limited experience of end-of-life care, will be able to be sufficiently acquainted with the subject.
There is also a world of difference when making a decision between being told about something and having had first-hand experience of it. I offer this quote from the report of the Select Committee which, under the chairmanship of my noble and learned friend Lord Mackay, 10 years ago examined the Assisted Dying for the Terminally Ill Bill of the noble Lord, Lord Joffe. The committee’s report recorded evidence from Help the Hospices, as it was then called, as follows:
“Experience of ... pain control is radically different from the promise of pain control, and cessation of pain almost unimaginable if symptom control has been poor. On this view, patients seeking assistance to die without having experienced good symptom control could not be deemed fully informed”.
Specialist palliative care embraces the holistic care of the individual and those around them, considering not only their physical or medical symptoms, such as pain, vomiting or breathlessness, but also their spiritual, social and psychological needs. When distressing physical symptoms overwhelm a patient, they cannot see beyond the pain, the breathlessness, the anxiety or the vomiting. Effective symptom management enables a person to re-emerge and function once more, and to make informed choices regarding their future. Without such experience, my contention would be that the applicant’s capacity to make informed choices is seriously impaired.
The chief executive and the medical director of the hospice of which I have the privilege of being patron do not, as far as I am aware, take a position either for or against the Bill. However, they agree with this amendment and have this to say:
“We see every day how very limited is the understanding and knowledge of Palliative care services among both patients and professionals. Most people resort to these services only when they have a need of them”.
This view of course contradicts that expressed earlier by the noble Baroness, Lady Murphy, earlier in the debate.
Lord Harries of Pentregarth
I shall speak briefly to my Amendment 8 which would ensure that any request for assistance is voluntary. The House is agreed on the need for a voluntary decision, but the question is how you ascertain that the request really is voluntary.
I refer to a later amendment in my name, Amendment 69, which says that the person must not be under pressure or duress from others or from a sense of obligation or duty to others. Noble Lords have touched on this once or twice because it is a matter of huge concern, but we have not yet had a thorough debate on this issue. The noble Baroness, Lady Warnock, wondered why it was such a bad thing to have a sense of obligation or duty to others. That is a good question. The trouble is that the remarks we make are never made in isolation; they are always made to other people. If a person says out loud, “I am beginning to feel a bit of a burden”, somebody may hear that remark. As the noble Lord and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Deben, said so movingly, you want to give such a response that the person will know that, despite everything, they really matter. Within all the subtleties of a relationship, you might say something like, “You are certainly worth that and a great deal more”. In order to ensure that the request really is voluntary and there is not that kind of subtle coercion, Amendment 69 also says that the doctor must have in-depth discussions not just with the person but with the family and people close to them.
The reason why this matters so much was brought home to me a couple of days ago when I received a letter from somebody saying that a relative of theirs had gone into a hospice for temporary respite and one of the nurses said to them,
“Oh, don’t you think it would be better for you to stay here instead of going back”,
to your daughter-in-law’s place?
“She works ever so hard taking care of you; don’t you think you are a bit of a burden to her”?
That was a very unfortunate remark, but people do make unfortunate remarks and they weigh on them.
The reason why this is such a key issue can be seen from the figures and research in Oregon and Washington. Both states collect data on the end-of-life concerns behind people’s decision to seek assistance with suicide. Contrary to popular impression, the data reveal that inadequate pain control is one of the least common concerns behind a request. In 2013 only 28.2% of those who sought assistance with suicide indicated inadequate pain control as a concern. Alarmingly, and more commonly cited, is a concern about being a burden on family, friends or care givers. In 2012, 63% of those in Washington cited this as a concern. In the same year, only 33% cited poor pain relief. Responses from Oregon reveal the same pattern. Since legislation was passed there, concern about being a burden has increased as a motivator from 13% in 1998 to 49.3% in 2013. This is a matter of huge concern and I hope that the noble and learned Lord, Lord Falconer, will take the concerns of the whole House on board when he looks again at his Bill.
Lord Howarth of Newport
My Lords, I added my name to the amendments in the name of the noble and right reverend Lord, Lord Harries of Pentregarth. I am glad that we have the opportunity to spend a few moments examining this question of the nature of voluntariness in the circumstances for which we are seeking to legislate.
There can be a multitude of pressures on people who are ailing or nearing death; people who find themselves in a situation in which they consider that they may wish to seek assistance in their suicide. I know that my noble and learned friend Lord Falconer, in the drafting of the Bill, has sought very clearly to preclude situations in which anyone is driven by coercion or duress to a decision of this nature. It is going to be very difficult to ensure that those conditions are satisfied, whether in the context of the original Bill or whether in the Bill as modified by the amendment in the name of the noble Lord, Lord Pannick. There are the most overt and obvious pressures coming, perhaps, from family members who are exhausted, angry and grudging, and who may not love the person they find themselves having to care for. There are, as my noble friend Lady Mallalieu mentioned this morning, circumstances in which family members are actually motivated by venal considerations. They want to stop spending all this money on the costs of care and hurry up their inheritance. Although it is most unpleasant to think of these possibilities in human nature, they do exist and we cannot ignore those possibilities.
There could also be pretty overt pressures from professional carers and doctors who are under pressure, working with inadequate resources, impatient, testy and frustrated themselves. We can see a range of possibilities, from inadequate but well intended care, going all the way through to the kind of institutionalised callousness that was reported at Mid-Staffordshire and Winterbourne View—situations of elder abuse. In a sense, it should be easier to preclude people coming to a decision to seek to end their own life with assistance in such obvious circumstances. However, there are then the subtler situations, in which someone has perhaps been pressurised unintendedly by a person whose gesture or facial expression was not meant to be seen by the relative or person for whom they are caring and was interpreted by that person to signify that they were a nuisance or were no longer wanted.
In her speech at Second Reading, the noble Baroness, Lady Campbell of Surbiton, talked of the pressures of pity and how pity can be experienced as contempt and as a signal that your life is not worth living. There are tacit pressures that could arise even from the availability of the remedy that this legislation would make legal—its tendency to normalise the practice of assisted suicide and, going with that, a tendency to diminish trust between patients, sufferers and those who have responsibility for their care. A number of noble Lords have spoken of the risks of an altered ethos in the medical profession. Of course, people who are old and ill and costing the NHS or their families a lot of money may simply felt that they ought to stop incurring such expenditure. If people internalise such pressures and arrive at a sense that their continued existence cannot be justified and they do not have the self-worth they once had, if they feel guilty and that they are a burden on their families and the system, are we to say that these are decisions freely taken? The noble Baroness, Lady Warnock, in her speech at Second Reading proposed to us that people could proudly and honourably—admirably—come to a decision that they should not be a burden on others. Is that a freely-made decision when such pressures have been psychologically and emotionally internalised? It is a difficult question to judge.
Lord Avebury
I wonder whether the noble Lord has ever looked at the Macmillan Cancer Support site, on which there is a forum for people with incurable cancer. If he looks on that site, he will find that no patient has ever expressed the view that they are a burden on the National Health Service. It has never come up at all.
Lord Howarth of Newport
I will certainly look at that site, but I wish I could be as confident as the noble Lord is on that point.
I will conclude by saying that I think it is going to be very difficult for doctors ever to be certain that a decision has been arrived at on a truly voluntary basis, freely. It will be equally difficult for the judge that the noble Lord, Lord Pannick, has brought in to the proceedings. As the Minister, the noble Lord, Lord Faulks, put it to us earlier, there is a risk that pressures and duress will never be wholly eliminated.
Baroness Howe of Idlicote
My Lords, my Amendment 7 is a very simple one which deals with an issue that might arise as a result of the Bill—what one might call suicide tourism. I am sure that it is common ground between those who support and those who oppose a change in the law that we would not want to see any such law being abused by people from other jurisdictions travelling here to commit suicide. I feel sure that that is what the noble and learned Lord, Lord Falconer, had in mind when he included a requirement in Section 1 that an applicant for assistance with suicide must have been ordinarily resident in England and Wales for not less than one year. I certainly applaud the intention of that provision, but I fear that it does not go far enough.
Let us consider a hypothetical but far from impossible situation of a couple who have lived in England and Wales then retired to the Costa Brava. One of them is diagnosed with a terminal illness and wishes to take advantage of a law along the lines of the one proposed here, so he or she returns to this country and qualifies as having been resident in England and Wales for more than a year, but not for a year immediately preceding the application. And what about Scotland? Returning home from the Costa Brava is one thing; coming south into England is something else. There must be thousands of people who have been ordinarily resident in England and Wales for not less than a year but who, at a time when they may wish to avail themselves of a law along the lines of the noble and learned Lord’s Bill, are living north of the border. Are they to qualify for assistance with suicide, too?
It is a simple matter to guard against such suicide tourism by stipulating that the applicant for assistance with suicide must have been resident in England and Wales for a specified period immediately prior to making the application. I feel sure that that is the intent of the Bill, which should make that clear, as well as the stipulation that the specified period required should be not one but two years.
Baroness Royall of Blaisdon (Lab)
My Lords, I find this procedure extremely confusing. I realise that when a complex amendment is passed which subsumes other amendments it makes life complex, but for future reference, we would be very grateful as a Committee to have clear procedural guidance from the Whips as soon as possible. This has been a very confusing discussion on an extremely important issue.
The Earl of Listowel
My Lords, I will speak to Clause 1, and in particular to the concern about young people aged from 18 to 25. As I stressed before, this is a very small group within the larger group we are discussing, and one has to be very concerned that they get the appropriate healthcare and health professional treatment so that they can make fully informed, proper decisions. It is notorious that the transition from children’s services to adult services often causes issues in the treatment of young people.
Many young people may have some difficulty in fully appreciating their own mortality. While it is easy for us to recognise, it may be more difficult for an 18 or 19 year-old to realise that ending one’s life is absolutely final. Therefore I would appreciate consideration being given to the welfare of that particular group, so that whatever progress is made on the Bill in the future, the welfare needs of 18 to 25 year-olds are taken into very careful consideration.
Lord Mackay of Clashfern
My Lords, my Amendment 10, which was superseded, accords with the amendment moved by my noble friend Lord Cavendish. I just want to explain that all I wanted to do was to put the condition about informed consent into Clause 1, which contains the lists of qualifications. There is of course a reference to informed consent later on in the Bill. That was all I wanted to do, and it goes along with what is done by Amendment 4 in the name of the noble Lord, Lord Pannick, which talks about informed wish. I therefore assume that that would be simply a technical matter of moving it.
Lord Mawhinney
My Lords, I follow my noble and learned friend Lord Mackay. I was thinking along similar lines on Amendment 10 and fully informed decisions. I am sure that all of us want decisions to be fully informed, so I wonder whether the noble and learned Lord, Lord Falconer, could before Report give some thought to whether he is satisfied that fully informed clearly includes, first, being told what the options are and, secondly, on the part of the patient, having some comprehension of what he or she is being told. Running off a list of options does not mean that the recipient is fully informed if he or she does not understand what the options really mean.
Lord Howard of Lympne
My Lords, I support the observations made by my noble friend Lord Cavendish, with respect to Amendment 70, to which he spoke but which he did not move. He spoke about the importance of palliative and hospice care, and I support what he said and endorse what he said for the reasons that he gave and those that I gave earlier today, in our first debate. I was very concerned by the tale related by the noble and right reverend Lord, Lord Harries of Pentregarth, about a remark made by a nurse in a hospice. I was distressed and surprised by that, and if he were to let me have the details I would like to look into it. It is all the more surprising because the greatest growth area in hospice care is hospice at home. Increasingly, nurses and other workers from hospices go out and look after people towards the end of their lives, in their homes. I was really distressed to hear that, but I assure your Lordships that it is very unusual and exceptional.
I should say a word in support of the observations made by the noble Baroness, Lady Howe of Idlicote. Her observations were powerful and speak for themselves, but I confess that I had not expected the issues before the House today to become entwined in the larger immigration debate, which occupies so much space in the press at the moment—but it seems that it has done, as result of the intervention of the noble Baroness, and I strongly support what she said.
Baroness Finlay of Llandaff
I will be very brief. It is admirable how the House has coped with what appears to be slightly confusing. It is wonderful that we have clerks and Whips who understand more than the rest of us do, as it unfolds.
This stand part debate is very important, partly because the two issues of transitional care and the needs of very young adults are critically important, as is the point made about suicide tourism. I am sure that that was never intended by the noble and learned Lord, Lord Falconer, but this was the only place that it could come up in the Bill, and I am glad that my noble friend Lady Howe raised it.
I had sought previously to clarify “assisted dying”, and that the first clause should be titled “Assistance with suicide”, because this is about assisted suicide—it is not about physician-administered euthanasia. All the debates that we have had are as such, and I hope that when the Bill is reprinted we will be able to have a more accurate title to Clause 1. It is assistance with suicide, not physician-assisted euthanasia.
Baroness Grey-Thompson
My Lords, I apologise, but I would like to speak briefly because I had six amendments that dropped out due to the amendment of the noble Lord, Lord Pannick.
Lord Taylor of Holbeach
If I can just explain—those amendments that are part of the groups that the pre-empted amendments belong to will occur later on, when we come to them in order.
Baroness Grey-Thompson
I apologise; I did not express myself very well. I thank the noble Lord for that clarification. I agree with the points made by the noble Lord, Lord Howarth of Newport, on coercion. I absolutely endorse what my noble friends Lord Alton and Lady Finlay of Llandaff said about terminology. Terminology is the dress of thought and is incredibly important.
We still have to debate issues such as how, what, when, where and who, which come up in Clause 1. I refer to an issue which I cannot see coming up anywhere else—that is, how somebody who is peg fed may be assisted to die, and where that fits in with what help is actually needed. In the USA, a patient had a peg fitted expressly so that he could be helped with assisted suicide. My noble friend Lady Campbell of Surbiton already has a peg fitted and that is how she is fed and survives. A lot of questions still need to be answered about the administration of drugs. I think it is assumed that a patient may be swallowing some medicine or some liquid, but for some people the situation might be very different.
Lord Faulks
My Lords, this last group has engendered a wide-ranging debate which has called for considerable mental agility on the part of the participants. They have shown themselves well able to do so. I could not attempt to summarise all the issues that have been raised, but well raised they have been, and they have given the noble and learned Lord, Lord Falconer, a great deal to consider.
I shall deal with one point only. The noble Earl, Lord Listowel, was concerned, as he always is—much to the benefit of the House—with those aged between 18 and 25, who have not been the main focus of our attention today. I can tell the Committee that the General Medical Council’s core guidance for all registered doctors on good medical practice makes clear that a doctor,
“should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs”.
This will include consideration of the age of the patient.
Lord Falconer of Thoroton
The last half hour has been a remarkably focused debate on a series of amendments. I wish to go through each of the points that have been made.
Amendment 11 in the name of the noble Lord, Lord Alton of Liverpool, seeks to insert at the end of Clause 1 that a condition of having a right to an assisted death is that someone,
“is able to administer to himself or herself a lethal dose of drugs through whatever route is normally employed for ingestion of food”.
As the noble Lord recognised, that is at odds with the terms of the Bill, which state that,
“an assisting health professional may … prepare … medicine for self-administration by that person … prepare a medical device which will enable that person to self-administer the medicine; and … assist that person to ingest or otherwise self-administer the medicine; but the decision to self-administer the medicine and the final act of doing so must be taken by the person for whom the medicine has been prescribed”.
The Bill then specifically says with reference to subsection (4) of Clause 4, which I have just read out:
“Subsection (4) does not authorise an assisting health professional to administer a medicine to another person with the intention of causing that person’s death”,
so it absolutely underlines that it has to be a final act by the patient himself.
I am against the amendment of the noble Lord, Lord Alton, as it would discriminate against weak patients who cannot easily manage medication orally, including weakened cancer patients as well as those suffering from motor neurone disease, where setting up a form of driver would be more appropriate, but leaving the patient to take the final action. Alternatively, a nasogastric tube or even an intravenous drip can be set up and still leave the patient in control of the final action. The key thing here is to make sure that the Bill underlines that it has to be the final act by the patient but gives some degree of flexibility.
Amendment 10, which was primarily referred to by the noble Lord, Lord Cavendish of Furness, and is in his name, seeks to add a condition that the request for an assisted death should be made,
“on the basis of a fully informed decision”.
The Bill currently says that the person has to make the decision,
“on an informed basis and without coercion or duress”.
The Bill also provides:
“In deciding whether to countersign a declaration under subsection (3), the attending doctor and the independent doctor must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available to that person”.
As a result of the amendments made by the Committee, moved by the noble Lord, Lord Pannick, the Bill now states that the judge has to be satisfied that the person has,
“a voluntary, clear, settled and informed wish”.
As between the Bill and the noble Lord, Lord Cavendish, there is no dispute that the person should be informed. I would be happy to insert “fully” wherever “informed” is referred to.
The noble Lord, Lord Cavendish, also has a further amendment, Amendment 70, supported by the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Grey-Thompson, in which, in effect, they set out what one would expect to form part of the full information given before the decision is made. It includes what the consequences of the illness are, what palliative care and pain relief are available, and what the prognosis is in relation to the illness—considerable detail like that. I would expect all these matters to fall within the words “fully informed”, but I recognise the feelings of the noble Lords, Lord Cavendish, Lord Howard of Lympne, and the noble and learned Lord, Lord Mackay, all of which suggest support for further spelling out of the meaning of “fully informed”. Can I take that away and come back with a proposal on Report to spell that out? I should make it clear that the sorts of things referred to in Amendment 70 would have been what I would have expected to include in any event. However, I can see that the Committee would get more assurance if it were set out in the Bill.
The next group of amendments were from the noble and right reverend Lord, Lord Harries, who was keen in Clause 1 to insert a provision that the decision was being made voluntarily. I am sorry to be wearisome, but the Bill currently requires that the two doctors must be satisfied that the person,
“has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.
In addition, as a result of the amendments made this morning, the judge has to be satisfied that the individual,
“has a voluntary, clear, settled and informed wish to end his or her own life”.
There is therefore no doubt that the requirement for voluntariness is there at two stages already. With all respect to the noble and right reverend Lord, Lord Harries, legally it will not make much difference to add that provision elsewhere also.
However, the noble and right reverend Lord touched on the deeper issue of whether we as a House would consider a situation whereby, even though one wished to live, one decided, because one was a burden to those one loved, to go down the route of an assisted death. I would say that that was not voluntary because one wanted to live. That may be an oversimplification in many cases—there may be other cases where the situation is more complicated—but I would not be in favour of putting anything to that effect in the Bill.
Lord Harries of Pentregarth
The noble and learned Lord seems to agree with my point and speaks as though it would automatically be taken into account. Would it not be safer to have it spelled out in the Bill—that one of the marks that the decision was voluntary is that those looking into the person’s decision were assured that that person was not acting out of a sense of duress because they felt a burden?
Lord Falconer of Thoroton
My reason for not putting that in the Bill is that so many cases are much more complex than the simple case I gave, where I would not wish for there to be an assisted death—where one’s motive for wishing to have an assisted death will be a mixture of “I don’t want to be dependent on other people, I don’t want the lack of dignity, I don’t want to be a burden”, a whole mixture of motives that make clear “I do not want to go on living for the last week or month”. I am very unkeen to isolate just one factor in what is a much more complex issue than the example I gave. That is why I am against putting that in the Bill.
Lord Howarth of Newport
Will my noble and learned friend say a word or two about how he envisages that the judge or the doctors should know, ascertain and satisfy themselves that the decision has been taken voluntarily?
Lord Falconer of Thoroton
They must conduct in-depth discussions with the patient and the other doctors. The judge must call such evidence as he or she considers appropriate to be satisfied—the burden is to be “satisfied”—that the decision is voluntary. “Voluntary” means “this is what the patient wants”: he or she is not being forced into it either by coercion or by the sort of guilt that we referred to earlier. Although that will give rise to complex issues, it is not a job that is beyond judges or, indeed, some doctors.
The noble Baroness, Lady Howe of Idlicote, said that a person should have to be resident for a year immediately before the declaration is agreed. I think that is the Bill’s effect, because as it is drafted it says,
“on the day the declaration is made … has been ordinarily resident in England and Wales for not less than one year”.
The patient has to have been here for a year. However, she has a second point, which is that it should be two years rather than one. Until the noble Lord, Lord Howard, suggested it, it had not occurred to me that this was about immigration. I had thought it was about a desire to prevent tourism for this purpose, which is how the noble Baroness put it. I think it is quite difficult to judge between one year and two years. My inclination is to stick with one year, but I will take soundings to see whether two years seems right. People coming to be resident for a year before the declaration is made looks like considerable forward planning. I am not minded to accept her amendment.
The noble Earl, Lord Listowel, made a point about the 18 to 25 year-old age group. I completely agree with him that they need especial care, but this right is for anybody aged over 18. I do not think it should be taken away from them. We need to consider what should go into a code of practice to ensure that the particular needs of 18 to 25 year-olds are borne in mind.
I think that has dealt with all of the amendments that were suggested.