Terminally Ill Adults (End of Life) Bill (Nineteeth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 5th March 2025
(1 day, 13 hours ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 5 March 2025 - (5 Mar 2025)
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mrs Harris. The amendments have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. This reflects the Government’s role in ensuring that the Bill is legally robust and workable. The amendments relate to the regulation-making powers and bring together various provisions about procedure and requirements for regulations and consultation.
I will address the amendments in two groups, starting with new clause 8 and its consequential amendments 187, 199 and 211. The new clause contains a duty to consult before making regulations; it is intended to consolidate three subsections that contain duties to consult before making regulations, as set out in the original draft of the Bill under clauses 5, 8 and 19. In addition to retaining the existing duties to consult before making regulations in clauses 5, 8 and 19, the new clause requires the Secretary of State to consult before making regulations under clauses 7, 13 and 21, and brings together these requirements under a single duty.
The new clause would place an additional requirement on the Secretary of State to consult the Equality and Human Rights Commission, as well as such other persons that the Secretary of State considers appropriate. The latter group must include persons with expertise in matters relating to whether persons have capacity or have been coerced, unless it would not be appropriate to consult such persons.
I turn to amendments 233, 188, 192, 215 to 219, 222, 225, 226, 212, 213, 200 and 206. There are provisions throughout the Bill, as it is currently drafted, about the procedure for making regulations. All regulations, except for those made under clause 5(3)(a), clause 8(6)(a), clause 30(3) and clause 32, are required to be made under the negative procedure. Amendment 233 would bring together the various provisions about the procedure for making regulations into a single clause, clause 39, thereby removing repetition in the Bill. The amendment seeks to achieve that by replacing subsections (3) to (5) in clause 39 with the following:
“(5A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A), 30(3) or 32 unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(5B) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.”
The amendment would require that any regulations made under those provisions must be laid before, and approved by, a resolution of both Houses of Parliament. This procedure, the draft affirmative procedure, will apply to regulations setting the training, qualifications and experience of both the co-ordinating and the independent doctors, establishing a code of practice and securing arrangements for the provision of assisted dying under the Act. Any other statutory instrument made under powers within the Bill will remain subject to the negative procedure.
As I have said, the Government have taken a neutral position on the substantive policy questions. These comments relate to the legal and regulatory side of the Bill, and I hope that my observations are useful to the Committee.
Kim Leadbeater
I have nothing further to add.
Amendment 187 agreed to.
Amendment made: 20, in clause 5, page 3, line 25, at end insert—
“(4A) Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”—(Daniel Francis.)
This amendment would require the registered medical practitioner acting as the coordinating doctor to have undertaken training on domestic abuse, including coercive control and financial abuse.
Amendment made: 188, in clause 5, page 3, line 28, leave out subsection (6).—(Kim Leadbeater.)
This amendment is consequential on Amendment 233, which contains a single set of provisions about the procedure for regulations under the Bill.
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Requirement for proof of identity
Stephen Kinnock
This group of amendments refines the requirements related to the first declaration, clarifying the witnessing process, identity verification and regulatory obligations. I will take the amendments in turn.
In executing our duties to ensure that the legislation, if passed, is legally robust and workable, in this group the Government have worked with my hon. Friend the Member for Spen Valley on amendments 189 to 191 and 419. Amendment 189 would clarify the requirement for proof of identity when making a first declaration. It would adjust the wording to make it clear that proof of identity must be provided before a person signs a declaration, ensuring no ambiguity about when the requirement applies.
As with amendment 189, amendment 190 clarifies the requirement for proof of identity when making a first declaration. This amendment would make it clear that a person must provide two forms of proof of identity before signing the declaration, rather than simply at the same time. That ensures that both the co-ordinating doctor and the witness have received the necessary proof before the declaration is signed.
Amendment 191 ensures that the co-ordinating doctor can witness the first declaration only if they are satisfied that the person has provided two forms of proof of identity. The doctor must therefore first be satisfied that the required proof has been given to them and to the witness before proceeding with witnessing the signing of the declaration.
Amendment 419 requires that, before witnessing the first declaration, the co-ordinating doctor must be satisfied that a preliminary discussion has taken place, whether that was conducted by the co-ordinating doctor or another registered medical practitioner. The co-ordinating doctor must also have made or seen a written record of the preliminary discussion.
Amendment 291 adds to the requirement around proof of identity when making a first declaration. It requires that one of the forms of ID provided to the co-ordinating doctor and witness be photographic. The person must also provide proof of residence at this stage of the process. I note we would expect this type of issue to be considered by the Secretary of State when making regulations about forms of proof of identity that are acceptable, as already provided for in clause 6(3). Requiring a person to provide proof that they have been resident in the UK for at least 12 months appears to impose a different residency requirement to other parts of the Bill. Specifically, “being resident” is a looser test than being “ordinarily resident”, in clause 1, and “in the UK” is broader than “in England and Wales”, also in clause 1. In consequence, our assessment is that this amendment may make the Bill less legally coherent.
Rebecca Paul (Reigate) (Con)
I want to raise a question on photo ID. My apologies, I probably should have spoken sooner. Thinking this through as we have debated, I think photographic ID is important to avoid mistaken identity and fraud, and to make sure everything works as it should. With respect to this process, would the Minister normally expect photographic ID to be an acceptable or appropriate form of identification?
Stephen Kinnock
Yes, I believe so. Photographic ID would be the standard to which we would aspire. I do not know whether there was anything else under her question? I think the answer is yes.
Sojan Joseph (Ashford) (Lab)
Could the Minister clarify whether the requirement for one year of residency in the UK means that a foreign citizen studying at a university here would be able to consider assisted dying?
Stephen Kinnock
I thank my hon. Friend for that intervention. We have the term “ordinarily resident” in the UK in clause 1. Obviously if the Committee sees fit to accept the amendment it would change to “resident”, which is a looser term. This matter would also be one for the Home Office, as the custodian of our rules and regulations on immigration, but my sense would be that if we stick with “ordinarily resident” then someone who is not ordinarily resident in the United Kingdom would not qualify for assisted dying.
As the Bill currently stands, the Secretary of State has the power but not the obligation to set these requirements in regulations. This amendment would remove this discretion and require the Secretary of State to specify what forms of ID must be provided.
Amendment 293 ensures that regulations on acceptable forms of proof of identify must be approved by both Houses of Parliament before coming into force, by requiring these regulations to follow the affirmative rather than the negative procedure. As I said earlier, the Government’s position is neutral, but I hope my observations—
Kim Leadbeater
This is a thought based on the comments by the hon. Member for Reigate. The issue of photographic ID is worth giving consideration. Photo ID is used in multiple settings for different reasons. My slight concern is that some of the people we are thinking about with this Bill would be older and I think of some of my own family members who no longer have driving licences, passports or potentially any form of photographic ID. I would be concerned this could be a barrier for terminally ill people. Considering we are making this a robust process, which I totally agree with, I would be concerned that might present an issue.
Stephen Kinnock
I thank my hon. Friend for that intervention. She makes a very good point. It is definitely something that needs to be explored, to ensure that people are not being excluded for the reasons she set out. It is a different example, but when voter ID was introduced a special ID card was created by the Government to cater for exactly the situation she set out. We have to find a way of ensuring that people are not excluded because of that technicality. She makes a valid point.
Kit Malthouse (North West Hampshire) (Con)
Scanning back through my experience of the health service, I do not remember ever having to show my ID, whatever the procedure or medical service. I do not remember showing ID to witness the birth of my children or my wife having to show her ID. I am not sure that is common in the health service. Why would we introduce it for this? I can go in and have a heart bypass and not be asked to show my ID. My assumption is that often people will have been—
Stephen Kinnock
This section of the Bill covers the issue of ID and says that proof of ID is required. I am simply responding to the requirements of the Bill. I am more than happy to have a debate about ID cards and all sorts of other issues more broadly—
Stephen Kinnock
I look forward to having that debate on another day. Unless other colleagues want to intervene, I will now sit down, to the delight of the Chair.
Danny Kruger
There is no rule that can be applied universally in the abstract. All rules take their value from how they are introduced. On the hon. Gentleman’s hypothesis, I do not in principle suggest that every new treatment and every new obligation that is created in the NHS should require laws determining how clinicians prioritise them. In the case of a new service—I am trying not to use the word “treatment”, because I do not accept it as such, but it sounds like it will be treated as an NHS treatment—that is very significant and whose resource implications are unknown, it strikes me as appropriate that, as far as possible, we should be clear that doctors should manage the resource demands placed on them by the Bill in the context of their other obligations to patients.
Kit Malthouse
Can my hon. Friend not see that, as the hon. Member for Rother Valley said, the amendment is based on what could be construed as an offensive assumption: that doctors otherwise might or would? Effectively, it is the legislative equivalent of the “When did you stop beating your wife?” question.
Danny Kruger
I am afraid to say that we do impose obligations on doctors to do the things that we expect them to do. If that is offensive to doctors, so is all the guidance from the General Medical Council. It might well be argued that the amendment is otiose, because of course we would expect doctors to manage their resource requirements appropriately and to consider other patients. Nevertheless, the point that is being made in defence of the amendment, about which I feel strongly, is that we are creating a new service with unknowable resource implications, with strong parliamentary backing behind it, and with a whole set of guidance that will be created ex nihilo by the Secretary of State and that Parliament will have little control over.
Because we have not seen the amendments on the design of the service, we do not even know what the service will involve and how much work it will take. It is therefore appropriate to specify explicitly that doctors have an obligation to consider the potential impact on other patients.
Kit Malthouse
I understand where my hon. Friend is coming from. To give us fair warning, if the Committee votes the amendment down, how will he portray that publicly? Will he say to the public that the Committee has voted for doctors to harm other patients?
Sojan Joseph
I agree. It highlights the point that the impact assessment will be very important here, to see from where the resources are being pulled to provide this. The Committee should acknowledge amendment 296.
Stephen Kinnock
These amendments introduce requirements on the timing within which the co-ordinating doctor must carry out a first assessment once the first declaration is made by a person. I will turn first to amendment 296. As currently drafted, clause 7(1) requires that the co-ordinating doctor must carry out a first assessment
“as soon as reasonably practicable”
after a person has made a first declaration. Amendment 296 would require that after the first declaration is made, the co-ordinating doctor must arrange a mutually convenient time and date for the first assessment to take place, but it removes the stipulation that the assessment must be carried out as soon as reasonably practicable. The amendment would also require the date and time agreed not to jeopardise the care of other patients. The effect of the amendment may be to lengthen the period between the first declaration and the first assessment, in some cases.
Amendments 127 to 141 seek to ensure that the assessments, declarations and statements made throughout the Bill are finalised and recorded within 10 working days of being started. The amendments achieve this by inserting the term “within 10 working days” in place of
“as soon as reasonably practicable”
in clauses 7, 8, 16, 17, 21 and 22. This would put in place a time-bound limit that the medical practitioner must adhere to when carrying out the first and second assessments, when recording information in medical records at various stages, including the High Court declaration, and when recording other matters in medical records.
Our assessment suggests that in most circumstances, although it would depend on the facts of a particular case, the requirement to do an action as soon as practicable would generally amount to a requirement to do the action sooner than in 10 working days’ time. In terms of the operational effects, having a set timeline may give greater certainty to individuals seeking assistance. However, it may limit doctors’ discretion to set the timeline based around the patient’s wishes. These are matters for the Committee to weigh up and consider.
Kim Leadbeater
That has been a very useful discussion. I have nothing to add.
Kit Malthouse
As I understand it, I do not think if someone is donating an organ that they do actually have to see a psychiatrist; they have to see somebody who is an appropriately trained assessor from the Human Tissue Authority. To me, that sounds equivalent to the second doctor in our process—someone who is appropriately trained to assess patients and what they need to do. This talk of it having to be a qualified registered psychiatrist, compared with an organ donation, is incorrect.
Dr Opher
I completely agree with the right hon. Gentleman. By amending clause 12 to include social workers, who specialise in spotting coercion, there would be a psychological component in that panel. I emphasise that the first two doctors are trained in psychological assessment—they have to be to become a doctor, and we must respect their knowledge and decision making. Psychiatrists will be incredibly useful in difficult cases of capacity, but using them in every case would not be using them in the best capacity.
Dr Opher
I am grateful that you have not intervened as well, Mrs Harris. You did say that I am allowed to call you “you”.
I will finish on this serious point. Amendment 6 has much power, and we would all agree that if the first or second doctor has doubts, they must—not may—refer to a psychiatrist. Expecting every patient who requests assisted death to have a psychological or psychiatric assessment is simply not necessary, and it would not improve the safety of this Bill.
Stephen Kinnock
Thank you so much, Mrs Harris—I will try again.
Although it is up to Parliament to pass or reject this Bill, the Government remain committed to ensuring its legal robustness and workability. For that reason, we have worked closely with my hon. Friend the Member for Spen Valley, and we have mutually agreed some amendments, including amendments 370 and 202. This group of amendments relates to the assessment process for determining a person’s ability to make a first declaration. I will take them in turn.
As the Bill stands, the co-ordinating doctor is responsible for ascertaining whether, in their opinion, a person applying for assistance to end their own life has met the eligibility criteria in clause 7(2), as part of the first doctor’s assessment. Amendment 347 would change the co-ordinating doctor’s role from ascertaining whether, in their opinion, the criteria in clause 7(2) are met to instead ensuring that steps have been taken to confirm that those criteria are met. Its practical effect would be that the co-ordinating doctor could rely on the assessment of other, non-specified, persons to confirm that the eligibility criteria have been met.
Amendment 294 provides that the co-ordinating doctor, in ascertaining whether, in their opinion, the criteria in clause 7(2) are met, would be required to base that assessment on evidence that has been provided. It does not specify who would provide the evidence, what types of evidence would be considered acceptable or whether the co-ordinating doctor could disregard evidence if they consider it appropriate to do so. It could create uncertainty for the co-ordinating doctor in carrying out the first assessment.
Amendment 14 would require the co-ordinating doctor, when making the first assessment, to take into account an additional report. The report would be made by a qualified person and would cover duress and/or coercion, communication needs and capacity. It would be informed by an interview between the specialist and the person applying for assistance to end their own life. The specialist must have expertise in psychiatry or other qualifications set out in regulations. There are various exclusions aimed at avoiding conflicts of interest.
Amendment 15 would similarly require that the independent doctor, in making the second doctor’s assessment, takes the report into account. Amendments 16 to 19 are consequential to amendment 14.
In practice, the amendments would represent a change at the medical assessment stage from requiring two professionals to requiring three. They also represent a departure from usual practice for professionals applying the Mental Capacity Act 2005. The requirement to interview the person and write a report that must, in all cases, address capacity may amount to an assessment of capacity in itself. That would undermine a core principle of the Mental Capacity Act, which is the presumption of capacity.
In addition, the test of capacity set out in the amendments is more limited than the test of capacity under the Mental Capacity Act. It covers only capacity to understand information, not capacity to retain, use or weigh it.
Amendment 284 would require the co-ordinating and independent doctors to, in all cases, refer the person seeking assisted dying to a psychiatrist for an assessment of their mental capacity. Although that is set out in the explanatory note from my hon. Friend the Member for York Central, the amendment does not specify the type of assessment that is required. Putting aside specification of the type of assessment, the overall intention of the amendment is that, in order to be eligible for assisted dying, a capacity assessment would always be required, irrespective of whether there is a proper reason to doubt that the person has capacity. That would differ from the Mental Capacity Act, under which capacity is presumed unless it is established that the person lacks it.
Amendment 6 would require the assessing doctor to refer all cases where there is doubt about mental capacity for an assessment by a doctor who is an expert in psychiatry. This is a power, as currently drafted, but the amendment would make it a duty. Requiring, rather than permitting, the assessing doctor to make a referral when capacity is in doubt would remove their discretion on whether to refer a person to a doctor who is an expert in psychiatry. Instead, it would be required in all cases where there is doubt about capacity.