Terminally Ill Adults (End of Life) Bill (Twenty-second sitting)
Wednesday 12th March 2025
(1 month 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 Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 March 2025 - (12 Mar 2025)
The Chair
Good morning, ladies and gentlemen. The usual litany: would everybody ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room.
We will now continue line-by-line consideration of the Bill. I remind Members that interventions should be short and should raise points of clarification or questions; they should not be speeches in and of themselves. At this point, I interrupt myself to say that Members may have noticed that on occasion I, at least, have allowed slightly longer interventions. One reason for that is that there is a natural flow in debate that sometimes warrants a slightly longer intervention, rather than a speech later that has become irrelevant. Please do not construe that as an encouragement to make long interventions, however; a ton of bricks may come down upon you.
Members who wish to make speeches should please continue to bob at the appropriate points throughout the debate until they are called. I have a list of Members who bobbed at the end of the last sitting, but it would be helpful to the Clerk and to me to refresh that, so perhaps those who wish to participate in this debate could bob again.
Please remember that when Members say “you”, they are referring to me, the Chair. Members should not use the word to refer to one another. Debate should be through the Chair.
Clause 12
Court approval
Question (11 March) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 371, in clause 13, page 9, line 5, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person, and”.
This amendment is consequential on NC21.
Amendment 61, in clause 13, page 9, line 5, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert
“certificate of eligibility was granted,”.
This amendment is consequential on NC21.
Amendment 62, in clause 13, page 9, line 13, leave out from “the” to “or” in line 14 and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.
This amendment is consequential on NC21.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.
This amendment is consequential on NC21.
Amendment 63, in clause 16, page 11, line 12, leave out “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.
This amendment is consequential on NC21.
Amendment 64, in clause 18, page 12, line 9, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 381, in clause 27, page 16, line 16, leave out sub-paragraph (iii) and insert—
“(iii) a certificate of eligibility,”.
This amendment is consequential on NC21.
Amendment 65, in clause 27, page 16, line 16, leave out from “the” to “under” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 388, in clause 34, page 20, line 40, leave out paragraph (c) and insert—
“(c) a panel has refused to grant a certificate of eligibility;”.
This amendment is consequential on NC21.
Amendment 66, in clause 34, page 20, line 40, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 390, in clause 40, page 23, line 24, at end insert—
“‘certificate of eligibility’ has the same meaning as in section (Determination by panel of eligibility for assistance);”.
This amendment is consequential on NC21.
Amendment 391, in clause 40, page 23, line 24, at end insert—
“‘the Commissioner’ has the meaning given by section (Voluntary Assisted Dying Commissioner);”.
This amendment is consequential on NC14.
New clause 14—Voluntary Assisted Dying Commissioner—
“(1) There is to be a Voluntary Assisted Dying Commissioner.
(2) The Commissioner is to be appointed by the Prime Minister.
(3) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(4) The Commissioner’s principal functions are—
(a) receiving documents made under this Act;
(b) making appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see Schedule (Assisted Dying Review Panels));
(c) making arrangements in relation to such panels and referring cases to them (see section (Referral by Commissioner of case to multidisciplinary panel));
(d) determining applications for reconsideration of panel decisions under section (Reconsideration of panel decisions refusing certificate of eligibility);
(e) monitoring the operation of this Act and reporting annually on it (see section 34).
(5) In this Act “the Commissioner” means the Voluntary Assisted Dying Commissioner.
(6) Schedule (The Voluntary Assisted Dying Commissioner) makes provision about the Commissioner.”.
This new clause provides for there to be a Voluntary Assisted Dying Commissioner.
New clause 15—Referral by Commissioner of case to multidisciplinary panel—
“(1) This section applies where the Commissioner receives—
(a) a first declaration made by a person,
(b) a report about the first assessment of the person which contains a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g), and
(c) a report about the second assessment of the person which contains a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e).
(2) The Commissioner must, as soon as reasonably practicable, refer the person’s case to an Assisted Dying Review Panel for determination of the person’s eligibility to be provided with assistance under section 18.
(3) But where the Commissioner receives a notification that the first declaration has been cancelled—
(a) the Commissioner must not refer the person’s case to such a panel, and
(b) if the person’s case has already been so referred, the Commissioner must notify the panel of the cancellation.
(4) Schedule (Assisted Dying Review Panels) makes provision about Assisted Dying Review Panels.”
This new clause provides for the Voluntary Assisted Dying Commissioner to refer a person’s case to a multidisciplinary panel, to be called an Assisted Dying Review Panel.
New clause 17—Reconsideration of panel decisions refusing certificate of eligibility—
“(1) This section applies where—
(a) a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) to an Assisted Dying Review Panel (“the first panel”), and
(b) the first panel refuses to grant a certificate of eligibility in respect of the person.
(2) The person may apply to the Commissioner for their case to be reconsidered on the ground that the first panel’s decision—
(a) contains an error of law,
(b) is irrational, or
(c) is procedurally unfair.
(3) The Commissioner must consider an application without a hearing.
(4) On the application—
(a) if the Commissioner is satisfied that any of the grounds mentioned in subsection (2) applies, they must as soon as reasonably practicable refer the person’s case to a different Assisted Dying Review Panel for a fresh determination under section (Determination by panel of eligibility for assistance);
(b) in any other case, the Commissioner must dismiss the application.
(5) The Commissioner must give reasons, in writing, for their decision.
(6) The Commissioner must notify the following of the outcome of the application, and give them a document containing their reasons for their decision—
(a) the person who made the application;
(b) the coordinating doctor;
(c) any other person specified in regulations made by the Secretary of State.”
This new clause provides for certain decisions of Assisted Dying Review Panels to be referred to a different panel for reconsideration.
Amendment (a) to new clause 17, leave out subsections (1) to (3) and insert—
“(1) The person applying for assisted dying, their next of kin, any of their relatives (within the meaning of the Family Law Act 1996), the registered medical practitioners who are treating them and anyone who took part in proceedings before the panel or gave evidence to the panel may apply to the Commissioner for the Panel’s decision to be reconsidered.
(2) The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust because of a serious procedural or other irregularity in the proceedings.
(3) The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
New clause 21—Determination by panel of eligibility for assistance—
“(1) This section applies where a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) to an Assisted Dying Review Panel (“the panel”).
(2) The panel’s function is to determine whether it is satisfied of all of the following matters—
(a) that the requirements of sections 5 to 9 have been met in relation to—
(i) the first declaration,
(ii) the first assessment and the report under section 7 on that assessment, and
(iii) the second assessment and the report under section 8 on that assessment;
(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
(d) that the person was aged 18 or over at the time the first declaration was made;
(e) that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person;
(f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration;
(g) that the person is registered as a patient with a general medical practice in England or Wales;
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.
(3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case.
(4) The panel—
(a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both);
(b) must (subject to subsection (5)) hear from, and may question, the person to whom the referral relates;
(c) in a case to which section 15 applies, may hear from and may question the person’s proxy;
(d) may hear from and may question any other person;
(e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.
In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link.
(5) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person.
(6) The panel—
(a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”);
(b) must refuse to do so in any other case.
(7) The panel must notify the following of its decision—
(a) the person to whom the referral relates;
(b) the coordinating doctor;
(c) the Commissioner;
(d) any other person specified in regulations made by the Secretary of State.
Where it grants a certificate of eligibility, it must give a copy of the certificate to each of these persons.
(8) If the panel is notified that the first declaration has been cancelled, it must cease to act in relation to the referral (and, in particular, it may not grant a certificate of eligibility).”
This new clause provides for a person’s eligibility to be provided with assistance under clause 18 to be determined by a multidisciplinary panel (instead of the High Court).
Amendment (d) to new clause 21, in subsection (4), leave out paragraphs (a) to (e) and insert—
“(a) must hear from, and must question, the coordinating doctor and the independent doctor;
(b) must (subject to subsection (5)) hear from, and must question, the person to whom the referral relates;
(c) in a case to which section 15 applies, must hear from and must question the person’s proxy;
(d) must consider hearing from and questioning—
(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to; and
(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness; and
(e) may hear from and may question any other person, including any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
Amendment (c) to new clause 21, in subsection (4), after paragraph (e) insert—
“(aa) if it considers that the matters mentioned in subsection 2(c), (h) or (i) are established on a balance of probabilities but still considers that there is a real risk that they are not satisfied, then the panel must stay its proceedings until such further inquiries it orders are made,”.
Amendment (e) to new clause 21, after subsection (4) insert—
“(4A) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Amendment (a) to new clause 21, in subsection (6)(a), after “satisfied” insert “beyond reasonable doubt”.
Amendment (b) to new clause 21, in subsection (6)(a), after “subsection (2)” insert
“unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,”.
New clause 2—Tribunal authorisation—
“(1) Where—
(a) a person has made a first declaration under section 5 which has not been cancelled,
(b) the coordinating doctor has made the statement mentioned in section 7(3), and
(c) the independent doctor has made the statement mentioned in section 8(5), that person may apply to the First-tier Tribunal (“the Tribunal”) for a declaration that the requirements of this Act have been met in relation to the first declaration.
(2) On an application under this section, the Tribunal—
(a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and
(b) in any other case, must refuse to make the declaration.
(3) The matters referred to in subsection (2)(a) are that—
(a) the requirements of sections 5 to 9 of this Act have been met in relation to the person who made the application,
(b) the person is terminally ill,
(c) the person has capacity to make the decision to end their own life,
(d) the person has relevant and available palliative care options available to them,
(e) the person is not liable to be detained under the Mental Health Act 1983,
(f) the person was aged 18 or over at the time the first declaration was made,
(g) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration,
(h) the person is registered as a patient with a general medical practice in England or Wales,
(i) the person has a clear, settled and informed wish to end their own life, and
(j) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.
(4) The Tribunal—
(a) may hear from and question, in person, the person who made the application for the declaration;
(b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);
(c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the tribunal.
(5) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the Tribunal may also—
(a) hear from and question any other person;
(b) ask a person to report to the Tribunal on such matters relating to the person who has applied for the declaration as it considers appropriate.
(6) In considering an application under this section, the panel must consist of—
(a) a sitting judge,
(b) a medical practitioner, and
(c) a lay person.
(7) In subsection (4)—
(a) in paragraph (a), the reference to the person who made the application includes, in a case where the person’s first declaration was signed by a proxy under section 15, that proxy, and
(b) “in person” includes by means of a live video link or a live audio link.”
This new clause would replace the role of the High Court with the tribunal system.
New clause 3—Tribunals in Wales—
“(1) For the purposes of this Act, the First-tier Tribunal and the Upper Tribunal, in exercising functions under or arising from this Act in relation to Wales, are to be treated as devolved tribunals within the meaning of paragraph 9 of Schedule 7A to the Government of Wales Act 2006.
(2) The Welsh Ministers may by regulations make provision relating to the procedure to be followed by the First-tier Tribunal and the Upper Tribunal in exercising functions under this Act in relation to Wales.
(3) Statutory instruments containing regulations made under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of Senedd Cymru.”
Amendment 67, in schedule 4, page 28, line 32, leave out from “The” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 68, in schedule 5, page 30, line 6, leave out from “the” to “made” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 69, in schedule 5, page 30, line 10, leave out from “the” to end of line and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 70, in schedule 6, page 32, line 3, leave out from “of” to “declaration” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
New schedule 1—The Voluntary Assisted Dying Commissioner—
“Status
1 (1) The Commissioner is to be a corporation sole.
(2) The Commissioner is not to be regarded as—
(a) the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(3) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
General powers
2 The Commissioner may do anything the Commissioner considers appropriate for the purposes of, or in connection with, the Commissioner’s functions.
Deputy Commissioner
3 (1) The Prime Minister must appoint a person to be the Deputy Voluntary Assisted Dying Commissioner (the “Deputy Commissioner”).
(2) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(3) The Commissioner may delegate any of the Commissioner’s functions to the Deputy Commissioner, to the extent and on the terms that the Commissioner determines.
(4) The delegation of a function under sub-paragraph (3) does not prevent the Commissioner from exercising that function.
(5) The functions of the Commissioner are to be carried out by the Deputy Commissioner if—
(a) there is a vacancy in the office of the Commissioner, or
(b) the Commissioner is for any reason unable or unwilling to act.
Appointment and tenure of office
4 (1) A person holds and vacates office as the Commissioner or Deputy Commissioner in accordance with the terms and conditions of their appointment as determined by the Secretary of State, subject to the provisions of this paragraph.
(2) An appointment as the Commissioner or Deputy Commissioner is to be for a term not exceeding five years.
(3) A person may not be appointed as the Commissioner or Deputy Commissioner if a relevant appointment of them has been made on two occasions. “Relevant appointment” here means appointment as the Commissioner or Deputy Commissioner.
(4) The Commissioner or Deputy Commissioner may resign by giving written notice to the Secretary of State.
(5) The Secretary of State may by notice in writing remove a person from the office of Commissioner or Deputy Commissioner if satisfied that the person—
(a) has behaved in a way that is not compatible with their continuing in office, or
(b) is unfit, unable or unwilling to properly discharge their functions.
Remuneration
5 The Secretary of State may pay to, or in respect of, the person holding office as the Commissioner or Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Staff: appointed by Commissioner
6 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(5) The Employers’ Liability (Compulsory Insurance) Act 1969 does not require insurance to be effected by the Commissioner.
Staff: secondment to Commissioner
7 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded.
Staff: general
8 (1) Before appointing staff under paragraph 6 or making arrangements under paragraph 7(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
(2) A function of the Commissioner may be carried out by any of the Commissioner's staff to the extent authorised by the Commissioner (but this is subject to sub-paragraph (3)).
(3) Sub-paragraph (2) does not apply in respect of—
(a) the Commissioner’s function under paragraph 2(1) of Schedule (Assisted Dying Review Panels) of making appointments to the list of persons eligible to be panel members;
(b) the Commissioner’s function of determining applications for reconsideration under section (Reconsideration of panel decisions refusing certificate of eligibility).
Financial and other assistance from the Secretary of State
9 (1) The Secretary of State may—
(a) make payments to the Commissioner of such amounts as the Secretary of State considers appropriate;
(b) give such financial assistance to the Commissioner as the Secretary of State considers appropriate.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 7;
(b) provide premises, facilities or other assistance to the Commissioner.
Accounts
10 (1) The Commissioner must—
(a) keep proper accounts and proper records in relation to them, and
(b) prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(2) The Commissioner must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General—
(a) before the end of August next following the end of the financial year to which the statement relates, or
(b) on or before such earlier date after the end of that year as the Treasury may direct.
(3) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State.
(4) The Secretary of State must lay before Parliament each document received under sub-paragraph (3)(b).
(5) In this paragraph, “financial year” means—
(a) the period beginning with the date on which the Commissioner is established and ending with the second 31 March following that date, and
(b) each successive period of 12 months.
Application of seal and proof of documents
11 (1) The application of the Commissioner's seal is to be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the Commissioner’s seal or signed on the Commissioner’s behalf —
(a) is to be received in evidence, and
(b) is to be treated as duly executed or signed in that way, unless the contrary is shown.
Public Records Act 1958
12 In Part 2 of the Table in paragraph 3 of the First Schedule to the Public Records Act 1958 (bodies whose records are public records), at the appropriate place insert “The Voluntary Assisted Dying Commissioner”.
House of Commons Disqualification Act 1975
13 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying person from membership of House of Commons), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner or the Deputy Voluntary Assisted Dying Commissioner.”
Freedom of Information Act 2000
14 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner.”
Equality Act 2010
15 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities subject to public sector equality duty), at the end of the group of entries for bodies whose functions relate to health, social care and social security insert—
“The Voluntary Assisted Dying Commissioner.””
This new Schedule contains provision about the Voluntary Assisted Dying Commissioner and the Deputy Commissioner.
New schedule 2—Assisted Dying Review Panels—
“Introduction
1 In this Schedule—
(a) “referral” means a referral under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) (and similar references are to be construed accordingly);
(b) “panel” means an Assisted Dying Review Panel.
List of persons eligible to be panel members
2 (1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.
Tenure of persons appointed to list
3 (1) Subject to the provisions of this paragraph, persons on the list hold and vacate their appointments in accordance with the terms on which they are appointed.
(2) An appointment to the list is to be for a period not exceeding five years.
(3) A person who has held appointment to the list is eligible for re-appointment for one further period not exceeding five years.
Membership of panels
4 (1) The Commissioner must make arrangements for determining the membership of a panel.
(2) The arrangements must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.
Decisions of panels
5 (1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.
Panel sittings
6 (1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)).
(2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.
Staff and facilities
7 The Commissioner may make staff and other facilities available to panels.
Practice and procedure
8 (1) The Commissioner may give guidance about the practice and procedure of panels.
(2) Panels must have regard to any such guidance in the exercise of their functions.
Reasons
9 Panels must give reasons, in writing, for their decisions.
Money
10 The Commissioner may pay to or in respect of members of panels—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
House of Commons Disqualification Act 1975
11 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying persons from membership of House of Commons), at the appropriate place insert—
“Person on the list of those eligible for membership of an Assisted Dying Review Panel.””
This new Schedule contains provision about Assisted Dying Review Panels.
Amendment (c) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) The Commissioner must ensure that each member of a panel has had training in respect of domestic abuse, including coercive control and financial abuse.”
Amendment (a) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) Each member of a panel must have fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment (b) to new schedule 2, in paragraph 8, leave out sub-paragraphs (1) and (2) and insert—
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
This amendment would require Assisted Dying Panels to follow an adversarial process to test the evidence by appointing an advocate to the panel.
I trust that that is absolutely clear to everybody. I understand that at the end of the last sitting Ms Paul graciously and courteously sat down in order to enable the Adjournment to be moved—as all Members will have worked out by now, the Adjournment cannot be moved while somebody is speaking—but that she had not finished what she had to say. On that basis, Rebecca Paul has the floor.
Rebecca Paul (Reigate) (Con)
I rise to speak to new clauses 17 and 21 and to the four associated amendments. There is a lot to say, so please bear with me, but I will do my best not to repeat myself.
How exactly will the panel operate and function? I appreciate some of the explanations provided by the hon. Member for Spen Valley, and I look forward to hearing from the Minister on the point, but I have concerns about exactly what the panel will do and how it will do it. I will do my best not to repeat what others have said, but I reiterate the concerns as to whether it is indeed a better safeguard than the High Court one that was originally envisaged, given that it will have no full judicial role.
On a practical level, I question whether it is even feasible to find sufficient numbers of psychiatrists and social workers who are able and willing to perform this very burdensome role. As we all know, social workers do an incredibly important job, but people with their skillset are in extremely high demand. The hon. Member has made it clear that she is removing the High Court safeguards not because of the capacity concerns raised in oral evidence in January, but because she believes that this is truly a better and safer model.
I am also concerned that something that was originally meant to bring judicial oversight into the process has been replaced with something that is not judicial. I welcome more involvement from psychiatrists and social workers, who have a key role to play in the process, but I have concerns about whether the panel is the right place for it. Its expertise would be more valuable earlier in the process, when the co-ordinating doctor and the independent doctor are performing their assessments, rather than at the stage with the legal oversight component. A panel’s involvement in a truly multidisciplinary approach during the clinical stage of the assessment process would have been a gold-standard safeguard, but unfortunately that approach was not put on the face of the Bill.
How the panel will operate is an issue of great significance. If we do not flesh out the detail now, when will we? We must have this conversation. I have looked for this information in the new provisions. According to new schedule 2,
“The Commissioner may give guidance about the practice and procedure of panels.”
That is all there is. I cannot see any further information. Disappointingly, it is not even that the commissioner “must” give guidance—it “may”—so the operation of panels may change depending on who is in the role of commissioner. Given that this is a new approach and process, I urge the promoter and the Government to ensure that it is adequately fleshed out to avoid ambiguity.
When I imagine the panel, I am not sure what I am supposed to be imagining. Is it an administrative process—three people checking the papers—or is it more like a court, calling in evidence? Yesterday, the hon. Member for Banbury eloquently set out the practical realities of the new provisions with regard to witnesses. According to new clause 21, the panel “must hear from” at least one of the doctors, but it does not need to question him or her, so what is it exactly that the panel is required to hear? What does “hear” mean, and does it cover anything specific? Does it cover all the items in new clause 21(2), or just some? The new clause does not specify.
It is the same for the patient. The panel just needs to “hear” from him or her; it does not need to question them. As I will come to shortly, in exceptional cases, even the patient will not need to be heard from. Again, I would be grateful to the Justice Minister for clarity on what “hear” means and what she would expect would be covered.
We do know that the panel must be “satisfied” of the relevant matters, yet how it is to be satisfied, and even what that means, is not clear. The only person who must be heard from is either the co-ordinating doctor or the independent doctor—just one person. That may be fine, or it may not, but I put it on the record here, because it is important that we are clear-eyed about it.
Compare the process with an employment tribunal. Someone litigating an employment claim would know well in advance the rules that the tribunal would apply, what test the tribunal would apply to the facts, the legal representation they can have, and how and on what basis they can appeal. That kind of clarity is essential, but I cannot find it in the new clause. I also do not know whether the panel is inquisitorial or adversarial.
Kim Leadbeater (Spen Valley) (Lab)
I am very happy to clarify that the panel is not adversarial, but inquisitorial and investigative.
Rebecca Paul
I thank the hon. Member for that confirmation. Now that I have that clarity, I will skip on.
One aspect of the panel that gives me cause for concern is that the panel would not hear from the patient themselves where there are “exceptional circumstances”. What are exceptional circumstances? The Bill does not say or provide any guidance. Many people with a terminal diagnosis who are seeking assisted dying could consider their circumstances exceptional; many undoubtedly will be too unwell to attend. That means that such panels could be making these decisions based on testimony from only one doctor. I am not for one second suggesting that people on their deathbeds should have to attend a panel—that is the point of exceptional circumstances—but I urge the promoter and Ministers to ensure that the much-need clarity around the meaning of the term is set out in order to reduce ambiguity in this area.
Danny Kruger (East Wiltshire) (Con)
It was helpful to hear the Bill’s promoter suggest that the system will be inquisitorial—that is not sufficiently apparent in the new clause, as my hon. Friend the Member for Reigate says. Does she agree that the panel must therefore have proper inquisitorial powers and authority? At the moment, there is a lack of genuine power to investigate the circumstances. If it not going to be adversarial but inquisitorial, it should have proper powers to make an investigation.
Rebecca Paul
My hon. Friend makes a good point; I completely agree with him on that front. This goes back to being clear on the face of the Bill about what the panel does and the powers it has in order to avoid ambiguity. It is important that we set that out now, during this process, rather than finding ourselves in a position in two years where it is all starting to happen, if the Bill is approved, and the questions starting at that point. Let us try to answer them now and be really clear about it.
Where a panel does not hear directly from a patient, it may be forced to rely on second-hand accounts. In law, second-hand evidence is known as hearsay and is always handled with a lot of provisions and warnings across our criminal and civil legal systems, because it can be inaccurate or of lower quality than evidence directly from a source. However, the panel is open to depending on such evidence. We must be clear-eyed about the risks that come with that.
In summary, I do not believe that new clause 21 gives sufficient clarity on how the panel will perform its role and what evidential standard it would apply. We do not know if it is an administrative task or a judicial one. We do now know that the panel is inquisitorial—I thank the Bill’s promoter for that—but we do not know how much it will rely on hearsay evidence in practice. I will say this again, because it is really important: the panel is required to hear from only one doctor and does not need to question them. Under the Bill, would it be legally acceptable for the doctor to turn up, say, “No concerns”—and that’s the end of that? I am here to tell Committee members who think that that will not happen if the Bill allows it: somewhere, with some panel, it absolutely will—particularly as our society gets desensitised and more comfortable with the concept of assisted dying.
I urge the Committee to be precise with the legislation it is passing for the sake of the statute book and, more importantly, for the sake of all the people who may find themselves being assessed by such a panel.
Lewis Atkinson (Sunderland Central) (Lab)
The hon. Lady sketches out a very short exchange. Does she think that we should specify in primary legislation the exact nature of interactions in these sorts of matters elsewhere—in the High Court, employment tribunals and so on? In my understanding, we do not: we trust regulated professionals to have appropriate interactions. It is not for Parliament to say that a lawyer or doctor should ask x or y question. Does she agree?
Rebecca Paul
I am afraid I do not agree. I do not think that we should not put in place precise legislation because we trust that everyone will do the right thing. Our job as lawmakers is to always think about the worst possible situation that could arise and legislate accordingly to protect against that as best as possible. In 99 cases out of 100, it will work perfectly fine and people will do their job as they are meant to. The point I am trying to draw out is about exactly what the Bill says, and what it says is required is actually very little. The panel is required to “hear” from only one of the doctors. I still do not know what “hear” means. Exactly what content are they meant to provide? That is the point I am making. It is important that we make legislation for the worst-case scenario. That is our job.
Lewis Atkinson
I am not going to pursue that exact line of argument. The point of discussion, and the point of the vote, is whether we think this proposal, which, to me, is robust—the panel “must hear” from doctors and “must…hear” from the patient unless there are exceptional circumstances, and three professionals are involved—is stronger than the previous draft that involved the High Court and had no such requirements. Even if the hon. Lady does not think the new clause is perfect, does she think it is a stronger set of safeguards—surely it is—and will she support it?
Rebecca Paul
Again, I am not sure I agree that that is what I am here to do today. I think my job is to set out the strengths and weaknesses of the proposed amendment, and I do think that the High Court judge safeguard, on the face of it, was probably safer. I appreciate, value and truly welcome what the new clause attempts to do by bringing in psychiatrists and social workers, but it has come in at the wrong phase of the process. I am not sure we are really getting the value of that expertise at the judicial point; we would have got that value at the clinical stage.
I ask Members to take what I am saying in the good faith that it is meant. My intention is to make sure that the Bill is as safe as possible. I do not profess to have all the answers, but I do have questions, and sometimes it is useful to ask questions, because there are others here who can answer them. I hope that, by asking questions when we are uncertain whether something is the right way forward, we will get a stronger piece of legislation.
Kim Leadbeater
The hon. Member is absolutely right that we are here to ask questions, and I appreciate those questions being asked. On what happens earlier in the process, I hope she is reassured by the fact that we will now have compulsory referral to a psychiatrist if there is a doubt about capacity, and we have specified in the Bill doctors consulting other health and social care professionals, to provide for a holistic approach earlier in the process.
Rebecca Paul
I absolutely welcome those amendments. I do think they improve the safety of the Bill. As I have mentioned, I would have liked to see a truly multidisciplinary approach. At the moment, we have just included something in the Bill, as the hon. Lady says, stating that a doctor can refer to another specialist if they so wish. I would have liked to see that team pulled together, and that recognised in the Bill—we heard strong oral evidence about that.
Kim Leadbeater
The other point I would reiterate is that none of that stops happening. We have heard from professionals and experts that that happens. Someone who has cancer will have a multidisciplinary team around them as part of their natural treatment process. Nothing in the Bill stops that happening.
Rebecca Paul
I take that point. In an ideal world where our public services were not under pressure, I might be more reassured, but I am a local councillor, and I am well aware how difficult it is to get social workers involved in all the things that they need to be involved in, because they are spread so thin. The hon. Lady lays out very well how things should work, but when I take off my rose-tinted glasses, I am concerned that they will not work like that in the real world. That is why I always go back to putting things in the Bill, because that forces them to happen—doing so here would force that treatment to happen.
The Committee will be pleased to hear that I now turn to my amendments—but I am afraid there are four of them, so bear with me. Amendment (a) to new clause 17 may be one of the most important amendments that I will speak about. This is something that I feel very passionately about. One of the most important questions we should ask is how the panel might deal with a family member with concerns, for example, that a relative was being coerced. Would the family member be afforded the status of a party to proceedings? Would they have a right to see the relevant documents before the panel? Would they have a right to be informed that a panel was taking place? If they are not a party to proceedings, is their status that of a witness? If they are a witness, do they have the right to observe proceedings when a panel sits in private? Do they have a right to be heard by the panel? Again, I am asking questions. I am not necessarily saying one way or the other what the answer should be, but those are questions I have.
None of this is laid out in the new clauses that we are considering. In fact, I suggest that in the struggle to balance autonomy with the rights of impacted others in the Bill, autonomy is very much winning the fight. I was struck yesterday by various Members setting out their fears that the first a family could know about an assisted death is when they are called upon to make arrangements for the burial. That would be an awful situation, and I strongly believe that families and loved ones should not be cut out of the process without good reason, especially when, no doubt, they will be required to bury the person and pay for it, as I assume the state will not take on that responsibility. I suggest that this point on funeral arrangements and expenses needs further thought as the Bill progresses.
From reading the Bill, all we know is that the panel may
“hear from and question any other person”.
There is no mechanism for family members to have a right to be heard or even to submit information. That needs to be rectified. The panel could reach its conclusions without hearing at all from the family. That is unacceptable. If someone’s mother, father, son or daughter were going in front of an assisted dying panel, that person would at least want to know and be clear about their rights and available options to feed into the process.
We then come to the big issue. What if a mistake is made and a relevant piece of information is not provided to the panel by the people it hears from? My amendment (a) to new clause 17 seeks to help the panel to avoid making the wrong decision, and give time for it to be remedied before the patient is dead.
Kim Leadbeater
Is the hon. Lady reassured by the fact that, under the Bill, coercion becomes a criminal offence with a serious prison sentence? If any family members are in any doubt as to whether coercion is taking place, it is straightforward: they go to the police.
Rebecca Paul
I welcome the hon. Lady’s intervention, but the point I am making is not about coercion; it is about the subtleties in families’ relationships. I was trying to bring to life a situation—sometimes it is families who understand the relationships, the dynamics and the pressure points. It is very hard for professionals to get underneath that.
In a sense, families are the greatest experts, but the process as drafted excludes that expertise. Under my amendment, if a family member had knowledge that could make the difference between life and death, they would be able to apply to the panel. If there had been a clear error in applying the eligibility criteria, the application would be reconsidered. It is true that the panel will be informed by at least one of the doctors and that it has the option of hearing from others. Perhaps the panel will always be incredibly thorough and explore every avenue, but we have to legislate for every situation, including situations that are not ideal.
We can learn a lot from other jurisdictions. In written evidence, the academic Christopher Lyon from the University of York describes his experience in Canada. Dr Lyon writes that his father, who was “openly suicidal” and had a “history of mental illness”, qualified for medical assistance in dying in 2021. In Dr Lyon’s words:
“He was classed as having a ‘foreseeable natural death’ (i.e., terminal illness), my family was told, because he had momentarily skipped some meals at his residence and had an elevated but unremarkable white blood cell (WBC) count that the AD doctor suggested might be an infection that, if untreated, might become lethal, despite being a common side effect of his arthritis medication.”
Dr Lyon says that when he was informed two days before the event, he pushed for an urgent psychiatric assessment to be carried out. Dr Lyon has obtained a copy and says that it is
“full of errors. It claims he wasn’t suicidal, when he had a whole history of suicidality. It states he didn’t think he was depressed, and yet on the list of medications there was listed antidepressants.”
Dr Lyon’s concerns about his father’s prognosis, the assessment and other aspects of the events were widely shared, he says:
“After he died, the provincial regulatory college, police, and even other AD clinicians suggested his death was questionable or even wholly unlawful. However, privacy law and the continuing resistance from the local health authority have so far succeeded in blocking access to his medical records necessary for a full investigation”.
In Ontario, meanwhile, the chief coroner has published a report detailing the assisted death of an anonymous patient, Mr A, who had inflammatory bowel disease. He was unemployed, dependent on his family for housing and financial support, and struggled with alcohol and opioid misuse. He received an assisted death on the basis that his illness was advanced, irreversible and causing intolerable suffering. According to the coroner, the family were not consulted by those involved with processing the application, even though it was recorded that the family expressed concerns. Most members of the death review committee thought that shutting the family out was a mistake. The committee concluded:
“Engagement with family and/or close relations in the MAiD process should aim to be a key component of MAiD practice.”
We can hope that these were exceptional events, but they are the kinds of situation in which a panel might have benefited from a family perspective, which is the reason why I cite them.
Kit Malthouse (North West Hampshire) (Con)
As my hon. Friend heard yesterday from the hon. Member for Rother Valley, there are multiple points in the new system at which family could make their views known. Indeed, they could apply very quickly for an injunction if they thought something was untoward.
My hon. Friend has talked a lot about families knowing best. Surely it should be the dying person who chooses how best to handle their family. The evidence overseas is that giving dying people choice about the manner and time of their death also gives them the choice about how to handle their family, and particularly their children. My hon. Friend might have a particular approach, and mine might be completely different, but I should have that choice. She seems to think the family know best for the dying person—how come she does not think the dying person knows best for their family?
Rebecca Paul
My right hon. Friend makes an important point. I do not think family always know best. There are situations where someone rightly will want to exclude their family from the process, and I totally respect that choice. I am saying that there will be other situations in which family do have something valid to input that could impact the panel’s decision making. My right hon. Friend also mentioned injunctions; I am keen to understand more about how that process works as a protection, so perhaps the Minister could respond on that, because that may well give me some reassurance. I will come to judicial review in a moment.
My right hon. Friend is right that this is not easy. I am not saying that family should be involved in all situations. I am saying there is a balance to be struck, and I do not think we are getting it right, because at the moment it is all about full autonomy. The working assumption is that input from family must always be ignored if the patient wants that. There must be a balance, and it is difficult to say where that should sit, which is why we have such an incredibly difficult job with the Bill.
Jake Richards (Rother Valley) (Lab)
I have a genuine question: is the hon. Lady of the view that families’ views about whether the decision is right for the individual should be considered by the panel, tribunal or judge, or is it just their views about eligibility under clause 1?
Rebecca Paul
I thank the hon. Gentleman for that important point. My point is that the family should be listened to and should have a route to legally provide information to the panel. Right now, they have no right to do that. In reality, I think most panels would take that information. I would like to think that, 99 times out of 100, if a family member contacted the panel saying, “I have really important information,” it would listen to that. But I am legislating for the one case in 100 or 1,000 in which, for whatever reason, the panel refuses to engage with a family member who has a relevant bit of information, and not having the right information leads to someone’s death.
The amendment is about protecting panel members too. If I were a panel member, I would want this process in place, because it would protect me when I make a decision. I would take great comfort from knowing that a family member with relevant information has a legal right at least to communicate it to the panel.
Danny Kruger
This is a very helpful exchange, for which I am grateful to my hon. Friend. In response to the hon. Member for Rother Valley, does my hon. Friend agree that although there should be an obligation to help the decision maker to conclude as to whether the eligibility criteria have been properly met, there is no best-interest consideration, as there might be if some of us were designing the Bill? Nevertheless, the role of the family is to enable the decision maker to conclude as to whether there have been issues of coercion or lack of capacity, to ensure the decision is properly informed. We are concerned that the Bill as drafted does not do that.
Rebecca Paul
I completely agree. Some of the amendments were tabled because there is not a best-interest component in the Bill. In an ideal world, I would have liked it to have included a best-interest component; that would have given me some reassurance. Some of the amendments that I will discuss today were tabled because other amendments were voted down. I would not have tabled them had we taken different decisions earlier. I am trying to put the safeguards in somewhere, although we can have an argument about whether they are in the right place. They were ruled out when we debated earlier clauses, so I have been left in this situation.
We can hope that the events I have described were exceptional, but they are the kinds of situation in which a panel may have benefited from a family perspective or, as my amendment (a) would allow, for second thoughts from one of the assessing doctors or any of the other people whose expertise the panel calls on. The amendment would protect not just the family but the doctors. If a family member suddenly became aware of something, there would be another avenue by which they could appeal the decision, so the amendment would be positive for the co-ordinating doctor, the independent doctor, social workers, psychiatrists and anyone else who had been involved throughout the process.
I would like briefly to outline two additional practical benefits to my amendment. First, it would resolve issues before legal disputes arise. In Belgium, the long-running case of Tine Nys has been pursued in both criminal and civil courts after her family argued that she did not meet the eligibility criteria for euthanasia. In Canada, a man’s family launched a legal challenge after he received medical assistance in dying while on a day pass from a psychiatric ward. They claim that he lacked mental capacity. It is all too easy to imagine similar cases coming to court here, but if there were a chance to challenge the decision earlier, that might allow families to come to terms with the decision before having to launch legal action.
Secondly, my amendment could help families to come to terms with grief. There are several stories from other jurisdictions about the grief felt by relatives at being cut out of the assisted dying process. In written evidence, the National Bereavement Alliance said:
“We believe that as currently drafted, the Bill overlooks the needs of families and friends…While it rightly includes safeguards to protect people against coercion, it does not include reciprocal clauses to address the health, welfare and wellbeing of the family and friends who will be bereaved…As drafted, the Bill prioritises the autonomy of the person who is choosing to access an assisted death. This is appropriate: however, it does not mean that the Bill should not also address the needs of family members and friends in relation to the decision.”
Tom Gordon (Harrogate and Knaresborough) (LD)
The hon. Lady has highlighted a few different legal cases from around the world; is she aware of the case currently going on in Spain, where a family member is challenging his daughter’s wish to have an assisted death? That challenge has been funded by religious groups—Christian groups—and is not actually going through the parent. He had the option and ability to raise the case, and it has then been funded and hijacked by outside groups. How would the hon. Lady see her amendment as helping to protect against that sort of thing?
Rebecca Paul
This is a really important opportunity to share all these examples. I have to be honest that I am not sure I see the relevance of how a case is funded, and I cannot speak on that person’s behalf. I am going to talk about some of the inequalities that come from this, because there will be people—we will come to this when we discuss judicial review—who will rely on legal aid to challenge a decision. If we do not get this right, we are in danger of creating a situation in which poor families cannot appeal and rich families can. That could give rise to the less than ideal situation the hon. Gentleman has raised. If we get this right and make sure that an appeals process is available on an equal basis to everyone in the country, that will prevent the kind of situation the hon. Gentleman has raised. I thank him for that, because he has helped to support the case for my amendment.
Kit Malthouse
I have to say that my concern about the hon. Lady’s amendment is growing. We have talked in the past about policing the conversation and the process to the point that it becomes guarded. Say I had a strong, long-standing conviction that I wanted assisted dying if I was in extremis, but I had a child who I knew was violently against assisted dying; if the hon. Lady’s amendment were in place, and there was the possibility of appeal, surely my tendency would be to keep my disease and diagnosis, and my approach to the system, secret from that person. By opening this formal door, I would effectively be encouraged to conceal the process from a family member who I know may object.
I say that particularly in the light of the fact that, as we heard from overseas experience, coercion more often than not comes the other way. That is certainly what they see in Australia, where families try to persuade somebody not to do it. I think the hon. Lady has good motivations, but I am concerned that she might actually produce the opposite effect and drive people into secrecy.
Rebecca Paul
I thank my right hon. Friend for that alternative perspective. The appeal process is valid only if there is new and relevant information that the panel did not have. For someone who is absolutely eligible, nothing has been excluded from the process that would change their eligibility. There is nothing to worry about here, so I am not sure that I concur that my amendment would prevent sharing information. However, it would provide important protection when a bit of relevant information has not been shared with the panel, which I think is the greater harm. We are trying to weigh up the harms to make sure that they do not outweigh the benefits; I honestly believe that the amendment would help to balance the scales a little better.
Danny Kruger
The scenario that my right hon. Friend the Member for North West Hampshire suggests implies that the patient has no faith in the panel. The patient would be concluding that they did not want to go through the formal process for an assisted death and explain it to their relatives, because they fear that the panel’s decision might be overturned on application by their relative. That objection is predicated on a lack of faith in the process that is being decided. If we are to have confidence in the process, we should trust that people will expect it to work properly. There is nothing wrong with giving a family member the right to make an application to the panel or the commissioner, because they would have every right to reject that family member’s application if they concluded that the original decision was valid.
Rebecca Paul
I completely agree. While I was preparing my speech, as is often the way, I found myself wishing that I had tabled an amendment to add a legal requirement that the family be able to feed into the panel and share information. Perhaps that is something that can be picked up at a later stage. The nature of the process is that as we debate these things and think about them in detail, other ideas come through.
Kim Leadbeater
The hon. Lady mentioned a few moments ago that the family would make such an appeal only if there was new information, but her amendment does not say that, and it has no explanatory statement. Could she clarify what she meant?
Rebecca Paul
That comes under subsection (2) of my amendment:
“The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust”.
It is implied that the decision is wrong because there is missing information. Missing information is one example; other things would enable an appeal, but the obvious and most likely reason in this instance would be that a certain bit of information had not been shared.
I am not saying that the amendment is perfect in any way. It is set out clearly in guidance on the private Member’s Bill process that amendments will not necessarily be drafted perfectly and that it is incumbent on the Government to take the spirit of what is intended and get the clause to an appropriate place to deliver that. I am happy to work with the Government to ensure that the wording works and is clear. I think the hon. Lady’s point may be that it is unclear; I am happy to work in any way to improve that clarity.
Kit Malthouse
Through my hon. Friend, may I respond to the point made by my hon. Friend the Member for East Wiltshire? It is not necessarily about not having faith in the panel. Somebody may, for example, have a relative driven by a strong religious faith who wants to create some form of delay in the system, just to put off the awful day. Even if a commissioner were to take that relative’s application and decide that it was not valid, that would inject delay into what is naturally a time-limited process.
A person may want to retain the right to handle their family themselves, and have the choice about how to do that. If the state, rather than the dying person, is effectively deciding how the family should be handled, we are naturally giving that person an incentive to keep this thing quiet until they are ready to tell their family, which may be well towards the end of the process. As the hon. Member for Rother Valley said, there are multiple points at which the family can intervene if they know. My concern is that this kind of—what is the word we have been using?—embroidery actually drives people in the opposite direction to the one my hon. Friend the Member for Reigate wants to achieve.
Rebecca Paul
I thank my right hon. Friend for raising that point, because it gives me a wonderful opportunity to draw everyone’s attention to subsection (3) of my amendment, which states:
“The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
My right hon. Friend is absolutely right that time is of the essence and that there will be situations in which it is right that things move as quickly as possible. I hope that that goes some way towards reassuring him that I am trying to come up with amendments that are balanced. I am aware that we have two different examples here; I am genuinely trying to make sure that I do not make it harder for those genuine cases, because I totally understand how important it is and I understand that there is a lot of pain and suffering, for all the reasons that have been set out. I hope that I am getting the balance right, but I am always happy to have further discussions.
Sir James Munby was one of the first to criticise the High Court safeguard; the hon. Member for Spen Valley says that she has taken those criticisms on board. His criticisms of the panel seem similarly acute. I hope that the Committee will agree that my amendment answers a real need and recognises the important role of family in the death of a loved one in most situations, although I accept not in all. It has a profound and long-lasting impact on them too, and their needs should not be entirely disregarded in the name of autonomy. The hon. Member for Rother Valley gave a very powerful speech yesterday on the subject, setting out that the amendment is not required because any decision could be judicially reviewed. I am not qualified to opine on whether judicial review would be relevant with this panel, but I look forward to the Minister covering the matter in her closing remarks. We need to be clear on that front.
Judicial reviews are a challenge to the way in which a decision has been made, rather than to the rights and the wrongs of the conclusion reached. It is important that this is understood. A judicial review just checks that the process was followed, not whether the right decision was made. That is why our role in setting the process is so important. If the new clause remains unchanged and there is no requirement for a panel to accept relevant evidence from a family member, there will be no avenue for appeal under judicial review if such information is not taken into consideration when making the decision, because the process will have been followed.
Our role on this Committee is a heavy one. It is about getting it right and setting the process for judicial review to work as it should. We have an appeal process in the new clause for when a panel wrongfully turns down an application, but not for when it wrongfully approves one. Why not, if judicial review is available and suitable? I suspect that it is because, as the hon. Member for Rother Valley is aware, the judicial review is not the best way to do it. It is a long, onerous process involving application for permission and, in some situations, the securing of legal aid, which is fraught with difficulty. I say gently to the hon. Member that if judicial review is not suitable when the panel has wrongfully turned down an application, then why is it suitable when they have wrongfully approved someone for an assisted death?
I think it is clear that my amendment is needed as a safeguard to prevent wrongful deaths under the Bill. It is a helpful safeguard. No panel will ever want to see someone assisted to die who should not have been, just because it did not have all the information. I suggest that the safeguard will help to secure panel members, because they will feel reassured that a process is in place to avoid mistakes. If my amendment is not agreed to, and if wrongful approvals have to rely on judicial review for a remedy, I suggest that the impact assessment will need to take into account the likely impact on socioeconomic groups that rely on legal aid for funding. I suspect that, owing to a lack of funds, they will find themselves with no avenue at all to appeal. I do not think that any of us wants a two-tier system in which rich families can intervene and poor families cannot.
Jake Richards
I have been rightly and fairly challenged in the hon. Member’s speech, but the difference is that if a family member has a right to appeal in the internal process, that family member would have to be a party in the original hearing. The whole point of the panel is that a person comes to it with their application. The family have the right to put information before the panel, but they do not have the right to make their case to the panel, because their views on the application are not relevant. Information that they might have is relevant, but their views are not. That is why there is a disparity between the person’s ability to appeal internally against a refusal of their application, and third parties having to take other routes. I hope that that offers some clarity as to why I am comfortable with the difference between the two. I reassure the hon. Member that I have thought about it long and hard as well.
Rebecca Paul
I thank the hon. Member. I would just clarify that currently there is no legal right for a family to provide information to the panel, which is part of the issue.
I turn to my amendment (c) to new clause 21. New clause 21 includes provision that, among other things, the panel’s function is to determine whether it is satisfied that the person has capacity, that they have a clear, settled and informed wish to end their life, and that they have not been coerced or pressured. However, it is not entirely clear what “satisfied” means in the new clause. My amendment assumes that, as in a civil court, it means “on the balance of probabilities”.
As I understand it, the leading case on the meaning of “satisfied” is a 1964 House of Lords case, in which the court held that “satisfied” meant “on the balance of probabilities”, rather than the tougher test of “beyond reasonable doubt”. In a later amendment, I will propose that we adopt that tougher standard, but this amendment assumes that the current wording will stand.
My view, as we have already established in lengthy debate, is that the capacity bar is low, because the doctor need only be 51% sure. On the clear, settled and informed wish and coercion test, the standard is only “to the best of the doctor’s knowledge”, which is not a particularly high bar to meet. We are therefore applying a low bar to a low bar. That certainly leaves us with a highly accessible process, but I suggest that that is not a positive or safe thing.
My amendment would bring in a further safeguard. As I have said several times, I would have preferred to see such safeguards in clauses 1 to 3, but as they were not accepted there, I am forced to propose them here, because it is better to have them than not. The amendment would give the panel the ability, if there is a “real risk” that the criteria have not been met, to pause and make further enquiries. They would not be obliged to give a decision that day, but would be obliged to look into the matter further, ask for more testimony, request more documents and consult experts.
The real risk test is taken from the jurisprudence of the European Court of Human Rights. Doctors will already be familiar with it, as they are already required under the Human Rights Act to assess when there is a real risk of suicide. It is not a strange novelty. The objection has been raised that introducing a real risk test to the doctors’ assessments would complicate matters, but the panel stage is a distinct stage with a distinct set of rules. I hope that the amendment will be seen not as introducing a complication but as filling a gap, particularly as this stage is meant to be more akin to a judicial stage.
Difficult situations will not necessarily be as rare as we hope. On coercive control, those with decades of experience of working with the most vulnerable have warned us time and again what the Bill could mean. Jane Monckton-Smith, one of the leading academics in the area, has said:
“Unless we do take this incredibly seriously, this Bill is going to be the worst thing, potentially, that we have ever done to domestic abuse victims.”
The consultant clinical psychologist Sue Smith, who specialises in cancer and palliative care, has submitted written evidence from which I will quote at length, because it vividly brings out the scale of the risk of coercive or controlling behaviour:
“In my clinical experience working with people who have cancer, a cancer diagnosis and treatment effects can amplify CCB…A woman asking for her needs to be seen and met alongside her increased physical and psychological vulnerability creates a change within the couple, which can lead to violent acts or CCB. The seriousness of the cancer diagnosis may be systematically and actively denied or minimised, claims can be made by the male partner that she is attention seeking, or she is accused of making up the effects of treatment, and can be left isolated and alone when in physical need, e.g. managing treatment effects like nausea or pain that restrict the ability to wash, dress and where she is reliant on others for help. At the same time a male partner may also state, ‘You are better off dead anyway,’ ‘Your children don’t care, and no one else in your life cares about whether you die.’ They may also threaten to leave. This pattern is extremely confusing, harmful and threatening. It continues over time, and a woman learns to doubt her reality and experience, and is extremely isolated. This can lead to heightened anxiety, hopelessness and helplessness, and abject despair, which can lead to a person wishing they were dead. The confidence and ability to know what one needs and wants is severely compromised when her reality is continually minimised or denied and will impact informed decision making.”
We can hope that the existing safeguards will catch some of those cases, but they will not catch all cases, so my amendment would go a little way towards improving the safeguards.
Amendment (a) to new clause 21 tries to pin down a missing detail, namely the standard by which the panel makes its decision. In a criminal trial, a jury is sent away to consider its verdict. The members of the jury know that they must be certain, beyond reasonable doubt, of the defendant’s guilt. It is not enough to think it likely on balance, nor is it enough that they have an opinion that they can justify with good reasons. It must meet a high threshold. Why is there such a high standard? Because we have to be sure about the decision, given the grave consequences. We are now considering a similar question: what is the right standard for a decision that will make the difference between life and death?
I turn to subsections (2) and (6) of new clause 21. We are told that the panel must be satisfied that the eligibility criteria have been met. The word “satisfied” is doing a lot of heavy lifting in the Bill. If a question subsequently comes to court, as has happened in Belgium where there was a wrongful assisted suicide, we will be asking the court to rule on whether the panel should have been satisfied. That raises an obvious question, which my amendment is designed to answer: what does “satisfied” mean?
I turn to a real-life example. In a famous case in Oregon, an elderly woman called Kate Cheney sought assisted suicide. She had a terminal cancer diagnosis; she also had dementia, so she was referred to a psychiatrist to establish whether she had capacity. She was accompanied to the appointment with the psychiatrist by her daughter Erika, who seemed extremely assertive about the assisted death. Kate Cheney denied that she was being pressured. However, the psychiatrist noticed that the daughter was coaching her mother. Referring to Kate, the psychiatrist wrote in his report:
“She does not seem to be explicitly pushing for this.”
He concluded that she did not have capacity to make the decision. The daughter was, in her own word, “incensed” that the psychiatrist was casting such a judgment on her mother. Kate applied for a second opinion and was assessed by a clinical psychologist. He found that Kate did have capacity, but he added that her
“choices may be influenced by her family’s wishes, and her daughter, Erika, may be somewhat coercive”.
Nevertheless, he gave the green light to the application and Kate received the go-ahead.
I ask members of the Committee whether they would be satisfied that Kate Cheney was eligible for an assisted death. Are they confident that colleagues would share the same judgment about being satisfied? Can they be sure that every social worker, legal figure and psychiatrist would be satisfied in the same direction? After all, the psychiatrists in Oregon were divided on it.
In written evidence, the most experienced clinicians have urged us to recognise that abuse is difficult to pick up. Sarah Grove, a consultant in palliative medicine, says:
“Over my years in practice, I have witnessed families acting for financial gain and not in their loved one’s best interests but in this kind of situation, this has always been impossible to prove.”
Dr Kathryn Myers, a retired palliative medicine consultant, says:
“I have seen coercion in the contexts of decision-making around the best place of care for patients and of money and property. Perpetrators are usually family members…Occasionally it has been overt and easy to detect, for example, threatening or manipulative words or actions. Most frequently it has been very subtle, one might even say, gentle. It can take skilled clinical nurse specialists highly trained in communication skills and in detecting coercion, who know the person well and who have a relationship of trust with them, several conversations over several days if not weeks to uncover that coercion has occurred.”
In such a case, with limited time, a panel may not be certain whether to give the green light to an application. That uncertainty will be even greater if it does not know what evidential standard to employ.
My amendment would clarify that grey area. It would bring in a standard that has been tried and tested and is well understood. To be clear, “beyond reasonable doubt” merely means that the panel is sure. The courts have said that the two phrases are equivalent, as has the Judicial College in its guide to judges, “The Crown Court Compendium”:
“What is required is a clear instruction to the jury that they have to be satisfied so that they are sure…if an advocate has referred to ‘beyond reasonable doubt’, the jury should be told that this means the same thing as being sure.”
The Crown Prosecution Service says:
“the magistrates or district judge in a magistrates’ court or the jury in a Crown Court must be sure that the defendant is guilty. Sometimes you’ll hear this described as ‘sure beyond a reasonable doubt’ or ‘satisfied so you are sure’.
Importantly, the word “satisfied” by itself is not enough. Juries must be not just “satisfied”, but
“satisfied so you are sure”.
The wording in the amendment would be equally strong. It opts for “beyond reasonable doubt” because it is a better known phrase and more widely understood than
“satisfied so you are sure”.
I do not want to get too hung up on which of those phrases to use. The point is to adopt the tried and tested standard that has worked in the courts. We want the Bill to have the highest standards and to protect people. Amendment (a) to new clause 21 would help to achieve that.
Members will all be delighted to know that I am moving on to the last amendment.
Jake Richards
I know that the hon. Lady has been on her feet for some time, but I just want to explore the difference between what a jury is doing and what this panel is doing. Let us, for example, consider the issue of coercion and a case where there is no evidence that the person is being coerced in any way, but of course the panel has not asked everyone in that person’s life. It has not heard evidence from everyone. There is no factual matrix determining what has happened or what has not happened. Can the panel sit there and say, “We are sure,” or do you think it would have to investigate all the circumstances of that person’s life and interview everyone that is in and around their social circle to be sure that they have not been coerced? Can you see why, as I set out in my speech, the “beyond reasonable doubt” burden is not appropriate for the task of this panel?
The Chair
Order. Can I gently again remind Members that “you” means me? Please refer to the hon. Lady.
Rebecca Paul
I thank the hon. Member for sharing that. It is useful to have these debates and conversations, but I would suggest that the panel needs to be sure off the back of the information that it has been given and the witness testimony, which goes back to why it is so important to ensure that we have that coverage and the right things feeding into the panel so it can get to that high threshold. I would expect the threshold to be at court level, given the huge, significant ramifications of this decision for that person.
Naz Shah (Bradford West) (Lab)
The hon. Lady is making a powerful point. I refer back to the point on jury trials. When we have criminal trials and jury trials, they go through not every single thing in somebody’s life, but the actual act of criminality itself and what is relative to that criminal act. That does not mean to say they trudge through a person’s whole life.
Rebecca Paul
I thank the hon. Member for that intervention. She eloquently explains exactly the point I was trying to make. That is absolutely right. Clearly, we do not expect the panel to pore over everything. It can only be sure based on the evidence put before it, so I reiterate: that is why it is really important that all the right and relevant information can be fed into the panel in order to get a good, robust, solid decision.
Members will all be relieved to know that I am now coming to the last amendment, amendment (b) to new clause 21. It puts in an additional mechanism for the panel not to grant an application when particular circumstances make it inappropriate. I do not think many in the Committee are going to like the amendment. I make the point again that, in an ideal world, there would have been a best interest clause or something similar in the Bill to protect patients from opting for assisted dying due to some other perfectly solvable challenge in their life, such as being homeless, but, given our amendments were not accepted, I am putting this amendment forward again as a responsibility of the panel, given its oversight role. This is likely to be where the social worker on the panel can play an important part.
In Ontario, assisted dying is monitored by a team of nurse and coroner investigators who review every reported death. The state has also established a death review committee. A recent report shows some of the difficulties for a panel in making its decision. A patient referred to as Ms B successfully applied for an assisted death. She suffered from multiple chemical sensitivity syndrome, which made it difficult for her to find appropriate accommodation. The report found that
“As a result of her housing situation and conditions, necessary to address her MCSS, Ms. B experienced social isolation, which greatly contributed to her suffering and request for MAiD.”
Kim Leadbeater
I might have misheard, but I believe the hon. Member asked what happens when a patient asks for assisted death not as a result of illness. If that was the case, then they would not fall under the criteria of the Bill.
Rebecca Paul
I am making a point regarding if a person fitted the diagnosis in that they are terminally unwell, but it is actually the fact that they have got nowhere to live that is really driving the decision rather than the terminal illness. My apologies if that was not clear.
In Oregon there was the case of Barbara Wagner, who had recurring lung cancer. She had been prescribed a drug, Tarceva, which had an excellent record. It increased patients’ one-year survival rate by 45%. Oregon’s state Medicaid provider sent Wagner a letter saying that her insurance plan would not cover the drug, but would cover other options, including assisted dying. Wagner said:
“I got a letter in the mail that basically said if you want to take the pills, we will help you get that from the doctor and we will stand there and watch you die. But we won’t give you the medication to live.”
Those are her own words, not my words. Recently in Australia, similar cases have been reported of people choosing assisted dying because they were put on too long a waiting list for a home care package. One man said of his mother:
“Her pride wouldn’t allow any of her boys to take care of her or to bathe her so she got approved for the assisted dying”,
and a few months ago proceeded with it.
There are many other situations where everyone would benefit from the panel having broader discretion. Think of one of the cases I talked about earlier—and have done throughout the various Committee sessions—where somebody appears to be a possible victim of coercion, or a case where someone with diabetes, for instance, wishes to bring themselves within the six-month definition by stopping treatment, or someone with anorexia brings themselves within the definition by stopping eating and drinking. The capacity safeguard would not defend them. The courts have found that people have capacity to refuse lifesaving treatment, even if their decision is strongly influenced by other factors.
Hon. Members may worry that giving the panel discretion is too open-ended. The truth is that, in our legal system, discretion is the norm. Whether in sentencing guidelines or in custody cases, the law nearly always recognises that sometimes a general rule has to be departed from. If the panel is compelled to make its decisions only by a checklist with no other option, the Bill is saying that the panel is less trustworthy than the courts. If this panel is to be a safeguard, we should be clear about how it functions. It needs to be open to correcting mistakes. It needs to have a clear standard of proof, which will protect people and not just hastily steer them towards assisted death, and it needs a wide degree of discretion if it is truly to be more than a tick-box exercise. I hope the Committee will agree and support these amendments.
The Chair
It is open to any Member to speak more than once in a debate, as the Committee knows. Naz Shah has indicated to me that, because of the size and complexity of the groupings of amendments, she wishes to speak not once but three times to break her comments into bite-sized chunks. I draw that to the Committee’s attention to put down a marker in case anyone else feels the same way.
Rachel Hopkins (Luton South and South Bedfordshire) (Lab)
Oh no—that’s yours!
Naz Shah
She beats my record for sure. I assure the Committee that my comments on new clause 17(a) will be brief in comparison with my previous speech.
Yesterday, my hon. Friend the Member for Ipswich and I disagreed on a point of detail. In fact, he was right and I was wrong. As he said, a provision in paragraph 4 of new schedule 1 allows the Secretary of State to dismiss a bad commissioner if the circumstances merit it. Although I still maintain my position that too much power is being given to a single person, I thank my hon. Friend both for pointing that out and for the courteous way in which he did so.
The hon. Member for Reigate has spoken very eloquently in defence of her amendment. Just to recap, new clause 17, tabled by my hon. Friend the Member for Spen Valley, would allow a person seeking an assisted death to appeal to the commissioner if a panel refuses their request. However, it would not allow any other person to lodge such an appeal.
By contrast, new clause 17(a) would allow several other parties to lodge such an appeal, including the two doctors who took part in the process, the applicant’s next of kin or relatives, or anyone who took part in the proceedings before the panel or who gave evidence to the panel. I acknowledge that there are genuine arguments against accepting new clause 17(a), and I have listened to them in detail and given them sincere thought. The family members who might appeal against a decision could perhaps have little or no contact with the person on whose behalf they say they are appealing; I note that the hon. Member for Harrogate and Knaresborough made a very honest and personal intervention on that subject yesterday, and I accept that that is a real possibility. As we all know, families are complicated.
There is also a likelihood that allowing more people to appeal against a panel’s decision, both for and against an assisted death, could mean that the commissioner will need considerably more resources. Otherwise. it is very likely that appeals will not be heard within a reasonable period.
Those are genuine arguments, but there are equally strong counterarguments. If the Bill passes, we simply do not know how many coercive or abusive people will seek to drive others towards assisted death. My hon. Friend the Member for Spen Valley spoke about coercion being a criminal offence, but the last figures I have seen show that only 4% of cases result in a conviction. However, it is worth noting that many people with experience in this area are very concerned about the possibility.
We also do not know how many people will opt for an assisted death because their palliative or social care needs are not being met. Again, as I referred to extensively in previous speeches, many people with first-hand experience of this field are extremely concerned about that.
We also do not know how many people will opt for an assisted death partly because they do not want to be a burden on their loved ones. We do not know how many of those loved ones would, in fact, be ready to care for the person who feels like a burden, nor do we know what safeguards, if any, will prove effective against any of those dangers.
One thing we do know is that relatives or carers of someone seeking an assisted death may be able to bring those dangers to light. A family member, a GP or even a paid carer may have seen someone come under coercive control. As new clause 17 stands, they might feel that the panel had made a terrible mistake in ignoring the evidence of that. The hon. Member for Reigate’s amendment (a) to the new clause would give those people the chance to bring their evidence before the commissioner.
I have to say that, as it stands, new clause 17 seems to make some fairly odd assumptions. It would allow an appeal if the applicant’s request for an assisted death were turned down, which means that my hon. Friend the Member for Spen Valley acknowledges that the panels may on occasion get things wrong. But the right of appeal is only one way, which seems extremely odd. It surely cannot be the case that the panels might get things wrong when they turn down a request for assisted dying, but are always right when they accept them.
There surely needs to be an amendment that allows people with knowledge of the situation to appeal if they think the panel has made a mistake in allowing an assisted death. Amendment (a) to new clause 17 would also reduce some of the dangers that we first faced. On that basis, I urge the Committee to support the amendment.
Daniel Francis (Bexleyheath and Crayford) (Lab)
It is a pleasure to serve under your chairship, Sir Roger. I will be speaking to new clauses 14 to 17 and 21, new schedules 1 and 2, and amendments 371 to 373, 377, 378, 381, 388, 390 and 391—although I assure you I will not speak for as long as the hon. Member for Reigate did.
Yesterday, my hon. Friend the Member for Spen Valley referred to the Law Society’s neutral position on the new clauses and new schedules. I will not read out all four pages of its most recent submission on the matter, but, although it is neutral, it does continue to have concerns and queries about the new provisions. I will just read out the headlines.
The Law Society remains concerned about the role of the review, whether it would be accessible and workable for people seeking assistance, and the resourcing required. It seeks clarification on the nature of the functions to be exercised by the commissioner and by panels. It still seeks clarity on how panels will deal with cases and asks us to consider where lawyers may need to play a role and the availability of legal aid. We touched on that matter this morning. I accept that the Law Society’s position was used in evidence on the other side of the argument yesterday and that it is neutral, but I could have read all four pages of its response if I had really wanted. That is its position.
I will oppose some of the new clauses and raise concerns about others, including some of the amendments to new clauses tabled by my hon. Friend the Member for Spen Valley. As we have heard, the new clauses and amendments would replace the High Court judge mechanism in the original draft of the Bill with a three-person panel. As we said yesterday, that fundamentally changes the Bill from what the House voted for on Second Reading last November.
The panel will consist of a consultant psychiatrist, social worker and legal member who would chair it. I concur with those who have said that it would help if those individuals were involved earlier in the process. Several concerns have been raised about the High Court judge mechanism in the evidence that we have received. Although I accept that the new panel mechanism would address some of those, it would also leave some untouched and in some cases it could make the position worse.
During oral evidence, we asked witnesses whether and how the High Court judge system would work. Some said that they did not believe that it would. I credit my hon. Friend the Member for Spen Valley for listening to those points, but our problem and predicament now is that we were not able to seek oral evidence on the panel arrangement now before us, and that a large amount of the written evidence had already been submitted beforehand. I will come to this again later, but if we had gone through the normal process of a Government Bill—I accept that this is not a Government Bill—we would not be in this position now.
As a group, the 23 of us are now debating these schedules and clauses before Report, but we have not had any oral evidence on what is before us, and I would argue that we have also had a lack of written evidence. The panel system has complications, and it will be of life-and-death importance. We should have been able to ask witnesses whether a system would work, and how, but we have not been able to do that.
Danny Kruger
Before the hon. Gentleman moves on, I want to reiterate the value of his point. This is an enormous change to the Bill and totally transforms it, but we did not have the opportunity to hear evidence on it. Is he also aware that many of the distinguished people who gave evidence against the traditional stage, which has now been scrapped, have not endorsed the proposal to change it? In fact, some of them are equally opposed to the new proposal. We have not had confirmation that this is the right system, and we did not get the opportunity to hear proper evidence on it.
Daniel Francis
Yes, I am aware of some of those submissions from those individuals. I will come to this, but clearly even some people who were in support of making changes did not recommend the ones that we have now incorporated.
First, I would argue that people giving evidence to the panels should be doing so under oath. In my 20 long years as a local councillor, I gave evidence under oath to an investigation by a health and safety executive into the demolition of a building. I would say that the demolition of a building and this matter are very different, and therefore I query why this evidence is not being given under oath.
Lewis Atkinson
My hon. Friend is making a thoughtful speech. Has he had the chance to consider the situation with mental health tribunals that I mentioned yesterday, which usually do not take evidence under oath? Clearly, they make very serious decisions regarding sectionings and deprivations of liberty without invoking oath-taking powers.
Daniel Francis
I accept what my hon. Friend says, but there are differences of opinion. I accept that that is a very serious matter, but I would argue that a matter of life and death is more serious, and there are processes that we know. As I said, I gave evidence under oath about the demolition of a building and whether someone had followed the correct health and safety regulations, yet we would not be doing so in this case.
Naz Shah
My understanding is that, at the mental health tribunal, a person would be entitled to legal representation, which would be an officer of the court or a lawyer, so the bar is very different. Does my hon. Friend agree that actually this is like comparing an apple to a pear?
Daniel Francis
Indeed, these are complex matters and these comparisons are made. We have heard a lot about Spain, which I will briefly refer to later, but Spain has a very different legal process from us.
Returning to my comments, currently an individual would not have to give evidence under oath. As I said, the matters discussed by a panel are as important as they can be. In my opinion, people should be giving evidence to the same standards that they do so in a civil or criminal court.
My second concern relates to the procedures for investigating any doubts that the panels may have, and we have heard about that. The panel must hear from at least one doctor and from the applicant under this new set of proposals. They must read the two doctors’ statements and the applicant’s declaration, and then they can decide to ask questions of the applicant and/or one or both of the doctors. The panel can also hear from and ask questions of any other person. How is the panel going to know which people to talk to? Will the panel be asking the right questions of applicants? Applicants will have different circumstances in different cases. Will those professionals also be skilled investigators? I accept the evidence we had on the skills those people have and bring, but it is not clear to me whether they will be acting in a quasi-judicial way. We have heard that it will not be an adversarial system. Although I can see the problems with creating an adversarial system for the panel, there are systems in other countries where that is allowed, and a different appeal system also exists elsewhere.
On the third point, which is about the standard of proof, if the panel finds matters that worries it, but does not find actual evidence of coercion, then it is not clear to me what it does. The panel could find that a patient qualifies for assisted dying on the balance of probabilities, and then approve that request. Three members of the panel could decide that a patient is, on the balance of probabilities, free to make the decision. People have heard my concerns about capacity, and whether the process for determining that is correct. We talked yesterday about how decisions are made in new schedule 2, and particularly subsection 5. There are differing views on the Committee about subsection 5(2), which talks about a “majority vote”, and how that may align with subsection 5(3).
My fourth concern is that there is no provision made in the new schedule or amendments for how the panels will deal with people with learning disabilities. There may be a further amendment to come on that matter. I accept that we agreed to an amendment regarding training for individuals, but I have concerns about how learning disabilities could be judged by the panel. I referred yesterday to how people with learning disabilities could go through this process with no support from friends and family, and then be presented before a panel. Under the Mental Capacity Act 2005 and its code of practice, would the panel have to assist the person in making a decision? That is what, in my mind, the Mental Capacity Act states: that if someone requires help to make that decision, individuals with the power should help them to do so.
There are wide differences in how professionals talk to, listen to and interpret people with learning disabilities. I know that first hand, on a day-to-day basis. The Bill should set out best practice in this field from the start, so that we do not see discrepancies between how panels undertake their work with learning disabilities. I do not think I need to spell out how a bad decision in this field could lead someone choosing assisted death to a place where others may not want to take them.
The fifth area relates to appeals, and that they can only go one way. A person whose application for assisted death is rejected can appeal to the voluntary assisted dying commissioner. The commissioner can then either uphold the decision or allow the person to have an assisted death. We have discussed what happens if a person who knows that that person applying for assisted death has grounds for concern about the case. We have discussed the legal means of people wishing to seek a judicial review, which causes me grave concern. Under the Bill as written, the person known to the person seeking assisted death cannot appeal against a decision. I heard the debate this morning on the amendments tabled by the hon. Member for Reigate. The Bill says that the panel can choose to hear from any person who has a relevant connection, but there appears to be no mechanism for someone to apply to register any concerns with the panel.
In the oral evidence we received we heard concerns from Sir Nicholas Mostyn and Alex Ruck Keene that both sides should have the right of appeal. We heard that from a legal background, from supporters—I hear that Alex Ruck Keene was referred to as an objector, but I think he would say he is neutral in the process. People who have differing views about the process said to us in their oral evidence that both sides should have the right to appeal.
Naz Shah
My hon. Friend is making very important points. Is he aware that Professor Mark Elliott, one of the UK’s leading professors of public law and a former chair of the Cambridge law faculty, has spoken about the
“asymmetrical nature of appeals under the Bill,”
and said:
“At best, suggestions that judicial review is an adequate substitute for families who wish to challenge decisions indicate a fundamental misapprehension about the nature of JR.”
On the suggestion that injunctions might work, is my hon. Friend aware that between January 2017 and 2021, the administrative court has issued only one injunction?
Daniel Francis
I thank my hon. Friend for that statistic, which I was not aware of. It relates back to concerns that I have had through the process, particularly on learning disabilities and how a family member finds out during the process what processes would be open to them. In my opinion, it is unclear how the proposed panel fits into our legal system. Again, there are all kinds of quasi-judicial panels that do fit into our legal system, and they have an appeal process, of course. They would normally see two parties in a case. I hear what has been said this morning about Spain. It was put to us in oral evidence from a supporter of the Bill that we should look at that part of the Spanish model about having both sides of the process, although I accept that Spain has a very different legal system from the United Kingdom.
Kim Leadbeater
I am interested in exploring the characterisation of the two sides referred to, because this is not about two sides. This is about an individual patient with a terminal illness. I am just interested in how we can explore that a little further.
Daniel Francis
I hear that. As my hon. Friend knows, yesterday when there was an amendment on individual autonomy, I voted the same way that she did. But I will put the scenarios that I put in that debate yesterday when I came to my decision. The scenario that I have always considered is: what if the person with a learning disability in their 40s or 50s says, “I want to make the decision to relieve the burden on my parent in their 70s or 80s”, and the parent in their 70s or 80s is not involved in the process, but finds out about the process and there is no way they can intervene in the process? I hear what was said about JR, but there is no way, as is laid out in the Bill, that they can then intervene in the process and say, “There has been a mental capacity assessment, but we think that, given there is a borderline level of capacity, there may have been a position where a doctor has had to, under the Act, assist that decision to be made.” What would be the legal process for the parents in that case? These are the scenarios. As Members know, I am not somebody who opposes the principles of the legislation, but these are the scenarios that have brought me to this place.
Kim Leadbeater
The quick answer is that there would be an injunction. I hope my hon. Friend will also be reassured that the panel is coming towards the end of this very long process. In the situation he describes, the patient would have gone through all the other stages with the doctor. I imagine in that situation, in a psychiatric referral, the doctor would have said, “Would you consider speaking to your next of kin?” There are a lot of other stages prior to getting to this point, which I hope provides some reassurance.
Daniel Francis
I hear that. As my hon. Friend knows, I supported amendment 6, as she did, and other amendments that strengthen the Bill in that way. I accept the right to autonomy. The hon. Member for Harrogate and Knaresborough gave the example of an appeal in Spain, but I do not think the fact that a religious group was funding the appeal in one case is an excuse for taking that right away, because there will be other people in Spain who have genuine concerns and want to go through the appeal process.
Sarah Olney (Richmond Park) (LD)
To pick up on what the hon. Member for Spen Valley said, the multidisciplinary panel comes at the very end of the process. She has talked about the different stages, but they all occur in isolation. There is a doctor, then there is another doctor, and then there might be a psychiatric referral. We heard clearly in oral evidence about the value of the multidisciplinary panel referring to each other and taking evidence collectively. The strength of it would be that it occurred at the beginning of the process. I wonder whether the hon. Member will reflect on that.
Daniel Francis
I think that is the case. As the hon. Member said yesterday, people from those professional fields—in their written evidence, particularly—asked to be included in the process, but I do not think they were asking to be included at the end of the process; I think they were asking to be included earlier.
Danny Kruger
The hon. Gentleman has explained clearly in personal terms why it is important to involve the family, and I concur with the hon. Member for Richmond Park. I want to take the hon. Gentleman back to the rather abstract question of whether there are two sides to these cases. In contradiction to the hon. Member for Spen Valley, I think there are two sides to these cases, as she herself recognises whenever she says that this is a finely balanced judgment. The fact is that a decision can go either way, and it is very important that the decision makers are considering two sides. It is not just the immediate stated wish of the applicant that is the only consideration, as the Bill acknowledges. Does the hon. Gentleman agree that it is important to have the widest possible input into the decision, so that both options—to proceed or not—can be properly considered?
Daniel Francis
I hear what the hon. Member says. My concern has always been the scenario that I described. If this legislation is passed and we push it forward, one death that occurs where somebody has concerns about the process would be one too many. I said that clearly when we debated clause 3, and that remains my principal concern. It is not necessarily about two sides, but in cases where there are concerns, we need to do everything we can to ensure that that does not happen.
I have a query about the resourcing of the panel. Part of the reason why we ended up here was the queries about the resourcing of the judicial role in the process. We would need to find skilled professionals, especially consultant psychiatrists and social workers, to sit on the panel. If we look at the per capita rates in the Australian and American states that have assisted dying, we can estimate that the number of cases of assisted dying each year in England and Wales would be in the low thousands. Any consultant psychiatrist or senior social worker who sits on these panels will have to spend hours on each case. We do not yet know how many hours it would be on average, but for complicated cases, it could be many hours. What analysis has been undertaken of the capacity of consultant psychiatrists and senior social workers? Their professional bodies are beginning to look at that, but again, we were not able to ask them that during oral evidence, and because the written evidence was submitted so heavily in advance of these amendments and new clauses being tabled, we do not have that information in front of us.
We hear about the resourcing of our NHS mental health services and the fact that we do not have enough psychiatrists, so I query whether we have enough senior social workers. A senior social worker visits my house every year, but I have never seen the same social worker twice, because of the turnover issues, capacity issues and the lack of staff.
What will the Government do to ensure that the panels fulfil their responsibilities? We would be dealing with applicants who have very little time left, and being able to properly staff the panels must be a priority. We must not take psychiatrists and social workers away from their other work, while ensuring that people seeking an assisted death do not wait a long time. That is another matter on which we would have benefited from oral evidence from expert witnesses. We would also have benefited from the normal consultation that there would have been on a Government Bill, because we would have been looking at that matter for several months.
In summary, I accept that this set of new clauses and amendments is an effort to fix problems with the Bill, but problems remain, and there are probably some new ones as well. I will therefore not support a number of the provisions.
Jack Abbott (Ipswich) (Lab/Co-op)
It is a pleasure to serve under your chairship, Sir Roger. I rise to speak to several new clauses and to amendment (e) to new clause 21.
There were many comments yesterday about the fact that a number of Members across the House had cited the judicial stage as an important reason why they supported the Bill. I challenge the notion that they voted for it exclusively for that reason, but I recognise the strength of feeling. To be frank, I was not one of them. I was not persuaded, not least because of a number of points made yesterday by my hon. Friend the Member for Rother Valley, that the judicial stage would be anything other than a rubber-stamping exercise. I am certainly not going to go into “good judge, bad judge”. I hugely respect the legal profession, of which there are many representatives present.
The legal profession has a huge range of expertise and experience, but it could not be expected to cover in depth the psychiatric and social care aspects of the process, about which we have being raising concerns for weeks. For that reason, and especially given that we are retaining legal experience on the panel alongside social workers and psychiatrists—a triple-threat approach, as it were—I fail to see how anyone could reasonably argue that this approach is weaker. In my eyes, it is much stronger.
Of course, some people will always say that it does not go far enough; we have heard that several times. As has been acknowledged, we will never convince everybody that an amendment is safe or good enough. An uncomfortable truth that is rarely recognised but is worth mentioning—I am sure that I will shortly be misrepresented on social media for saying it—is that no safeguard that we could put in any Bill, on any subject, will 100% ensure that there will never be any mistakes.
We have to do our level best to ensure that the probability is reduced to an absolute minimum. However, when someone goes into surgery, there may always be complications that cannot be foreseen, and we know that there have been awful miscarriages of justice; as a new Government, we have spoken about them, from the Post Office scandal to infected blood. We also have to rely on the fact that we are entrusting experienced, trained professionals with carrying out this work. Not only more often than not, but in nearly every situation, bar the awful cases of which we are all aware, they do their work to the best of their ability, and we have to be absolutely honest about that.
We should not look at the new clauses in isolation. They are part of a package. A number of amendments have been agreed to, about coercion and about ensuring that medical professionals are trained to the right standard. Like my hon. Friend, I hope we will see further amendments on special educational needs and learning disabilities. Those things are really important, so it is worth recognising that in addition to the new clauses, which in my view ensure a much stronger approach to the final judgment, we have agreed to a number of other amendments.
I want to pick up the issue of whether the process should be adversarial or inquisitive. I am sure that hon. Friends who have served at the Bar will tell me if I am wrong, but in my view an adversarial process is one of competition: it pits someone trying to prosecute an argument against someone trying to defend it. In contrast, an inquisitive approach is about asserting the truth. In my view, people who are not only going through agonising pain but making agonising decisions about what to do with the remaining days of their life should not be on trial. We should approach them from a position not of suspicion, but of support. Of course, that is caveated by all the things we have talked about, particularly on things like coercion. If there is any idea that a person has been coerced into the decision, of course we should investigate that, but the process should not be adversarial.
The connecting element is that we should ensure that we get the balance right between safeguards and safety. We should not add so many barriers and layers that a person can never access the process because it is too cumbersome. I do not want people to spend the remaining days of their life sitting in endless meetings, consultations and an adversarial court process, or whatever it might be. But we absolutely have to have all the right safeguards: as we have said, if there is any suspicion that someone may have been coerced or does not have mental capacity, of course we should go down the relevant routes to ensure that that is not the case.
Part of the reason why people will make the decision is that they want the autonomy to go out on their own terms, plan their remaining months and enjoy experiences with their family. We must ensure that those precious days are spent with their family, not in endless meeting rooms, so we absolutely have to get the balance right. As has been acknowledged, the diagnosis is a really important part of it. We regularly talk about the six-month point in the diagnosis, but we know when many people receive their diagnosis, their final days will be much shorter, so in the main people do not have time to go through a lengthy, difficult process.
Danny Kruger
Is the hon. Gentleman not making a case against a third stage altogether?
Danny Kruger
I would be grateful if the hon. Gentleman could explain that. If his concern is about asking patients to go through a third stage, after the doctor’s assessment—
Danny Kruger
In that case, what is the difference? It is not necessarily the case that the judicial stage has to be incredibly time-consuming, onerous or distressing for the patient. It is about the legitimacy of the process and the rigour that is applied to it. If the hon. Gentleman wants people to be sped through the process without going through the distress of further explanations, surely he should be objecting to the panel too.
Jack Abbott
I thank the hon. Gentleman for that question, but he is entirely misrepresenting my position. I have said that there should be a balance between safeguarding and ensuring that the process works for people. I have just spoken in support of the panel stage, and I think it is important that it is robust. We are including social care workers and psychiatrists alongside legal professionals. I have not for a moment used any language that suggests that I am not in favour of that. I am talking about the idea that it does not go far enough. We have spoken a number of times about adding additional layers beyond the processes that are already in the Bill, which we are debating today.
Danny Kruger
I was not suggesting that the hon. Gentleman opposed the panel. I recognise that he is speaking in support of it. My concern was that he was suggesting that there was a problem with the High Court stage. I now appreciate that he is objecting to some sort of fourth stage that some people might be suggesting on top of the panel. I personally am not proposing that; I think that there should be a multidisciplinary team as part of the assessment process and then a judicial stage, as originally planned.
Jack Abbott
In case I was not clear enough about my misgivings about the judicial stage, I will set them out again. In my view, the people making a High Court judgment probably do not have the breadth of knowledge and experience to pick up a number of the things that we have debated over the past few weeks. One cannot expect legal professionals also to be experts in palliative care, psychiatry or whatever it might be. I was saying that I had misgivings for that reason and that the approach that the panel is taking is more broadly in line with some of the Committee’s misgivings. It is an enormous improvement. I was not saying that we should remove that stage, dilute it or anything else. In fact, I am saying that it is much more robust and that it puts in the right safeguards, while getting the balance between safety and a recognition that people do not want to spend the last days of their life in perpetual meetings.
We have spoken about coercion a number of times. It is an incredibly powerful and important argument. I am sure my comments will be misrepresented, but we have to be clear that in some abusive relationships—which are pernicious, evil and subtle, as an hon. Member has mentioned on a number of occasions—someone might encourage their partner, or whoever it might be, not to go through with assisted dying so as to extend their days in pain and agony. We have to recognise that abuse takes many forms and is endemic in our wider society. That goes back to my point about why it is important to have a wider range of expertise on the panel. It is crucial to have psychiatrists and experts in fields beyond law. It is important to look at new clause 21 not in isolation, but in parallel with other amendments that we have agreed to, such as amendment 21, which specifically refers to coercion, training and so on. It is incredibly important to look at it in the main.
Finally, I will talk broadly about the questions of capacity and burden. We have spoken about not being able to police discussions. I would not necessarily go that far; I recognise that the relationship between the assessing doctors and the patient in the immediate term should approach this in the right way. However, these conversations take many forms and can be articulated in many ways, beyond what we can legislate for.
We have talked about the question of burden. If I, as someone who has just received a terminal diagnosis, have said, “I don’t want to spend my remaining days in absolute agony and fear, and I don’t want my family to go through that either,” that should not preclude my going through the decision-making process. However, I appreciate the nuance and the difference between that and someone saying or hinting that the decision has been taken out of their hands.
Another reason could be depression. I am sorry to put this incredibly glibly, but if I got a terminal diagnosis, I would feel pretty depressed about it; I might also be clinically diagnosed as depressed. Some previous amendments were about whether my past medical history—let us say that I had suffered from depression a number of times in my life—should preclude me from going through with the process.
The argument about family and friends saying, “Actually, Jack has suffered from depression at two or three moments in his life—maybe he should not access this,” although I think I am making the right decision, is powerful. To a degree, we have to rely all the time on a doctor, psychiatrist or anyone else to use their good professional judgment as to whether a person’s depression or otherwise is impairing their fundamental judgment on going down this route. I do not think that we can ever legislate 100% for that. We have to trust and rely on good practice, while giving people the training, skills and safeguards that we need to go down this route.
There is particular interest in the role of the commissioner. It is fairly regular procedure to have individuals being ultimately held to account in their various guises across the board. If there were not that single point of reference, people would be equally upset that no one could ultimately be held accountable for the wider system. It would be the same if the High Court system were retained; people would quite rightly ask who is actually overseeing the process. As well as the commissioner, with safeguards, the people ultimately responsible would be the Prime Minister, the Secretary of State for Health and Social Care or the appropriate authorities.
One question that perhaps my hon. Friend the Member for Spen Valley can answer is what the role is for the commissioner in Wales. Would there be separate commissioners for England and for Wales, or would the Secretary of State appoint one commissioner for both jurisdictions?
Amendment (e) to new clause 21, tabled by my hon. Friend the Member for Filton and Bradley Stoke (Claire Hazelgrove), is on a similar theme to my amendments 414 and 415; I am grateful to my hon. Friend the Member for Spen Valley and the rest of the Committee for supporting them in order to ensure that there is an informed consent procedure in the Bill. The amendment seeks to ensure equity for everyone who otherwise meets the eligibility criteria and who wishes to request assistance as set out in the Bill.
The Bill makes provision that the eligibility panel
“may hear from and question, in person, the person who made the application for the declaration.”
It clarifies that
“‘in person’ includes by means of a live video link or a live audio link.’
That is sensible because, for a number of people, travelling to a specific venue simply would not be possible, owing to their medical condition. However, the challenge around equity arises because several terminal illnesses also mean that people face significant, prolonged and unplanned pain episodes. It may make appearing before a panel via a live link at a specific, booked time slot all but impossible for some people. It would unduly and unfairly delay or at least make more difficult their wish to request consideration for assistance while they are in pain. Further panel appointments may not be straightforward to arrange, because of the number of people who would need to attend. A similar pain episode may happen again. Pain is not plannable, as we all know.
I am sure that none of us in this room thinks that the unintended consequence of excluding people who suffer from such pain episodes is in keeping with the intention of the Bill. This simple but important amendment would ensure that there is provision, where necessary, for otherwise eligible adults to pre-record their answers to the questions set by the panel in advance.
Kit Malthouse
The amendment is very sensible, not least because there are some conditions in which people experience a very significant decline at the end. In a matter of days, they may lose the ability to speak, while retaining capacity, so the ability for people in a small number of cases to give pre-recorded answers is incredibly sensible.
Jack Abbott
I agree wholeheartedly. It is important to emphasise that this provision will apply only in a relatively small number of cases, but it is a very important one. It would be subject to clear guidance developed following the passage of the Bill, as with the schedules and other related items, and would be subject to the same safeguards as the live link provisions already included in the Bill. Essentially, it would provide equity of access to request assistance for all otherwise eligible adults, no matter the pain or any other specifics of their terminal condition. Nobody should have to wait longer because of the pain that they are in.
My hon. Friend the Member for Filton and Bradley Stoke has tabled the amendment based on her experience. A close family member of hers, who has a terminal illness, has been experiencing pain episodes that would make it impossible to plan to join a meeting with a panel at a specific time slot via a live link. To require her to do so would only increase stress and distress at what is already an incredibly difficult time for her and her family. If the Bill becomes law, it would not be right to exclude anyone eligible from being able to request assistance as a result to the impact of the terminal illness itself. I encourage Committee members to join me in supporting the amendment.
I appreciate that bandwidth has come up several times. I admit candidly that it was a small factor in my thinking when I voted on Second Reading. By “bandwidth”, I mean the bandwidth of the professionals we are asking to do this work. By and large, I think we have done very well to keep politics out of this room, which is extraordinary, given the length of time that we have spent in here. However, there were a couple of moments of candour from Opposition Members on the Committee when they expressed concerns about whether the NHS has the capacity—
Terminally Ill Adults (End of Life) Bill (Twenty-third sitting)
Wednesday 12th March 2025
(1 month 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 Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 March 2025 - (12 Mar 2025)
The Chair
Would everyone ensure that electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We continue line-by-line consideration of the Bill. I remind Members that interventions should be short and raise points of clarification or questions; they should not be speeches in and of themselves. Members who wish to speak should bob, and continue to do so throughout the debate until they are called. When Members say “you”, they are referring to the Chair.
The Chair
Yes, “you” or “youse” should not be used to refer to one another during the debate.
Clause 12
Court approval
Question (11 March) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 371, in clause 13, page 9, line 5, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person, and”.
This amendment is consequential on NC21.
Amendment 61, in clause 13, page 9, line 5, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert
“certificate of eligibility was granted,”.
This amendment is consequential on NC21.
Amendment 62, in clause 13, page 9, line 13, leave out from “the” to “or” in line 14 and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.
This amendment is consequential on NC21.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.
This amendment is consequential on NC21.
Amendment 63, in clause 16, page 11, line 12, leave out “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.
This amendment is consequential on NC21.
Amendment 64, in clause 18, page 12, line 9, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 381, in clause 27, page 16, line 16, leave out sub-paragraph (iii) and insert—
“(iii) a certificate of eligibility,”.
This amendment is consequential on NC21.
Amendment 65, in clause 27, page 16, line 16, leave out from “the” to “under” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 388, in clause 34, page 20, line 40, leave out paragraph (c) and insert—
“(c) a panel has refused to grant a certificate of eligibility;”.
This amendment is consequential on NC21.
Amendment 66, in clause 34, page 20, line 40, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 390, in clause 40, page 23, line 24, at end insert—
“‘certificate of eligibility’ has the same meaning as in section (Determination by panel of eligibility for assistance);”.
This amendment is consequential on NC21.
Amendment 391, in clause 40, page 23, line 24, at end insert—
“‘the Commissioner’ has the meaning given by section (Voluntary Assisted Dying Commissioner);”.
This amendment is consequential on NC14.
New clause 14—Voluntary Assisted Dying Commissioner—
“(1) There is to be a Voluntary Assisted Dying Commissioner.
(2) The Commissioner is to be appointed by the Prime Minister.
(3) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(4) The Commissioner’s principal functions are—
(a) receiving documents made under this Act;
(b) making appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see Schedule (Assisted Dying Review Panels));
(c) making arrangements in relation to such panels and referring cases to them (see section (Referral by Commissioner of case to multidisciplinary panel));
(d) determining applications for reconsideration of panel decisions under section (Reconsideration of panel decisions refusing certificate of eligibility);
(e) monitoring the operation of this Act and reporting annually on it (see section 34).
(5) In this Act “the Commissioner” means the Voluntary Assisted Dying Commissioner.
(6) Schedule (The Voluntary Assisted Dying Commissioner) makes provision about the Commissioner.”.
This new clause provides for there to be a Voluntary Assisted Dying Commissioner.
New clause 15—Referral by Commissioner of case to multidisciplinary panel—
“(1) This section applies where the Commissioner receives—
(a) a first declaration made by a person,
(b) a report about the first assessment of the person which contains a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g), and
(c) a report about the second assessment of the person which contains a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e).
(2) The Commissioner must, as soon as reasonably practicable, refer the person’s case to an Assisted Dying Review Panel for determination of the person’s eligibility to be provided with assistance under section 18.
(3) But where the Commissioner receives a notification that the first declaration has been cancelled—
(a) the Commissioner must not refer the person’s case to such a panel, and
(b) if the person’s case has already been so referred, the Commissioner must notify the panel of the cancellation.
(4) Schedule (Assisted Dying Review Panels) makes provision about Assisted Dying Review Panels.”
This new clause provides for the Voluntary Assisted Dying Commissioner to refer a person’s case to a multidisciplinary panel, to be called an Assisted Dying Review Panel.
New clause 17—Reconsideration of panel decisions refusing certificate of eligibility—
“(1) This section applies where—
(a) a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) to an Assisted Dying Review Panel (“the first panel”), and
(b) the first panel refuses to grant a certificate of eligibility in respect of the person.
(2) The person may apply to the Commissioner for their case to be reconsidered on the ground that the first panel’s decision—
(a) contains an error of law,
(b) is irrational, or
(c) is procedurally unfair.
(3) The Commissioner must consider an application without a hearing.
(4) On the application—
(a) if the Commissioner is satisfied that any of the grounds mentioned in subsection (2) applies, they must as soon as reasonably practicable refer the person’s case to a different Assisted Dying Review Panel for a fresh determination under section (Determination by panel of eligibility for assistance);
(b) in any other case, the Commissioner must dismiss the application.
(5) The Commissioner must give reasons, in writing, for their decision.
(6) The Commissioner must notify the following of the outcome of the application, and give them a document containing their reasons for their decision—
(a) the person who made the application;
(b) the coordinating doctor;
(c) any other person specified in regulations made by the Secretary of State.”
This new clause provides for certain decisions of Assisted Dying Review Panels to be referred to a different panel for reconsideration.
Amendment (a) to new clause 17, leave out subsections (1) to (3) and insert—
“(1) The person applying for assisted dying, their next of kin, any of their relatives (within the meaning of the Family Law Act 1996), the registered medical practitioners who are treating them and anyone who took part in proceedings before the panel or gave evidence to the panel may apply to the Commissioner for the Panel’s decision to be reconsidered.
(2) The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust because of a serious procedural or other irregularity in the proceedings.
(3) The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
New clause 21—Determination by panel of eligibility for assistance—
“(1) This section applies where a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) to an Assisted Dying Review Panel (“the panel”).
(2) The panel’s function is to determine whether it is satisfied of all of the following matters—
(a) that the requirements of sections 5 to 9 have been met in relation to—
(i) the first declaration,
(ii) the first assessment and the report under section 7 on that assessment, and
(iii) the second assessment and the report under section 8 on that assessment;
(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
(d) that the person was aged 18 or over at the time the first declaration was made;
(e) that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person;
(f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration;
(g) that the person is registered as a patient with a general medical practice in England or Wales;
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.
(3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case.
(4) The panel—
(a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both);
(b) must (subject to subsection (5)) hear from, and may question, the person to whom the referral relates;
(c) in a case to which section 15 applies, may hear from and may question the person’s proxy;
(d) may hear from and may question any other person;
(e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.
In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link.
(5) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person.
(6) The panel—
(a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”);
(b) must refuse to do so in any other case.
(7) The panel must notify the following of its decision—
(a) the person to whom the referral relates;
(b) the coordinating doctor;
(c) the Commissioner;
(d) any other person specified in regulations made by the Secretary of State.
Where it grants a certificate of eligibility, it must give a copy of the certificate to each of these persons.
(8) If the panel is notified that the first declaration has been cancelled, it must cease to act in relation to the referral (and, in particular, it may not grant a certificate of eligibility).”
This new clause provides for a person’s eligibility to be provided with assistance under clause 18 to be determined by a multidisciplinary panel (instead of the High Court).
Amendment (d) to new clause 21, in subsection (4), leave out paragraphs (a) to (e) and insert—
“(a) must hear from, and must question, the coordinating doctor and the independent doctor;
(b) must (subject to subsection (5)) hear from, and must question, the person to whom the referral relates;
(c) in a case to which section 15 applies, must hear from and must question the person’s proxy;
(d) must consider hearing from and questioning—
(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to; and
(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness; and
(e) may hear from and may question any other person, including any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
Amendment (c) to new clause 21, in subsection (4), after paragraph (e) insert—
“(aa) if it considers that the matters mentioned in subsection 2(c), (h) or (i) are established on a balance of probabilities but still considers that there is a real risk that they are not satisfied, then the panel must stay its proceedings until such further inquiries it orders are made,”.
Amendment (e) to new clause 21, after subsection (4) insert—
“(4A) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Amendment (a) to new clause 21, in subsection (6)(a), after “satisfied” insert “beyond reasonable doubt”.
Amendment (b) to new clause 21, in subsection (6)(a), after “subsection (2)” insert
“unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,”.
New clause 2—Tribunal authorisation—
“(1) Where—
(a) a person has made a first declaration under section 5 which has not been cancelled,
(b) the coordinating doctor has made the statement mentioned in section 7(3), and
(c) the independent doctor has made the statement mentioned in section 8(5), that person may apply to the First-tier Tribunal (“the Tribunal”) for a declaration that the requirements of this Act have been met in relation to the first declaration.
(2) On an application under this section, the Tribunal—
(a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and
(b) in any other case, must refuse to make the declaration.
(3) The matters referred to in subsection (2)(a) are that—
(a) the requirements of sections 5 to 9 of this Act have been met in relation to the person who made the application,
(b) the person is terminally ill,
(c) the person has capacity to make the decision to end their own life,
(d) the person has relevant and available palliative care options available to them,
(e) the person is not liable to be detained under the Mental Health Act 1983,
(f) the person was aged 18 or over at the time the first declaration was made,
(g) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration,
(h) the person is registered as a patient with a general medical practice in England or Wales,
(i) the person has a clear, settled and informed wish to end their own life, and
(j) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.
(4) The Tribunal—
(a) may hear from and question, in person, the person who made the application for the declaration;
(b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);
(c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the tribunal.
(5) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the Tribunal may also—
(a) hear from and question any other person;
(b) ask a person to report to the Tribunal on such matters relating to the person who has applied for the declaration as it considers appropriate.
(6) In considering an application under this section, the panel must consist of—
(a) a sitting judge,
(b) a medical practitioner, and
(c) a lay person.
(7) In subsection (4)—
(a) in paragraph (a), the reference to the person who made the application includes, in a case where the person’s first declaration was signed by a proxy under section 15, that proxy, and
(b) “in person” includes by means of a live video link or a live audio link.”
This new clause would replace the role of the High Court with the tribunal system.
New clause 3—Tribunals in Wales—
“(1) For the purposes of this Act, the First-tier Tribunal and the Upper Tribunal, in exercising functions under or arising from this Act in relation to Wales, are to be treated as devolved tribunals within the meaning of paragraph 9 of Schedule 7A to the Government of Wales Act 2006.
(2) The Welsh Ministers may by regulations make provision relating to the procedure to be followed by the First-tier Tribunal and the Upper Tribunal in exercising functions under this Act in relation to Wales.
(3) Statutory instruments containing regulations made under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of Senedd Cymru.”
Amendment 67, in schedule 4, page 28, line 32, leave out from “The” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 68, in schedule 5, page 30, line 6, leave out from “the” to “made” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 69, in schedule 5, page 30, line 10, leave out from “the” to end of line and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 70, in schedule 6, page 32, line 3, leave out from “of” to “declaration” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
New schedule 1—The Voluntary Assisted Dying Commissioner—
“Status
1 (1) The Commissioner is to be a corporation sole.
(2) The Commissioner is not to be regarded as—
(a) the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(3) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
General powers
2 The Commissioner may do anything the Commissioner considers appropriate for the purposes of, or in connection with, the Commissioner’s functions.
Deputy Commissioner
3 (1) The Prime Minister must appoint a person to be the Deputy Voluntary Assisted Dying Commissioner (the “Deputy Commissioner”).
(2) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(3) The Commissioner may delegate any of the Commissioner’s functions to the Deputy Commissioner, to the extent and on the terms that the Commissioner determines.
(4) The delegation of a function under sub-paragraph (3) does not prevent the Commissioner from exercising that function.
(5) The functions of the Commissioner are to be carried out by the Deputy Commissioner if—
(a) there is a vacancy in the office of the Commissioner, or
(b) the Commissioner is for any reason unable or unwilling to act.
Appointment and tenure of office
4 (1) A person holds and vacates office as the Commissioner or Deputy Commissioner in accordance with the terms and conditions of their appointment as determined by the Secretary of State, subject to the provisions of this paragraph.
(2) An appointment as the Commissioner or Deputy Commissioner is to be for a term not exceeding five years.
(3) A person may not be appointed as the Commissioner or Deputy Commissioner if a relevant appointment of them has been made on two occasions. “Relevant appointment” here means appointment as the Commissioner or Deputy Commissioner.
(4) The Commissioner or Deputy Commissioner may resign by giving written notice to the Secretary of State.
(5) The Secretary of State may by notice in writing remove a person from the office of Commissioner or Deputy Commissioner if satisfied that the person—
(a) has behaved in a way that is not compatible with their continuing in office, or
(b) is unfit, unable or unwilling to properly discharge their functions.
Remuneration
5 The Secretary of State may pay to, or in respect of, the person holding office as the Commissioner or Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Staff: appointed by Commissioner
6 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(5) The Employers’ Liability (Compulsory Insurance) Act 1969 does not require insurance to be effected by the Commissioner.
Staff: secondment to Commissioner
7 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded.
Staff: general
8 (1) Before appointing staff under paragraph 6 or making arrangements under paragraph 7(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
(2) A function of the Commissioner may be carried out by any of the Commissioner's staff to the extent authorised by the Commissioner (but this is subject to sub-paragraph (3)).
(3) Sub-paragraph (2) does not apply in respect of—
(a) the Commissioner’s function under paragraph 2(1) of Schedule (Assisted Dying Review Panels) of making appointments to the list of persons eligible to be panel members;
(b) the Commissioner’s function of determining applications for reconsideration under section (Reconsideration of panel decisions refusing certificate of eligibility).
Financial and other assistance from the Secretary of State
9 (1) The Secretary of State may—
(a) make payments to the Commissioner of such amounts as the Secretary of State considers appropriate;
(b) give such financial assistance to the Commissioner as the Secretary of State considers appropriate.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 7;
(b) provide premises, facilities or other assistance to the Commissioner.
Accounts
10 (1) The Commissioner must—
(a) keep proper accounts and proper records in relation to them, and
(b) prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(2) The Commissioner must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General—
(a) before the end of August next following the end of the financial year to which the statement relates, or
(b) on or before such earlier date after the end of that year as the Treasury may direct.
(3) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State.
(4) The Secretary of State must lay before Parliament each document received under sub-paragraph (3)(b).
(5) In this paragraph, “financial year” means—
(a) the period beginning with the date on which the Commissioner is established and ending with the second 31 March following that date, and
(b) each successive period of 12 months.
Application of seal and proof of documents
11 (1) The application of the Commissioner's seal is to be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the Commissioner’s seal or signed on the Commissioner’s behalf —
(a) is to be received in evidence, and
(b) is to be treated as duly executed or signed in that way, unless the contrary is shown.
Public Records Act 1958
12 In Part 2 of the Table in paragraph 3 of the First Schedule to the Public Records Act 1958 (bodies whose records are public records), at the appropriate place insert “The Voluntary Assisted Dying Commissioner”.
House of Commons Disqualification Act 1975
13 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying person from membership of House of Commons), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner or the Deputy Voluntary Assisted Dying Commissioner.”
Freedom of Information Act 2000
14 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act) , at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner.”
Equality Act 2010
15 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities subject to public sector equality duty), at the end of the group of entries for bodies whose functions relate to health, social care and social security insert—
“The Voluntary Assisted Dying Commissioner.””
This new Schedule contains provision about the Voluntary Assisted Dying Commissioner and the Deputy Commissioner.
New schedule 2—Assisted Dying Review Panels—
“Introduction
1 In this Schedule—
(a) “referral” means a referral under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) (and similar references are to be construed accordingly);
(b) “panel” means an Assisted Dying Review Panel.
List of persons eligible to be panel members
2 (1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.
Tenure of persons appointed to list
3 (1) Subject to the provisions of this paragraph, persons on the list hold and vacate their appointments in accordance with the terms on which they are appointed.
(2) An appointment to the list is to be for a period not exceeding five years.
(3) A person who has held appointment to the list is eligible for re-appointment for one further period not exceeding five years.
Membership of panels
4 (1) The Commissioner must make arrangements for determining the membership of a panel.
(2) The arrangements must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.
Decisions of panels
5 (1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.
Panel sittings
6 (1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)).
(2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.
Staff and facilities
7 The Commissioner may make staff and other facilities available to panels.
Practice and procedure
8 (1) The Commissioner may give guidance about the practice and procedure of panels.
(2) Panels must have regard to any such guidance in the exercise of their functions.
Reasons
9 Panels must give reasons, in writing, for their decisions.
Money
10 The Commissioner may pay to or in respect of members of panels—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
House of Commons Disqualification Act 1975
11 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying persons from membership of House of Commons), at the appropriate place insert—
“Person on the list of those eligible for membership of an Assisted Dying Review Panel.””
This new Schedule contains provision about Assisted Dying Review Panels.
Amendment (c) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) The Commissioner must ensure that each member of a panel has had training in respect of domestic abuse, including coercive control and financial abuse.”
Amendment (a) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) Each member of a panel must have fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment (b) to new schedule 2, in paragraph 8, leave out sub-paragraphs (1) and (2) and insert—
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
This amendment would require Assisted Dying Panels to follow an adversarial process to test the evidence by appointing an advocate to the panel.
I call Jack Abbott—you left us on a cliffhanger.
Jack Abbott (Ipswich) (Lab/Co-op)
I feel huge responsibility for my “EastEnders”-style ending, Ms McVey. Unfortunately, my speech is not going to be as radical as some may have hoped.
I was discussing the bandwidth or capacity of the professionals involved in the process. We have been very good at leaving party politics at the door, but Opposition Members have mentioned the state of the NHS and the wider healthcare system on a couple of occasions. I could probably go further and mention the huge backlogs in the courts and wider criminal justice system. It is fair enough to consider the Bill in that wider context; I have considered that point deeply, as I know Members from across the Committee have.
We asked earlier whether there is capacity in the system to support the panels—that is, are there enough psychiatrists and social workers? However, it is inconsistent to then also say that we need more psychiatrists and social workers in other areas of the process. I am not sure that we can have it both ways. This is something to consider—the Committee has discussed it—but ultimately it is a matter for Members of the House.
The Committee is not here to debate whether the systems in place can deal with an assisted dying Bill. Whether or not assisted dying is introduced into our healthcare and judicial systems, it will not fundamentally change the challenges that the country faces in these areas. We are here to ensure that we present back to the House a Bill that has the safeguards and balances that I mentioned this morning, so that it can progress. I certainly would not want to produce anything that paralyses the system, but new clause 21 would not do so. In fact, in the long run, the panel approach would help the process along. For that reason, I am not sure that the capacity of professionals provides a valid argument against the panel—if anything, quite the reverse. As I said, that point really was not worthy of an “EastEnders” cliffhanger.
We have had positive murmurings and acknowledgments about amendment (e) to new clause 21. The panel approach represents a huge leap forward. I appreciate that Members in the room and across the House may say that the approach does not go far enough. I go back to my earlier point: for some Members, no amendment, change or safeguard will ever be enough for them to support the Bill. As a Committee, we have to come out with a strong, robust process that puts the patient first, and ensure that we are acting in their interests. We must make sure patients are safe and have the capacity to make these decisions, but I do not want any individual looking to go down this route to be stuck in endless meetings or courtrooms, when they should be spending time with their loved ones. I think this strikes the right balance between safeguarding—bringing in all of the professional expertise that we have been looking to do as a Committee—and making sure this process is fair and equitable. I urge Members to support amendment (e) to new clause 21, but I will also be supporting the new clauses today.
Danny Kruger (East Wiltshire) (Con)
On Second Reading on 29 November, the hon. Member for Spen Valley said:
“Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding.”—[Official Report, 29 November 2024; Vol. 757, c. 1019.]
There can be no doubt that the High Court judge safeguard was presented to the House as globally exceptional, unusually thorough and robust, as compared to other jurisdictions. It was also a prominent feature of the public campaign around the Bill. We were told it was a Bill designed for exceptional circumstances, with robust safeguards—the High Court judge being the pre-eminent one. It was not a trivial detail; it was the centrepiece of a safeguarding regime arranged around a small number of vulnerable people. Over 60 Members of Parliament are on the record as saying that it was this safeguard that helped persuade them to vote in favour on Second Reading.
Kim Leadbeater (Spen Valley) (Lab)
I will stand corrected if this is not true, but my understanding is that Hansard will show a very different story. I do not think that 60 people got up and said on record that this element was why they were voting for the Bill.
Danny Kruger
To be clear, I was not suggesting that they all said so on Second Reading, because not everybody spoke in that debate—nor am I saying that it is only because of this safeguard that MPs voted for the Bill, but there are 60 colleagues of ours who have cited the judicial safeguard as a reason for supporting the Bill. Indeed, I hope the Committee will agree that this was always presented as a very significant aspect of the safeguarding regime, if not the most significant aspect. I suggest it was the most significant, because it enabled people to argue that this was the strongest Bill in the world, given that other regimes do not have a judicial element.
I opposed the Bill on Second Reading and I expect that I will oppose it on Third Reading, but I respect the Committee process enough to accept that the House wanted the Bill debated. Because I respect the process, I have not opposed clauses that concern the heart of the Bill, but we are now going to see the hon. Member for Spen Valley, Government Ministers and their supporters vote against this clause—the essential safeguard in the Bill, and the principal element used to persuade the House that the Bill was safe—standing part of the Bill. It is an extraordinary thing that we are going to see the Bill’s promoter and the Government oppose the centrepiece of this Bill.
Kim Leadbeater
I understand the hon. Member’s framing of this and it might very well be his perspective, but there were 650 MPs who voted on Second Reading that day, so I think it is unfair to represent colleagues who did not have the view that this is the central component of the Bill. There are lots of other components to the Bill that colleagues have certainly spoken to me about, and it is important to acknowledge that.
Danny Kruger
I am happy to acknowledge that there are many other components of the Bill, but many Members, including the hon. Lady, cited this safeguard as an essential element of the safeguarding regime—if not the most essential. Crucially, it was presented to the House of Commons as such, and it is a central clause of the Bill, and the hon. Lady is now proposing to vote against that element. My view is that a change this substantial—a fundamental and radical change to the structure of the process that is being designed—should be presented on Report. The whole House should have the opportunity to discuss and debate properly whether that element should be changed. Every Member should have the opportunity to have a say on this central point.
Tom Gordon (Harrogate and Knaresborough) (LD)
The hon. Gentleman will have to forgive me, because I am a relatively new MP and there are still bits of parliamentary procedure that I have not yet got my head round, but is it not the case that MPs will have a say on Report, when they can table amendments to take the Bill back to how it was? That point could therefore be debated on Report.
Danny Kruger
Of course that is correct: a small number of amendments will be selected for debate and vote on Report, and if somebody wants to table an amendment on this issue it might indeed make it through Mr Speaker’s selection, but the point of the Committee process is to consider the Bill that was passed on Second Reading and come back to the House with the Bill either unamended or amended. This is a very substantial change to the Bill that was presented and voted for on Second Reading. As I say, many Members supported this clause, no doubt including the hon. Gentleman.
Kim Leadbeater
The hon. Gentleman is making a point that we hopefully all agree with. The job of the Committee is to take evidence and look at ways of improving the Bill on that basis. This is a really good example of where we have actually done our job and done it very, very well.
Danny Kruger
I do not think the hon. Lady can say she has done her job very, very well if, after presenting a Bill, and after months and months of work and debate, including many hours’ debate on Second Reading, she suddenly decides that its central part is deficient. She talks about the opportunity for the Committee to take and debate evidence, but we have not had evidence on this new element—these new clauses and the panel process. There were vague suggestions from some of the people we heard evidence from that it might be appropriate, but although we heard evidence on the High Court stage and the deficiencies therein, we have not had the opportunity to properly examine the panel element that is now being introduced.
Kim Leadbeater
I thank the hon. Gentleman for giving way again; I will sit down after this. I will not take it too personally that he thinks I have done a very poor job, but the point is that we heard a broad range of evidence from professionals including legal experts, medical experts, psychiatrists and social workers—lots of different people. We have also had evidence come in over recent weeks and months that has added to that and has talked about these changes. It is important to acknowledge that.
Danny Kruger
The hon. Lady must not apologise for intervening on me. I can hardly be one to object to people intervening. This is a very good forum for the kind of exchanges we are having, so I am very happy to take interventions. She is absolutely right that lots of evidence has been presented. I cite it myself all the time. Further evidence is coming in, and much of it is very critical of the new proposals. That is an absolutely fair point, but my point remains that we invited witnesses and had three days of evidence on a Bill whose core safeguard has now fundamentally changed—well, it has not changed yet, but I suspect it is about to.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
I supported the Bill on Second Reading on the basis of the High Court proposal, but then read very closely the evidence from Justice Munby on the need for a strengthened evidentiary process so that this is not just a rubber-stamping exercise. He said, secondly, that it would be better to replace the High Court with another system because of the position that it would place judges in. Having listened to 50 witnesses, I am satisfied with this proposal; I was persuaded through this cross-party process, which is an incredible example of deliberative decision making. Does the hon. Gentleman agree that our ability to amend the Bill where the evidence shows that we must do so demonstrates the strength of this process, and has enabled us to produce something much better and more in alignment with public opinion?
Danny Kruger
I greatly respect the position that the hon. Lady has come to. She has been persuaded that this is an improvement on the Bill, and I respect that. I recognise that that is what the hon. Member for Spen Valley and others think, but I am afraid I do not accept that the process has been adequate. The hon. Member for Penistone and Stocksbridge cites Justice Munby and others who criticised the High Court proposals. I also have my criticisms of them—I think they were inadequate—but the response to that is not to scrap them all together, but to strengthen them, as Justice Munby suggested. The hon. Lady will know that Justice Munby is not supportive of the new proposals either; he thinks they also fail the essential test of being an effective safeguard. Nor does the new proposal—the panel—provide the opportunity for evidentiary investigation, which would indeed be appropriate if we were to have a proper safeguard at this stage. I respect the hon. Lady’s position, but I am not persuaded.
The Chair
Order. I remind Members that, as I said at the start, interventions should be short, and not speeches.
Lewis Atkinson
The hon. Gentleman says that the way to proceed would have been to strengthen, through amendment, the existing High Court safeguard. I may have missed them, but I cannot see amendments in his name that do that, so will he explain what strengthening of the High Court safeguard he would prefer?
Danny Kruger
I am about to come to that. I am going to suggest how we could have done it better. I take the hon. Member’s point. I do need to answer that question.
Kit Malthouse
I am just intrigued. My hon. Friend is talking a lot about the evidence. Did any evidence on anything in the Bill change his mind on any aspect of it?
Danny Kruger
Thank you, Ms McVey. I do not want to be facetious because it is a serious point, but lots of new points were made in evidence to the Committee, including some in favour of the Bill as it is and some of the amendments that I have opposed. We have had some helpful evidence that has helped to shore up the case made by the Bill’s promoter, as well as evidence that suggested otherwise, and some points in debate have been very well made. I was nearly floored by an intervention by the hon. Member for Chesham and Amersham yesterday, for instance. I do respect the points that have been made in Committee, including at the evidence stage.
My suggestion is that we should be doing this on Report, if we do it at all, because that would reflect the seriousness of the proposal and the fact that the House voted for the clause on Second Reading. There were problems with the High Court stage, as has been acknowledged, and others have referred to it in support of the change. I want to quickly acknowledge, perhaps in response to my right hon. Friend the Member for North West Hampshire, the points made by Lord Sumption, Max Hill, Alex Ruck Keene and Nicholas Mostyn—all senior barristers and judges. It became obvious that there were significant issues, particularly around the power of the court to investigate applications or to hear evidence on them, and about the capacity of the judicial system to cope with the demand.
It was clear that further thought was needed on the High Court stage. Indeed it was apparent that further thought was already under way. There is an interesting exchange in the record of the evidence sessions between the Justice Minister, the hon. Member for Finchley and Golders Green, and those witnesses, particularly Max Hill, who said that he was quite close to the construction of the Bill. That clearly shows, in my view, that there already was thinking under way behind the scenes that have led to these changes.
My view is that, rather than ditching clause 12, we should be seeking to make it work in ways that many hon. Members have proposed. I am afraid we just skipped over those proposals in earlier groupings on the clause because there was no point—we were obviously proceeding to the stand part debate and to eliminate the involvement of the court all together.
There were things the Committee could have set itself to address, but we have not done that. I hope you will excuse me, Ms McVey, for making what might be a cynical observation: I think the High Court stage was recognised as popular and as useful to the campaign to get the Bill through the House of Commons. It was predicated specifically on the point, which was clearly communicated and understood by the public, that this measure of assisted dying is intended for very few people. It is for the most exceptional cases: people at the very end of their life, in desperate circumstances, in desperate pain and suffering. Very few people need it. However, I believe this change is predicated on the real intent of the Bill: far wider eligibility than just that tiny group.
We have seen that through the rejection of a series of amendments that would have restricted eligibility specifically to that group—a group for whom we all understand the case for an assisted death; again, the public support it in those specific cases of people at the very end of their life, who are suffering intolerably. The Bill is not restricted to that group only, and that is why we need to redesign the system to enable this larger group to make use of it.
Kim Leadbeater
The hon. Gentleman is been very generous with his time. I am interested in how he can conclude that the eligibility criteria have somehow been expanded by adding an expert panel with a psychiatrist and a social worker.
Danny Kruger
I am sorry; I did not intend to give that impression. That is not what I am suggesting. What I am saying is that we have seen the rejection of a series of amendments that would have restricted eligibility, or ensured that only certain people would be eligible: those for whom we all understand the reason for the case for assisted death. Whether our amendments related to the burden, the pain, or questions around capacity and coercion, our amendments would have restricted access to only the most desperate people.
On that basis, it would have been appropriate to have a High Court stage, because the High Court could have accommodated that lower demand. Given the opportunity that the Bill affords to a larger group of people to gain access to assisted death, it has become obvious—I presume, in the mind of Government and others—that there is insufficient capacity in the court system to accommodate the regime being instituted here.
I think the question of High Court capacity has been driven by the desire for a system that can cope with many thousands of deaths per year. I have seen ranges suggesting between 6,000 and 17,000 deaths per year. If Members have other calculations or estimates, I would be grateful to hear them. In fact, it would be good to know whether the Government have done any estimation of the numbers we are looking at.
It is not simply a case of averting those desperate cases of people who help their relatives to die by going to Switzerland or who assist them in committing suicide in other ways—we heard from Max Hill that only a handful of cases cross his desk every year. It is clearly the intention to greatly widen the scope beyond that desperate group. It is unclear what the overall number is, but my strong sense is that we are looking at many thousands, and for that reason, it has been decided that the High Court would not have the capacity to cope with this.
Jack Abbott
We go back to the inconsistency argument. On the one hand, we are saying that we must have more psychiatrists, social workers and palliative care experts in the process. This change is now being proposed, and the hon. Gentleman is using that as a reason to say that there is bad faith here and the sponsors of the Bill just want to widen the scope. I do not think he can have it both ways.
Danny Kruger
I am not suggesting bad faith here. I think there is a genuine view, and it might well come from the Government’s official advice, that the Bill, as drafted and as amended, will allow many thousands of people to gain access to assisted death every year. On that basis, we will need a system that can cope with them. The judiciary clearly communicated that it could not cope, and I understand why it would do so.
Jack Abbott
I appreciate that, but just this morning we heard from the hon. Member for Reigate that, because there are not enough psychiatrists and social workers, this panel is not workable either. Again, there is an inconsistency here. There is either enough capacity in the system or there is not—which is it?
Danny Kruger
I am sorry to disappoint the hon. Member, but I am afraid I am going to have it both ways. I think the Bill is profoundly flawed, particularly if large numbers of people will be going through this system. Whether they are going through a judicial system or a panel system, there will be huge capacity constraints on the professionals involved, and we have transferred that responsibility and that problem from the judiciary to psychiatry and social work—unless, of course, it is a rubber-stamp exercise, which I fear it might be, but even then, we are still involving psychiatrists and social workers in a rubber-stamp exercise.
Jack Abbott
But that demolishes the central argument that the hon. Gentleman is making. On the one hand, he says that we are expanding access, but on the other, he says that the panel system will not be able to expand it. If the motive of the promoter of the Bill was to expand the system to make more people eligible, the hon. Gentleman has just said that the constraints of the panel will mean that that does not happen anyway. He is conflating different things and being totally inconsistent.
Danny Kruger
All right. I regret my failure to assuage the anxieties of the hon. Member.
Let me explain why it was so important that we had a judicial stage. My complaints were never against the principle, but always against the practicalities, for the reasons I have just given and will go on to say more about. The value of a judicial stage is that it gave the doctors certainty and, indeed, protection for the process they were responsible for.
I want to cite the evidence from the Medical Defence Union, which provides doctors with insurance against claims of medical negligence. Responding to the suggestion that judicial involvement could be replaced by some other decision-making body, it stated:
“The MDU strongly rejects this assertion. The involvement of the judiciary is essential. Its absence leaves doctors unduly exposed. Media reports suggest that an alternative safeguard is being mooted. No ‘independent panel’, however so constituted, can replace the legal authority of a course of action sealed and ratified by a judge. Doctors deserve that certainty when relying upon this Bill to provide the very best for their patients at the most delicate moment of their duty of care.”
I will also cite the evidence that we received from Ruth Hughes, a senior barrister with 17 years of experience in mental capacity law. I cannot say that she is a King’s counsel because she does not become one until later this month—congratulations to her. She stated in her written evidence that
“if there is no judicial declaration because the judicial safeguard is not enacted, then there is a risk that the estates of persons who have been assisted to die will be sent into turmoil. This is due to the possibility of arguments being made that beneficiaries of the estate have ‘influenced’ the person into obtaining the assisted death.”
She said that
“even if there is no conviction but another person asserts there was ‘influence’…not undue influence”—
and certainly not coercion, which is banned by the Bill—
“but a lower standard of ‘influence’ by a beneficiary of the estate…then the personal representatives will be advised to obtain directions from the Court as to how to administer the estate.”
Her point is that, even if the bar for the assisted death is met, in terms of influence, coercion and so on, the testamentary or probate challenges that the estates will then go into are considerable.
The fact is that somebody has to be the judge—somebody has to take legal responsibility for the decision that is made. In the common law system, we do not give powers of life and death to panels; we give them to legally constituted bodies with judicial authority. To cite the MDU again:
“To put it plainly, without judicial involvement someone will have to take responsibility for the legality of the action.”
Dr Simon Opher (Stroud) (Lab)
Again, I thank the hon. Member for quoting all this, but does it mean that he supports the original clause 12?
Danny Kruger
I will be voting for clause 12 to stand part, because I think it is an essential safeguard, but it is not strong enough. There are all sorts of problems with it around capacity and the way it is constituted, and I will come on now to how I think it can be improved.
Danny Kruger
The hon. Gentleman does not seem impressed by my straight answer to his straight question. Yes, I do support clause 12. I think we should strengthen it, in the ways that I will now explain. We do need a court, and I think Parliament was right to demand this, or to support it. We have a comparable model in the Court of Protection, which applies when there are disputed decisions about whether to withdraw life support. By the way, I mention to hon. Members who have referred to this—just to go back to an earlier debate—that, with the Court of Protection, one is obliged to notify the family. So even there, when there is a decision to withdraw life support, the family is notified, but we have decided not to notify the family under this Bill. But anyway, the Court of Protection does provide an appropriate comparison.
Whether we are talking about the Court of Protection or the High Court, either would work if the system was set up right. The crucial thing, in my view, is that it needs a proper adversarial arrangement so that the judge can actually judge. The way that judges work in this country, under the common law system, is that they hear arguments and then make decisions. It has been suggested that there could be a role for the official solicitor in acting “for the state”, as it were—or indeed “for society”, perhaps, or however we would want to put it—to perform the role of challenging the application and taking responsibility for presenting any alternative pieces of information that the judge should consider.
Jack Abbott
I do not want to make implications about what the hon. Gentleman might be saying, but am I correct that, with the adversarial position that he is supporting, a person coming to the end of their life, who had gone through this process, would essentially have to argue their case in front of a judge?
Danny Kruger
No, I do not think it is necessary for the applicant to come to court and present their case—that might be completely impossible or inappropriate—but a case does need to be made to the judge about why it should proceed, which is part of the original proposal. Indeed, that is what is proposed under the panel system as well: the case is made for whether it should go ahead.
My suggestion is that there needs to be representatives of the applicant—who may want to appear themselves—but there also needs to be somebody who is putting the other side of the story: “Maybe this isn’t the right thing to do. Has the judge considered these parts of the evidence, or this aspect of the report from the assessing doctors?” That would be an appropriate procedure, which is completely consistent with how these important decisions are taken in other aspects of our system.
Jack Abbott
There is a difference between an adversarial system and an inquisitorial system, which is what I believe is proposed for this panel. The panel would take not an adversarial but an inquisitive position. I do not think that is a million miles away from what the hon. Gentleman is saying, but there is a distinct difference. If he is arguing for the panel to take an adversarial position, that is very different from where the panel currently is.
Danny Kruger
Yes; it would be inappropriate to ask a panel to operate in an adversarial system. It would be inappropriate to ask a psychiatrist and a social worker to act as a judge. We need a proper court system, as we always do with other important decisions in which two sides make arguments. Let me try to explain. I agree that what is being proposed is an inquisitorial system through a panel, which is completely alien to the British common law model of making important decisions. That is what is being suggested, but I do not think it is appropriate.
I do not believe in assisted dying; I think it is the wrong thing to do. But if we were to do it, we should have a proper multidisciplinary team at the outset—I sort of feel that that is where we have got to through these debates, and if the debates had happened properly and prior to the Bill being drafted, something more like this system might have been proposed. Perhaps a doctor does the first declaration as proposed, but we then go into a proper multidisciplinary team, rather than just having the options to refer to psychiatrists if appropriate or to maybe consult palliative care specialists.
The involvement of all the appropriate specialists in assessing capacity and coercion, making clear the alternatives that the patient has, making a proper diagnosis, and hearing from family members—all the appropriate processes that should be followed in a case like this—should happen at the very beginning of the process. There is no need for a lawyer at that stage on the multidisciplinary team that we have created; it will be a proper combination of clinical and social work professionals. Their reports would then feed into the judicial process, which would be the second or third stage, if we have a doctor at the beginning. The judge would then hear arguments from, as it were, both sides. That need not be a distressing or time-consuming process, but it would be an appropriate one under British law to make decisions of life and death. That court would clearly hear arguments made by both sides.
Kit Malthouse
To be clear, does my hon. Friend envisage that I would either be in the hearing, or lying in my bed listening to the hearing—the fungating tumours in my neck restricting my ability to breathe—having gone through all the eligibility criteria, but having to listen to someone argue that I should go through a death that I am trying to avoid, by arguing that I do not have capacity? Does he not see that that could be profoundly distressing to someone who is in the closing moments of their life? In many ways, it might actually be cruel and traumatic for me to hear somebody arguing, frankly, that I should endure the pain, in their opinion.
Danny Kruger
I regret that my right hon. Friend is making that argument. The fact is that the panel is already going to consider whether it is appropriate. There might not be some professional who is there with the purpose of suggesting that there are other things that the panel should consider, but the patient is already lying there waiting for powerful people in another room to make a decision about whether they are going to get an assisted suicide or not. That process is already going on.
On my right hon. Friend’s point that it is intolerable for somebody to hear the case made against their assisted death, let me put to him an alternative hypothesis. Rather than somebody in the situation that he describes, let us imagine somebody who is the victim of years of coercive control, who has undiagnosed mental health conditions, who is feeling a burden on their family and whose relatives want their money. None of that has yet been fully identified through the initial doctor’s stage of the process, but it has been commented on in some of the evidence that the multidisciplinary team heard. That person might hope that somebody is there making the case for them, as might their family.
It is totally appropriate for a court to hear that this procedure should not go ahead because of those other factors, which are only now being properly understood by the decision maker. That decision maker is doing so openly, not in a private session. The decision is being made not by people who are committed to the procedure and process of assisted suicide, but by an independent judge, sitting in their judicial capacity in open court, with all the safeguards and accountability that the judicial system has. That feels to me like a perfectly appropriate safeguard, and I suggest that it is, in principle, what the House of Commons thought they were getting when they supported this.
Sarah Olney (Richmond Park) (LD)
I am just reflecting on the right hon. Member for North West Hampshire’s intervention. Does the hon. Gentleman not agree that the purpose either of the panel or the High Court judge is to establish beyond all doubt that if a person is assisted in their death, no crime is being committed, and that in order to establish that, we need to apply the highest standards of evidence? Whether an adversarial or an inquisitorial process is used to collect that evidence, there must be some sort of process. That may be uncomfortable for the patient but it is necessary for their friends, relatives and the doctors being asked to assist. That is really what we are trying to achieve.
Danny Kruger
I am grateful to the hon. Lady for making that absolutely central point. This is a judicial process, and a decision is being made. I recognise that the hon. Member for Spen Valley has correctly abandoned the claim that this is a judge-led process—because it is not—but the function of this panel will be essentially judicial, not least because the decision to proceed with an assisted death entails the people involved in administering it being exempt from criminal law and not being liable to prosecution under the Suicide Act 1961. We have made an exemption for what is otherwise a crime, and if they do not get the go-ahead from this panel, they will be committing a crime if they proceed. So in all essence, a judicial decision is being made, and it is right that we have the protections of a court.
Let me make a couple of brief points about the practicalities, and they have partly been made by others. The central point is that we do not know whether the professionals who will be required to take part in this panel have the capacity to do so. We know that the judges do not have the capacity under the current design of the law, which is an essential flaw—or we think they do not, because that point has been comprehensively argued by the judiciary and I suspect by officials at the Ministry of Justice. What we do not know is whether the psychiatry and social work professions have adequate capacity. There has been no impact assessment, and we have had a lot of comments from representative bodies expressing anxiety about the capacity of these professions to supply the panels.
The point I am trying to make is that we cannot, and should not, legislate in the dark. We should not draft laws in ignorance of these basic facts. We need to know whether the law before us is workable in the real world, and I would be grateful for clarification on that from Ministers when they speak to this clause. In my view, we need robust and clear data on how many professionals might take up the posts, and more importantly, we need the clearest and earliest warning of where there might be deficits that would compromise the entire system, particularly around the capacity of psychiatrists. We have a central problem with ignorance around capacity, but my strong view is that we do have a problem with capacity.
An important point was made by Alex Ruck Keene in evidence around the judge-led process, which we discussed earlier. His point was that it would not be possible for the judge to decline an assisted death on the basis of what he calls service denial—that is, there is not enough social care treatment or medical treatment available for the patient. If the reason why the patient were to receive an assisted death was that the local authority would not provide them with improvements to their home or funding, or that they could not get the medical treatment they wanted early enough, that would be a legitimate reason, or would not be a reason not to proceed with an assisted death. That is a very grave concern to us, and it is what happens in other countries. We heard this morning about evidence that when a patient is denied the medical or social care that they need to carry on living and living well, they are offered an assisted death. In those circumstances, I would really hope that the decision maker would conclude that it is wrong that we offer an assisted death, and that we in fact need to insist that they get the support they need to live well. I reference that because, as I understand it, there is no opportunity in the new clauses for the panel to decline an assisted death on grounds that it is being sought only because of the inadequacy of the wider care system.
It has been suggested that the judicial option remains, through the judicial review system. Other hon. Members have responded to that point, so I will not labour it. However, I want to make the point that new clause 17 makes judicial review less likely because it offers the opportunity for a sort of appeal. It is an appeal only in one direction—against a refusal—but there is a sort of appeal process in the system. As my hon. Friend the Member for Reigate said, if there is a JR, it is likely to take a long time. There is nothing about whether legal aid will be arranged. The state has proposed to pay for people to go through the assisted dying process, but is not prepared to pay anybody to challenge it, so they would have to raise their own money. It would also take a long time. It would be much simpler and better, whether it is a panel or a judge, to set up the system in a way that allows both sides to be told and that does not rely on a cumbersome judicial review system.
I reiterate that I support the multidisciplinary team. It is a very good thing that the hon. Member for Spen Valley has decided to introduce a proper stage at which a psychiatrist and a social worker will have to consider the application properly. I have concerns about how it would actually work, which I will come on to, but having a multidisciplinary team is in principle the right system. I stress that the professionals who made the case for multidisciplinary teams as part of the assessment process have not endorsed the new clauses. They are not saying that we have adequately met their concerns about the process.
Kim Leadbeater
I am not entirely sure who the hon. Gentleman is referring to, but it is fair to say that there is a range of views across a range of professions. It is important to acknowledge that.
Danny Kruger
I apologise; the hon. Lady is absolutely right. No doubt there are representative bodies, whether it is patients’ groups or bodies representing professionals, that are satisfied with the new proposal. I do not know which—genuinely, I just have not come across them—but I have no doubt that there are some.
Kim Leadbeater
To clarify, the point that I am making is that there is a range of views across a range of organisations—many of which are neutral on the issue of assisted dying, full stop—and a range of views within each profession. We heard evidence from people working in palliative care with different views, and from medical people with different views. It is important to acknowledge that.
Danny Kruger
Yes, a number are neutral. I will be grateful if the hon. Lady can tell the Committee if there are any representative bodies working with the professionals who administer end-of-life care that have endorsed either the Bill as it was or the Bill as it is. I do not believe there are.
Danny Kruger
The hon. Lady is going to check. My understanding is that all the bodies that represent palliative care professionals and end-of-life specialists are opposed to the Bill as it was and as it is. I think there are straightforward reasons for that.
Everybody agrees that there is value in the multidisciplinary team approach. The British Association of Social Workers provided evidence setting out what it thought was needed, namely an MDT working at the assessment stage. This is not that. It is very important that we do not confuse the provisions made under the new clauses with a multidisciplinary team operating at the appropriate moment in the process. We have to have public confidence in the process. It is very important that the composition of the new proposed panels is not conflated with the separate matter of a multidisciplinary team model. It would be very unfortunate if that confusion obtained.
The Bill, as drafted, rejects the involvement of a multi-professional team model for the conduct of the assessments, preferring two doctors working alone without input from a multidisciplinary team. I recognise that there are opportunities for them to hear from other professionals, but it is not a multidisciplinary team in any recognisable sense of the term.
Danny Kruger
I will in a moment. I was going to finish by saying that it is not correct or accurate to give the impression that Dr Cox or the Association for Palliative Medicine supports the proposed approach.
Kim Leadbeater
It is really important to be clear about this. I do not think anyone is suggesting that what is in the Bill will replace existing good practice. That is really important. We probably all have family and friends who are being treated for cancer now, and they are looked after and cared for by a multidisciplinary team. That team does not suddenly disappear, to be replaced by what is in the Bill; it can continue. The assisted dying option involves the two doctors, and I struggle to envisage any situation in which they would not work with the multidisciplinary team and add on, where appropriate and necessary, psychiatric intervention, social care and healthcare professionals. I always come back to the point that I do not think the two things will operate independently.
Danny Kruger
The hon. Lady does always come back to that point, and I respect it. She imagines that the good practice that is prevalent in the system will obtain automatically, in all cases, under the assisted dying regime, even though that regime is completely new. She says that she cannot envisage a scenario in which the doctors would not hear from all the professionals we all think should be consulted at this stage of the process. I have two points to make on that. First, why not make it explicit that that is required? Secondly, I am afraid that I can envisage scenarios in which for doctors—perhaps some years down the line, once this model of death has become normalised, as it has in Canada and elsewhere, with up to 10% of deaths coming through assisted dying—it just becomes a procedure.
Again, we have not ruled out the possibility—the likelihood, in fact—of independent clinics establishing themselves with a business that is about providing the support for people who want to end their life. There will be doctors who are happy to conduct the assessments; to take at face value what they hear from the patient; not to involve a wider multidisciplinary team in their consultations; and to expedite the process as the Bill, as drafted and amended, allows. I am afraid I do foresee a scenario in which the good practice in which all believe does not happen. My concern, and I expect the hon. Lady’s is the same, is to prevent that.
Rebecca Paul (Reigate) (Con)
My hon. Friend is making a powerful point. One of my concerns is about what happens if someone seeks assisted dying privately through a clinic. I see risks with multidisciplinary teams involving social workers continuing in that instance. Does my hon. Friend share my concern?
Danny Kruger
I certainly do. That is exactly the scenario that I fear, and I fear it within the NHS too. Let us not imagine that every NHS doctor has all the time and the access to the wider specialisms that they would wish. Under the Bill in its current form, there will be a very strong incentive and a very strong personal instinct for compassionate doctors, who believe in the autonomy of patients and in respecting the patient’s wishes, to take at face value what they are told and not to seek the expertise that would happen automatically if there were a proper multidisciplinary team at that stage of the process.
My point is that we do need a multidisciplinary team, but what is in the Bill is not it. At best, it is half a multidisciplinary team. There is no doctor on it. There is a lawyer, pointlessly. There is a sort of quasi-MDT—a duo-disciplinary team—but it is in the wrong place, and it will not assess, which is the job it should do, but judge. It will not diagnose or advise in the way that a clinician should; it will simply decide whether the criteria have been met for an assisted death. That job was rightly given to judges in the Bill that the House of Commons voted for, but this Bill does not have the powers, the safeguards, the accountability or the independence of a tribunal, let alone that of a court.
As the hon. Member for Spen Valley candidly says, the panel is not a judicial entity in any sense. It is a weird creature, neither one thing nor the other: a quasi-multidisciplinary team, at the wrong stage in the process, for the wrong purpose. I have said that it is not a multidisciplinary team, but it is not really a judicial entity either, as the hon. Lady has mentioned. It is certainly not “judge-plus”, as was originally suggested. There is no judge, just a legal member—not a judicial member but a legal member, who might be a lawyer.
Kim Leadbeater
There is a judge—it may be a retired judge—who is the commissioner, who heads up the entire assisted dying commission, and there is a legal expert on the panel as well, as the hon. Gentleman said. That could be a retired judge, so there is legal expertise there. I think the hon. Gentleman also made the point that there is not a doctor on the panel. My understanding is that psychiatrists are doctors, but I will stand corrected if that is not true.
Danny Kruger
The hon. Lady is absolutely right; I do apologise. There is indeed a doctor—a psychiatrist—but not a doctor specialising in their condition.
Danny Kruger
No, we have had a couple of GPs. We have not had a doctor who is a specialist in their condition.
Danny Kruger
If needed, there is the opportunity to refer to one. It is perfectly possible that the whole process of an assisted death could be done very well under the Bill—that is good news—but there is a very great risk that the process will not be done well, because there are huge gaps through which bad practice can creep. My specific concern about this stage is that we do not have the appropriate expertise on the panel.
On the hon. Lady’s point about there being a judge in the process, there is a distant judge who sits above a quango that appoints the panels. They take a view on a specific case only if there is an appeal against a refusal. They are not directly judging on the case, as the House of Commons was told would happen.
Kim Leadbeater
The reports for the case would go to the commissioner, so he or she would see the reports.
Danny Kruger
Yes, but he or she will consider a reconsideration only on the basis of an application to reconsider made by the applicant. There is only one opportunity for an appeal and it can happen in only one direction: against a refusal. I will come on to the role of the commissioner in a moment, but in the great majority of cases there will not be a judge involved in the decision. There might be a retired judge on the panel, but that is extremely unlikely; it is more likely to be a lawyer. It is a judicial exercise that is being conducted, so it would be appropriate for it to be a judge sitting properly in a court.
Naz Shah (Bradford West) (Lab)
Does the hon. Member share my concern that the Bill does not say that the panel can call people and ask them to swear under oath, unlike a mental health tribunal?
Danny Kruger
The hon. Lady is absolutely right. Having said that the panel is not a proper multidisciplinary team, I agree that it is not a proper judicial entity either. It is a panel with judicial power to approve life-or-death decisions, but it is without a judge or the normal judicial processes that would happen in a tribunal or court. There is no oath being taken by members of the panel or by witnesses; there is no independent appointment process, so the members of the panel will be appointed by the commissioner; there is no power to order the disclosure of information to the panel; there is no power to investigate wills, financial records or anything like that; and there is no requirement to meet the doctors or even to discuss the case with the patient themselves, if the panel considers that appropriate.
There is also no appeal against an approval, just a one-way appeal against a refusal. That appeal goes not to an independent judge sitting in a court, but to a commissioner—an appointee of the Government, who has been set up to facilitate the whole system.
Let me turn to the role of the VAD commissioner, or the Vader as I think of it; I will not labour the point. They can be a sitting judge, which is good, but I suggest to the Committee that it is highly unusual for sitting judges to be appointed to other public functions that are unrelated to a judicial role. I would be interested in the Minister’s view on that. Judges can be appointed to a second judicial job, such as chairing the Sentencing Council, but I am not aware of many examples in which a sitting judge sits in a non-judicial function.
Having looked into it, I discovered that there are three exceptions to the rule. First, the Master of the Rolls holds a number of sinecures in relation to the keeping of the public archives and the payment of the national debt, so that is a non-judicial function that a judge carries. Secondly, the chair of the Law Commission is a sitting High Court or Court of Appeal judge. Thirdly, and exceptionally, with permission of the senior judiciary, sitting judges can be asked to conduct public inquiries. A singular public inquiry, which is time-limited and essentially judicial in its purpose of determining what happened, and which will of course operate in an adversarial way, hearing proper evidence from counsel, is the only exception. However, that is not comparable to the model being set out here, in which a sitting judge is being asked to chair a permanent quango—a Government body.
Kim Leadbeater
Does the hon. Gentleman agree that that is exactly the point? This is a unique situation, and therefore we need a unique system. That is the perfect opportunity to use the skills that a judge or retired judge has.
Danny Kruger
Throughout this debate, the hon. Lady and others have frequently made the case that we should stick with the existing systems, such as the Mental Capacity Act 2005 and the use of doctors to make decisions about healthcare. Now the opposite point is being made: that we have a unique system and we therefore need to tear up the current way of working. In this one case, I think we need to stick with the current way of working: in the British judiciary, the High Court of England is the appropriate body to make decisions about life and death. That is how it works in other major decisions of life and death. These are questions that go to court.
On the point about the VAD commissioner being a sitting judge, even when it comes to inquiries that judges conduct outside their role as sitting judges in court, my understanding is that the Executive do not pick whichever sitting judge they want for the role. Instead, they request that the Lady Chief Justice make a judge available, and the Lady Chief Justice will select the appointee. What is proposed here is that the Prime Minister should pick from the bench of judges his or her preferred candidate. That feels like the use of a judge simply to fulfil a role that, frankly, does not need to be carried out by a judge.
For clarity, I emphasise that I am very much in favour of judges deciding on cases, but I do not see why a judge should fulfil the role of chief quangocrat for the administration of the regime. When we look at the functions the commissioner will have, it is quite right that, under the previous version of the Bill, most of those functions were given to the chief medical officer, because most of the required functions have to do with the administration of the medical aspects of the Bill. The collection of data and the monitoring of the operation of the Act are best left to a medic with experience of our healthcare system, rather than to a judge. These are not judicial functions.
The only function carried out by the commissioner that would require one to be a judge, or that is in a sense judicial, is the review of panel decisions, because a judicial decision is being made. Under new clause 17(2), the test is limited to an error of law, irrationality or procedural unfairness; those are the grounds for judicial review. If we did not have new clause 17, the ability for judicial review of panel decisions would remain. It could be argued that the new clause would actually limit judicial review by only allowing the person concerned to apply for reconsideration.
I understand that some courts in Canada, which has a comparable judicial and common law system to ours, have held that family members do not have standing to judicially review decisions to authorise medical assistance in dying. The suggestion has been made that families who are concerned that an error has been made in a decision to approve a death should be able to quickly get an injunction through a JR. I hope that that will be the case, if this law passes as proposed, but it certainly is not the experience elsewhere and I fear it might not be the experience here.
I am afraid that we have a dog’s breakfast of a system: all the problems of the High Court system that have been aired, but without any of the benefits. I will finish by quoting Sir James Munby. I know he has been cited regularly, but the hon. Member for Spen Valley said yesterday that, having listened to Sir James, she set herself the task of designing a system that would satisfy a former president of the family division. I am afraid to say that she has not succeeded in her task. I will quote a few points that Sir James made in response to the proposals in these new clauses. He stated:
“The process…is simply not apt to enable the panel to perform its function…The panel is given an extraordinary degree of discretion in relation to the process it is to adopt”.
He suggested that the panel is
“little more than a rubber stamp providing a veneer of judicial approbation”—
I do not think that rubber stamps provide veneers, but his point is well made and I respect it—
“and that is fundamentally unacceptable”.
Finally, he said:
“If the panel is to perform its function effectively and do more than just ‘check the paperwork’—if it is to be the real safeguard intended by its proponents—then its processes must be much more thorough than is currently proposed…All in all, in relation to the involvement of the panel in the process, the Bill still falls lamentably short of providing adequate safeguards.”
Kim Leadbeater
Many of us have quoted Sir James Munby, for whom I have a huge amount of respect, but there are a number of other views from ex-judges and very highly-regarded legal professionals that conflict with what Sir James says.
Danny Kruger
It would be very helpful if the hon. Lady could—not now; it need not be in the course of these deliberations—publish the evidence of that assertion. Which senior judicial figures have endorsed the new plan? It would be very helpful to hear from them.
We heard many criticisms of the previous regime. In my view, those objections prompted the change of heart that the new clauses derive from. From what I have seen, the weight of evidence indicates that we still have many of the problems that the High Court system had: a lack of effective powers and questions around capacity. We also have a whole new load of problems to do with the essential illegitimacy of a quasi-medical panel of people making an essentially judicial decision without the opportunity to hear in a meaningful way from all the different stakeholders who should be consulted.
Danny Kruger
I think the hon. Member for Spen Valley said yesterday that we had to grapple with this confusion, which is that there is a judge not sitting as a judge. It is slightly like a Minister not sitting as a Minister; the Bill has provided all sorts of interesting hybrid creations of people who inhabit split personalities and dual roles.
The hon. Member for Bradford West is, I think, right. From the evidence we have heard from the hon. Member for Spen Valley, although there will be a judge, which satisfies the cosmetic need to present this as some sort of continuation of the High Court stage that the House of Commons voted for, they will not sit as a judge. It is rather like having a hobby or a second job. I am not sure judges do that, but it is like chairing a football club on the side. Their status derives from their judicial role, but they are sitting as the commissioner in a lay capacity—I think I have that right.
Kim Leadbeater
We have already talked about this, and I think the hon. Gentleman mentioned it himself: there is a similar situation with public inquiries, on which a judge sits because of their skillset and who they are, but not necessarily in a traditional judicial capacity.
Danny Kruger
It will be interesting to hear from the Minister, who is more equipped than the rest of us to opine on this. My understanding is that a judge sitting as chair of a judicial inquiry might not be sitting in court, but they are there because they are a judge; their function, as the chair of the inquiry, is essentially judicial. That is the only comparison and it is essentially different, because the exercise of a public inquiry is time-limited and specific to a particular case, which is to determine the truth or otherwise of what happened in whatever situation it is being asked to inquire into.
Here, we are setting up a quango—an arm’s length body of Government—that will sit in perpetuity and oversee a bureaucracy of state. That is something that no judge does in our system and, in my view, would be completely inappropriate for a sitting judge to do, even if we could find a sitting judge prepared to fulfil that function, which I think might be challenging.
The other key difference is that a judge chairing a public inquiry is appointed by the Lady Chief Justice; they are essentially judicial in their appointment and work. The judiciary appoints one of its own to fulfil a judicial function as the chair of an inquiry. It is being proposed here that the Government—the Executive, not the judiciary—appoint the chair of the commission from the Bench of judges.
Naz Shah
What the hon. Gentleman has said creates another concern for me. If we do have a judge, and if the expectation is that they sit in a judicial capacity, does that not raise concerns that an appeal is allowed one way—if an assisted death is refused—but not the other way, if someone wants to appeal against an assisted death? By definition, does that position not become compromised?
Danny Kruger
I am afraid that that is absolutely right. There is an essential problem with the role of the commissioner as the backstop—the Court of Appeal, as it were—for what are effectively judicial decisions made by the non-judicial panel. The fact that appeals can be heard only against a refusal and not an approval confuses the whole question of appeal and judicial review. It is plainly unjust, and does indeed compromise the idea that the judicial figure has the independence that a judge should properly have. I agree with the hon. Member for Bradford West.
Naz Shah
I want to speak to amendment (c) to new schedule 2, tabled by my hon. Friend the Member for Lowestoft. The amendment requires members of the panel to have undertaken training in respect of domestic abuse, including coercive control, and financial abuse. It extends the principle of amendments 20, 21, and 22, also tabled in the name of my hon. Friend, which require the medical practitioners involved in the assisted dying process to have undertaken similar training.
Kim Leadbeater
A strong argument has been made to me that the professionals on the panel would have the skills and training to fulfil their role, but it is important, particularly given the time we have spent discussing this issue, that they do have it, so I am happy to support that amendment.
Naz Shah
I appreciate that. None the less, I will speak briefly to the amendment as I still have concerns. The amendment provides an absolutely necessary safeguard and I welcome the fact that my hon. Friend has accepted it. I am pleased that it extends to panel members, but it does not meet the safeguarding needs when it comes to people of ethnic minority backgrounds, coercion, cultural competence and so on. People and organisations have raised concerns about that.
The truth is that the Bill is very gendered: the analysis by women’s organisation The Other Half has found that if the Bill passes, and trends follow those of Australia, 1.65% of all deaths in this country could take place via assisted dying. If so, as many as 1,400 domestic abuse victims could die each year through that process. It is vital that Members on both sides of the debate are conscious that we are opening up a new avenue for domestic abuse through the Bill. That is what the amendment speaks to. To save the Committee time, I will not go over the detail because it was covered during our discussions of the previous three amendments.
Kit Malthouse
I rise briefly to amplify a couple of points from the excellent speeches by the hon. Members for Rother Valley and for Ipswich. First, in clarification, I understand that there are situations where judges can sit in essentially supervisory positions—not least, for example, on the BBC board—and they can of course be Cross Benchers in the House of Lords. They are allowed to undertake other charitable trustee roles, although they are restricted in their activities.
Danny Kruger
I think this is important. Those roles are what those judges do in their spare time—they could also chair a football club or something as well. The point is that they are being asked here to fulfil a function on behalf of the Government in their working hours, explicitly because they are a judge—yet they are not sitting as one. Surely my right hon. Friend acknowledges that that is essentially unprecedented.
Kit Malthouse
No, I do not acknowledge that at all. Over the years we have started to use judges relatively flexibly—even, for example, for non-statutory inquiries; my hon. Friend has referred only to statutory inquiries—and that is so much the better. I am not a lawyer myself but I believe in the rule of law, so I think that having judges opining on our freedoms or otherwise is generally good for the country.
I want to amplify a couple of points. On Second Reading, I made the case for the High Court to be involved. I agree with my hon. Friend the Member for East Wiltshire: at that stage, I was very happy for there to be effectively a scrutiny and authorisation third layer to the Bill. My understanding of judicial opinion was that, certainly in Lord Sumption’s view, that level was unnecessary; I think he referred to it being a profoundly intimate conversation that really should just be between the patient and the doctor. However, I think my hon. Friend the Member for East Wiltshire is right that the weight of the moment and opinion in the House then was that there should be that third layer of scrutiny and opinion.
I also dismiss the argument about the capacity of the judiciary to absorb this. I fear that if we start to accept that argument, we go down a very difficult road for Parliament—not least, for example, because we should then have opposed the Bill that went through the House on Monday night, because of its greater impositions. As many will know, the Crime and Policing Bill went through without a vote. It will impose new burdens on the judiciary and the police, as will the new offence of spiking. No doubt the immigration Bill coming through will also put significant extra burdens on the police and the courts.
There are two separate questions here: one is what Parliament does, and the other is the capacity of the public sector to absorb that. The answer is not to say, “Well, I am afraid all you people have to go through a death you do not want to go through”; it is to say that we do not have enough judges and to recruit more judges, if that is required. In my personal view it is not, but at the time my view was that if as a footballer I could show up in the middle of the night and get an injunction to stop The Daily Mirror from publishing unpleasant stories about me, then the judges should be able to find time in their schedule to accommodate the requirements of my death.
Danny Kruger
My right hon. Friend is absolutely right. If Parliament decides that we should proceed, then we should, and the public sector will be obliged to make accommodation and provide the necessary resources. Does he agree that, on that basis, it would be appropriate for the Government to have clarified by this stage what the resource requirements of the new system would be, to make clear that there is the capacity in the system to do it? Does he share my regret that that has not been done?
Kit Malthouse
No, I do not share that regret, because until today, and until we all vote on it, the Government do not actually know what they are facing. They have undertaken that they will produce exactly the assessment that my hon. Friend is talking about between the end of this process and Report, so we can all have a look at what it will be.
At that point, Members can put a price on other people’s death and other people’s pain if they want to, but there are lots of situations where the House of Commons decides about things on the basis of moral principle and public interest, and then we ask the public sector to absorb it. If that causes operational problems, then we solve those separately. In my 10 years in the House, I cannot remember anybody ever standing up and saying, “We shouldn’t do this because the public sector can’t cope.”
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I recall being on the Domestic Abuse Bill Committee. We heard time and again from public sector representatives that bringing in changes such as a domestic abuse register would bring extra work and be difficult. It is their job to flag up those points, but it is our job to assess what is the right thing to do in legislation.
Kit Malthouse
The hon. Lady puts it exactly right. These are two separate questions, and we should not conflate them. Certainly, we should not allow the House of Commons to be constrained by those capacity constraints from doing what it thinks is the right thing. We should do the right thing, and then put pressure on the Government to provide the facilities that we think are required.
Daniel Francis (Bexleyheath and Crayford) (Lab)
On that point, in our oral evidence we were not able to hear from witnesses about the changes to the clauses, because we did not understand what the repercussions would be at this stage.
Kit Malthouse
As I recall it, there were a number of questions at the oral evidence stage about the notion of there being a panel, specifically when we had the panel of lawyers. We asked about that. But the hon. Gentleman is right; the issue was an emerging one at the time. That is the nature of the kind of iterative policymaking, or legislative process, that we are going through at the moment. The Government have said that they will produce an impact assessment, so we can all have a look. It will not be long—three or four weeks—and then we will all be able to make a judgment.
Lewis Atkinson
I rise to respond to some of the points made by the hon. Member for East Wiltshire. I looked back on the Hansard report of the Second Reading debate and his position there, and I am somewhat confused. In his speech in that debate, he was entirely dismissive of the judge as a safeguard, but now, in Committee, he seems to have had a Damascene conversion in favour. That gets to the question of whether, as others have asked, there are any safeguards that would satisfy opponents of the Bill in principle.
I entirely respect the position of principled opponents to the Bill.
Danny Kruger
I look forward to hearing the hon. Member’s substantive remarks, but in explanation I should say that there are no safeguards that I think will make an assisted dying Bill adequate. I will oppose the Bill whatever happens because I think it would be dangerous for people however we do it. But if we are going to do it, let us do it as safely as we can. There are definitely ways in which we could improve the safety of the Bill, which have been suggested in the many amendments I have supported.
On the point about the judicial stage, I am very critical of clause 12 as it stands because it does not provide sufficient rigour and there are major questions about the capacity of the judiciary, as has been discussed. But the principle is absolutely right. It is important that, if we are going to do this, we have a judge to make the final decision. I was not satisfied with the Bill as presented, but I think we should be building on it, rather than reducing the judicial safeguard.
Lewis Atkinson
I thank the hon. Member for that point, but when someone cannot describe any version of safeguards that would be possible, and in the light of some of the other conversations we have had, one is led to believe, entirely respectfully, that some people are opposed to the Bill in principle in any instance.
The point that my hon. Friend the Member for Spen Valley made on Second Reading that this was the safest model in the world was not just about the fact that there was a judge, but about the fact that there was a third tier. That is not something that is in place in Oregon, or even in Australia, as we heard in evidence. Now, not only are we going to have a third tier of scrutiny, but we are going to have three professionals who must unanimously accept that the strict conditions for eligibility have been reached. I absolutely refute the suggestion that amending away from a High Court model and towards a panel model means that we have to recant any suggestion that this is the strongest model in the world.
Lewis Atkinson
I am going to continue this point, if I may.
The hon. Member for East Wiltshire asked what the purpose of the panel is. As is set out very clearly in new clause 21, it is about determining eligibility for assistance, with reference to the stringent rules and conditions that we will lay out in the Bill. The hon. Gentleman went on to ask about the purpose of the judge and suggested that it is a bureaucratic role. As new clause 14(4)(c) makes clear, the commissioner’s role is making arrangements for panels, and new schedule 2 is clear that the commissioner has powers to give guidance about the “practice and procedure” of those panels. Clearly, the commissioner will be a judicial figure with experience of proper process and procedure, and it is absolutely right that that person, who will set out the procedure for each of the panels, is a judge.
The hon. Gentleman made a point about MDTs. I am not sure whether he has worked in or around healthcare, as I and other members of the Committee have, but I say gently that the suggestion that individuals at the end of their lives are not in contact with multiple professionals is highly implausible. We are blessed in this country that we have some of the best cancer nursing in the world, and that we have palliative care social work. He previously asked which bodies had come out in support of this change. Well, the Association of Palliative Care Social Workers says:
“The inclusion of social workers as core members of these panels shows that Kim Leadbeater and her colleagues have taken on board our arguments that social workers are uniquely qualified and equipped to undertake the complex and sensitive tasks of assessing mental capacity and safeguarding individuals who may be subject to any form of undue influence or coercion.”
Lewis Atkinson
No, I am in a flow, so I am just going to keep going. I am mainly rebutting at this point, and I do not want to open the debate that much wider.
Invariably, we already have individuals at the end of their lives with multidisciplinary input that is appropriate to them, and we have heard already how the independent doctors and the panels will rightly seek input from all those involved in care.
It has been some time since the hon. Member for East Wiltshire and I had an exchange on our difference on the ventilator test, but I know that we have a fundamental, philosophical difference on that. I believe that a dying person saying, “Please, doctor, turn off my ventilator; I want to die,” is not fundamentally different from that person saying, “Please, doctor, let me take that medicine; I want to die.” I assert that the person in the street is closer to my view of that situation than to his, although I respect that people have different philosophical opinions about it. However, let us not forget that we sometimes conduct this debate about the correct oversight of the third tier in a theoretical manner, as if these people were not dying anyway, and as if deaths relating to refusal of treatment, and suicide, were not happening anyway.
Danny Kruger
Let us not rehash the argument about whether there is a difference between withdrawing treatment and actively killing somebody or giving them the opportunity to kill themselves. On the point about withdrawal of treatment, does the hon. Member acknowledge that when there is dispute over whether somebody should have their treatment withdrawn, it goes to a court and there is representation from both sides of that argument about whether the treatment should be withdrawn? If he is saying that these measures are essentially identical in principle, surely we should have the same mechanism to resolve disputes.
Lewis Atkinson
I thank the hon. Member for his intervention, but I am afraid he is confused. It goes to the Court of Protection when the individual is not capable of making that decision and there is a dispute about what the best-interests decision may be for that individual. That is entirely different from the dying person saying, “Please turn off my ventilator.” In that case, the Mental Capacity Act 2005 applies, as we have discussed at length in the Committee, but there are no further checks for coercion, capacity or motivation in the way that has been described. With the three panel members, we will now have at least five professionals, who must all be satisfied that there is no coercion. How many individuals should there be?
I see speculation, including on social media, about the number of people who might seek an assisted death and who may be subject to coercion. How many people who refuse treatment at the moment, without any of those checks, are subject to coercion? How many people who go to Switzerland, or who end their own lives, are subject to those checks? We do not know because we have no robust oversight of those instances. While I have absolute sympathy with the points raised by my hon. Friend the Member for Bexleyheath and Crayford, who made a very thoughtful and personal speech, as he always does, the exact same instances that he described would be permissible right here and now.
The hon. Member for Reigate shared some upsetting stories, I think from Canada, about the impact on family in speaking to the amendments on that subject. First, I point out that Canada’s system is nothing akin to the one that we are proposing, because it does not have the third-tier protections that my hon. Friend the Member for Spen Valley proposes in the Bill.
However, it is also important that we bring the debate back to talking about dying people here in the UK, and that we have some of their voices and experiences, and their families, in the room. We know that already, 650 terminally ill people end their own lives each year in the UK. Anil Douglas’s dad, Ian, took his life the day before his 60th birthday. He was in the terminal stages of multiple sclerosis, and he ended his own life without notifying his family, because he felt he had to protect them, due to the state of the current law. He managed to obtain opioids from the dark web and subsequently overdosed. In his final note, he wrote:
“I would like to have to put on record that had we had more sympathetic assisted-dying laws in this country, in all probability I would still be alive today.”
I will give one more example. On returning home from a trip to London, Peter Wilson discovered his wife, Beverly, dead in their home. She had terminal oesophageal cancer and had taken her own life, alone at their home in Nottinghamshire, when she knew that Peter would be 120 miles away. Even though Peter could prove that he was not present at the time of death, he was questioned by police for seven hours, and he was fingerprinted and photographed within hours of her death. That is the current situation that families—those we have discussed maximising care for—are facing in the UK. That is why we need a change in the law that includes robust, third-tier oversight.
Naz Shah
I will speak to amendment (b) to new schedule 2, but before I do, I will address some of what my hon. Friend the Member for Sunderland Central just talked about. To clarify something for the record, Glyn Berry, co-chair of the Association of Palliative Care Social Workers, of which there are 200 members—there are 200 social workers for palliative care in the country as it stands—has not given an endorsement, and has categorically said that the association does not support the panel structure, as it fails to support what the Bill is intended to do on assisted dying. I am happy to send my hon. Friend the reference for that.
The right hon. Member for North West Hampshire referred to panels in particular. I tried to intervene and ask him about this directly, but I will mention it now and I will be happy to give way should he wish me to. He told the Hansard Society that he was not supporting palliative care specialists at an earlier stage, simply because the issue of palliative care would be addressed in the structure of the panels, but that has not happened. I just wanted to put those concerns on the record before I moved on to my substantive speech.
Amendment (b) to new schedule 2, tabled by my hon. Friend the Member for Derby North (Catherine Atkinson), would amend the new schedule, tabled by my hon. Friend the Member for Spen Valley, to ensure that the Official Solicitor will nominate a person to represent the applicant before the panel. As it stands, the new schedule does not require the commissioner to give guidance about the practice and procedure of panels. However, if guidance is given, the panels, under paragraph 8(2),
“must have regard to any such guidance in the exercise of their functions.”
Amendment (b) would remove the relevant sub-paragraphs and replace them with the following:
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
What effect would this have?
I refer hon. Members to the written evidence submitted by Ruth Hughes, a senior barrister due to be appointed King’s counsel on 24 March. The written evidence number is 161. Ms Hughes notes that she has
“17 years’ experience of specialising in mental incapacity and the law in relation to vulnerable adults”
and that she has
“advised the Ministry of Justice on capacity related issues.”
She describes herself as
“one of the most experienced barristers specialising in the property and affairs of persons who lack mental capacity in the country.”
In this context, it is particularly noteworthy that Ms Hughes has frequently appeared in court instructed by the Office of the Official Solicitor and the Office of the Public Guardian. She says:
“In my professional experience, financial abuse of the vulnerable and those who lack mental capacity, or are approaching the borderline, is depressingly common.”
Ms Hughes is not someone who opposes the Bill at all costs; she seeks to strengthen its safeguards for those at risk of coercion. She states in her evidence that
“whilst I do not oppose the Bill, I am highly concerned that the safeguards proposed are insufficient to protect vulnerable people from exploitation for financial gain. I suggest it would be profoundly disturbing and wrong for Parliament to enact legislation which put vulnerable people at risk of being killed for financial gain without creating adequate safeguards to protect them.”
Those are very strong words from someone who I suspect is not in the habit of crying wolf. If we hear that kind of warning from a senior lawyer with Ms Hughes’s specialised knowledge of protecting at-risk adults, we should certainly listen.
Ms Hughes was a strong supporter of the use in the Bill as drafted of a High Court judge as the authority who would decide on assisted dying applications. She wrote:
“I suggest that the judicial safeguard is fundamentally important.”
She recommended, however, that the Bill should be amended to include five additional safeguards. I am pleased to say that my hon. Friend the Member for Spen Valley has accepted one of the five proposed protections: the requirement to hear from the person who wishes to die. Ms Hughes’s fifth recommendation bears directly on the amendment we are discussing. She says that the Bill should be amended to include an advocate who would
“ensure that the evidence in support of a claim is appropriately tested.”
Ms Hughes made that recommendation when my hon. Friend was still advocating for a High Court judge, rather than a panel, as the arbiter, but I do not see that the change from court to panel has in any way weakened the argument she made for an independent advocate. Explaining why she wants to increase safeguards, she says that in the Bill as drafted
“there is likely to be significantly less scrutiny of a decision by the Court in relation to assisted dying than there is for example currently in relation to a decision of the Court of Protection to withdraw life-sustaining treatment from a person, or even a decision as to where a person lacking capacity should live or with whom they should have contact.”
Ms Hughes said that one problem was that
“importantly, there is no person appointed to assist the Court to consider and test the evidence before it. Our Court system is inherently adversarial. Generally, two or more parties to a dispute will present evidence and argument to the Court and the Court will make findings of fact on the evidence and come to decisions on the law in accordance with those arguments. The Court is not hidebound, but equally it is not set up to obtain evidence itself. A scheme which does not provide for an independent party to consider the evidence and present arguments against an application will be unlikely to be robust and will not be well designed to identify, for example, a lack of capacity or the existence of coercion or pressure.”
This part of Ms Hughes’s evidence seems to be particularly important:
“Doctors, for example, may not be well placed to identify coercion, pressure or control. In my experience they are often missed by solicitors taking instructions for the making of gifts or wills. The best solution, perhaps the only good solution, to this problem would be to require the Official Solicitor to act as advocate to the Court in cases brought under the proposed legislation.”
It would be helpful if we explained the term “advocate to the court.” The Ministry of Justice published the following explanation of what an advocate to the court is and what they do, based on a 2001 memorandum agreement between the Attorney General and the Lord Chief Justice. The Ministry said:
“A court may properly seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney General may decide to appoint an Advocate to the Court…It is important to bear in mind that an Advocate to the Court represents no one. Their function is to give to the court such assistance as they are able on the relevant law and its application to the facts of the case.”
We should all see the advantage of being able, through the Official Solicitor, to give the panel the assistance of specialist lawyers. We should particularly see the advantage of the Official Solicitor being able to appoint barristers who are experienced in cases where capacity was in doubt or where people were possibly being coerced.
The Ministry of Justice explanation goes on to say:
“An Advocate to the Court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts.”
The word “normally” is important in this context. The advocate will perhaps not carry out these functions when acting to advise assisted dying panels, but we should note that the Ministry’s guidance does not state that they will never carry out such functions. As we have remarked more than once, we are in unmarked territory here.
I will end by quoting some more of Ms Hughes’s evidence, because it is clearly written by an expert in their field. She says:
“In my experience it is not uncommon where a vulnerable person is controlled or is lacking capacity for the person to be apparently expressing wishes in a clear and forceful manner. This can easily be mistaken for a person acting freely and with capacity.”
That statement is a powerful counterpoint to some of the confident claims we heard from witnesses about it being relatively easy for doctors to detect coercion. Some of the witnesses from Australia and California were particularly noteworthy in that regard.
Ms Hughes goes on:
“In short, the risks of the Bill are real and substantial. The challenge for Parliament is how to mitigate them. The current drafting is inadequate.”
That is evidence we should not ignore. It comes from a distinguished lawyer who is not an opponent of the Bill but who fears that, as drafted, it will not protect the vulnerable. She has offered us what seems to be a workable solution to the problem that concerns her: create a mechanism to involve the Official Solicitor. Amendment (b) to new schedule 2, tabled by my hon. Friend the Member for Derby North, would allow us to put that into practice. I hope that all Committee members can support the amendment and increase the protection that the Bill offers to vulnerable people at risk of coercion.
Sean Woodcock (Banbury) (Lab)
It is a pleasure to have you here this afternoon, Ms McVey. I did not intend to make a contribution, but given the number of contributions that have been made, I wanted to respond to them. It has been a really interesting and important sitting.
My hon. Friend the Member for Ipswich is right. I see the panel as a genuine attempt to respond to the evidence we heard in the witness sessions and improve the process. I take that absolutely as read, particularly in respect of the evidence from Rachel Clarke, whose view was that coercion is happening and that we should take the NHS as it is, not as we would like it to be. I see the attempt at introducing a panel as a response to that.
The right hon. Member for North West Hampshire is absolutely right to state that if there is a moral imperative to do something, Parliament should look at passing it and then the public services should figure out how they implement it afterwards. He is right in that. There is obviously a question about whether there is that moral imperative, but he is right to point that out.
Although I take the panel as a sincere attempt to strengthen the Bill, I feel that, as put before us, it is not strong enough. That is why I spoke yesterday to amendment (d) to new clause 21, tabled by my hon. Friend the Member for Derby North, which would ensure that the process was done properly and robustly. Nobody wants to see people dragged in front of a court when they are unwell, but there is the matter of safeguarding, and we do have a concern over coercion. It is integral to ensure we have public trust, so I urge the Bill’s proponents to consider those concerns again.
Jack Abbott
My hon. Friend makes a really good point, especially on the issue of coercion. Amendments on coercion training have been agreed to. Does my hon. Friend think the court system as it stands can deal with his concern about coercion, or will the panel be more able to deal with that kind of concern?
Sean Woodcock
That is my next point—and it is a good question. As I said, the panel is done with the right intention and would improve the process in many ways. My view is similar to that of the hon. Member for East Wiltshire—it is possibly one aspect on which we are in agreement—in that I think it comes at the wrong part of the process. If it was earlier in the process, it would improve things. Court capacity is an issue, but I take the point made by the right hon. Member for North West Hampshire that if we want the courts to do it, they need to get on and do it.
I keep coming back to the issue of what we are asking the state to do. Implementing the wishes and autonomy of the patient is important, but we also need to take very seriously what we are asking the state to allow to be done in its name. There is also the crucial matter of public trust, the condition of the national health service and the issue of capacity in the courts. As my hon. Friend the Member for Ipswich touched on, there is considerable disquiet and concern about how robust this process is going to be. Even though I think having the panel at the start of the process would improve what was put to the House on Second Reading, having judicial oversight at the very end would provide reassurance to the vast swathes of the public who are concerned about this, as well as to Members.
Danny Kruger
The hon. Gentleman is making an important point and I completely agree. Does he agree that the hon. Member for Spen Valley recognised the problems with the lack of a multidisciplinary team in the process and the problems of court capacity, and through her attempt to address both those problems we now have a multidisciplinary team instead of the judicial role? What we really need is both: we need a properly constituted multidisciplinary assessment at the beginning, and then we need the final process to be an approval by a judge. Does the hon. Gentleman agree that that would be a better process?
Sean Woodcock
Having thought about it, that would be my preference. I am in a difficult position in that there is a lot to be said for the panel, and it would improve the process in many ways, but I cannot get around the fact that the judicial aspect was put strongly before Parliament, and ensuring that we would have those safeguards provided reassurance to Members. When I have been out on the doorstep talking to people who are in favour of the Bill—people who wanted me to vote in favour of it—they have said to me that they think the proposal is safe because it includes two doctors and judicial oversight. That does come up, which is why I think we need to keep judicial oversight in the Bill. I do, though, I recognise the very genuine attempt by my hon. Friend the Member for Spen Valley to introduce the panel to improve on some aspects and address the concerns expressed in the witness testimony.
Naz Shah
If I may, Ms McVey, I will speak to the issue of the judicial oversight of the panel and the whole of new clause 21. I would like to understand something, and perhaps the Minister or my hon. Friend the Member for Spen Valley could help me. We have been talking a lot about judicial oversight. My concern is that even if we had judicial oversight, there is no liability if something goes wrong. We would have had judicial oversight, but now we have panel oversight—non-judicial oversight—of the decision. Even then, what if somebody went down the assisted dying route and an issue was raised afterwards? What recourse would anybody—family members and so on—have to hold anybody liable if they did something wrong, including, potentially, the commissioner?
The Minister of State, Ministry of Justice (Sarah Sackman)
It is a pleasure to serve under your chairship, Ms McVey.
As my hon. Friend the Minister for Care and I have made clear throughout debate, the Government continue to remain neutral on the Bill and do not have a position on assisted dying. Once again, my remarks will focus on the legal and practical impacts of the amendments, with a view to assisting Committee members. I will first speak to amendments 371 to 373, 377, 378, 381, 388, 390 and 391, new clauses 14, 15, 17 and 21, and new schedules 1 and 2, all tabled by my hon. Friend the Member for Spen Valley.
In executing our duties to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley in relation to the amendments, which propose the voluntary assisted dying commission and the panels. They reflect my hon. Friend’s intent to replace the court approval process that is currently set out in the Bill. I confirm that this change was driven not by capacity concerns from within Government, but by the Bill promoter’s policy intent. Let me be clear: the High Court stage could be made to work, but if the Committee and Parliament elect for the commissioner and panel model, the state will work to deliver that.
New clause 14 and consequential amendment 391 would provide for the establishment of a voluntary assisted dying commissioner. In keeping with other appointments of this significance, the commissioner would be appointed by the Prime Minister, and the individual in post must hold or have held office—so it is not sitting judges, but could be a retired judge—as a judge of the Supreme Court, the Court of Appeal or the High Court.
New clause 14 sets out the central functions of the commissioner, which will be detailed further in new clauses 15 and 17 and new schedule 1. The commissioner would receive documents, including the reports from the co-ordinating doctor and declarations under the legislation, make appointments to the list of persons eligible to sit on assisted dying review panels, and refer cases to those panels, which would replace the role of the High Court in the original draft of the Bill. In addition, the commissioner would have the responsibility for monitoring the Bill’s operation and reporting annually to Parliament, which we will no doubt come to in clause 34. It is important to pause there, because that is one aspect in which the commissioner model is distinct from that of a court or tribunal. It will serve multiple functions, not least the monitoring of the Bill’s operation and reporting on that annually to Parliament.
New schedule 1 contains practical arrangements for the office of the voluntary assisted dying commissioner, as established in new clause 14. In practice, we anticipate that the commissioner’s office will be a non-departmental public body. The establishment of such an office to support the Government-appointed chair or commissioner is common practice for roles of this nature. One such model is the Investigatory Powers Commissioner, which is chaired by a person who is holding or who has held high judicial office. The schedule also introduces the role of a deputy commissioner, who, like the commissioner, must have been appointed by the Prime Minister and hold or have held office as a judge of the Supreme Court, the Court of Appeal or the High Court.
Both the commissioner and deputy commissioner would be appointed for terms of five years, with their remuneration set by the Secretary of State. The commissioner would have the ability to appoint their own staff, having obtained approval from the Secretary of State in regard to the number of staff, the remuneration and the terms, as well as providing an annual statement of accounts. In the ordinary way, such a public body would be subject to other statutory provisions, not least the Equality Act 2010.
New clause 15 would establish the mechanism for the referral by the voluntary assisted dying commissioner to an assisted dying review panel. When the commissioner receives a first declaration from the person seeking assistance, and reports from the co-ordinating and independent doctors as to their assessments of the person—including a statement by those doctors as to the person’s eligibility for assistance—they would be required to refer the case to a panel as soon as reasonably practical. In practice, the task of organising the work of each panel would fall to the commissioner’s office. The co-ordinating doctor would be required to inform the commissioner where a first or second declaration is cancelled. Where the commissioner is informed of the cancellation of the first declaration, they must not refer the case to a panel, or must inform the panel to disregard the application if already referred.
Amendments 371, 372, 373, 377, 378, 381, 388 and 390 are all consequential amendments on new clause 21, and together establish the mechanism for the consideration of cases by the assisted dying review panels in place of the High Court. Panels would be required to review each case and issue a certificate of eligibility where they are satisfied that all requirements set out in the Bill have been met.
Sarah Olney
I seek clarification. As drafted, in clause 12(1)(c), the High Court would give
“a declaration that the requirements of this Act have been met”,
but in new clause 21(6)(a), the panel is required to issue a certificate of eligibility, to which the Minister just referred. I seek the Minister’s guidance on whether it is the Government’s view that the High Court declaration has equal weight in law to the certificate of eligibility set out in new clause 21. I ask particularly because that certificate will be relied on for the purposes of suspending the Suicide Act 1961, under which a criminal offence would otherwise have been committed. The certificate of eligibility will need to be relied on to demonstrate that no criminal offence has been committed under that law. Is it the view of the Minister and the Government that a High Court direction, as originally required, can now be fully replaced by, and have equal weight with, a certificate of eligibility?
Sarah Sackman
As I understand it, everything has to be internally coherent in whatever the final draft of the Bill is. Within this structure, because in this case it is a panel that issues the certificate, it is its own sui generis certificate appropriate to this process. The declaration that was referred to in the earlier draft is one that the High Court would normally do. Given that this is on the face of the Bill, and will be in primary legislation, it would have legal force and would, if it were internally coherent with the rest of the legislation, have the legal effect of operating coherently with the criminal offences and, indeed, with the suspension of the Suicide Act, as the hon. Lady just asked. That is my understanding.
Sarah Olney
My original question was more about whether it has the same legal force as a High Court direction.
Sarah Sackman
My understanding is that it would, yes. If I am wrong about that, I will obviously come back to the Committee and correct it, but my understanding is that it would. They are two different things—one is called a certificate of eligibility and one is a High Court declaration—but in terms of how they operate within this legal scheme, my understanding is that they would have the same legal effect, and they are intended to.
Under new clause 21, the panel must hear from, and may question, the person seeking assistance and the co-ordinating doctor, or the independent doctor, or both. The panel may also hear, and may question, the person’s proxy if that is relevant, and any other person, including those appearing to have relevant knowledge or experience. This could include family members, or other individuals with an interest in the welfare of the person, as well as other experts. The new clause is explicit that the panel must not grant the certificate of eligibility if it is not satisfied that all the requirements have been met. Further consequential amendments introduce references to the certificate of eligibility throughout the Bill. Once the panel has made a decision, it will be required to notify the person seeking assistance, the co-ordinating doctor, the commissioner and any other person specified in the regulations.
As others have pointed out, the amendments tabled by my hon. Friend the Member for Spen Valley do not spell out every step of the process or the procedure that the panels would be expected to follow. That is left to secondary legislation, and it will be for the commission and the commissioner to produce their own guidance on how the panels and the panel procedure are intended to be governed and regulated. That is in line with the approach to legislation more broadly, with main objectives typically set out in primary legislation, and secondary policy issues and technical and administrative matters, dealt with through secondary legislation, regulations and guidance.
Sarah Sackman
I believe it is in there. Let me find the relevant provision so that I can refer my hon. Friend to it.
Sarah Sackman
It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:
“Decisions of a panel may be taken by a majority vote”.
Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:
“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”
That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.
Danny Kruger
I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.
Sarah Sackman
That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.
Daniel Francis
I was once on a planning committee in which one member of the committee voted in favour and all the other members abstained, so the recommendation went through one to zero. Technically, given the way in which new schedule 2 reads to me, that could happen, because one member could vote in favour and two could abstain, and that would therefore be considered unanimous. Will the Minister comment on that?
Sarah Sackman
We are discussing how to construe the provision in paragraph 5 of new schedule 2. I should reiterate that, obviously, it is the promoter’s intent to have—hon. Members may call it what they will—the safeguard of unanimity behind that provision. If there is any feeling that the drafting does not fully reflect that intent, it can be tightened up. However, under of the Bill, there is clearly an intent to have unanimity in respect of the final decision about certification.
Kim Leadbeater
It absolutely is the policy intent that there should be a unanimous decision of the panel. If there is any lack of clarity, I am very happy to look into working with official draftspeople to tighten that up.
Sarah Sackman
I thank hon. Members for their interventions.
In respect of the standard that would be applied in order for the panel to be satisfied, in practice, as I was saying, the panel would establish a case on the balance of probability in those circumstances only on the basis of strong evidence. In other words, the more serious the issue to be determined, the closer the scrutiny and the stronger the evidence required.
Introducing a requirement for the panel to be satisfied beyond all reasonable doubt at this stage would create a difference to, or a divergence from, the standard applied by professionals earlier in the process, such as by the doctors in the first and second assessments, and—I think the hon. Member for Reigate acknowledged this in her speech—to ascertain whether, among other things, the person has capacity to make the decision to end their own life, whether they have a clear, settled and informed wish to do so, and that they have not been pressured or coerced. Such a requirement would create the problem of making the application of the Bill incoherent because, of course, if a civil standard has been applied earlier in the process, the higher, criminal bar could never be satisfied at the panel stage. The principal decision is what standard should be applied and, as I have said, the civil standard is used in other end-of-life decisions, but there is also a question of the internal coherence of the Bill.
Rebecca Paul
I thank the Minister for the very clear way in which she is explaining everything. I completely acknowledge what she has just said. As she rightly said, I alluded to the fact that I tried to make the change at an earlier stage, but was unsuccessful, and I am now trying to put it through here. Can the Minister comment on the meaning of “satisfied”? If we are not going to have “beyond reasonable doubt”, can she expand a little on the meaning of “satisfied” and whether she is comfortable that that is clear enough for these purposes?
Sarah Sackman
The answer is yes. I, on behalf of the Government, am satisfied that that would be commonly and well understood by those applying it, and any court construing it, that the standard to be applied is the civil standard. That would be understood by not just the commissioner in terms of laying down the rules for the panels, but the panels themselves. It is important to recall that as Lord Bingham, one of the most distinguished judges that this country has ever produced, once said,
“The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved”,
and there is no doubt, based on what Parliament has debated, about the utmost seriousness of these issues. To answer the hon. Member’s question, the answer is yes, I think it is clear. That is the Government’s position.
Amendment (b) to new clause 21 would give the panel discretion to refuse to grant a certificate of eligibility where the requirements stated in the Bill are met if it believes there are
“particular circumstances which make it inappropriate for the person”
to be provided with assistance. The Government’s view is that this could risk unpredictability and inconsistency in the panel’s decision making and reduce legal certainty for the person seeking assistance, as well as for the panel.
Amendment (c) to new clause 21 concerns three specific requirements under subsection (2):
“(c) that the person has capacity…(h) that the person has a clear, settled and informed wish to end their own life”
and
“(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person”.
The amendment would mean that despite finding that those criteria had been met on the balance of probabilities, the panel could stay proceedings when it believed there was a real risk that they have not been satisfied. As with amendment (b) to new clause 21, this could result in uncertainty for the applicant and in terms of what is required of the panel in its decision making.
As I referred to earlier, in a lot of these decisions, the question of whether somebody has capacity or is being coerced is ultimately a binary decision for each panel member. The person has capacity or they do not. In applying the civil standard with the rigour that Lord Bingham spoke about in the most serious cases in circumstances when the panel or its members identify that there is a real risk, one would expect them to exercise their discretionary powers to seek more evidence to remove that risk and doubt, and if that persists, to refuse and make the binary choice that the person does not have capacity or is being coerced, or vice versa.
Amendment (d) to new clause 21 would require the panel to hear from and question both assessing doctors, as opposed to the requirement that the person must hear from, and may question, one of the doctors, and may hear from and question both. The amendment would also require the panel to hear from and question the person seeking assistance and the person’s proxy when clause 15 applies. Under new clause 21, the panel must hear from and may question the person seeking assistance and would have the ability to hear from and question their proxy.
The amendment would also make it explicit that the panel must consider hearing from and questioning parties interested in the welfare of the person and those involved in the person’s care. Under new clause 21, the panel would have the ability to hear from any other person, which could include family members, caregivers and whomever else it deems appropriate.
Naz Shah
I appreciate that, under the new clause, the panel can hear from anybody. Can the Minister confirm that the panel is unable, unlike a mental health tribunal, to summon people to appear before them or insist that witnesses appear, and to make them swear under oath when presenting their evidence?
Sarah Sackman
My hon. Friend is absolutely right. Under the Bill as drafted, a panel and the commission are not invested with powers of summons, and the evidence that is heard and requested is not conveyed under oath. It is not a court or a tribunal. Those provisions do not apply, so she is absolutely right. They can make the request, but they cannot compel someone to attend.
Amendment (e) to new clause 21 would make it explicit that, when considered appropriate for medical reasons, the panel would be able to use pre-recorded audio or video material when considering evidence for the purposes of determining a person’s eligibility for assistance. Panel procedure would be set out in guidance issued by the commissioner, which would detail the processes governing the panel process in general, but also for the use of that form of evidence.
New schedule 2, which was tabled by my hon. Friend the. Member for Spen Valley, builds on the new clause 21. The new schedule further details the composition and the intended proceedings of the assisted dying review panels. As we have heard, panels would be formed of three members, including a legal member sitting as chair, a psychiatrist and a social worker.
Thanks to the hon. Member for Richmond Park, we have dealt with the provision on decisions to grant the certificate of eligibility and how they will be determined by members of the panel. We heard from the promoter herself, my hon. Friend the Member for Spen Valley, that the intention is that such decisions are unanimous.
The commissioner would be responsible for making appointments to a list of persons eligible to sit as members of the multidisciplinary panels, and for establishing those panels. Under the schedule, the legal member as chair of the panel must hold or have held high judicial office, be one of His Majesty’s counsel—that is a KC—or have been authorised as a temporary judge in the High Court. The psychiatrist member must be a registered medical practitioner and a practising registered psychiatrist, and the social worker member must appear on the register maintained by Social Work England or Social Work Wales.
Sarah Sackman
I think the hon. Lady is right that that is not specified as a requirement. All three panel members would be drawn from the relevant professions and would therefore be subject to the standards pertaining to those professions. In the legal profession, they will be practitioners who are experienced in analysis and reaching decisions based on facts and law. The professional standards for all three regulated professions place a high value not just on integrity, but on impartiality. For the commissioner and for any judges on the panel, the “Guide to Judicial Conduct” makes the principles explicit.
Naz Shah
The Minister mentions impartiality. As things stand, the doctors who take part in the process will have made the choice to do so. Would the same yardstick be applied to the panel, or would its members just be appointed? Could they choose not to participate in the process?
Sarah Sackman
I anticipate that members of the professions will apply to be members of the panel. There will have to be a recruitment process, which is something that the commissioner, who is appointed by the Prime Minister, will undertake. I emphasise the point that all the professions, in their different ways—I am obviously most familiar with the legal profession, particularly the Bar—are governed by professional standards that specify the need for and place a high value on not just integrity, but impartiality.
Sarah Sackman
There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.
One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.
Danny Kruger
I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?
I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?
Sarah Sackman
The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.
On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.
Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.
Kim Leadbeater
It is important to acknowledge that it will be a number of years before this law will be implemented. Hopefully, the Government will continue the fantastic job that they are doing to improve capacity in our courts, so that even if capacity is an issue now, a few years down the line it will not be.
Sarah Sackman
I thank my hon. Friend for that encouragement. The Government’s position throughout the entire process, in so far as we have worked with her on these amendments and others to give effect to her intent, is to ensure that they are workable and operable. If this were not workable, we would not be here discussing it.
There are several examples across Government of judges or senior lawyers and KCs sitting on decision-making panels or in organisations or bodies that sit outside the framework of His Majesty’s Courts and Tribunals Service. We have discussed some examples, such as public inquiries. I say this as the Minister for courts: it speaks to the trust and public confidence in both judges and KCs that when there is a public policy challenge to which many of us as politicians struggle to find a resolution, we so often turn to judge-led and KC-led inquiries to establish either what has happened or how systems can be improved. That is partly because of the impartiality and integrity that they bring to that work. I offer the example of the judicial commissioners who operate on behalf of the Investigatory Powers Commissioner and who provide independent authorisation of application for the use of the most intrusive investigatory powers.
We have mentioned inquiries; I have also mentioned Parole Board panels as an example of inquisitorial rather than adversarial panels. They are often multidisciplinary, and many of their members are current or retired judges. They sit and hear issues of the most complex nature, assessing the risk that prisoners may present to the public on release.
Danny Kruger
I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?
Sarah Sackman
I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.
The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.
Sarah Olney
I am trying to clarify this for my own benefit, because I am not familiar with some of these procedures. Is there a difference between a High Court judge leading an inquiry or sitting on a panel, using their legal experience to provide advice or recommendations or give an opinion, and having a judge sitting in the High Court, who, under the original wording of clause 12, would be giving a direction? If there is a difference, have we not crossed from one role to the other by introducing a panel rather than a High Court direction? Does that matter for the purposes of the legislation?
Sarah Sackman
To be absolutely clear, what we are discussing reflects the intent of my hon. Friend the Member for Spen Valley. It is important to break it down. We have a judge in the role of the commissioner, and the commissioner will set up the framework and guidance for how the panels will operate and will lend their expertise. Our judges often sit on the Civil Procedure Rule Committee, developing the appropriate practice to govern the process in question. In this case, it would be the process of providing the third layer and the assessment whether the eligibility criteria have been met.
The commissioner would also—and this is where the role is distinct from that of a court or tribunal—provide a monitoring and reporting function to Parliament on the operation of the Act. That is a fundamental distinction from the model that we will have if we pursue clause 12, because in that case each application for an assisted death would go to whichever High Court judge happened to be sitting on that day. There would be no requirement for particular expertise on the part of the High Court judge, and that judge would not have to report on the operation of the Act. It is a different model that my hon. Friend has elected.
Liz Saville Roberts
The situation exists already in Wales. For example, people are prepared to travel in order to facilitate Welsh-medium coroner inquests. There are local authorities such as my own, Gwynedd, that have a requirement that all social workers be able to work in the medium of Welsh. The requirement will already be there, but this is a process of acknowledging those psychiatrists who are able to meet it. It is critical for the Bill, if we are to put the person and their needs first.
I urge the Minister to consider the amendment. We are already familiar with this matter in relation to digital technology and the operations that we already need to put in place to allow people to use their language in Wales. The amendment recognises the dire situation. It recognises the absolute urgency of people who are at the most stressful time in their life being able to use the language that they prefer.
Sarah Sackman
I want to reassure the right hon. Lady about the provisions that will apply even if her amendment is not accepted. The Welsh Language Act 1993 requires public bodies that are either named in the Act or named by Welsh Ministers, and which provide services to the public in Wales, to prepare a Welsh language scheme setting out the steps that the body will take in relation to the use of the Welsh language while providing those services. As I understand it, this approach is used all the time in legal proceedings in Wales.
In an instance in which a party wishes to speak in Welsh at the proceedings, section 22 of the 1993 Act will apply. Any party to the legal proceedings can express themselves in Welsh, at which point a Welsh interpreter would be commissioned to facilitate the discussion. That will happen. That will be the status quo—the backstop, if you like—without the amendment. Requiring all members of the panel to speak fluent Welsh would, in the Government’s view, be a significant operational challenge that could lead to undue delay at the end of life.
Tom Gordon
I speak only one language and it is definitely not Welsh, even though I did have a stint working in Wales. With any language, things can be lost in translation. When we are talking about something like assisted dying, does the Minister acknowledge that even with very skilled interpreters, there would have to be a suitable level of training to make sure that everything was fully thought through and there were no cracks—that nothing would slip through the net. That is not covered under the Welsh Language Act currently, and that is why the amendment has been tabled. Does she appreciate the severity of that?
Sarah Sackman
]The right hon. Member for Dwyfor Meirionnydd and the hon. Members for Chesham and Amersham and for Harrogate and Knaresborough have all put their case incredibly powerfully. In emphasising the operational difficulties that the Government have identified, I will make this point. The approach under section 22 of the Welsh Language Act is that the ability to speak in Welsh and have interpretation services is adopted in very serious legal proceedings indeed. The hon. Gentleman is right: we are talking about nuances that can determine civil or criminal liability; those are very serious issues indeed. I am not saying that that is quite as serious as matters of life or death, but getting right the sorts of things that interpreters need to ensure they are getting right, as well as vindicating the person’s ability to express themselves in their mother tongue or their preferred tongue, is something that happens already and would happen under the operation of this legislation.
Liz Saville Roberts
I wonder whether the Minister appreciates that when it comes to Welsh speakers using their language in the face of the majority language, English, with its status, what we are doing here is putting another barrier in their way: “I am making a nuisance of myself; I have to ask a favour and get interpreters.” That is not what we should be doing with this legislation. We should be putting those people first and making sure that they can express themselves at this most emotional time as effectively as possible. Interpreters should not be in the room with the assisted dying panels. That is fundamentally against the nature of the Bill.
Sarah Sackman
I appreciate the passion and force with which the right hon. Lady makes that point. I have set out the Government’s concerns about deliverability—the operational challenges around delivering what has been suggested. This is a case of applying section 22 of the Welsh Language Act to the commissioner, who under the promoter’s new schedule 2 would be able to give guidance to panels on how exactly they should facilitate exactly what the right hon. Lady is seeking—the ability of the dying person who is seeking an assisted death to express themselves through the Welsh language within those most sensitive of proceedings. There could be facilitation by the commissioner in order to commission an interpreter and assist the person to speak in Welsh.
I appreciate that the right hon. Lady feels that that would create a barrier that is not appropriate to this context, but I think it is a reflection of the fact that certainly the Government are not seeking to stand in the way of people expressing themselves in Welsh. We want to vindicate that. It is in line with our wider commitment to devolution and to working with the devolved Governments in the context of the Bill. The right hon. Lady has made her point forcefully, and no doubt the Committee will come to vote on this amendment, but I have to, on behalf of the Government, acting responsibly, lay out some of the challenges that it would mean to the operability and deliverability of the Bill.
Sarah Green (Chesham and Amersham) (LD)
I accept that the Minister is in a difficult position, because she is presenting the case for the Government’s position and cannot take a position herself. I will just gently ask whether she accepts the weariness of Welsh language speakers and campaigners over generations, who have been faced time and again with the same argument—of operational challenges, whatever that issue may be. I suggest to her that perhaps it is time that the Government stopped using that excuse.
Sarah Sackman
I thank the hon. Lady for that intervention. She has heard the Government’s position on the operation of the Bill. As I said, it is important that, in the event that this amendment is not taken forward, the points and the force with which they are made are fed into the commissioner’s modus operandi in order, as far as possible and within what resources allow, to allow people to express themselves in the Welsh language. As I said, I want to put on record our continued commitment to devolution in that context, and to working with the Welsh Government to resolve in a thoughtful and constructive way any of the outstanding legal, technical and constitutional issues that may arise.
Liz Saville Roberts
Surely many of the constitutional issues that we are discussing should be decided by the Senedd and the Welsh Government. It is a matter of urgency now that we discuss the “appropriate authority”, which is a term used in other legislation. I believe that in the Crime and Policing Bill, “appropriate authority” is used in relation to England and Scotland. We need to have clarity on these decisions as we move ahead.
Sarah Sackman
The right hon. Lady is absolutely right that we do need clarity. As my hon. Friend the Member for Spen Valley has made clear, the intention is for the legislation to apply across both England and Wales, and the model being proposed under these provisions is a single commission. We need to ensure close working to resolve those technical and legal issues.
Amendment (b) to new schedule 2 deals with the issue of the Official Solicitor. It seeks to establish a process through which a person nominated by the Official Solicitor acts as an advocate to the panel. It is important to remind ourselves of the role that the Official Solicitor typically plays. They act as a litigation friend, and where they do act as an advocate to the court, the purpose of that function is to assist courts on a difficult or novel point of law. The focus of the Official Solicitor is in representing adults who lack mental capacity, and children. Both groups are plainly out of the scope of the Bill. The Bill applies to someone who has capacity and who is applying for an assisted death.
The amendment would require a significant and radical change in the function and focus of the Official Solicitor. Under new schedule 2, assisted dying review panels would have their own powers to determine whether the requirements of the Bill had been met, including the ability to hear from and question any other person.
Naz Shah
The Minister is being very generous in giving way. I want to understand something. She says that the Official Solicitor is there to help with adults who lack capacity, but in the cases before the Court of Protection of the girls who had anorexia, the judges took a decision that they should not continue to be force-fed. The judges concluded in nine of 10 cases that they lacked capacity, and yet accepted that these girls were inevitably going to die. In that case, would the role of the Official Solicitor not be helpful as a further safeguard?
Sarah Sackman
It is important to look at this issue in the context of what my hon. Friend the Member for Spen Valley is setting out to do through the legislation, and what the panel’s function is, which is the function that was discussed in the debate. This is not a trial or an inquiry. That is not what is being undertaken by the panel. The panel’s purpose is to ensure that the eligibility criteria process has been followed in a correct, lawful and safe way. As others have pointed out, it is not adversarial, and will not be described as such in the Bill.
All that I am saying on behalf of the Government is that the Official Solicitor’s role is most frequently to assist in court with a difficult or novel point of law when the person cannot do it themselves. Well, we do not have that here. We are not determining points of law; we are determining whether this person has met the eligibility criteria. Secondly, the Official Solicitor’s role is for when individuals lack capacity. In the Bill, by definition, the person who is applying has already satisfied two doctors that they have capacity. Of course, the question of capacity may be something that the panel wishes to explore further—it has the three panel members and the ability to draw on its powers to seek further information to test that—but it is not clear, without altering the current role that the Official Solicitor plays within our legal system, what role they would be serving.
Naz Shah
I appreciate the Minister’s position and am grateful for her explanation, but it does not address the central point, which is that nine girls were deemed not to have capacity. Despite all the amendments that have been tabled and the letter from all the charities about anorexia, that has not been addressed. In absence of any impact assessment on one of the issues that most frustrates me, how do the Government conclude that the workability of the Bill is sufficient? Will it work, given that we do not have the protection for those girls who may have anorexia? There is precedent for such girls who did not have capacity. How will the Government safeguard those girls in particular?
Sarah Sackman
I thank my hon. Friend for her intervention. She has brought up that case a number of times in various debates on the Bill. In this context, part of the provision—in terms of the design and operation of the commissioner and the panels to which the various cases are referred—is the development of guidance. If the commissioner deems specific processes appropriate to the consideration of applications for assisted death where anorexia is an issue, that guidance can be developed. Again, that is a matter for the promoter of the Bill, but one might have thought that having a dedicated body in relation to assisted death—which also has the monitoring function that we will come to in clause 34—means the development of expertise in dealing with cases, in particular those especially difficult cases of the nature my hon. Friend the Member for Bradford West raises. From a Government point of view, that would not necessarily flow—it is hard to see why it would at all—from the High Court, if we revert to that. That is a distinction between the two models that the Bill’s promoter has explored.
Kim Leadbeater
That is another important argument for having the panel. Where a terminally ill person with an eating disorder has been deemed to have capacity by two doctors and—I surmise, as we now have the compulsory referral—a psychiatrist, we will have on the panel another psychiatrist and a social worker. The panel does help to address concerns about capacity. Does the Minister agree?
Sarah Sackman
My hon. Friend has developed her thinking, and the Government have worked with her to reflect that policy intent. I think she is right that the panel is capable of doing just that and it could operate in that way.
Amendment (c) to new schedule 2 relates to the issue of domestic abuse training. It would make the voluntary assisted dying commissioner responsible for ensuring that all panel members had received training on domestic abuse, including coercive control and financial abuse. Persons appointed to the list of eligible panel members would already be qualified in the field of law, psychiatry or social work, and would have done all the training that pertains to receiving a professional qualification in those fields.
In addition, under new schedule 2 tabled by my hon. Friend the Member for Spen Valley, the commissioner would be able to give guidance to the panels, which could include training requirements, and the panels must have regard to that guidance in the exercise of their functions. That is all I propose to say about that. It might be seen as an example of something that would typically—I am not saying it has to—be left to regulation or the guidance, rather than being in primary legislation.
Amendment (d) to new schedule 2 relates to the panel sitting in private or in public. It seeks to ensure that panels sit in private by default.
Kit Malthouse
I am not sure that my amendment (d) was selected—unfortunately, I missed the deadline—so the Minister does not need to cover it.
The Chair
I did not wish to say that, but the Minister did. We will come back at 5.10 pm.