Terminally Ill Adults (End of Life) Bill (Twenty-seventh sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 19th March 2025
(1 year, 4 months ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 19 March 2025 - (19 Mar 2025)
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 17 - Question accordingly negatived.
The Committee divided: - Ayes: 17 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 19 / Noes: 1 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 15 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 19 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 13 - Question accordingly negatived.
Danny Kruger
I do not know what those might be, but I would be interested to hear. That might well be the case. I am afraid that no hard-and-fast rules can be clearly applied here; or, rather, we have to apply hard-and-fast rules in the knowledge of the grey areas, the exceptions and the situations in which we might feel that the law is unjust in particular cases. We have heard examples of that, such as the evidence about the lady in Australia cited earlier by the hon. Member for Spen Valley. I can well imagine the distress involved if someone suddenly finds themselves in an institution that does not permit an assisted death, but they want one and are in their last days.
The alternative, however, is a different blanket rule. If we were to have a blanket rule that we can do an assisted death anywhere—that is one situation—there would be significant knock-on effects. Serious moral injury would be suffered by other professionals and residents. I recognise that my amendment could lead to someone having to relocate if they want to have an assisted death—I am sorry for that—but I think that we have to draw the line in a way that makes most sense.
Kit Malthouse (North West Hampshire) (Con)
It would be interesting, if my hon. Friend’s amendments go through, to see the series of plebiscites taking place in care homes and communal situations across the country as to what the residents do and do not want, presumably by a majority. He asserted that there had been a mass exodus of healthcare workers when VAD came in, but I am struggling to find any evidence to support that claim. In fact, the evidence seems to say that that is not the case. Although there have been some resignations, that has largely been because of pay and conditions, as one might expect.
Danny Kruger
My right hon. Friend seems hung up on this suggestion that there needs to be a plebiscite or communal decision making—some kind of citizens’ jury. I am not suggesting that for one moment. In fact, I am sure that I have said explicitly that what I want, and what the amendment would enable, is that the owner or occupier, who would probably be an individual or a board of directors, would decide what happens. If they are a decent, compassionate organisation, they might well consult residents—in fact, I would very much expect that to happen if they are doing their job properly—but I am talking about the importance of communal living; and the fact is that a communal living arrangement has leadership. The residents have signed terms and conditions, in a contract, under which they have agreed to abide by certain rules of the house. My suggestion is that if the charity, company or organisation that is managing a care home wants to stipulate that there shall be no provision of assisted dying in that care home, they should have the right to do so. I hope my right hon. Friend would acknowledge that that is consistent with English property rights.
On my right hon. Friend’s second point, I am grateful to him and he might well be right. I am happy to consult my evidence pack, which I do not have at my fingertips, about the effect on the Australian workforce in consequence of the introduction of assisted dying. My memory is that we heard such evidence, or had it submitted to us in written form—his knowledge of the 500 submissions might be better than mine. Let us check and we will have it out, perhaps on social media; I know how much he enjoys those forums.
Question put, That the amendment be made.
Danny Kruger
I am grateful. With great respect to other members of the Committee, I think the hon. Gentleman is the most honest advocate of assisted dying among us, because he genuinely recognises that autonomy demands the widest possible range of eligibility. It might be that other Members feel that we have the balance exactly right. I recognise the force of his argument that if we are going to introduce a new human right, it is very difficult to circumscribe its boundaries. He himself thinks that there should be some boundaries: he proposed an amendment that specified 12 months, and he thinks that only certain people should be able to ask someone else to perform assisted death to them. Nevertheless, he is acknowledging that if we believe in autonomy, the Bill would not satisfy some people.
I think it would be intellectually coherent and more logical for proponents of the Bill to want to repeal section 2 of the Suicide Act, and I do not understand why they are not doing so. We could certainly continue to insist on prohibitions against any form of coercion, persuasion or inducement to take one’s own life, but if somebody is clearly in their right mind and wants to receive assistance to kill themselves, that is the principle of the Bill. It would be neater if we amended the Suicide Act accordingly.
The fact that proponents do not want to do so suggests that they see some value in the law and that they consider that that value trumps concerns about autonomy and the impact of the law on family members of someone who wishes to travel to Switzerland to end their life. I agree that there are such principles—namely, the intrinsic value of life and the protection of the vulnerable—but I do not see why proponents of the Bill consider that such principles trump autonomy when it comes to terminally ill adults in England.
The Minister of State, Ministry of Justice (Sarah Sackman)
It is a pleasure to serve under your chairship, Mr Dowd. My remarks, as ever, will focus on the legal and practical impact of the amendments to assist Members in undertaking line-by-line scrutiny. In exercising our duties to ensure that legislation that is passed is legally robust and workable, the Government have worked closely with my hon. Friend the Member for Spen Valley to reflect her intent.
Clause 24, as amended by amendments 504 and 505, will mean that individuals who assist a person to end their life in accordance with the terms of the Bill are not subject to criminal prosecution. Currently, it is a criminal offence under section 2 of the Suicide Act 1961 for a person to do an act that is
“capable of encouraging or assisting the suicide or attempted suicide of another person”
and intended
“to encourage or assist suicide or an attempt at suicide.”
That offence attracts a maximum penalty of 14 years’ imprisonment. Amendment 504 would amend clause 24(1) to ensure that a person is not guilty of an offence—[Interruption.]
Sarah Sackman
I was introducing amendment 504, which amends clause 24(1) to ensure that a person is not guilty of an offence by virtue of providing assistance in accordance with, or performing a function under, the Bill—for example, by undertaking the first or second assessment or providing the approved substance. The effect of the amendment is to ensure that a person is not guilty of an offence by virtue of assisting a person seeking to end their own life in accordance with the Bill. The phrase “in accordance with” the Bill is key. For example, where someone accompanies a person to the appointment at which they will self-administer the substance, the amendment would carve out any criminal liability for the accompanying person.
As originally drafted, the wording would have limited the protection offered by subsection (1) to the far narrower situation of the medical professionals providing assistance under clause 18. The amendment will give effect to the policy intent of the hon. Member for Spen Valley of applying that protection to all those who provide assistance in accordance with, or by performing a function under, the Bill. Subsection (2) clarifies that the clause does not override other ways in which a court may find that a person is not guilty of an offence.
Clause 24(3) inserts proposed new section 2AA into the Suicide Act 1961. As amended by amendment 505, that new section ensures that it is not an offence under the Suicide Act to perform a function under the Bill, or to assist a person seeking to end their own life by doing anything under the Bill. That is for the same reasons that I set out in relation to subsection (1). The new section also provides a defence to the offence of encouraging or assisting suicide, where a person reasonably believes that they were acting in accordance with the Bill, and that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.
Taken as a package, the effect of these amendments is to make the Bill legally workable. To do that, it is necessary to ensure that those who assist a person to use the lawful route are not then subject to criminal liability for doing so. Clause 24 clause, taken together with amendments 504 and 505, gives effect to that.
Let me address some of the issues raised by Opposition Members. There was a question as to whether there is any overlap between offences under the Bill—we will come to some of those offences in due course with clauses 26 and 27—and offences that remain on the statute book under the Suicide Act. The short answer to the question from the hon. Member for Reigate, although I know she has written to my Department, and I will ensure that she receives a full written answer, is that it would remain an offence under the Suicide Act 1961 to encourage suicide, including an assisted death under this Bill.
To the extent that any overlapping offences remain, that is not an unusual approach to drafting in the criminal law. However, the effect of the clause is that it would remain an offence under the 1961 Act to encourage someone to commit suicide. Where a person’s “encouragement”—the hon. Member focused on that term—is such that it amounts to what the courts would understand to be pressure or coercion, that could be an offence under clause 26, which we will come to. As I said, it is not unusual to have a degree of overlap in criminal offences. Again, what someone is charged and prosecuted with falls to the prosecutor, depending on the specific circumstances of the case and what would be most appropriate in that scenario.
I also want to address the scenario that the hon. Member for East Wiltshire posited, about whether a pharmacist who acted in a way that amounted to gross negligence manslaughter would benefit from immunity under clause 24(1) as amended. Again, with the important caveat that it will depend on the particular facts of the case, the offence of gross negligence manslaughter is committed where a death is the result of gross negligence in what would otherwise be a lawful act or omission on the part of the defendant, and where the defendant owes a duty of care to the victim—there are a number of actors within the Bill’s process who owe a duty of care to the person applying for assisted dying.
Let us assume for a moment that, in the hon. Member’s scenario, we do have gross negligence manslaughter on the particular facts; in those circumstances, the Government are content that the pharmacist could not be properly said to be performing a function under the Bill, or in accordance with the Bill, so clause 24(1)—the carve-out from criminal liability—would not apply. I think that that covers most of the questions that were posited earlier.
Danny Kruger
It may well be that the Minister has clarified the case sufficiently, but will she explain something for my sake? She is suggesting that the pharmacist inadvertently but negligently caused the death of a patient, having performed the duties under the Bill and believing that they were doing so. Surely, they were performing duties under the Bill, so they would potentially be captured by the carve-out.
Sarah Sackman
Again, it would depend on the actual facts. However, if they were attempting to perform duties under the Bill, it is highly unlikely that, in circumstances where the facts establish and meet the threshold of gross negligence manslaughter, they could be said to have carried out those duties in accordance with the Bill. They might have been carrying out duties that they thought were what the Bill prescribed, but if they have done that in such a way that it amounts to gross negligence manslaughter, then clause 24(1) would not apply.
The hon. Gentleman makes the point about what the pharmacist in that scenario believes they are doing; that belief has to be reasonable, and that is a test that our courts are well used to applying. That is why the amendments introduce the belief that someone is acting in accordance with the Bill. It is not enough that they think they are doing it; it has to be a reasonable belief. That is an objective standard.
Rebecca Paul
I thank the Minister for those helpful clarifications. Was any consideration given to also exempting encouragement as an offence under the Suicide Act? I am interested in why it was not exempted in the same way as assistance, particularly given that if it did fall within coercion and pressure—based on what the Minister said—it would get picked up as a criminal offence anyway under the Bill. I appreciate that the Minister will write to me on some of this, but the issue comes back to what is encouragement. As the hon. Member for Spen Valley set out—
Rebecca Paul
My apologies, Mr Dowd, but it is a technical point. I think the Minister understands what I am asking.
Sarah Sackman
Helpfully, the hon. Member has also set out her questions fully and precisely in a letter to me, so I think I know what she is asking and I will try and answer it as best I can. I reiterate, as I and the Minister for Care have said throughout, that the policy choices have been for the promoter—the Government remain neutral. The offence of encouraging or assisting suicide or attempted suicide in section 2 of the Suicide Act is well established. Encouraging someone to go through the assisted dying process under the Bill with the intention of encouraging suicide or an attempt at suicide would therefore remain a criminal offence under section 2 of the Suicide Act. That is what I made clear earlier.
What we are talking about will always depend on the particular circumstances of the case. It is the Government’s view that in a scenario—I think this is what the hon. Member for Reigate is getting at—where a family member or friend simply suggests to a person with a terminal condition that the option of assisted death under the Bill is something they may wish to consider, and nothing more, it is unlikely—dare I say, inconceivable—that that would amount to an offence under the 1961 Act.
However, if someone encourages a person in a more tangible way, such as encouraging or pressuring them to make the first declaration, that could well amount to an offence under the 1961 Act. Where that encouragement crosses the threshold into what, interpreted in line with their natural meaning, the courts would understand as pressure or coercion, that could amount to an offence under clause 26 of the Bill, which we will come to in due course. I hope that that addresses the hon. Lady’s question. I will set that out to her in writing, and she is welcome to write back if there is any ambiguity.
I hope that that assists the Committee. I am going to sit down before anybody else intervenes.
The Chair
May I make an observation? I understand where the hon. Member for Reigate is coming from, but if letters have gone back and forth to the Department and other Committee members are not privy to what they say, the debate gets a little abstract. That is all I am trying to get to—we should not get too abstract, so that everybody knows what is being said.
Jake Richards
I welcome the amendments tabled by my hon. Friend the Member for Spen Valley. As I think she accepts, given that she tabled the amendments, there is an oddity with the Bill as drafted that has to be fixed, and I think the amendments would do that.
I appreciate that there is some force to the argument of the hon. Member for East Wiltshire. I would be interested to hear what the Minister says, but it seems to me that there is a balancing act between ensuring that medical practitioners and clinicians are working in an environment in which they do not constantly feel the heat of a lawyer’s breath on their neck, and ensuring protections. There is some force to the argument for removing the clause altogether, but on balance I see more force in the argument that we should have more clarity.
I want to raise some more issues that need to be considered in the light of the provision for aspects of civil liability in this process. That is why last night I supported the amendment in the name of my hon. Friend the Member for Ipswich, which was not passed, relating to guidance for doctors in certain circumstances during this process. I raise those points about the standard of care and the duty that doctors and clinicians will be working to throughout the process for the record, and so that the Government and my hon. Friend the Member for Spen Valley can take them forward. I raise those questions not because they are unanswerable—I think they are answerable—but because we need to work out exactly what we are asking our doctors to work to, and what form that guidance comes in. Does it need to be legitimised by Parliament, or can it be undertaken by a Minister?
I do not think I need to expand greatly on the point, but we can all imagine circumstances in which clinicians are compromised in their view of the duty of care that they have to the patient. When this process begins in this jurisdiction, it needs to be clear what that is.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd. Well done for arriving on time, by the way.
These amendments aim to ensure that, if passed, this legislation will be legally and operationally workable. I will offer a technical, factual explanation and rationale for them. Amendments 501, 502 and 503 replace clause 25(1) and instead provide that the provision of assistance in accordance with the Bill will, of itself, not give rise to civil liabilities in certain circumstances. Those circumstances are where an individual provides assistance in accordance with the Bill, where an individual performs any other function under the Bill in accordance with the Bill, and where an individual assists a person seeking to end their life under the Bill, in connection with the doing of anything under the Bill. Proposed new subsection (1A) would create an exception to the exclusion of civil liabilities, providing that civil liabilities can arise in cases when an act is performed dishonestly or otherwise than in good faith, as well as in cases of negligence. Without this amendment, there is the possibility that clause 25(1) could provide blanket immunity to a person from all civil liabilities, even when they may have been negligent in their actions in providing assistance in accordance with the provisions in the Bill.
Kim Leadbeater
I will speak briefly on this issue. An important point was made by my hon. Friend the Member for Rother Valley about the protections that clause 25 and these amendments provide for medical practitioners. I think the clause strikes the right balance, but it is important to remove the blanket immunity. My hon. Friend referred to codes of practice and codes of conduct. We have talked a lot about good medical practice from the General Medical Council, and we have a clause in the Bill on codes of practice. I feel confident in the clause, but I am still having regular meetings with officials about the legal implications of the Bill. I will continue those conversations, but I am happy that the clause as it stands serves the correct purpose.
Kit Malthouse
Will the hon. Lady respond to the point about injunctions? The Minister might want to respond to this as well. My understanding is that in order to obtain an injunction, someone does not have to establish that there is either a civil wrong or a criminal offence. They have to establish that there is a serious matter to be adjudicated, and that there is a strong likelihood of harm taking place. In those circumstances, a court would consider granting an interim injunction, subject then to a further hearing, ex parte or otherwise. The idea that some kind of civil tort needs to be established is not actually correct in seeking an injunction.
Kim Leadbeater
That would be my understanding as well, but I am not a lawyer. Fortunately, a lawyer just tried to intervene on me, so he might want to step in.
Sarah Sackman
I will address the point about injunctions, which we have touched on at a number of junctures in our debate. In terms of applying for an interim injunction in a civil case, a very well-established test is the American Cyanamid test, which all the lawyers in the room would have learned at law school. The first of those tests is, “Is there a serious issue to be tried?” Someone does not have to establish to the civil standard—
The Chair
Order. Can we get the order of debate right? Members may make a speech for as long as they want, on the issues they want. They may intervene to get clarity from another Member, but that has to be short and sweet. There is nothing to stop a Member from making another speech, even if they have spoken before. I exhort Members, if they want clarity, to make a speech separately, unless it is a very short intervention. If it is going to be a long intervention, they may well want to make another de facto speech and get clarity through that. They are entitled to stand up as much as they want. I am not encouraging Members to do that, but that is the gist. If the Minister wants to stand up again and clarify the point in its own speech, that is fine.
Sarah Sackman
The clause, as amended by amendments 506 to 509, creates two stand-alone criminal offences that apply when a person uses dishonesty, coercion or pressure to induce a person to do a particular act. Subsection (1) creates an offence of inducing another person to make a first or second declaration, or not to cancel such a declaration, by dishonesty, coercion or pressure. That offence, as we heard, will carry a maximum penalty of 14 years’ imprisonment, ensuring consistency with the maximum penalty under the Suicide Act.
Subsection (2), as amended by amendment 506, creates an offence of inducing another person to self-administer and approve substances provided under the Bill, by dishonesty, coercion or pressure. Amendment 506 replaces “in accordance with” with “under” for this offence. That gives effect to the policy intent of my hon. Friend the Member for Spen Valley that the offence should capture those who induce a person to self-administer a substance that, due to some error in the process, has not been provided strictly in accordance with the processes in the Bill. The amendment therefore ensures that the offence in subsection (2) will operate effectively.
Amendment 508 inserts proposed new subsection (4) to establish life imprisonment as the maximum penalty for the offence in subsection (2). That amendment gives effect to the policy intent of my hon. Friend by emphasising that inducing someone to undergo an unwanted assisted death through a legal system established by Parliament is a grave offence warranting the most severe penalty of life imprisonment. Amendment 507 is consequential on amendment 508 and amends subsection (3) to reflect the policy intent of my hon. Friend that the offence in subsection (2) should carry a maximum penalty of life imprisonment, rather than 14 years’ imprisonment.
Amendment 509, which a number of Members mentioned, amends the clause to provide that neither of the offences could be prosecuted without the consent of the Director of Public Prosecutions. That amendment achieves the policy intent of my hon. Friend that the legislation, first, be consistent with the Suicide Act 1961, which makes the same provision for the DPP’s involvement and where such consent is required; and, secondly, to ensure that spurious prosecutions are not brought, for example, by those who may oppose the process that the applicant for assisted dying is undergoing simply because they oppose it, rather than because of any illegality or criminality. That is the function of having the DPP consent baked into the legislation.
To be clear, the terms “coercion”, “dishonesty” and “pressure” remain undefined in the clause. That was an issue that we touched on right back in the early days of clause 1. Without a statutory definition, the terms will carry their natural, ordinary meaning, well understood by the public and the courts alike.
I want to pick up on two other points touched on in various speeches. The first has to do with the issue of coercion, coercive control and its subtleties, the way in which that is dealt with and, indeed, the painfully low conviction rates for domestic abuse and coercion. I am not seeking to make a wider political point beyond the amendments that we are discussing, but the hon. Member for Reigate and my hon. Friend the Member for Bradford West know that the Government have a mission to halve violence against women and girls. I assure the Committee that, in my capacity as Minister of State in the Ministry of Justice, we are intently focused on addressing that, and ensuring that the criminal justice system plays its part more widely. The offences sit in that context.
The other point that I want to address, and touched on earlier, was the one made by the hon. Member for East Wiltshire about our duties to the statute book. It is right that there is a degree of duplication and to acknowledge that, as the Government do in working with the promoter of the Bill to reflect her policy intent. That is not unusual. It is something those in law enforcement, in particular in the CPS, are well versed in. It will be for them to make the appropriate charging decisions, depending on the facts in the particular case.
The function of the offence created under subsection (2) and the penalty attached to it affect the gravity that the promoter of the Bill sought to indicate for the offence of inducing someone to undergo something through dishonesty, coercion or pressure, in the context of what we all acknowledge is a new process. If the Bill is passed, there will be a new legal regime for assisted dying. The manipulation of such a new regime to ends that are criminalised under the provision is reflected in that specific offence. To be clear, the degree of duplication is acknowledged, but the Government’s view is that that is neither unusual nor poses a problem for the CPS.
Danny Kruger
That is helpful and makes sense. The only justification for duplication must be that the duplication is only partial, which the Minister has just suggested it is. Not a complete overlap—some cases will fall into one category, but not into the other. I wonder if she could help us to understand with an example that would help the CPS when it makes its decisions about which offence to charge someone under—an example of an offence that would be illegal under this clause and not already illegal under the Suicide Act or the laws of homicide.
Sarah Sackman
I am not going to answer that question directly, because I will not get into hypotheticals, which would be a test. I understand the question the hon. Gentleman is asking. As I said, the policy intent here—the policy of including the specific offence within the context of this new legal regime and the signal that doing so would send to all those participating in this regime by attaching the severest penalty of life imprisonment to the offence created under subsection (2)—has been a matter for the Bill’s promoter. The Government have worked with her to create a workable regime.
I will not proffer on my feet a hypothetical factual scenario that would be caught by this offence, but would not be caught under other offences that exist in our criminal law. The point is that overlapping criminal offences exist in our criminal law. That is not unusual. The CPS is well versed in dealing with that. The charging decisions will be for the CPS, with the consent of the DPP. Satisfying the purpose of having criminal liability—to catch those who perpetrate what would be, in any view, a heinous crime, and to deter such crime—would be discharged by the drafting that we have here.
Danny Kruger
I respect the difficulty of the position that the Minister is in, but I am afraid that we have to consider hypothetical scenarios, because we are creating law. Does she acknowledge that, even if she cannot imagine, or cannot suggest to us, a case that falls under the provisions of this clause, but is not caught by the Suicide Act or law of murder, someone who is charged with murder could plausibly claim that, in fact, they should have been charged with the offence under clause 26(2) of the Bill? Plausibly, they could make a case, perhaps through judicial review, that the charging decision was wrong, and we would have months of litigation before we even got to the prosecution beginning. Can she envisage such a scenario happening?
Sarah Sackman
I find that highly implausible; the likelihood is that the CPS will apply the appropriate charging decision to fit the facts as they have arisen. If they have arisen within the context of this legal regime, for someone acting nefariously, dishonestly or coercively about assisted dying, the charge under this clause would be the appropriate one. I find it implausible that the other scenario would arise. As I said, the CPS is well versed in applying the appropriate charging decision to the appropriate crime on the facts of the crime. I will not speculate or hypothesise on what that might be.
Kit Malthouse
As the Minister said, this is not an unusual exercise for the CPS and operates in lots of other areas. For example, the CPS regularly makes decisions about whether to charge someone with grievous bodily harm under section 18 or section 20 of the relevant legislation—they are both forms of GBH. Which one the CPS chooses depends on the circumstances, the seriousness and the level of intent. As she said, the charge naturally—whether it falls under the same Act or a different Act—comes down to the circumstances.
Sarah Sackman
That is a good example. One knows from charging decisions that often, on indictment, one might have multiple offences to capture the totality of the criminal behaviour. Some of those may be made out, some of them may not. What the Government have sought to do here, working with the Bill’s promoter, is to reflect her policy intent: to convey the gravity of the offence in this wholly new legal regime. As the right hon. Gentleman pointed out earlier, we are sanctioning and decriminalising conduct that has previously been criminal, while ensuring that this offence captures what would be criminal under the new legal regime. From the promoter’s point of view, it is important to signal that the Government have worked with her on this, and the Government’s position is that the result, in this amended form of the Bill, gives both some satisfaction to her policy intent and is compatible with how our criminal law routinely works, so it is workable from the point of view of the CPS.
Danny Kruger
I acknowledge the point that the Minister is making. To the point made by my right hon. Friend the Member for North West Hampshire, we are talking not about two categories of offence within the same legal framework, namely GBH, but about two different legal frameworks altogether, the law of homicide and the law on assisted dying. Does the Minister agree that the clause as it is to be amended will create the opportunity for a murderer who would otherwise be convicted of or charged with murder to claim that, in fact, he was committing an offence under the assisted suicide law? We are creating a new opportunity for someone who would otherwise, were it not for this law, be legitimately charged with murder to claim that they are committing this offence instead.
Sarah Sackman
I do not consider that through this amended form of the Bill—if the Committee chooses to vote that way—we will have created an opportunity that could be exploited in that way. The hon. Gentleman said earlier that there has not been consultation on that point, but there has been close working of highly experienced Government lawyers with the promoter to reflect her policy intent.
What the clause interlocking—and indeed overlapping, as I have acknowledged—with the Suicide Act does is prescribe new forms of criminal offence and liability that will capture criminal behaviour, which is ultimately what the measure is about. Tellingly, the punishment attached to the clause 26 offence is the same as the maximum punishment for murder, that of life imprisonment, which is indicative of the gravity of the offence that would be caught.
Kim Leadbeater
That is the point I would like to make: the penalty is the same, but it is important that the offence is specific, hence why I have put it in the Bill. The outcome for the criminal involved, however, would be the same.
Sarah Sackman
That is all I intend to say on this matter. I think we have probably ventilated this particular issue as far as we can.
Amendment 506 agreed to.
Amendments made: 507, in clause 26, page 16, line 9, leave out “or (2)”.
This amendment limits subsection (3) to offences under subsection (1).
Amendment 508, in clause 26, page 16, line 10, at end insert—
“(4) A person who commits an offence under subsection (2) is liable, on conviction on indictment, to imprisonment for life.”—(Kim Leadbeater.)
This amendment provides for a maximum penalty of life imprisonment for an offence under subsection (2).
Danny Kruger
It is good to see you this evening, Mrs Harris.
I have no objection to the hon. Lady’s amendments. I think there is value in broadening the offence to include actions performed intentionally or recklessly, as that is critical for patient safety. Given the finality of the result of assisted death, there should not be any room for carelessness, and liability must ensure that not only deliberate misconduct but negligent record keeping is subject to legal scrutiny. I want to put on the record the evidence we had from the British Journal of Nursing, which has documented the serious risks of poor record keeping in medical practice. That demonstrates how inadequate documentation contributes to clinical errors.
I think the hon. Lady recognises that this is not just a matter of bureaucratic tidying-up. The principle is straightforward: if the decision to assist in ending a life is to be lawful, the documentation supporting it must be unimpeachable. Expanding liability to cover reckless documentation is entirely consistent with existing legal and professional standards in the UK medical profession.
Sarah Sackman
It is a pleasure to serve under your chairmanship, Mrs Harris. I will be brief. As we have heard, clause 27 creates various stand-alone criminal offences regarding the falsification or destruction of documentation related to assisted dying. Amendment 510 replaces “wilfully” with “intentionally or recklessly” in subsection (1)(b), to align the wording with that used elsewhere in the clause. The Government have worked with my hon. Friend the Member for Spen Valley on the other amendments, to tighten up and improve the workability and operability of the Bill.
Amendment 510 agreed to.
Amendments made: 511, in clause 27, page 16, line 22, leave out “that person” and insert “a relevant matter”.
This amendment and amendment 512 clarify that the offence under subsection (2) relates only to an opinion about a matter relating to a function under the Bill.
Amendment 512, in clause 27, page 16, line 23, at end insert—
“(2A) In subsection (2) “relevant matter” means a matter relating to any function under this Act.”
See the statement for amendment 511.
Amendment 513, in clause 27, page 16, line 24, leave out subsection (3) and insert—
“(3) A person commits an offence if they intentionally or recklessly fail to comply with an obligation under—
(a) section 14(1A) or (2) (notification of cancellation of declaration), or
(b) section 17 (recording of cancellations).”—(Kim Leadbeater.)
This amendment clarifies the scope of the offence under subsection (3), by providing that the offence occurs where a doctor fails to comply with a notification or recording obligation in relation to the cancelling of a first or second declaration.
Kim Leadbeater
I beg to move amendment 514, in clause 27, page 16, line 28, leave out subsection (4).
This amendment is consequential on NC24.
Kim Leadbeater
In combination, amendments 514 to 516 and new clause 24 refine and strengthen the legal framework surrounding assisted dying, shifting the focus towards serious fraudulent misconduct and the falsification of documents, and ensuring that prosecutions are conducted with careful oversight by the Director of Public Prosecutions. These changes mark a clear departure from the original drafting, which focused clause 27 more generally on non-compliance with administrative duties, and introduce more severe consequences for deliberate wrongdoing related to the assisted dying process.
New clause 24 is an important addition to the Bill. It creates an offence in respect of certain conduct, where the person engaging in the conduct does so with the intention of enabling another person to obtain assistance under the Act. I made some comments about that previously, so I will leave it there for now, but I hope the Committee will join me in supporting the amendments and new clause.
Sarah Sackman
I intend to be brief. New clause 24 and amendments 514 to 516 create stand-alone criminal offences relating to the falsification or destruction of documentation where a person acts with the intention of facilitating the provision of assistance to another person to end their own life under the Bill. That reflects the policy intent of my hon. Friend the Member for Spen Valley that those who falsify documents with the specific intent of facilitating another to end their life should be subject to a higher maximum penalty than those offences in clause 27.
Amendment 514 agreed to.
Amendments made: 515, in clause 27, page 16, line 31, leave out from beginning to “an” and insert “A person who commits”.
This amendment is consequential on amendment 514.
Amendment 516, in clause 27, page 16, line 36, at end insert—
“(6) Proceedings for an offence under this section may be instituted only by or with the consent of the Director of Public Prosecutions.”—(Kim Leadbeater.)
This amendment provides that proceedings for an offence under this clause may be brought only by or with the consent of the Director of Public Prosecutions.
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Prescribing, dispensing, transporting etc of approved substances
Sean Woodcock (Banbury) (Lab)
I beg to move amendment 442, in clause 28, page 17, line 3, leave out “may” and insert “must”.
This amendment will make it an obligation for the Secretary of State to make regulations on the prescribing and dispensing of approved substances, their transportation, storage, handling and disposal and the associated records with this.
Sean Woodcock
I do not accept that they are not relevant to this clause, I am afraid, but I take on board my hon. Friend’s point. If I may finish my quote, the review continued:
“There is some difficulty in determining which coma inducing mixture has the most evidence, based on the lack of comparative data between each drug regime and different dose trials.”
In their evidence, the pharmacologists wrote:
“Monitoring of drug efficacy and safety should be compulsory in order to assure good clinical care and comply with regulations.”
I agree with that sentiment, and I hope that all hon. Members would too.
The right institutions to approve drugs before use and then monitor their safety during use are those that are named in amendment 443. All substances used for assisted dying must be approved through the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group processes. There are significant risks if this rigorous process is not undertaken. The drugs used for assisted dying must be tested to ensure that they are safe and effective for use in assisted death.
Kit Malthouse
I am very sorry to intervene on the same point as the hon. Member for Spen Valley, but clause 28 is not about the formulation of the drugs or their approval; it is about the administration of the issuing of the drugs by a pharmacist or otherwise. I am sorry if I am misconstruing the hon. Gentleman, but I think he might be off on a bit of a tangent, on a debate that, as the hon. Lady said, we had earlier. As I say, this clause is about the bureaucratic process of the issuing the drugs, not about their formulation or approval.
Danny Kruger
Absolutely; that is what I am doing.
I referenced the debate we had last night, which I hope is within scope, because the suggestion has been either that the Bill insufficiently addresses the need for a regulatory regime for the approval of drugs specifically for the purpose of assisted dying or, as the Government are saying, that the drugs’ existing licences are sufficient for these purposes. Is the Government’s position that there will be no regulator involved and that this will sit entirely with the Minister, as in this clause? If regulators are to be involved, will further legislation be needed?
I will not repeat evidence from the Royal Pharmaceutical Society concerning the legal arrangement, but I will refer to evidence submitted by Máire Stapleton, a pharmacist with more than 30 years’ experience in clinical governance, who made this point:
“Based upon a preliminary review of current published data, it is difficult to see how the regulatory and professional standards for prescribing and dispensing unlicensed drugs can be met.”
There is further evidence to that effect from the Royal Pharmaceutical Society, pharmacists and barristers.
Given that there is so little on the face of the Bill and no guardrails for the use of the power that will be given to the Secretary of State, why is the negative procedure judged appropriate for something of this significance? It cannot be argued that the negative procedure is needed because the amendments might need to be made quickly and frequently—that cannot be the case, because we have not yet authorised the regime. The negative procedure would allow the Secretary of State quite unjustified ability to change these processes without any requirement for a parliamentary debate or vote.
Lord Hermer, the Attorney General, has said that this new Government will take a new approach, considering the
“real need to consider the balance between primary and secondary legislation, which in recent years has weighed too heavily in favour of delegated powers.”
He criticised the previous Government’s
“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation,”
which
“upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values I have already outlined, but also at the cardinal principles of accessibility and legal certainty.
In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards.”
I conclude with this question to the Minister: has she considered the advice of Lord Hermer in coming to a view on the appropriateness of this clause and the way that these powers have been taken? As the Hansard Society notes,
“the Government has an overriding duty of care to the statute book. As such, any powers that may accrue to Ministers because of a Private Member’s Bill must be acceptable to the Government. It must therefore take a view on the powers and their scrutiny”.
Has the sponsor or the Minister consulted with the Royal Pharmaceutical Society on the sufficiency of this power? Has sufficient work been done to look at the workability and operationalisation of this clause? I hope the Committee will join me in supporting these amendments.
Stephen Kinnock
It is a great pleasure to serve under your chairship today, Mrs Harris. Amendment 442 would require the Secretary of State to make regulations for the prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That differs from the Bill’s current approach, which enables the exercise of a power by the Secretary of State to make such regulations.
In practice, where the Secretary of State makes regulations specifying substances for the purpose of the Bill under clause 20, they will necessarily also make regulations for the prescribing, dispensing and transporting of said substances under clause 28. However, requiring, rather than enabling, the regulations under clause 28 to be made may reduce flexibility in terms of their timing as there is a range of technical issues that may need to be resolved—for example, clinical questions on how an approved substance should be prescribed or dispensed.
Amendment 443 would mean that regulations for the prescribing and dispensing of approved substances could be made only in relation to substances that have already been approved by
“the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group”.
That may impact the operational delivery of the Bill as the drafting is ambiguous. One possible interpretation is that the amendment may require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying. That would require additional powers to amend medicines regulations, which are not currently provided for in the Bill. NICE and the All Wales Medicines Strategy Group typically make recommendations only on medicines that have already been proven to be safe and efficacious. They do not approve medicines in the way the amendment implies, and this could infringe upon the role of the MHRA.
Stephen Kinnock
My understanding is that the amendment would place the duty on a medical practitioner. I am speaking to the purpose and effect of the amendment, which is not about a regulator; it is about a medical practitioner. Does that answer my hon. Friend’s question?
Stephen Kinnock
Amendment 445 would require that the Secretary of State make regulations about enforcement, including provision of imposing civil penalties, when making regulations for prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That would be a change from the current approach in the Bill, which gives a power to the Secretary of State to make such provisions. In practice, where the Secretary of State makes regulations specifying substances under clause 20, they will necessarily make regulations under clause 28 for the prescribing, dispensing and transporting of said substances, and on enforcement, which would include imposing civil penalties.
Danny Kruger
Further to the intervention from the hon. Member for Bradford West, I would like to understand whether the Minister envisages an independent regulator of any sort being responsible for overseeing the regime? We currently do not know what that will be—a future Secretary of State will design it—but does he envisage that there will be some sort of regulatory body with that job, and if not the MHRA, who?
Stephen Kinnock
We will at some point get to clause 32, which is about the way in which the system will work, specifically with the NHS, and the role of regulation will absolutely be debated in that context. My sense is that it would be best to confront that issue when we debate clauses 32 and 39. Officials are currently working with the promoter of the Bill, my hon. Friend the Member for Spen Valley. We know that her policy intent is for the service to be an integral part of the NHS, but with some flexibility in the way it is delivered; we have briefly touched on that in previous debates. As an integral part of the NHS, it will have to be a regulated service, based on the foundations of the way in which the NHS is regulated more broadly. I think the answer to the hon. Gentleman’s question is basically yes, but the right place to debate it and potentially amend the Bill would be in clauses 32 to 39.
Danny Kruger
We look forward to the amendments that the Government are working on, but, as part of that process, does the Minister envisage that there will be amendments to NHS legislation itself?
Stephen Kinnock
Thank you, Mrs Harris; you have helped me to answer the hon. Gentleman’s question in a far more pithy and direct way than I could have. I think it is best for us to wait for us to discuss clauses 32 and 39, when we can really get into the meat of the precise issue he raised.
Amendment 521 would change the requirements in clause 28 so that regulations governing the prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances under the Bill must be laid in draft form and approved by resolution in each House of Parliament. This is a change from the current requirement in the Bill that the regulations are subject to the negative procedure. Both procedures are subject to Parliamentary scrutiny. However, the requirement for active debate in both Houses of Parliament as a result of the amendment would extend the timeline to make or change regulations.
Amendment 485 is similar. It would alter the requirement in clause 28 that regulations governing prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances are subject to the affirmative procedure, instead of the negative procedure as drafted. Similar to the change of procedure proposed by amendment 521, the affirmative procedure would extend the timeline to make or change regulations.
That is the end of my observations. I hope they were helpful to the Committee.
Kim Leadbeater
I will speak briefly about amendments 485 and 521, on which I will respectfully disagree—not for the first time—with the hon. Member for East Wiltshire. I believe the negative procedure is perfectly adequate in matters of this kind. We had a similar debate the other day.
I will also speak to amendments 442 and 445 in the name of my hon. Friend the Member for York Central. Although I take on board the comments of the Minister about time pressures, I am minded to support both these amendments. Regulations are important and I have no problem with placing the duty on the Secretary of State in those two instances.
Danny Kruger
The concern is that it should be automatic. I just cite Professor Ahmedzai’s recognition of the frequent necessity, or the distinct possibility, of a referral to the coroner being appropriate. I suggest that it should happen as a matter of course. I would be grateful to understand from the hon. Lady or the Minister under what circumstances they feel it would be appropriate for a coroner to be involved. The difficulty is that we are putting a lot of emphasis on the role of the local medical examiner to decide whether it should be appropriate for the coroner to consider a case; I suggest that they should consider all cases.
The obligation on coroners need not be over-burdensome. Some coroner’s inquests can be dealt with in as little as 20 minutes if matters are simple and not in dispute, which they would be in the great majority of the cases we are talking about. The presence of this jurisdiction—the ability of the coroner to investigate—would be a most valuable safeguard. It would help to identify whether matters have gone wrong in the act of self-administration and the process of dying, which could significantly assist whatever regulatory regime—we are yet to discover that—oversees the process. It could assist the continuous improvement of the regime.
It would also help to identify issues relating to misdiagnosis, which we know happens often. It is remarkable—and worth pointing out in response to the suggestion that terminal diagnoses are always accurate—that one study found, after autopsy, that one in four cases had been misdiagnosed. Doctors might say somebody is dying of a certain condition, but it turns out they were not.
I take the point that a coroner would not be prohibited by clause 29(1) from launching an investigation in appropriate cases, but given that we do not know what we do not know, it might be hard to decide when that is required. With a new scheme like this, it would be best to start with an investigation in every case. If, in a few years’ time, it appears that the safeguard is not needed, a future Parliament could change the law to reduce it, but I implore the Committee to consider the idea that we should start with the safest Bill we can.
Sarah Sackman
Under the Coroners and Justice Act 2009, coroners have a duty to investigate and certify deaths that are reported to them. That duty is triggered when they have a reason to suspect that the deceased died a violent or unnatural death, the cause of death is unknown, or the deceased died while in custody or otherwise in state detention. There are also regulations made under the powers of the 2009 Act that require medical practitioners to notify such deaths to the coroner.
Clause 29(1) disapplies the coroner’s duty to investigate in the case of an assisted death that has been carried out in accordance with the Bill’s provisions. In practice, that would mean the assisted death would instead be certified by an attending practitioner—the doctor who has attended the patient—and scrutinised by an independent medical examiner working in the NHS. Therefore, the attending practitioner and medical examiner, rather than the coroner, would certify the cause of death. It would remain open to anyone—such as a family member or a medical practitioner who has interacted with the deceased and has concerns—to report a death to the coroner if they had concerns that it had not occurred in line with the provisions of the Bill.
Amendment 522 would remove the disapplication of the coroner’s duty to investigate in relation to assisted deaths, essentially reversing the Bill’s current provisions. Consequently, given that assisted deaths are inherently unnatural, the amendment would require that the coroner has a duty to investigate each and every assisted death and then certify the cause of death. To answer the hon. Member for East Wiltshire’s point, the bereaved family would, as I have said, be able to raise any concerns with the medical examiner, and the coroner’s duty to investigate would be triggered if they suspected that death had not occurred in line with the process prescribed.
It is important to note that medical examiners follow their own structured process of investigation. They review medical records, consult practitioners involved in the case and then apply the criteria set out from the Notification of Deaths Regulations 2019 to determine whether the death meets the threshold for a coroner referral. In doing so, they would proactively speak to family members, thereby providing the opportunity for any concerns to be raised; if there are any, they would make the referral to the coroner. I hope that assists the Committee.
Kim Leadbeater
I will be very brief. My understanding is—I think the Minister said this—that the attending practitioner, the medical examiner or anybody else, including family members, could refer to the coroner if they felt it was necessary or suspected anything untoward. If that is the case, I am content that the Bill is fit for purpose as it stands.
Kit Malthouse
Amendment 500 was to clause 21 and we have agreed it already.
Naz Shah
In responding to my hon. Friend the Member for Sunderland Central, I appreciate that we do not want to put too much detail in the Bill, but with some of the commitments that we have made as a Government on collecting data we need to go further. That is for the simple reason that our equality laws are not right when we look at other issues, such as the gender pay gap.
Jack Abbott (Ipswich) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mrs Harris. I was not planning to speak on this group either, but the debate speaks to a number of the things that we have talked about in the past few weeks. I add the caveat that all hon. Members present acknowledge that the promoter of the Bill, my hon. Friend the Member for Spen Valley, has repeatedly made it clear that data collection is essential to what we are proposing. I am also sympathetic to what my hon. Friend the Member for Sunderland Central said about not necessarily needing to put everything in the Bill.
Without trying to sound like a broken record, however—I have made this point several times over the past few weeks—it is critical that in certain situations, although there may be some regulations or inferences that exist that may lead to certain outcomes that we on this Committee would all like to see, there is nothing necessarily wrong with putting them explicitly in writing.
Hon. Members have used different stats from different jurisdictions in their own way to lend weight to their arguments, and although many of those stats are relatively consistent in a number of areas, they are not necessarily decisive. I cited a stat yesterday when speaking to an amendment that around 10% of people using the assisted dying route have complications during the final stages, but as I said then, that came from an incredibly small sample size of just over 100 people.
It is therefore critical that, if the Bill is passed and we go down this path, we pursue robust and expansive data gathering in a number of different areas, and I am sure that any Government would look to do so. As long as it does not create any loopholes or unintended consequences, that sort of evidence gathering should be in the Bill because, at the very least, that would provide reassurance that it will happen if the Bill is passed.
Sarah Sackman
I do not have a lot to add, but I point out that, as the Bill stands, clause 34 requires the chief medical officer to, among other things, submit an annual report to the relevant national authority on the operation of the Act. Amendment 382 tabled by my hon. Friend the Member for Spen Valley would make the voluntary assisted dying commissioner responsible for that function instead. Amendment 274 would require that the report under clause 34 contains an analysis of the additional information to be collected under new clause 10 and amendment 273. I remind the Committee of that because we are discussing what information should be gathered, and at what point in the process. There is then the monitoring, reporting and co-ordinating function performed by the voluntary assisted dying commissioner, should those later amendments be passed.
Kit Malthouse
My assumption is that once a commissioner is appointed, and in drawing up the regulations and guidelines for reporting, there will be consultation between the Government and the commissioner about what the commissioner actually wants to report on. From what the Minister is saying, I assume that, unless we collect the data, the commissioner will have nothing to say in their report.
Sarah Sackman
I thank the right hon. Gentleman for that intervention, and that is exactly why I made that point. One of the design features of the commissioner model is the monitoring function, through which they will undertake annual reporting and an assessment of patterns in the practice, should the legal regime come into force. That is exactly how I anticipate it working.
The commissioner can also be self-correcting and say, “We need to see more information on this because it is a concern. We have this equalities data”—or whatever data we have collected—“and we need to see more on this aspect, because this pattern is a concern to us or it would help to illuminate how the practice is operating.” That is all I wanted to add, because one has to appreciate the operation of the regime as a whole.
Kim Leadbeater
As has been alluded to by various Committee members, I fully support the intention behind amendment 273, but I think it will be covered already. I have mentioned my amendment 500, but amendment 455 is probably more pertinent. It looks at the annual report that the assisted dying commissioner would produce, which makes reference to protected characteristics, and sets out that any other such data can and should be collected under regulations.
I am therefore confident that that report would encompass the points made by amendment 273, and that reference is made to the analysis that is covered by amendment 274. I feel confident that the intention will be met by the introduction of the voluntary assisted dying commissioner, but I wholeheartedly agree that data collection is a fundamentally important part of the process.
Kit Malthouse
Obviously the hon. Lady is a London MP, but I gently point out that particularly in a London context—and in other urban areas—someone’s postcode is actually a very poor indicator of socioeconomic status. I represented central London as a London Assembly member for eight years and, in large parts of central London, there is social housing in the same postcode as extremely expensive houses running into the many millions.
Sarah Olney
I know: the Barnes ward in my constituency is one of the most unequal wards in the country, so I fully appreciate the right hon. Gentleman’s point. As I say, that is the socioeconomic indicator that I have for now, thanks to the failings of our predecessors to include it in the Equality Act, but I am open to amendments on Report if anybody has something more compelling. I do think that it really matters that we look at the socioeconomic status of people who are seeking an assisted death, and I welcome feedback—and, as I say, further amendments—on how that particular part of clause 29 could be improved.
Lastly, I included whether someone has a disability, which obviously has come up many times in the written and oral evidence. That is why I specified those characteristics in response to the evidence that we received, and why I am keen to press amendment 273 to a vote.
Amendment 273 agreed to.
Danny Kruger
These amendments were tabled by the hon. Member for York Central. As discussed, clause 29 requires the Registrar General to
“prepare and lay before Parliament a report providing a statistical analysis of deaths”
arising. We have spoken before about the paucity of data from other jurisdictions and the problems arising when data is not collected from the start; when data is collected only in relation to one thing, such as disability in Canada; when data collection is suddenly discontinued, as in Washington state as I understand it; or when data is insufficiently granular, so that we get only the headlines. I therefore think that this approach is valuable, and I welcome the Committee’s decision to support amendment 273 tabled by the hon. Member for Richmond Park. Amendments 446 and 486 would ensure that we fix those problems from the start.
Amendment 446 would give the Secretary of State the power to specify the datasets that must be made available, and those must be approved by Parliament. MPs would then be able to interrogate what data we are collecting and what questions that enables us to answer. Ensuring that that is determined by regulation places it in law, and ensures ministerial responsibility and parliamentary oversight.
Amendment 486 sets out the data that must be included. That includes demographic information, including breakdowns by protected characteristics—and I acknowledge the conversation that has just been had on that topic—and the length of time between the taking of the approved substances and the time of death. It strikes me that that is a very important consideration. I hope that that would be specified in the data that the Registrar General will provide, but that is not clear at the moment. It is also vital that any complications are properly reported—not just recorded, but reported.
I do not propose to push these amendments to a vote; I think that the argument has been sufficiently made. I am grateful to the Committee for supporting the previous amendment. However, I wish that things were otherwise and that we were specifying more clearly what data will be collected. I hope that perhaps this debate will encourage the Registrar General to ensure that the most comprehensive data is presented to Parliament.
Sarah Sackman
In light of the hon. Gentleman’s remarks, I do not have anything further to add, other than to note what he has said.
Danny Kruger
I want to quickly explain that my amendment 523 is consequential on amendment 447, but there is drafting issue. I will not go into the details but, if amendment 447 is made, as I understand it will be, my amendment 523 is not necessary. I would be grateful for the Minister’s guidance: if he has been advised by parliamentary counsel that the clause as amended by amendment 447 is okay and there is no need for amendment 523, I do not propose to press it to a vote.
Stephen Kinnock
This group of amendments relates to clause 30 of the Bill and the codes of practice that may be issued by the Secretary of State.
As the Bill is drafted, the Secretary of State may issue one or more codes of practice in connection with arrangements pertinent to the assisted dying process. Amendment 447 requires the Secretary of State to issue such codes, substituting “must” for “may”. As such, codes of practice would need to be issued for all matters listed in clause 30(1).
Amendment 394 has the effect of broadening to Secretary of State’s power to issue codes of practice, explicitly enabling the Secretary of State to issue guidance in connection with
“information and support to persons with learning disabilities who are eligible to request assistance”
under the Bill, including information and support about the role of advocates. I note that under the Equality Act 2010, health providers are already under a duty to make reasonable adjustments in the provision of services, including for persons with a learning disability. That duty includes taking steps to provide information, including on what support services are available.
As drafted, clause 30(1)(c) provides that the Secretary of State may issue codes of practice on
“the arrangements for ensuring effective communication in connection with the provision of assistance…including the use of interpreters”.
Amendment 448 provides that, if the Secretary of State issues codes of practice that include the use of interpreters, those interpreters should be “registered and qualified”. The amendment would limit those who are able to translate to only those who are registered and have a recognised qualification. However, the amendment does not state who or what such a registration would be with, or what would constitute a recognised and appropriate level of qualification.
Amendment 534 adds to the list of codes of practice that the Secretary of State may issue. The addition is a code of practice on the acceptable forms of proof of identity when a person makes a first declaration. Clause 6(3) of the Bill already provides a regulation-making power that sets out the acceptable forms of proof of identity. Amendment 534 would give the Secretary of State a power to make codes of practice about how someone can ensure they are compliant with the requirements set out under clause 6(3). The amendment has little practical effect, because clause 30(1)(e) already provides a wide power for issuing codes of practice, providing that the Secretary of State may issue codes of practice on
“such other matters relating to the operation of this Act as the Secretary of State considers appropriate.”
Amendment 523 allows the Secretary of State to issue further codes of practice at his discretion, should they not be covered by the preceding subsection (1) of this clause. The Bill’s promoter has said she is minded to support amendment 447, and the hon. Member for East Wiltshire asks whether, if amendment 447 is incorporated into the Bill, that renders amendment 523 unnecessary or surplus to requirements. I am not entirely sure, so I will quickly check while the Bill’s promoter is making her remarks and come back to him immediately.
Kim Leadbeater
I thought we were going to get a full house with this group, but let us have a look. I am minded to support amendment 447, as I have previously said. I will wait to hear from the Minister the impact that that will have on amendment 523.
Stephen Kinnock
I can confirm that amendment 523 is a helpful amendment as 447 is incorporated, so that is all fine—we are good with that.
Kim Leadbeater
That is very helpful indeed. In that case I am very pleased to support amendment 523 in the name of the hon. Member for East Wiltshire as well. I am also minded to support amendment 394 in the name of my hon. Friend the Member for Bexleyheath and Crayford, which I think is very sensible, like his other amendments that I have supported. I am not sure that amendment 534 in the name of my hon. Friend the Member for Ipswich is entirely necessary, but I fully understand the sentiment and therefore I am minded to support that amendment as well.
That brings me on to the final amendment, 448. I wanted to support this amendment, but I have taken on board the Minister’s comments on the lack of clarity about what it means to be registered and qualified. As such, I cannot support that amendment this evening, but I think we could look at coming up with something on Report that would achieve the objective that my hon. Friend the Member for York Central intended.
Amendment 447 agreed to.
Amendment made: 394, in clause 30, page 18, line 24, at end insert—
“(ba) the provision of information and support to persons with learning disabilities who are eligible to request assistance to end their own life under this Act, including the role of advocates for such persons;”—(Daniel Francis.)
Amendment made: 416, in clause 30, page 18, line 25, leave out paragraph (c).—(Jack Abbott.)
This amendment is linked to Amendment 417.
Amendment made: 430, in clause 30, page 18, line 30, at end insert—
“(da) responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails;”.—(Daniel Francis.)
Stephen Kinnock
Amendment 517 relates to new clause 25, which I will come to next. The amendment would make provision for the Secretary of State to issue a code of practice regarding arrangements for a qualifying person to receive the support of an independent advocate, as set out under new clause 25. The new clause would require the Secretary of State to make regulations about the appointment of independent advocates.
The role of the independent advocate would be to provide support and advocacy to a qualifying person seeking to understand options around end-of-life care, including the possibility of requesting access to assisted dying. A qualifying person is defined in the new clause as someone who has a learning disability, a mental disorder as defined under the Mental Health Act 1983, or autism; or who might experience substantial difficulty in understanding the processes or communicating their views, wishes or feelings; or who meets criteria specified by the Secretary of State in regulations.
Although the new clause would require the Secretary of State to make regulations about the appointment of independent advocates, there is discretion as to what those regulations should include. The new clause sets out a non-exhaustive list of the things that the regulations may provide. The effect of this is that the new clause leaves open who would be obliged to ensure that an independent advocate is present and the precise nature of the obligations around their appointment. It is also unclear how a person would be determined to be a qualifying person, as the definition is quite broad and encompasses a wide range of people with varying support and advocacy needs.
Finally, although the new clause would enable provisions to be made about payments of independent advocates, it is not clear who would make these payments or how they would be funded.
I hope those observations were helpful to the Committee.
Kim Leadbeater
My hon. Friend the hon. Member for Penistone and Stocksbridge has made a powerful and passionate case for the provision of independent advocates, and, as always, has done an outstanding job of advocating for people with disabilities, including learning disabilities, mental disorders and autism, as she has done throughout this entire process.
It is essential that anybody considering the choice at the end of life made possible by this Bill should fully understand the nature and consequences of any decision they may make. These amendments have made me reflect on comments—I think made by the hon. Member for East Wiltshire a few weeks ago—about the purpose of the Bill. He proposed that the Bill is either about choice and autonomy or it is about safeguards. Actually, this group presents very clear evidence that it is and must be about both, and I hope he can support the amendments.
I take on board the Minister’s comments. I heard an element of caution from him, and I am happy to work with the Government and my hon. Friend the Member for Penistone and Stocksbridge if there are any further requirements prior to Report stage, but I am very happy to support the amendment and the new clause.
Danny Kruger
The point I am making is that we are suggesting that some future Secretary of State, in a different Government of which we know nothing, might decide to issue codes of practice that will determine how this process is delivered, but I will leave that point.
We must address the weak status of these codes of practice. I regret that they are being left in this weak form. At a minimum level, we should require that they are properly complied with. This cannot be remedied after the Bill has passed. No matter how strong the language in the codes of practice, that language cannot override or change the nature of a statutory duty. Any enhanced duty has to come from a source external to the document being considered itself—namely, the statute. I ask the hon. Member for Spen Valley, why not insist that practitioners comply with the relevant provisions of the code?
Stephen Kinnock
I will speak on amendment 524, in the name of the hon. Member for East Wiltshire. As the Bill stands, a person is required to “have regard to” any codes of practice issued by the Secretary of State when performing a function under the Bill. Amendment 524 would mean that individuals are instead required to “comply with” the codes of practice issued. That could limit someone to doing only what is specified in the code, rather than allowing them to exercise their professional discretion to perform the function in the most appropriate way, having given regard to the code. It is also unclear from the amendment who would monitor or enforce compliance with the codes. Codes of practice are normally detailed practical guidance on how to comply with legal obligations, and are generally not legally binding.
I hope those observations are helpful to the Committee.
Kim Leadbeater
I understand the sentiment behind the amendment, but as the Minister said, codes of practice serve a particular purpose. Everyone has to comply with and abide by the law, but codes of practice are there to assist in the exercise of a person’s professional judgment. I worry about losing the ability for professionally trained and regulated people to use their professional discretion and have the flexibility they need to do their jobs well, if we accepted this amendment.
I think the hon. Member for East Wiltshire answered his own question in his description of what a code of practice does. Although the amendment comes from a good place, I cannot support it. We need to have flexibility, and trust in our professionals to do their job.
Daniel Francis
These amendments refer to the oral evidence we received from Mencap. They would add provisions to ensure those consulted in the preparation of the chief medical officer’s guidance include persons with learning disabilities. I commend the amendments to the Committee.
Stephen Kinnock
Clause 31(2) provides that, before preparing guidance under the clause, the relevant CMO must consult such persons as they consider appropriate. Amendment 395 would add a duty for the CMO to consult persons with learning disabilities before preparing such guidance. That may call into question why other specific groups are not expressly listed.
Amendment 396 would include persons with learning disabilities as an additional category of people to which the CMOs must have regard in relation to preparing practical and accessible information, advice and guidance under clause 31. The effect would be to include persons with learning disabilities as a specific category of people in addition to the listed categories. This could imply that those with learning disabilities would not already be included in one of the categories already listed, namely
“persons requesting or considering requesting assistance to end their own lives…next of kin and families of such persons”
and “the general public.”
Clause 31 sets out a duty on the chief medical officers for England and Wales to publish public-facing guidance relating to the operation of the legislation. It has rightly been a matter for the Committee to determine amendments to the clause, and the Government will respect the will of Parliament. As Members will know, the Government have been working with the Bill’s promoter, my hon. Friend the Member for Spen Valley, on amendments to ensure that, if passed, the legislation will be legally robust and workable.
On this clause, we intend to support the development of further such technical amendments on Report. Where amendments are required to clarify the obligations in relation to the preparation of guidance, we will work with the promoter to ensure that MPs receive good notice to give them adequate time for consideration. I hope those observations were helpful for the Committee.
Kim Leadbeater
I briefly show my support for these amendments that have been tabled by my hon. Friend the Member for Bexleyheath and Crayford.
Amendment 395 agreed to.
Amendment made: 396, in clause 31, page 19, line 14, at end insert—
“(ba) persons with learning disabilities;”—(Daniel Francis.)
Clause 31, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Bambos Charalambous.)